19:34 - e divided: - Ayes: 220 / Noes: 301 - Question accordingly negatived.
19:46 - divided: - Ayes: 222 / Noes: 301 - Question accordingly negatived.
Caroline Lucas
I do not see that as being more of a risk under my new clause, the advantage of which would be that we would not be involved in a so-called stop-and-seizure approach, which we know is often not effective. Summary stop powers do not yield effective results—Her Majesty’s inspectorate of constabulary has found that in most years since 2001, more than 1 million people have been stopped and searched, but only 9% were subsequently arrested. If the summary sanction were the removal of a passport, that failure rate would be too high. In addition to risking injustice for the individuals concerned, such an approach would serve to perpetuate a climate of fear and suspicion rather than encourage good relations between different communities in British society.
The Home Secretary herself recently recognised the prejudicial nature of stop-and-search powers and sought to scale them back. She stated:
“Nobody wins when stop and search is misused. It can be an enormous waste of police time and damage the relationship between the public and police.”
It appears odd to legislate for a new stop-and-search-type power when the problems that such an approach causes have been clearly identified and when it is contrary to the Home Secretary’s policy on stop-and-search away from the borders.
I do not think that my suggestions in new clause 8 would reduce our ability to ensure that we are secure. On the contrary, they would make us better able to know where people are, and crucially, they would mean that we would not use so-called stop-and-seizure powers, which have been discredited and are not very effective.
The Minister for Security and Immigration (James Brokenshire)
I am grateful to the right hon. Member for Delyn (Mr Hanson) for the opportunity to debate a number of provisions relating to part 1 of the Bill, particularly the power of passport seizure and, most relevantly, schedule 1.
The right hon. Gentleman highlighted some of the real-life events that are taking place elsewhere. We will all have been shocked to see the pictures on the television screens during the past few hours. The incident in Sydney is profoundly shocking, and it is deeply distressing to hear of the fatalities that have arisen from the hostage situation. The facts are still emerging, but our thoughts are with the families of those caught up in the tragic events. We all stand with the Australian Government and the people of Australia in utterly condemning anyone who would seek to use violence to advance political ends. The incident reminds us again that we must all be vigilant.
I will turn shortly to the new clauses and amendments, including amendment 13, which is in the name of my right hon. Friend the Home Secretary. In the light of the debate, however, I think it will be helpful if I make some general points about the power of temporary passport seizure and its importance.
The increasing number of people travelling to engage in terrorism-related activities overseas, and returning to the UK with enhanced terrorist-related capabilities, means that we need an additional power to disrupt an individual’s ability to travel at short notice. The Government are clear: we will provide the police with the powers they need to stop people travelling to fight for terrorist organisations overseas. Clause 1 makes provision for schedule 1 to the Bill, which provides for the
“seizure and temporary retention of travel documents”
at port by the police. Under the schedule the police—and designated Border Force officers at the discretion of the police—can seize and retain a travel document when they have reasonable grounds to suspect that a person at a port in Great Britain intends to leave to engage in terrorism-related activity outside the UK. That power can also be exercised at a port in the border area in Northern Ireland.
Right hon. and hon. Members have highlighted different measures, and existing powers have different tests and focus on different things. The new measure is significant because it will give the police, or Border Force officers directed by the police, power to seize travel documents, including passports and travel tickets, at a port to disrupt immediate travel—I underline that point—based on “reasonable suspicion” that an individual is travelling for terrorist-related activity. The passport is not cancelled and the document can be held for up to 14 days or, as we have heard, 30 days if the retention period is extended by a court.
Lady Hermon
This important Bill does not just apply to international terrorism, it applies to terrorism, and we in Northern Ireland have been afflicted for years by terrorism waged by dissident republicans. Will the Minister confirm whether he has been to and driven along the border between the United Kingdom and the Republic of Ireland? How many border posts and Border Force officials did he meet on that trip?
James Brokenshire
I had the pleasure of visiting Belfast on a number of occasions when I was security Minister, but I have not travelled along the direct route that the hon. Lady highlights. The important point is that the power clearly applies to people who are seeking to leave the United Kingdom to engage in terrorist-related activity outside the UK. We are arguing for such a power because of the effective way that it can disrupt terrorist-related activity.
Lady Hermon
I am sincerely grateful to the Minister for giving way because this is a really important point. We have a very open border between Northern Ireland and the Republic of Ireland, and we are the only part of the United Kingdom that shares a frontier with another EU member state. There is no border built; there is no wire or wall, and it is full of little lanes and easy access to the United Kingdom. I am extremely anxious to ensure that Northern Ireland does not become the soft underbelly of the rest of the United Kingdom for those who would wish us ill or want violence in this country. Will the Minister consider increasing the number of Border Force officials along the porous border between Northern Ireland and the Republic of Ireland?
James Brokenshire
I understand the hon. Lady’s sincerity and the manner with which she has advanced her point, and we must be vigilant about risks and threats that may be posed to the United Kingdom, whether in Northern Ireland or any other part of the UK. There is good work between the Police Service of Northern Ireland and the Garda Siochana, and the United Kingdom and the Republic of Ireland have a clear joint interest in ensuring border security. Indeed, we very much consider the common travel area to be an external border, which is why we work closely with the Republic of Ireland to ensure that it remains effective and in no way goes down the path mentioned by the hon. Lady. The Government must maintain that sense of vigilance and focus.
Mark Durkan
I represent a border constituency and we do not particularly want the border demarcated further in ways that applied historically. Schedule 1 defines the border area as one mile from the border with the Republic of Ireland. Is that as the crow flies, or when travelling? If there is a dispute about where the person was stopped and had their passport seized, how will the question of where the seizure took place be resolved?
James Brokenshire
Ultimately, those facts will concern any challenge that may be made, and a review may be undertaken of the proper exercise of the power and oversight provided for in the Bill. The right hon. Member for Delyn commented on the nature of the protections in the Bill. I hope that will assure the hon. Member for Foyle (Mark Durkan) about the way such things would be advanced and protected, and that oversight is provided to deal with the issues he has raised.
Jeremy Corbyn (Islington North) (Lab)
Will the person whose passport or travel documents are removed be informed of the reason they have been taken away? The maximum time the passport can be held without going through a legal process is two weeks. When does the Minister envisage that there will be a review of that decision, and when can the person reasonably expect to get their documents back and be allowed to travel? The points made by my right hon. Friend the Member for Delyn (Mr Hanson) were clear—the issue is one of access to a judicial process, rather than an executive decision, which is effectively what the removal of the documents would be.
James Brokenshire
The hon. Gentleman leads me neatly to mention a number of protections in the Bill, and to say how we will ensure that the exercise of this power is proportionate and suitably circumscribed by a range of stringent safeguards. Some of the points about the need for speed and assurances about the exercise of such powers have been well made. A powerful power is being advanced in schedule 1, and those who exercise it must be satisfied that it is necessary to retain the relevant documentation. The different mechanisms available to challenge a decision underscore why we regard current protections as proportionate to this power.
In essence, officers who might exercise the power would be governed by a specific code of practice that would specify how they are to use it. Paragraph 2 of schedule 1 states that the constable must have
“reasonable grounds to suspect that the person is there—”
in the port—
“with the intention of leaving the United Kingdom for the purpose of involvement in terrorism-related activity”.
The officer then has to seek a further review by a senior police office of at least superintendent level to confirm that the power is appropriate in that case. There is a further review by an officer of chief superintendent rank within 72 hours of the officer’s findings, and that is referred to the chief constable who must remain satisfied with the case. Even from an administrative perspective there are a significant number of checks and balances to ensure that the power is being exercised effectively. If the documents are to be retained beyond the 14-day period, there is a court process and a review to consider how further oversight should be provided.
Mr Geoffrey Cox (Torridge and West Devon) (Con)
I completely understand why the Government have decided that within the 14-day period there should be no appeal or review, but I cannot understand why paragraph 8 of schedule 1 prohibits or prevents the judge from considering whether there is a basis for the order or retention in the first place. All the judge can do is ensure that those who are considering the matter are doing so diligently. He is not able to look at the foundation and basis for the entire retention—at whether there are reasonable grounds for suspicion.
James Brokenshire
My hon. and learned Friend highlights the mechanisms provided in paragraph 5 of schedule 1 on the manner in which the judge must be satisfied with the continued need to retain the documentation. His point is the basis or central tenet for the use of the power in the first place. Indeed, I think this relates to the point advanced by the right hon. Member for Delyn in one of his amendments. Judicial review is available to challenge the basis of the original decision. Therefore, there is a judicial right to question and challenge the basis on which the officer has used the power in the first place, as set out in paragraph 2 of schedule 1. We therefore believe there is a direct means to be able to challenge the underlying decision.
John McDonnell (Hayes and Harlington) (Lab)
The Minister refers to a point raised by my right hon. Friend the Member for Delyn (Mr Hanson). Judicial review is an extremely difficult and expensive route to secure justice. The point about magistrates, as the hon. and learned Member for Torridge and West Devon (Mr Cox) says, is the diligent and expeditious use of an administrative power. Where there are grounds for a simpler right to appeal relates to a point made by the hon. Member for Brighton, Pavilion (Caroline Lucas), which is where someone has suffered repeated instances of having their documents taken off them. On that basis, a swift appeal system would at least give some confidence that it was not being used indiscriminately.
James Brokenshire
For the relevant document to need to be retained, the provisions in paragraph 5 of schedule 1 must remain outstanding: there must be consideration of whether the Secretary of State would use the royal prerogative, whether there are charges to be brought against that person, or whether there are other measures that may be relevant. The requirement still needs to be satisfied, which is why we have brought in the 14-day provision to ensure direct oversight and checks and balances through the mechanisms in the schedule.
On cost, following further discussions with the Home Office and the Ministry of Justice, it may be helpful to clarify and expand on the evidence I gave to the Joint Committee on Human Rights on 3 December, on the availability of legal aid for those subject to the proposed temporary passport seizure powers and to provide clarity on the potential scope of legal aid in this context. I have written to the Chair of the Joint Committee today on this issue.
Legal aid would potentially be available for the magistrates court proceedings provided for in the Bill, but at present that would be a discretionary decision for the director of legal aid casework. The Government are considering whether it would be proportionate to bring those proceedings within the scope of the general legal aid scheme to put individuals’ access to legal aid, subject to the statutory means and merits tests, beyond doubt. Legal aid is available under the general civil legal aid scheme for judicial review challenges by those subject to the temporary passport seizure power and the temporary exclusion order power, subject to the statutory means and merits tests.
Returning to the provisions, a code of practice will provide clear guidance on how police and Border Force officers will exercise the powers. The Government will carefully review all responses received to the consultation that we propose to undertake in respect of the code, to ensure it contains effective guidance and provides clarity to officers on how the new powers should operate. The power is a proportionate and prudent response to the threat we face. It will allow the police to disrupt travel at short notice when there is reasonable suspicion that someone is travelling for terrorism-related purposes.
Let me now turn to the amendments before us. I shall deal first with those from the Opposition. Amendment 17 seeks to provide a process for individuals to appeal to the courts against the decision to remove their travel documents at port. As I have described, the Bill already provides a specific court procedure. In addition, the individual can decide, at any time, to seek a judicial review of the initial passport seizure in the High Court, where closed material proceedings may be available to allow consideration of any sensitive material. I do not believe, therefore, that the amendment adds a significant additional safeguard to the use of this power.
Amendment 29 seeks to introduce a sunset clause to the temporary passport provisions. Doing so may send an inadvertent message to would-be jihadist travellers of our lack of intent to deal with the threat they pose if they believed that the powers would end in two years’ time. Terrorism-related travel is a serious and ongoing issue. Our law enforcement agencies need to have a range of tools at their disposal to deal with it in a necessary and proportionate way. I wish we could be confident that the conflicts that attract these individuals will be resolved in two years, but it would be imprudent to plan on that basis.
James Brokenshire
I am glad the right hon. Gentleman raises that point. The parallel I think he seeks to draw is not relevant in this context. As he well knows, the Data Retention and Investigatory Powers Act 2014, to which this provision relates, contains a sunset clause because of the need to have further and wider debate on communications data. What we are talking about here is a specific and focused power to deal with the immediate operational needs of our police and law enforcement agencies at the border to disrupt terrorist travel. Therefore, the parallels he seeks to adduce between the two clauses do not actually stack up.
Lady Hermon
The Minister referred to sending out a very clear signal to jihadists who wish us ill in this country. I agree entirely and I am sure the Committee agrees too. May I invite the Minister to confirm that the Bill will also apply to dissident republicans who sit in the Republic of Ireland and wish to bomb and murder prison officers and other members of the security forces within the United Kingdom, particularly in Northern Ireland, so that the message is as loud and clear to dissident republicans as it is to jihadists?
James Brokenshire
Terrorism can take all sorts of different forms. The Bill is rightly not specific on what terrorist-related activity outside of the UK may be relevant, so I think the power is appropriately drafted.
The hon. Member for Foyle (Mark Durkan) raised a point about the one-mile limit and I am conscious that I have not addressed it. The Northern Ireland border area is defined in the same terms as in other legislation, such as schedule 7 of the Terrorism Act 2000. The Northern Ireland border is one mile from the Republic of Ireland as the crow flies. I hope that provides certainty.
Let me now turn to the amendments tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). As she has explained, they would remove the temporary passport seizure provision in its entirety. She also flagged up a point relating to the availability of police bail. I am sure the hon. Lady takes public safety extremely seriously, particularly in the current climate where we are facing the biggest challenge to our security since the horrific attacks of 9/11. The nature of terrorism-related arrests inherently means that the exact risk to the public from an individual, or their suspected involvement in a terrorist plot, may not be well understood at the early stages of an investigation. That is part of the reason why the police also have the power, 48 hours after the arrest of a terrorist suspect, to apply to the courts for a warrant of further detention to extend the initial detention up to a maximum of 14 days, subject to the seven-day review. To grant bail as the hon. Lady would want to, and at the stage she would want to when significant parts of an investigation are still ongoing, would increase the risk of potentially dangerous individuals being released before they have been sufficiently investigated. That is a risk the Government are not prepared to take.
In preparing for this debate, I noted that when the right hon. Member for Delyn was a Minister back in 2009 he made exactly the self-same point. There are certain issues we disagree on, but his statements on the record underline the issues relating to the use of police bail and other relevant factors. We continue to judge, responding to David Anderson on this very point, that the granting of bail is not appropriate.
Caroline Lucas
Plenty of experts who agree that our security is the ultimate goal also see that my amendment is more robust than the Government’s proposal. With bail, one can attach a wide range of conditions, including curfews, restrictions and so on, and it is simply an anomaly for our security forces not to have this tool in their toolbox should they need it for terrorism.
James Brokenshire
The hon. Lady has made that point several times, and she has been consistent in advancing her case, but there is a balance of risk, and we judge that bail in these circumstances would not be appropriate because of our fundamental focus on protecting national security. Furthermore, the Bill provides appropriate safeguards in several different ways to ensure that it is proportionate and meets the issues of necessity.
Finally, the Government are making a technical amendment in relation to the code of practice. Amendment 13 would
“make it clear that the Secretary of State can comply with the obligations”
in paragraph 19
“to publish a draft of the code…to consider representations, to make any appropriate modifications”
in the light of those representations
“and to lay the draft before Parliament by doing so before the Bill receives Royal Assent.”
Without the amendment, it could be argued that such things would only be valid if done after the Bill becomes an Act. The amendment removes any doubt about that.
With the assurances I have given, I hope that the right hon. Member for Delyn and the hon. Member for Brighton, Pavilion will be minded not to press their amendments.
Mr Hanson
I am grateful to the Minister for his explanations and for reminding me that I have form on police bail as a Minister in the last Government. He will be pleased to know that although I gave the hon. Member for Brighton, Pavilion (Caroline Lucas) the opportunity to make her case, we do not support it, having listened to it. We might have form on this issue, but that form is consistent with our approach to the matter.
Our amendment 29, on a sunset clause, and amendment 17, on the right of appeal, still bear merit. The Minister has not convinced me that a sunset clause would be damaging in the long term to the Bill. Neither, given the concerns of Members such as the right hon. and learned Member for Beaconsfield (Mr Grieve) and others about appeals, am I persuaded not to press amendment 17.
The Temporary Chair (Mr Gary Streeter)
With this it will be convenient to consider the following:
Clauses 3 to 10 stand part.
Amendment 14, in clause 11, page 7, leave out lines 16 and 17 and insert—
““specified individual” means a person named in a notification and managed return order and in relation to whom Conditions A-D of section [Notification and managed return orders] are met.
“a carrier” has the same meaning as at section 18.”
Amendment 15, page 7, leave out lines 20 to 24.
Amendment 16, page 7, leave out line 41.
Clause 11 stand part.
New clause 4— Notification and managed return orders—
‘(1) A “notification and managed return order” is an order requiring a person (“a carrier”) to notify the Home Secretary that—
(a) a specified individual intends to travel to the UK, and
(b) the date, time and location of the specified person‘s scheduled arrival.
(2) The Secretary of State may impose a notification and managed return order if conditions A to D are met.
(3) Condition A is that the Secretary of State reasonably suspects that the specified individual is, or has been, involved in terrorism related activity outside the United Kingdom.
(4) Condition B is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public in the United Kingdom from a risk of terrorism, for a notification and managed return order to be imposed on a carrier in relation to a specified individual.
(5) Condition C is that the Secretary of State reasonably considers that the specified individual is outside the United Kingdom.
(6) Condition D is that the specified individual has the right of abode in the United Kingdom.
(7) During the period that a notification and managed return order is in force, the Secretary of State must keep under review whether condition B is met.”
New clause 5—Notification and managed return orders: supplementary provision—
‘(1) The Secretary of State must give notice of the imposition of a notification and managed return order to the specified individual and the carrier.
(2) Notice of the imposition of a notification and managed return order may include notice that the specified individual may be stopped, questioned and detained on return to the United Kingdom.
(3) A notification and managed return order—
(a) comes into force when notice of its imposition is given; and
(b) is in force for the period of two years (unless revoked or otherwise brought to an end earlier).
(4) The Secretary of State may revoke a notification and managed return order at any time.
(5) The Secretary of State must give notice of the revocation of a notification and managed return order to the specified individual and the carrier.
(6) If a notification and managed return order is revoked, it ceases to be in force when notice of its revocation is given to the specified individual and the carrier.
(7) The validity of a notification and managed return order is not affected by the specified individual—
(a) returning to the United Kingdom, or
(b) departing from the United Kingdom.
(8) The imposition of a notification and managed return order does not prevent a further notification and managed return order from being imposed on a carrier in relation to the same specified individual (including in a case where an order ceases to be in force at the expiry of its two year duration).
(9) The imposition of a notification and managed return order does not prevent a further notification and managed return order from being imposed on another carrier contemporaneously or consecutively in relation to the same specified individual.”
New clause 6—Penalty for breach of notification and managed return order—
‘(1) The Secretary of State may make regulations setting out the penalties to be imposed for breaching a notification and managed return order.
(2) Regulations under subsection (1) must make provision—
(a) about how a penalty is to be calculated;
(b) about the procedure for imposing a penalty;
(c) about the enforcement of penalties;
(d) allowing for an appeal against a decision to impose a penalty;
and the regulations may make different provision for different purposes.
(3) Provision in the regulations about the procedure for imposing a penalty must provide for a carrier to be given an opportunity to object to a proposed penalty in the circumstances set out in the regulations.
(4) Any penalty paid by virtue of this section must be paid into the Consolidated Fund.
(5) Regulations under this section are to be made by statutory instrument; and any such statutory instrument may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.”
New clause 9—Imposition of terrorism prevention and investigation measures—
‘(1) The Secretary of State may by notice (a “TEO”) impose a “temporary exclusion order” which requires an individual not to return to the United Kingdom on an individual if conditions A to E in section [Conditions A to E] are met.
(2) 1n this Act “temporary exclusion order” means requirements, restrictions and other provision which may be made in relation to an individual by virtue of section [Conditions A to E] “prior permission of the court” and Schedule [“Proceedings relating to temporary exclusion orders”].
(3) An individual subject to a TEO may not return to the UK unless—
(a) the return is in accordance with a permit to return issued by the Secretary of State before the individual began the return, or
(b) the return is the result of the individual’s deportation to the United Kingdom.”
New clause 10—Conditions A to E—
‘(1) Condition A is that the Secretary of State reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom.
(2) Condition B is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public in the United Kingdom from a risk of terrorism, for a temporary exclusion order to be imposed on the individual.
(3) Condition C is that the Secretary of State reasonably considers that the individual is outside the United Kingdom.
(4) Condition D is that the individual has the right of abode in the United Kingdom.
(5) Condition E is that—
(a) the court gives the Secretary of State permission under section 3, or
(b) the Secretary of State reasonably considers that the urgency of the case requires a temporary exclusion order to be imposed without obtaining such permission.
(6) During the period that a temporary exclusion order is in force, the Secretary of State must keep under review whether condition B is met.”
New clause 11—Prior permission of the court—
‘(1) This section applies if the Secretary of State—
(a) makes the relevant decisions in relation to an individual, and
(b) makes an application to the court for permission to impose measures on the individual.
(2) The application must set out a draft of the proposed TEO notice.
(3) The function of the court on the application is—
(a) to determine whether the relevant decisions of the Secretary of State are obviously flawed, and
(b) to determine whether to give permission to impose measures on the individual and (where applicable) whether to exercise the power of direction under subsection (9).
(4) The court may consider the application—
(a) in the absence of the individual;
(b) without the individual having been notified of the application; and
(c) without the individual having been given an opportunity (if the individual was aware of the application) of making any representations to the court.
(5) But that does not limit the matters about which rules of court may be made.
(6) In determining the application, the court must apply the principles applicable on an application for judicial review.
(7) In a case where the court determines that a decision of the Secretary of State that condition A, condition B, or condition C is met is obviously flawed, the court may not give permission under this section.
(8) In any other case, the court may give permission under this section.
(9) If the court determines that the Secretary of State‘s decision that condition D is met is obviously flawed, the court may (in addition to giving permission under subsection (8) give directions to the Secretary of State in relation to the measures to be imposed on the individual.
(10) 1n this section “relevant decisions” means the decisions that the following conditions are met—
(a) condition A;
(b) condition B;
(c) condition C; and
(d) condition D.”
New schedule 1—Proceedings relating to Temporary Exclusion Orders—
Introductory
1 In this Schedule—
“appeal proceedings” means proceedings in the Court of Appeal or the Inner House of the Court of Session on an appeal relating to temporary exclusion order proceedings;
“the relevant court” means—
(a) in relation to TEO proceedings, the court;
(b) in relation to appeal proceedings, the Court of Appeal or the Inner House of the Court of Session;
“rules of court” means rules for regulating the practice and procedure to be followed in the court, the Court of Appeal or the Inner House of the Court of Session.
Rules of court: general provision
2 (1) A person making rules of court relating to TEO proceedings or appeal proceedings must have regard to the need to secure the following—
(a) that the decisions that are the subject of the proceedings are properly reviewed, and
(b) that disclosures of information are not made where they would be contrary to the public interest.
(2) Rules of court relating to TEO proceedings or appeal proceedings may make provision—
(a) about the mode of proof and about evidence in the proceedings;
(b) enabling or requiring the proceedings to be determined without a hearing;
(c) about legal representation in the proceedings;
(d) enabling the proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a party to the proceedings (or to any legal representative of that party);
(e) enabling the relevant court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party);
(f) about the functions of a person appointed as a special advocate (see paragraph 10);
(g) enabling the court to give a party to the proceedings a summary of evidence taken in the party’s absence.
(3) In this paragraph—
(a) references to a party to the proceedings do not include the Secretary of State;
(b) references to a party’s legal representative do not include a person appointed as a special advocate.
(4) Nothing in this paragraph is to be read as restricting the power to make rules of court or the matters to be taken into account when doing so.
Rules of court: disclosure
3 (1) Rules of court relating to TEO proceedings or appeal proceedings must secure that the Secretary of State is required to disclose—
(a) material on which the Secretary of State relies,
(b) material which adversely affects the Secretary of State’s case, and
(c) material which supports the case of another party to the proceedings.
(2) This paragraph is subject to paragraph 4.
4 (1) Rules of court relating to TEO proceedings or appeal proceedings must secure—
(a) that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose material otherwise than to the relevant court and any person appointed as a special advocate;
(b) that such an application is always considered in the absence of every party to the proceedings (and every party’s legal representative);
(c) that the relevant court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be contrary to the public interest;
(d) that, if permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide a summary of the material to every party to the proceedings (and every party’s legal representative);
(e) that the relevant court is required to ensure that such a summary does not contain material the disclosure of which would be contrary to the public interest.
(2) Rules of court relating to TEO proceedings or appeal proceedings must secure that provision to the effect mentioned in sub-paragraph (3) applies in cases where the Secretary of State—
(a) does not receive the permission of the relevant court to withhold material, but elects not to disclose it, or
(b) is required to provide a party to the proceedings with a summary of material that is withheld, but elects not to provide the summary.
(3) The relevant court must be authorised—
(a) if it considers that the material or anything that is required to be summarised might adversely affect the Secretary of State‘s case or support the case of a party to the proceedings, to direct that the Secretary of State—
(i) is not to rely on such points in the Secretary of State‘s case, or
(ii) is to make such concessions or take such other steps as the court may specify, or
(b) in any other case, to ensure that the Secretary of State does not rely on the material or (as the case may be) on that which is required to be summarised.
(4) In this paragraph—
(a) references to a party to the proceedings do not include the Secretary of State;
(b) references to a party’s legal representative do not include a person appointed as a special advocate.
Article 6 rights
5 (1) Nothing in paragraphs 2 to 4, or in rules of court made under any of those paragraphs, is to be read as requiring the relevant court to act in a manner inconsistent with Article 6 of the Human Rights Convention.
(2) The “Human Rights Convention” means the Convention within the meaning of the Human Rights Act 1998 (see section 21(1) of that Act).
Rules of court: anonymity
6 (1) Rules of court relating to TEO proceedings or appeal proceedings may make provision for—
(a) the making by the Secretary of State or the relevant individual of an application to the court for an order requiring anonymity for that individual, and
(b) the making by the court, on such an application, of an order requiring such anonymity;
and the provision made by the rules may allow the application and the order to be made irrespective of whether any other TEO proceedings have been begun in the court.
(2) Rules of court may provide for the Court of Appeal or the Inner House of the Court of Session to make an order in connection with any appeal proceedings requiring anonymity for the relevant individual.
(3) In sub-paragraphs (1) and (2) the references, in relation to a court, to an order requiring anonymity for the relevant individual are references to an order by that court which imposes such prohibition or restriction as it thinks fit on the disclosure—
(a) by such persons as the court specifies or describes, or
(b) by persons generally,
of the identity of the relevant individual or of any information that would tend to identify the relevant individual.
(4) In this paragraph “relevant individual” means an individual on whom the Secretary of State is proposing to impose, or has imposed, measures.
Initial exercise of rule-making powers by Lord Chancellor
7 (1) The first time after the passing of this Act that rules of court are made in exercise of the powers conferred by this Schedule in relation to proceedings in England and Wales or in Northern Ireland, the rules may be made by the Lord Chancellor instead of by the person who would otherwise make them.
(2) Before making rules of court under sub-paragraph (1), the Lord Chancellor must consult—
(a) in relation to rules applicable to proceedings in England and Wales, the Lord Chief Justice of England and Wales;
(b) in relation to rules applicable to proceedings in Northern Ireland, the Lord Chief Justice of Northern Ireland.
(3) But the Lord Chancellor is not required to undertake any other consultation before making the rules.
(4) A requirement to consult under sub-paragraph (2) may be satisfied by consultation that took place wholly or partly before the passing of this Act.
(5) Rules of court made by the Lord Chancellor under sub-paragraph (1)—
(a) must be laid before Parliament, and
(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which they were made, cease to have effect at the end of that period.
(6) In determining that period of 40 days no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.
(7) 1f rules cease to have effect in accordance with sub-paragraph (5)—
(a) that does not affect anything done in previous reliance on the rules, and
(b) sub-paragraph (1) applies again as if the rules had not been made.
(8) The following provisions do not apply to rules of court made by the Lord Chancellor under this paragraph—
(a) section 3(6) of the Civil Procedure Act 1997 (Parliamentary procedure for civil procedure rules);
(b) section 56(1), (2) and (4) of the Judicature (Northern Ireland) Act 1978 (statutory rules procedure).
(9) Until the coming into force of section 85 of the Courts Act 2003, the reference in sub-paragraph (8)(a) to section 3(6) of the Civil Procedure Act 1997 is to be read as a reference to section 3(2) of that Act.
Use of advisers
8 (1) In any TEO proceedings or appeal proceedings the relevant court may if it thinks fit—
(a) call in aid one or more advisers appointed for the purposes of this paragraph by the Lord Chancellor, and
(b) hear and dispose of the proceedings with the assistance of the adviser or advisers.
(2) The Lord Chancellor may appoint advisers for the purposes of this paragraph only with the approval of—
(a) the Lord President of the Court of Session, in relation to an adviser who may be called in aid wholly or mainly in Scotland;
(b) the Lord Chief Justice of Northern Ireland, in relation to an adviser who may be called in aid wholly or mainly in Northern Ireland;
(c) the Lord Chief Justice of England and Wales, in any other case.
(3) Rules of court may regulate the use of advisers in proceedings who are called in aid under sub-paragraph (1).
(4) The Lord Chancellor may pay such remuneration, expenses and allowances to advisers appointed for the purposes of this paragraph as the Lord Chancellor may determine.
9 (1) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise the function under paragraph 8(2)(a).
(2) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise the function under paragraph 8(2)(b)—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;
(b) a Lord Justice of Appeal (as defined in section 88 of that Act).
(3) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise the function under paragraph 8(2)(c).
Appointment of special advocate
10 (1) The appropriate law officer may appoint a person to represent the interests of a party in any TEO proceedings or appeal proceedings from which the party (and any legal representative of the party) is excluded.
(2) A person appointed under sub-paragraph (1) is referred to in this Schedule as appointed as “special advocate”.
(3) The “appropriate law officer” is—
(a) in relation to proceedings in England and Wales, the Attorney General;
(b) in relation to proceedings in Scotland, the Advocate General for Scotland;
(c) in relation to proceedings in Northern Ireland, the Advocate General for Northern Ireland.
(4) A person appointed as a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent.
(5) A person may be appointed as a special advocate only if—
(a) in the case of an appointment by the Attorney General, the person has a general qualification the purposes of section 71 of the Courts and Legal Services Act 1990;
(b) in the case of an appointment by the Advocate General for Scotland, the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980;
(c) in the case of an appointment by the Advocate General for Northern Ireland, the person is a member of the Bar of Northern Ireland.”
The Secretary of State for the Home Department (Mrs Theresa May)
I am very pleased to be able to participate in this part of the debate on an important Bill, and particularly pleased to be able to talk about temporary exclusion orders. Let me begin by explaining the background.
Earlier this year, the joint terrorism analysis centre raised our national terrorist threat level from substantial to severe. That means that a terrorist attack is highly likely. Approximately 500 individuals who are of interest to the police and security services have travelled from the United Kingdom to Syria and the region since the start of the conflict, and it has been estimated that half of them have returned.
In the context of that heightened threat to our national security, we need a power that will allow us to disrupt the travel, and control the return, of British citizens who have travelled abroad to engage in terrorist-related activity, and to manage the threat they pose. The temporary exclusion power will do just that. It will make it an offence for an individual who is subject to an order to return to the UK without first engaging with the UK authorities. It will also allow for the imposition of certain limited requirements on the individual on his or her return.
Let me make it clear that this is a discretionary power, which will be considered for use on a case-by-case basis. Let me also reassure the Committee again that it will not render any individual stateless. British nationals who are made subject to an order will have the right—which their citizenship guarantees—to return to the UK. Clauses 2 to 11 relate to this TEO and set out the way it will operate and issues around the permits to return.
Mrs May
I appreciate the eagerness with which the hon. Lady rises to refer to that case, but I have to say to her that I am not going to comment on a particular case. As the Minister indicated earlier, however, the Bill is not, of course, restricted in the type of terrorism it refers to, and it does refer to those who have taken part in terrorist-related activity outside the UK, but I emphasise that situations would be looked at case by case, so this is not a power that will automatically be applied to any individual who satisfies those criteria. It is a matter of looking on a case-by-case basis to determine where it is appropriate to apply this power.
Mr Grieve
I have listened carefully to what my right hon. Friend has said, particularly about our compliance with our own national and international legal obligations. One anxiety that has been expressed about this measure is that a person could be particularly vulnerable during the period before they might return, if they are located in a country whose human rights record is inadequate. I wonder whether my right hon. Friend might focus on that issue, because my understanding has been that consular protection would remain for such an individual in exactly the same way as for somebody whose passport was still working.
Mrs May
I am very happy to respond to that point. We as a country take the issue of human rights responsibilities very seriously in dealing with other countries and their treatment of individuals, but the individual would remain a British citizen and, notwithstanding that their passport had been cancelled and they had to apply for the permit to return, as a British citizen consular facilities would be available to them in those circumstances.
Frank Dobson (Holborn and St Pancras) (Lab)
How would the person concerned prove to the British consular service that they were the person they claimed to be?
Mrs May
In such circumstances, the passport will probably still be in the individual’s possession, although it will have been cancelled in the sense of its ability to be used to provide access to the United Kingdom, so I would expect them to have that document available to provide that proof.
On the points made about the individual being in another country, if an individual subject to an order attempts to travel to the UK, we will work closely with the host country and consider appropriate action. This may include detention pending deportation action, but only where appropriate under the laws of the other country, and, again, where appropriate, UK police officers will escort the individual back to the UK.
We are discussing this proposal with other Governments, in particular France and Turkey, in order to agree how it will work best in practice. The problem of foreign fighters travelling to Syria and Iraq and then seeking to return home is one we share with many of our international partners, and so far these discussions have been constructive.
Once in the UK, the police may interview the individual in order to explore their activities abroad. We may then subsequently require them to engage with a programme, potentially comprising reporting, notification of change of address and de-radicalisation activities.
I turn now to the amendments tabled by the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), and her colleagues. New clauses 9, 10 and 11 and new schedule 1 all require the Secretary of State to apply for permission from the courts before imposing a TEO. The mechanism provided for in these amendments is almost identical to that in the Terrorism Prevention and Investigation Measures Act 2011—indeed, it appears to have been copied so directly that the right hon. Lady may want to reconsider the title of new clause 9, which refers to the imposition of terrorism prevention and investigation measures, which I suspect might be an error.
As the Minister with responsibility for national security, it is right that I, as Home Secretary, and not the courts, impose an order of this kind. As I have said, this is a discretionary power that will be used only in a limited number of cases where it will have the greatest impact. With oversight of all other national security and counter- terrorism matters, I am best placed to make an informed judgment about whether a TEO is appropriate in each case, taking into consideration the wider context of the terrorist threat we face. For the same reasons, to vest the power to impose one of these orders in the Secretary of State without first requiring an application to the courts is in line with the comparable use of the royal prerogative to cancel the passport of a British citizen.
We must also consider in this context the level of interference with an individual’s rights as a result of the power. A TEO does not take away the right of an individual to return to the UK, and the in-country elements that might be imposed on an individual as part of it are much less restrictive than those available under TPIMs, and for this reason do not require the same level of review. There is therefore no need for a requirement to apply to the courts before imposing an order, and it will of course remain open to an individual to apply for judicial review of the decision to impose an order.
Caroline Lucas
The way the Home Secretary is describing how people can respond to a TEO suggests they would be able to access legal services. It does not take into account that they might be in a failed state, for example, or be being controlled by others or not have sufficient money. Does she not accept that in those circumstances, a TEO could actually mean a loss of intelligence about the suspect’s whereabouts and a loss of control?
Mrs May
But we are talking about an individual who, having had a TEO placed on them, attempts to travel to the UK, at which point they would have to apply for a permit to return and the arrangements for them to be accompanied by a police officer could be put in place. I recognise that there could be some circumstances in which a person might not have immediate access to the legal review, but they would be able to get it at the point at which they chose to return to the UK. This is about having the ability to ensure that certain people return to the UK on our terms, and that it is a managed return.
Frank Dobson
When would such an order become valid—when it was served on the person concerned? How would the British officials involved identify the person in order to serve the order on them? Would the process be triggered only if the person sought to come to this country?
Mrs May
A temporary exclusion order will be in place, and it will come into effect when it is served or deemed to be served on an individual. The arrangements relating to its being served are similar to those that we use for certain immigration rules relating to people outside the country.
I was about to talk about how the carriers will know whether to carry someone, because that subject has been mentioned in some of the other new clauses. On the question of whether the courts or the Home Secretary should make the decision, the Government and I are absolutely committed to the appropriate and proportionate use of this temporary exclusion power and, for the reasons I have set out, I believe that the Secretary of State is best placed to ensure that it is used in that way. I would hope, therefore, that the shadow Home Secretary will not press her new clauses to a vote.
Opposition Members have also tabled new clauses 4, 5 and 6 and amendment 14, which seek to make provision for “notification and managed return orders”. These would be orders imposed on a carrier such as an airline to notify the Secretary of State that a specified individual intended to travel to the UK and to notify the date, time and location of that individual’s arrival in the UK. Carriers already provide advance passenger information to the Government’s border system. That information enables the current authority-to-carry scheme to operate and, similarly, it will underpin new schemes under clause 18 of the Bill. When an individual intending to travel to the UK is a person who is inadmissible to the UK, the national border targeting centre will contact the carrier to refuse authority to carry the individual to the UK. The Government intend that individuals who are subject to temporary exclusion orders will be a class of passengers in respect of whom authority to carry must be sought by carriers, under a new authority-to-carry scheme.
The proposal that a carrier should be required to tell the Secretary of State that a specified individual intends to travel to the UK implies that every carrier operating to the UK needs to know the details of every individual liable to a managed return. Disclosing to carriers around the world the details of individuals reasonably suspected of involvement in terrorism-related activity outside the UK is unnecessary. The Government hold and maintain those details, and we match them against information provided by carriers. We know from our experience of planning for and operating the current authority-to-carry scheme that carriers much prefer the Government to do the matching. It is for the Government to take the responsibility for getting that right and making the right decisions, which can result in individuals being prevented from travelling to the UK or, under the Bill, being liable to temporary exclusion and a managed return.
Equally, the new clause providing for penalties to be imposed on carriers that fail to notify the Secretary of State when a specified individual is travelling to the UK is unnecessary. Criminal penalties are already in place for carriers that fail to provide passenger and crew information when required to do so, and there is provision in schedule 2 to the Bill to complement those provisions with civil penalties.
Finally, amendments 15 and 16 relate to the interpretation of the temporary exclusion measure. The first of those amendments would impact on our ability to prosecute an individual for breaching a temporary exclusion order. The second would prevent us from correctly implementing a temporary exclusion order, should a host country seek lawfully to expel the individual under powers other than deportation. Both amendments would seriously jeopardise key fundamentals of the policy and, perhaps, would not produce the result intended by the Opposition.
Lady Hermon
The UK authorities will have an obligation to let the Home Office know about the passenger lists in relation to individuals returning to the United Kingdom, but can the Home Secretary reassure the Committee that she will work closely with her Irish counterpart to ensure that the Irish Government keep similar information about those who are suspected of terrorism abroad? We must ensure that there is close co-operation on the two lists, which might contain the details of highly suspicious individuals coming back into Ireland and indirectly back into the UK through Northern Ireland.
Mrs May
The hon. Lady makes an important point, given our relationship with the Republic of Ireland and the operation of the common travel area. I can assure her that we work very closely with the Irish Government on the necessary information exchange between us, to ensure that the common travel area could not be—and, in general, is not—a means by which people can access the UK when we do not wish them to do so.
As I was saying, this is a necessary and proportionate power and, given the circumstances in which we find ourselves, it is entirely appropriate to introduce a power that will enable us to disrupt and mange the return of a number of individuals who have been involved in terrorist-related activity outside the UK.
Mr Hanson
I should like to speak to the amendments and new clauses standing in my name and those of my right hon. and hon. Friends. I am grateful to the Home Secretary for her explanation of the measures in the Bill, which are worthy of discussion today. We have tabled new clauses 4 and 5 to provide a supportive narrative to the one that the Home Secretary has put forward. The new clauses and amendments taken together form some of the options that could support the control of terror suspects who are at our border in the UK rather than at a foreign port. They provide a mechanism for the issuing of a notification and managed return order, which would be similar to the measure proposed by the Home Secretary but with a slightly different emphasis.
It is important that we recognise the threat posed by British citizens travelling abroad to participate in terror camps or to join the fight with ISIS in the middle east. The threat from ISIS is serious, and the Government need to do more to prevent young people from being groomed and radicalised to go and fight, and, using the measure in clause 1, to deal with such people when they try to return, having left the country to take part in such activity.
That threat is still live. On 21 October, the Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, was quoted as saying that five Britons were travelling to Iraq and Syria to join ISIS every week. The Government’s own information states that more than 500 Britons have travelled to Syria and that as many as 250 are now seeking to return. Self-evidently, we need a mechanism to protect the British citizen and to deal with those who wish to return. It is also vital that we are able to deal with people we know to be involved in these activities but who are unaware that we know about them. There is a synergy between what we are trying to achieve and what the Government are proposing. We particularly think there may be practical difficulties with the Bill in relation to individuals at foreign ports returning to the UK, and I would welcome the Home Secretary’s view.
The blanket exile proposal—I know the Home Secretary has not used that phrase—was referred to by the independent reviewer of terrorism legislation, David Anderson QC, as an
“announcement waiting for a policy”
when it was made. He was worried, and still has some worries, about whether it is legally and practically workable. We now have plans before us that, at first sight, appear closer to managed return than exile, but I wonder how they work in practice. If the aim of the policy is to keep dangerous individuals out of the country and then, ultimately, to manage their return, we need to explore real issues about that, not least what happens when individuals do not choose to apply for consent to come back—or indeed when they do choose to do that. The Home Secretary has touched on this, but what happens to individuals in particular countries? Would Turkey be happy to detain, potentially for months on end, a Briton suspected of illegally fighting for a terrorist organisation if he or she turned up at Ankara airport but was banned from departing to the UK? What options are in place for that? It is not clear whether the British Government have negotiated agreements with particular countries and whether they intend to do that on a case-by-case basis. What provision is in place—if it is not detention—to stop an individual who finds themselves faced with an order at the airport taking an alternative course of action, either returning to the host country in a different way, or returning and leaving for another country, not the UK? There is a practical argument as to what happens under the Bill to individuals in whom the Government have an interest.
Our new clause 4 seeks to examine an alternative model, which could work in parallel with the Government’s proposals but gives an opportunity for a managed return. We have tabled new clauses 4, 5 and 6, and the consequential amendments, which we are happy to look at and to reflect on, given what the Home Secretary has said about them. There is an argument to be made that the Government’s measure is too blunt a tool, in that it either prevents people from coming back or allows them to return. A more graduated response would give the security services and the Government much greater choice in how they want to approach each individual. Our notification and managed return orders proposal provides an alternative that gives security to the Government and takes effective action against individuals in whom the Government have an interest, but does so by allowing them to return to the UK and be managed in the UK, as opposed to leaving us facing some practical difficulties elsewhere.
Our approach would require carriers to provide advance notice of travel bookings for certain named individuals in whom the Government have an interest, and that is well and good. It would allow the British authorities to have advance knowledge and notice of suspects’ travel plans so that arrangements could be made for police interview or arrest at the port or border immediately on their return to the UK. If that model were used as well, it would in part transfer the procedure that the Government are trying to achieve in a foreign port to a UK port. At that point, interviews could be undertaken and action could be taken against an individual, and we could also ensure that we had dealt with an individual of interest to the UK Government in the UK That could be an alternative model.
Mrs May
On the face of it, this may not look like a significant point, but it is. There is a very real difference between giving a list of a large number of people to a carrier and saying, “If any of these people travel, please tell us” and looking at the carrier’s information and saying, “This individual shall not be allowed to travel.” The amount of information about individuals that the carrier holds is very different under the Government’s proposal; much more information about individuals would be held by the carriers under the Opposition’s proposal, and that provides less protection for the individuals.
Mr Hanson
Again, these are matters of genuine debate and interest. The point I make to the Home Secretary is that this is entirely in her gift. Under the model we are proposing, her model is not being deleted from the Bill. It is still there to provide the ability to say to carriers, “If Mr X or Miss X turns up at Schiphol airport, we wish you to take action against them and exercise the powers in the Bill.” I could have turned the television on at any time in the past month and seen the names of individuals that we know have travelled abroad—individuals that are publicly travelling abroad and that relatives have said have travelled abroad. It is quite possible for the Home Secretary not to make these two possibilities mutually exclusive. The issue is simply—[Interruption.] If the Minister for Security and Immigration wants to back up his boss and intervene, I am happy to allow him to do so. The debate is about the practical difficulties of the Home Secretary’s proposals, which are to have people sign to say that they will come back under managed return, to have detention or to stop carriers at ports. Are they the sole way to deal with every case that is brought before the Home Secretary’s notice? We are trying to provide at least one alternative for consideration.
Caroline Lucas
I do not think that I am making assertions. I am asking questions about whether it will be possible for people in all circumstances to go through very formal processes at a time when they may well be living in a culture of fear and when, by definition, severe conflict is going on. Such people might already have been fingered as someone who is trying to leave and be at particular risk of attack from others. I am describing a rather more complex situation than someone simply using the postal system, knowing what they have to do next and then marching down to the consulate and doing it. The reality on the ground is likely to be far more complex than the hon. Gentleman suggests.
If someone does complete the process successfully, the Home Secretary will have what is defined as “reasonable time” to let them come home. I am concerned that, as far as I can see, there is no indication of what that time would be. The period of enforced temporary residence in another country could effectively trap British citizens in countries where jihadi groups have a strong presence, such as Sudan, Somalia, Turkey, Syria and Iraq. As the human rights group Liberty states:
“Those who are equivocal are more likely to be pushed towards terrorist factions by the imposition of executive led punishments and enforced periods in close proximity to such groups.”
If the primary purpose of counter-terrorism policy is to make us safer, why would we take steps to alienate individuals by condemning them to exile when some of them—I quite understand that this does not apply to all of them—may simply have made a terrible mistake? They may have been horrified by the bloodshed and barbarism that they have seen and want to find a way to come home.
Mrs May
The hon. Lady has referred a number of times to “exile” for the individuals concerned. We have to be absolutely clear that the provision will not exile an individual or prevent them from having the right to return to the United Kingdom. It will mean that when they return to the United Kingdom, it will be on a managed basis under terms that the Government set.
Caroline Lucas
I thank the Home Secretary, and I accept that she is technically correct, but I am describing a situation in which, because a person has not been able to follow the process that she described, they cannot find a way back and feel as though they were in exile.
If the primary purpose of counter-terrorism policy is to make us safer, it is surely sensible to ensure that individuals who definitely pose a threat are somewhere where it is easier to keep an eye on them, investigate them, arrest them, charge them and prosecute them, should the evidence warrant it. Surely we want suspected terrorists close at hand so that we can take targeted action against them rather than allow them to roam who knows where doing who knows what. As the old adage goes, “Keep your friends close and your enemies even closer”. Moreover, if someone is intent on carrying out a terrorist attack on British soil, does the Home Secretary really believe that having to apply for a permit and attend an interview will act as any kind of deterrent or obstacle?
The Government’s scheme does have one element to recommend it, which is the steps taken to ensure that agencies and the police know of an individual’s location should they need to place him or her under surveillance. That comes from the stipulation that someone return on a specific flight to a specific airport. However, I argue that the same outcomes could be secured by placing a simple notification requirement on carriers, as set out in new clauses 4 to 6. Crucially, as the right hon. Member for Holborn and St Pancras described, that approach would not automatically alert a terror suspect to the fact that they had come to the notice of the authorities and that their return was being monitored. I argue that it would instead facilitate a targeted and intelligence-led response, and that the ability to undertake close surveillance of suspects would be maximised, with a view to arrest and prosecution. The option under existing counter-terrorism powers of interviewing a suspect on their arrival back in the UK would also be retained, and there would be further options as appropriate.
I have some concerns about the human rights aspects of the proposals on TEOs, but I also believe that they could end up being counter-productive from a security perspective. They will not provide the robust level of security that people in Britain have a right to expect.
Jeremy Corbyn
I would want that person to have some kind of treatment, or I would want measures of some kind to be taken, but expressing support for something and doing it are two rather different things.
There are very unpleasant parallels in the British colonial past. I sat through the hearings in the High Court when the Mau Mau people were seeking compensation. The way in which they had been treated by the British Army in Kenya in 1955 was disgusting and disgraceful beyond belief. We are now going through a horrible, vile period in Syria. We must understand where we have come from and how we will get through this period without denying our own civil liberties and encouraging more people to join in this whole ghastly process.
Mrs May
This has been a constructive and well-informed debate. Some Members have raised practical questions and others have raised questions of principle, but it was the right hon. Member for Holborn and St Pancras (Frank Dobson) who brought home to us why we must look at the issue of our terrorism legislation when he explained that his own constituency had been affected by not the theory but the actuality of terrorism, and that people had lost their lives as a result. So this is not an academic discussion; we are talking about a real threat to this country, and we need to do everything we can to combat that.
The hon. Member for Islington North (Jeremy Corbyn) and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) talked about the balance between civil liberties and national security. I have always taken the view that without our security we cannot enjoy our civil liberties, but I would simply point out that this Government reviewed counter-terrorism legislation when we came in and took a number of steps such as reducing the period of pre-charge detention from 28 to 14 days, so we have been very conscious throughout of the need always to be aware of the freedoms we hold dear and the desire to ensure we can maintain them.
I am grateful for the constructive tone adopted by most of those who spoke in the debate. There will of course be discussion of the details and consideration of how best to achieve our desired objective, but many of those who spoke recognised the legitimate aim of what the Government are doing. It is perfectly legitimate to try to ensure we can manage the return to this country of those who may pose a threat to the people of the UK.
The right hon. Member for Knowsley (Mr Howarth) talked about the complexity of the situation we are dealing with, particularly in relation to Syria and Iraq. People going out there, sometimes with the best of intentions, may find themselves being radicalised. People may go out to fight or work with one particular group but get caught up in fighting with other, more extreme terrorist organisations. So it is a very complex picture; I understand that.
The right hon. Gentleman raised the question of whether people would be looked at in categories, and described a number of categories. As I have said, individuals will be considered on a case-by-case basis. Whether they meet the criteria set out in the Bill will be considered, and that will include looking at them in much the way he described, and putting in place the appropriate measures in relation to particular individuals. Of course, such considerations will be made in consultation with operational partners, notably the security services and the police, but that this will be done on a case-by-case basis is a very important element that people should remember.
Mr George Howarth
My point in illustrating those categories is that the hope is that the conditions attached to the return would point individuals in the direction of prevention or some form of surveillance, as the hon. Member for Brighton, Pavilion (Caroline Lucas) accepted might be necessary. I was interested in those two things coming together.
Mrs May
I understand the point the right hon. Gentleman was making, and the intention is indeed that that will be done on a case-by-case basis—both the question whether there should be a TEO, and how that individual would be managed on their return to the United Kingdom. For some, it would be appropriate to look at further action when they return to the UK—for example, it could be right to put someone on a TPIM—or it might be appropriate for them to be put in the direction of some form of programme that helps to de-radicalise them. The right hon. Member for Holborn and St Pancras raised the issue of potential prosecution, too, and it may be that there is evidence and it is appropriate to prosecute somebody when they return. So we are talking about this being done on a case-by-case basis. I know that is a well-used phrase, but that is genuinely intended to operate in this instance.
I hope that answers the point the hon. Member for Brighton, Pavilion (Caroline Lucas) made in referring to her two constituents who had died in Syria. Of course we think of the father she quoted, who has seen his sons die in those circumstances. Again, I assure her that we would decide whether to impose a TEO on a case-by-case basis. As I have said, people will go out to Syria for a whole variety of reasons, some of them believing they are going for humanitarian purposes.
The Government have given a clear message to everyone: if you are thinking of going out to Syria for humanitarian purposes, don’t go. There are better ways of helping the people of Syria than going out there and potentially getting caught up in the fighting and losing your life.
I welcome the constructive approach adopted by the right hon. Member for Delyn (Mr Hanson), who led for the official Opposition, and by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I want to respond to some of the points that they and others have raised. A number of Members spoke as though the Opposition’s notification and managed return proposals were an alternative to the Government’s proposals, but I think the right hon. Member for Delyn made it clear that they were in addition to our proposals. The hon. Member for Hayes and Harlington (John McDonnell) asked what would constitute a reasonable excuse. In fact, that would ultimately be for the courts to decide. A reasonable excuse could involve circumstances in which an individual had inadvertently breached the terms of their permit to return to the UK for practical reasons—for example, when their plane had been diverted.
Frank Dobson
If a person who had been made the subject of an order that had been deemed to have been served came to this country without knowing that it had been served, would they have committed an offence?
Mrs May
I was about to come on to the issue of serving the order. It is set out in the Bill that the fact that someone does not know that an order has been served is not necessarily a sufficient excuse, but that is a matter that would be tested in the courts. They would be looking at the action that was to be taken in relation to a breach, and it would be for them to determine what a reasonable excuse would be. An order would be served in person whenever possible, but when that was not possible, we would seek to ensure that an individual was made aware of the order through other mechanisms. We might, for example, seek to serve it at the individual’s last known address or serve the order to file. As I said earlier, similar systems work effectively in other contexts, such as informing foreign nationals about decisions on their immigration status.
Frank Dobson
This reminds me of one of my constituents. He went to Somalia and then went to Djibouti, where he was arrested and handed over to the Americans. When he said he was a British citizen, he was told, “No, you’re not. The Home Secretary has taken your citizenship away.” He was unaware of that fact, but I gather that the order was deemed to have been served on him in Somalia because it had been sent to his mother’s address in Islington.
Mrs May
As I have said, when it is impossible to serve an order on an individual in person, it is standard practice to make every attempt to serve it in a way that ensures the information gets to them. Using their last known address is one way in which such decisions are served.
John McDonnell
Can we be clear on this point? Clause 9(4) states that when a relevant notice
“has not actually been given to an individual, the fact that the relevant notice is deemed to have been given to the individual…does not…prevent the individual from showing that lack of knowledge of the temporary exclusion order…was a reasonable excuse”.
To be frank, that will not be strong enough in many cases.
Mrs May
I am grateful to the hon. Gentleman for his intervention, but as I have just said to the right hon. Member for Holborn and St Pancras, the point is that what is a reasonable excuse will be tested in the courts. I did not quote the exact words but I cited the spirit of the point in clause 9(4). As I say, that matter would be tested by the courts and it would be for them to determine whether or not what the hon. Gentleman describes constituted a reasonable excuse.
Mr Winnick
What makes some of us uneasy about temporary exclusion orders—I was certainly uneasy about them from the very beginning—is that excessive powers are being given without the individual having legal redress. I hope that one does not have to say that one is against terrorism and loathes every form of criminality, when we see what is happening with terrorism and what is happening in Australia. That does not alter the fact that these powers should be subject to some form of legal redress, and it is unfortunate that they will not be.
Mrs May
They are subject to a form of legal redress; it is called judicial review. The debate has not been about whether there is some form of legal redress available to individuals but about whether there should be an automatic court process after a decision has been made by the Secretary of State.
Mr Winnick
The judicial process comes afterwards, and it can be very complex for the individual concerned. What I am saying is that if the Secretary of State is going to take powers such as temporary exclusion orders, those powers should be subject to a court order, and the arguments should be put in court. There may be some obvious restrictions for reasons that have been stated, but at least they are all part of living under the rule of law.
Mrs May
I remind the hon. Gentleman that the power to remove a passport from an individual—the royal prerogative power—is not subject to an automatic court process. This is more akin to that royal prerogative exercise in the removal of a passport than it is to the imposition of the sort of measures that can be within the terrorism prevention and investigation measures.
Jeremy Corbyn
Let us be clear: a judicial review is not an appeal; it is an examination of process. It is no more and no less than that. To call it a judicial oversight is really not correct.
Mrs May
The point is that there is a process in which the courts consider whether the decision by the Secretary of State to exercise the temporary exclusion order was reasonable. Let me come back to the point made by the hon. Member for Walsall North (Mr Winnick). If we look at the difference between a royal prerogative power and the terrorism prevention and investigation measures, the restriction on an individual that can be imposed through a TPIM is far greater than that imposed through the exercise of the royal prerogative power. This power of the temporary exclusion order is more akin to the royal prerogative power, which is why I believe that the proposals in the Bill are appropriate for the sort of measure that we are putting in place.
As the Bill goes through its various stages in this House and the other place, there will be further discussion on the issues that have been raised by hon. Members today. What we are proposing is a new power, but it is both necessary and proportionate. As I have said before, it will not render anyone stateless. It will ensure that those who have been fighting abroad and who want to come back to the United Kingdom do so in a managed way and on our terms, and it is compliant with all our domestic and international legal obligations. I invite all those who have tabled amendments to withdraw them, and the Committee to agree that clauses 2 to 11 should stand part of the Bill.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clauses 3 to 11 ordered to stand part of the Bill.
To report progress and ask leave to sit again.—(Mel Stride.)
The Deputy Speaker resumed the Chair.
Progress reported; Committee to sit again tomorrow.