Counter-Terrorism and Security Bill
(9 years, 10 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
15:35 - The House having divided: - Ayes: 230 / Noes: 315 - Question accordingly negatived.
16:09 - The House divided: - Ayes: 228 / Noes: 311 - Question accordingly negatived.
16:43 - The House divided: - Ayes: 227 / Noes: 307 - Question accordingly negatived.
Mr David Hanson (Delyn) (Lab)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
New clause 2—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 3—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).
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 for 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.”
Amendment 18, in clause 2, page 2, line 5, leave out subsection (2) and insert—
‘(2) The court may impose a temporary exclusion order on an individual following an application from the Secretary of State if the court is satisfied that conditions A to D are met.”
Amendment 21, page 2, line 6, after “D”, insert “or condition E”
Amendment 22, page 2, line 17, at end insert—
‘(6A) Condition E is that the Secretary of State has provided evidence, whether or not conditions A to D are met, to substantiate that the individual has, inconsistently with his duty of loyalty to the United Kingdom, conducted himself in a manner seriously prejudicial to the vital interests of the United Kingdom and that he has taken an oath, or made a formal declaration of allegiance to another state or territory seized, governed or administered de facto by an organisation demanding allegiance to that organisation, having given definite evidence of his determination to repudiate his allegiance to the United Kingdom.”
Amendment 19, page 2, line 18, leave out “Secretary of State” and insert “court”
Amendment 23, in clause 3, page 2, line 29, after “years”, insert “or, where section 2(6A) applies, for a period of not less than two years specified by the Secretary of State.”
Amendment 20, in clause 11, page 7, line 21, at end insert—
““the court”
(a) in relation to proceedings relating to a temporary exclusion order in the case of which the excluded individual is a person whose principal place of residence immediately prior to leaving the United Kingdom was in Scotland, means the Outer House of the Court of Session;
(b) in relation to proceedings relating to a temporary exclusion order in the case of which the excluded individual is a person whose principal place of residence immediately prior to leaving the United Kingdom was in Northern Ireland, means the High Court in Northern Ireland; and
(c) in any other case, means the High Court in England and Wales;”
Mr Hanson
It is a pleasure to be here in this new year to deal with this important Bill. I mention the new year because, although we are now in 2015, this is effectively still 2014 for the Minister and me, as we are dealing with the matters that we dealt with just before Christmas in almost the same format, having had the Committee stage of the Bill on the Floor of the House and Report here now.
We have tabled a number of new clauses and amendments that have a reassuring similarity to the matters that we discussed before Christmas—[Interruption.] Indeed, they are almost identical, as the right hon. and learned Member for Beaconsfield (Mr Grieve) suggests. I am confident, given the concerns that have been expressed by right hon. and hon. Members on both sides of the House and the points that were fully debated before Christmas, that the Minister and his very able Whip, the hon. Member for East Hampshire (Damian Hinds), will have had an opportunity to reflect on these matters over the Christmas period and to understand that there is real concern not only among Labour and Conservative Members but among Liberal Democrat Members about some of these matters.
Let me start by repeating some of the givens for those of us on the Opposition Benches. It is a given for us that the terrorism threat remains high. It is also a given for us that the exclusion provisions are a valid and useful addition to the armoury of terrorism prevention, and that they have our support. I must place on record, however, the fact that there are those among the population at large who feel that the provisions go too far. For example, we have had representations from Liberty, the Immigration Law Practitioners Association and others expressing concern about the measures. I believe that the measures are proportionate, but today’s new clauses and amendments are aimed at strengthening that proportionality, providing judicial oversight and ensuring that we adopt a constructive approach to the difficult and challenging issues that the Government have to deal with.
We share the Government’s policy objective of supporting the prevention of terrorism, as the terrorism threat is high. The Government’s own assessment shows that some 500 individuals have travelled to Syria and the surrounding areas in recent months, and that 50% of them have sought to return to the United Kingdom. We do not know what status they want to return under. Some might have forsaken terrorist activity; others might be returning to engage in further recruitment exercises. We do not know their status, and there is a real need for the assessment that the Government propose. The Home Secretary’s report to Parliament on the joint terrorism analysis centre’s assessment of the threat level, produced independently of Ministers, acknowledges that the level is still severe and that a terrorist attack is highly likely, although there is no evidence to suggest that one is imminent. All Members need to be cognisant of the increased threat following the assessment by JTAC in August. The Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, has indicated that the assessment of the Metropolitan police, on behalf of the UK police, is that five terrorists a week are now travelling, and that up to 250 are returning. The Government need to address that issue.
New clauses 1, 2 and 3 and new schedule 1 aim to introduce balance to the Government’s proposals, to ensure judicial oversight of these key issues. New clause 1 has been tabled by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), my hon. Friends the Members for Kingston upon Hull North (Diana Johnson) and for Sedgefield (Phil Wilson) and me, and it seeks to ensure that the temporary exclusion orders can be introduced in the form that the Government want.
New clause 2 proposes conditions A to E. Condition A states that the Secretary of State must reasonably suspect that
“the individual is, or has been, involved in terrorism-related activity outside the United Kingdom”.
Condition B states that the Secretary of State should reasonably consider that the issue of the order
“is necessary, for purposes connected with protecting members of the public”.
Condition C is
“that the Secretary of State reasonably considers that the individual is outside the United Kingdom.”
Condition D is
“that the individual has the right of abode in the United Kingdom.”
Condition E relates to the Secretary of State believing that action should be taken.
New clauses 1 and 2 mirror what the Government have already said. We have tabled new clause 3 because we believe that a court needs to agree to the Secretary of State’s application for a temporary exclusion order. It would allow the Secretary of State to make an application to the court to ensure that the conditions in new clauses 1 and 2 had been met. Under new clause 3, the court would have to consider the Secretary of State’s application. It may do so
“in the absence of the individual”
about whom the application is being made. It may also do so
“without the individual having been notified of the application”
and
“without the individual having been given an opportunity…of making any representations to the court”.
This would provide judicial oversight of the Secretary of State’s application to put in place a temporary exclusion order.
Sir William Cash (Stone) (Con)
The right hon. Gentleman accepts that there is a substantial threat, although he says that we do not know exactly what it is or what the status is of the people who might wish to return. In respect of the right of abode, does he think it is appropriate that a person should be allowed to come back here if they have formally renounced their allegiance to the United Kingdom and purported to give allegiance to another state or territory and if they are known to have the intention of committing jihadist acts of violence?
Mr Hanson
I look forward to hearing the hon. Gentleman’s speech in support of his own amendments in due course. These are difficult questions, and we might be straying into the area of deprivation of citizenship, which we discussed when considering other legislation last year. The Bill and our proposals would provide judicial oversight of decisions to exclude made by the Secretary of State. The issues of right of abode and citizenship are difficult, because if an individual retains British citizenship but is undertaking the type of activity the hon. Gentleman is alluding to, mechanisms are in place in the Bill and other legislation to take effective action to ensure that that is addressed in a legal framework. It is difficult to say that an individual cannot have a right of abode, because that makes them, in effect, stateless, and therefore the problem remains one for the UK passport holder, but it is not a problem within the UK. We need to reflect on that extremely carefully.
Mr David Winnick (Walsall North) (Lab)
Is not the nub of the matter, as raised by the hon. Member for Stone (Sir William Cash) simply this: it is for the court to consider all the factors involved, hence the need for judicial intervention and decision making? This should not be left to the Home Secretary.
Mr Hanson
I am grateful to my hon. Friend for tabling his amendments, which have a similar hue to ours, in that we are trying to put in place judicial oversight. Given the concerns that have been raised since we discussed the Bill in Committee, I hope the Minister will again consider our new clauses. They would create a court process through which the Secretary of State would have to go to place an individual on a temporary exclusion order, as there is currently no judicial process before one can be awarded. The new clauses have not come out of the blue; they have arisen because of real concerns following the Prime Minister’s initial announcement in August that he would introduce this legislation. Those concerns have come from a number of authoritative sources. We discussed these matters prior to Christmas, but it is worth repeating the concerns.
David Anderson QC is tasked by the Government with being the independent reviewer of terrorism legislation, and both at the time of the Prime Minister’s announcement and in evidence given on 26 November to the Joint Committee on Human Rights he has raised big sceptical objections to the proposed TEOs against suspected jihadist fighters. He told the Joint Committee:
“The concern I have about this power—the central concern about it—is where the courts are in all of this…if the Home Secretary wants to impose a TPIM”—
the other legislative tool the Government currently have—
“she has to go to the court first, and if the court thinks she has got it wrong, it will say so...one will want to look very carefully to see whether this is a power that requires the intervention of the court at any stage, or whether it is simply envisaged as something that the Home Secretary imposes…if you are abroad when this order is served on you, it is a little difficult to see in practical terms how a right to judicial review could be exercised.”
Those are key issues, because what the independent reviewer of terrorism legislation has said is that under the TPIM legislation designed by this Government, the Home Secretary has to go to court to get a TPIM before one can be imposed on an individual. A TPIM restricts severely an individual’s movement in the UK and imposes a range of conditions on that individual. The TEO will have the same legislative impact, in that it will severely restrict an individual’s movement. As I said, that restriction might well be perfectly valid—it may well be in the interests of terrorism prevention and be a positive measure to protect British citizens—but it needs to have judicial oversight to ensure that an individual is able to challenge it without the right of judicial review. I agree with David Anderson QC and I want the Government to respond today to his concerns, as well as those of right hon. and hon. Members.
Sir William Cash
I have looked through the minutes of evidence taken before the Joint Committee on Human Rights on Wednesday 26 November and I can find no reference, either in the questions asked or the answers given by the reviewer, to the text of the 1961 convention on the reduction of statelessness and, in particular, article 8(3). That was not even raised, and I do not think it is possible to have a coherent discussion about the nature of either the right of abode or the implications of what we have just been discussing without making reference to the convention. No reference was made to it there whatsoever.
Mr Hanson
Let us look at those issues in due course. The hon. Gentleman will have an opportunity to make a contribution and the Minister will respond. I am trying to focus on our new clauses, which are about putting in place a reasonable level of judicial oversight. I have cited what the independent reviewer said because when the Prime Minister launched this policy those concerns were stated outside this House much more severely and harshly than they were when the independent reviewer appeared before the Joint Committee. The point he makes is that the Government’s defence at the moment is that there is an opportunity for judicial review, which is an expensive, long and time-consuming process and which may not be able to be exercised from outside the jurisdiction of UK shores. Under the TPIM legislation, Ministers have to go to a court, whereas under the TEO proposals, as currently put forward, they will not. Our main proposal in the new clauses is to put in place a regime that mirrors that of the existing TPIM legislation. This is not a new, fanciful procedure; it is one the Government have drawn up, as it mirrors their proposal, and I hope they will consider it seriously.
Mark Field (Cities of London and Westminster) (Con)
Does the shadow Minister accept that these temporary arrangements have a level of urgency that is often not quite there in the TPIM-type arrangements, which is why the Government perhaps feel that adopting judicial oversight as opposed to a judicial review process would be unwise? Perhaps he would go into some detail on the underlying urgency issues relating to the temporary seizure of passports, which we are going to be discussing in the next two days.
Mr Hanson
I accept that there will always be an element of speed required on occasion to examine issues such as the temporary exclusion of an individual, but this will not always be an urgent matter. The Government will know of and will be tracking individuals seeking to return; they will have intelligence on that and will be able to prepare and take action on individuals. I know from my experience of being a Minister in a range of Departments that if speed on legal requirements is needed, it can be done. I have often as a Minister authorised legal action to be taken in the morning that is taken through the courts on the very same day. I have done that in the Ministry of Justice in regard to prison strikes and in the Home Office in relation to a range of other measures—it can be done. The question is: is the Home Secretary’s decision on these matters the fount of all wisdom? It may well be—let us not put too fine a point on it. There will be occasions when the Home Secretary is making a perfectly rational and valid decision based on evidence that someone is a potential threat to the UK and therefore needs to be excluded. The question for the House is simply this: should there be an opportunity for someone other than the Home Secretary—the courts—to make a judgment as to whether the Home Secretary has acted proportionately and within the law, and has justifiable reasons for so acting? That could be done in camera or in public—that is for us to consider—but we are making our proposal because the same provision is in place for TPIM legislation. If TPIM legislation is dealing—and I know from personal experience that it is—with those at the very sharp end of the potential terrorist threat, where evidence is around but necessarily cannot always be shared in public, then that can also be done in the case of temporary exclusion.
Pete Wishart (Perth and North Perthshire) (SNP)
I welcome Labour’s conversion to judicial oversight in the matter of temporary exclusion orders. Given that the right hon. Gentleman has moved so far to reach this place, will he and the Labour party now support such oversight for other counter-terrorism measures?
Mr Hanson
As someone who had the privilege of holding ministerial position in the previous Government, I can say that we often had judicial oversight of a number of measures or sunset clauses. We are not late coming to this matter. This is a rerun of a debate that we had in Committee in December. I am grateful that the Minister has had Christmas and new year to reflect on these issues and to hear some wider argument from his own Members.
It is clear that the Government face difficult challenges not just from the Opposition but from Members on their own Benches. In Committee on 15 December, the right hon. Member for Haltemprice and Howden (Mr Davis) said that he had some concerns about this provision not having judicial oversight. In a long intervention, he said:
“I had not intended to speak today…What concerns me today is the issue of the Home Secretary herself exercising the power. I am concerned that it comes about without prior judicial approval or, indeed, without being a power of the court, which would be my preference.”––[Official Report, Counter-Terrorism and Security Public Bill Committee, 15 December 2014; c. 1219.]
Those are the words not of the Opposition but of Government Back Benchers. I notice that the hon. Member for Esher and Walton (Mr Raab) is in his place. [Interruption.] I hope to be able to attract his attention. I am not sure which source he spoke to, but his words are quoted in the Independent on Sunday so they must be true. He said that he was “sympathetic” to the amendments and “would find it hard” to vote against them. I hope that he reflects on those points today. The hon. and learned Member for Harborough (Sir Edward Garnier), who until very recently was Solicitor-General, said:
“There is disquiet about a few aspects of this Bill in its detail.”
Our new clauses back up the concerns of the right hon. and learned Member for Beaconsfield (Mr Grieve), which he expressed before the Bill went into Committee. There is real disquiet from a number of Members. Indeed, I am pleased to see the right hon. Member for Sutton Coldfield (Mr Mitchell) in his place. According to the Independent on Sunday, he said that he would
“listen to all the arguments with some care”
before deciding which way to vote. Undoubtedly, he is listening to the arguments with some care before deciding how to vote. I know that he is a good colleague of the right hon. Member for Haltemprice and Howden. I wish to place it on the record that concern over these matters is growing. In fact, a late entrant to this festive party appears to be the Liberal Democrats.
Mr Hanson
Perhaps they were there on Second Reading. I might be a bit old fashioned, but I thought that one of the purposes of Government committees—when I was a Minister I served on many such committees in the backrooms and bowels of government—was for Ministers to thrash out what should be in a Bill before it is presented to the House. Today’s edition of The Guardian has an article on this matter—again, it must be true. It says:
“A fresh coalition row has broken out after Nick Clegg told the home secretary, Theresa May, that she will face a parliamentary defeat on the government’s counter-terrorism bill unless judges are given oversight of plans to impose temporary exclusion orders on some terrorist suspects returning to Britain.”
Guy Opperman (Hexham) (Con)
Is that the best the right hon. Gentleman can do—reading out bits of newspapers?
Sir Menzies Campbell
I regret that I have no access to the bowels of government however unsavoury they might be. I made my own position plain on Second Reading. Indeed, I agreed with the hon. Member for Walsall North (Mr Winnick) that this was an issue that had to be considered. Unhappily, I was indisposed during the Committee stage of the Bill, otherwise I would have been here. But I am here today to reflect my continuing unease, which I hope I eloquently put before the House on Second Reading. I shall continue to do that. Up until that part of the right hon. Gentleman’s speech, I was about to say how much I agreed with him. He must be careful, because he might disturb my sense of acquiescence.
Mr Hanson
Let me gently stroke the right hon. and learned Gentleman and try to keep him in the tent. I think that he will find the tent to be most comfortable. The question today is: do we have judicial oversight of the temporary exclusion orders? A number of Government Members have indicated that they feel that judicial oversight should be present. To be fair to the right hon. and learned Gentleman, we heard on Second Reading—and today this has appeared as being the position of the Deputy Prime Minister—that we should consider putting that in place. All I am saying is that there is a mechanism today for the Government to listen to that. They could even agree with our proposals without us forcing a Division, which would potentially put Members on the spot, forcing them to decide between loyalty to their party or to their principles. The Government could take this matter away and say that they agree with us.
Sir Edward Leigh (Gainsborough) (Con)
The right hon. Gentleman talks about carnage and defeat. I have been around this place during many rebellions, and I do not get the atmosphere in this Chamber of carnage and defeat. I do not feel a tremendous wave of anger against the Government. Could it be that most Members of Parliament think that if it is a choice between judicial oversight or their sons and daughters being blown up on a London tube, they would rather let the Secretary of State take action, and take action quickly?
Mr Hanson
I am not sure whether the hon. Gentleman was in the Chamber at the start of my comments when I said that this is a proportionate power. There are real issues of potential threat where this action should and could be taken. The question is whether we should have judicial oversight, as we have in other legislation. He says that there does not seem to be an atmosphere of massive rebellion in the Chamber. Let me reflect on that for a moment. We have a number of right hon. and hon. Members from the Conservative Benches who have expressed their disquiet publicly. They did so on Second Reading, in Committee and when the Prime Minister announced the proposal in the first place. They have also gone to the trouble of commenting on their concerns in the press at the weekend. The right hon. and learned Member for North East Fife has genuine concerns, expressed on Second Reading. Now the leader of the Liberal Democrats, the Deputy Prime Minister, representing the 50-plus Members of Parliament whom he leads in this Chamber, is apparently saying that he will seek these changes in the other place when the Bill goes down the corridor. There is disquiet from the official Opposition and our 250-odd Members, as well as from Members of other parties. It strikes me that even now there is potentially a majority in this Chamber to put judicial oversight in place.
Mr Dominic Raab (Esher and Walton) (Con)
I am listening sympathetically to some of the strong arguments that the shadow Minister is making, but I am trying to work out whether this is a principled position or an expedient one. Is he saying that in future cases and debates he and the Labour party, which has introduced a lot of draconian legislation, will adopt the principled presumption in favour of judicial oversight of the accretion of Executive power, or is this just a tactical one-off? Can he give me some reassurance on that point?
Mr Hanson
I hope that I can. It is perfectly reasonable to have judicial oversight of such matters. As I have said, I have introduced it as a Minister in the past and we have supported it for TPIMs. Indeed, some of the issues relating to sunset clauses, which we will discuss later, have been supported by me and by the Government of whom I was a member.
To take the point made by the hon. Member for Gainsborough (Sir Edward Leigh), there is a reasonable argument to be made that these are serious issues, with difficult people trying to do things that are damaging to the UK’s national interest, and we should be cognisant of that. Part of the great power of this country is that we allow the rule of law to have some judgment over ministerial decisions. In this case, the Home Secretary’s decision will be what determines whether we can have a temporary exclusion order. I am not stopping that happening and I am not trying to shorten it. I am simply saying that there should be the opportunity to have oversight of the Home Secretary’s decisions.
Mr Winnick
In case the hon. Member for Esher and Walton (Mr Raab) was asking what the position would be if a Labour Government did not provide for judicial oversight, may I tell my right hon. Friend that in those circumstances there would be a great number of Labour Back Benchers who would make their views perfectly clear and would stand by the principle about which he is speaking?
Mr Hanson
That is reassuring. I will look forward to my hon. Friend’s support post-May in the happy event of my standing at the Government Dispatch Box arguing for the Government of the day. I am sure that we will continue to have the same level of support that he has given to those on the Labour Front Bench over many years in this House.
I hope that I have made the case sufficiently for the Government to consider the issue now and to give us some indication in this regard, saving us the potential difficulty of ping-pong, further discussion and further debate between both Houses in the short period before the measure reaches the statute book. I want to ensure that the Government are subject to that judicial oversight. It would not in any way impact on the ability of the Minister to make decisions effectively on intelligence about who needed to have a temporary exclusion order placed on them, but it would reassure the community in which we also serve. It would also ensure that the Home Secretary’s decisions were subject to some checks and it would, I think, help to enhance our international reputation in dealing with these issues. I commend the new clauses to the House.
Mr Dominic Grieve (Beaconsfield) (Con)
I was reflecting as I listened to the right hon. Member for Delyn (Mr Hanson) putting the case for the Opposition that, when I first came to the House, it was suggested in a maiden speech by a then Labour Member that we should concertina the consideration of Bills because it was quite clear that the overwhelming majority on the Labour Benches at that time would have meant that they had to go through anyway. All I can say is that I am very grateful that we have not taken up that option.
The process on which we have embarked—in a sense, this leads me to try to avoid repeating the speech I made on Second Reading and again in Committee—enables us to go over the same ground again but, each time, to examine it from a slightly different angle. The issue being debated this afternoon, of which new clause 3 constitutes the kernel, is in fact quite narrow. There seems to be general agreement that it is necessary to have a process of managed return, and it is perhaps slightly unfortunate that we started off the process with statements that suggested that we were embarking not on a process of managed return, but on a process of excluding people for ever who had gone abroad and were suspected of having committed terrorist offences but were in fact British-born nationals. That was very properly abandoned and the Home Secretary has now proposed a perfectly sensible package, endorsed by David Anderson, the terrorism reviewer, that will be useful in enabling us to meet this undoubtedly real problem.
The question is therefore about the detail. In this case, that means the difference between the Home Secretary’s taking an executive and administrative act, then allowing it to be judicially reviewed if there is disagreement with it by the individual concerned, and having some kind of judicial oversight. Scrutiny, except in exceptional cases in which there has to be rapid administrative action, would normally be triggered by going to a court and getting a judge’s permission in the same way as we do with TPIMs.
Throughout this process, I have favoured the principle of judicial oversight. I appreciate that the granting of a passport to an individual is an act of the royal prerogative and therefore one that is normally carried out by the Executive. For that reason, the Home Secretary has been able, in some exceptional circumstances, to withdraw and remove the passports of nationals abroad who are also dual nationals and subsequently to have that challenged through a review process.
It is worth bearing in mind that passports have taken on a rather different significance from 101 years ago when, effectively, the vast majority of British nationals travelling abroad did so without passports at all. Indeed, a passport was an exceptional document that one was granted for the purpose of having one’s bona fides attested to by the state. Nowadays, a passport is a pretty essential tool not only for travelling in and out of this country but for travelling when abroad and avoiding some of the problems that might beset someone whose passport is deemed invalid.
For those reasons, although I understand where my right hon. Friend the Home Secretary is coming from when she wishes to preserve the principle that this is a prerogative power and that the removal of the passport and its cancellation when the individual is abroad should be subject to judicial review, the power is so exceptional that that judicial oversight is by far the most prudent course. It is not just by far the most prudent course and helpful for the individual concerned but, ultimately, helpful to my right hon. Friend as that would give it the validity it needs to be effective, without which I fear that we might well end up in rather more complex and lengthy litigation and, above all, with a sense of grievance sometimes creeping in for people who consider that they have been treated unfairly.
I appreciate that the subject is emotive. Indeed, the amendment tabled by my hon. Friend the Member for Stone (Sir William Cash) makes clear and highlights the anxiety, which is, I am sure, shared across the House, that people should behave in a way that is utterly incompatible with their British citizenship, in some cases going abroad and openly proclaiming both their renunciation of allegiance in some form and their allegiance to a power that appears to us to be utterly repugnant in its behaviour. Those feelings are understandable and very strong.
At the same time, however, it is right that there are essential principles of our common law that individuals enjoy the benefit of the presumption of innocence and that free-born British subjects may come and go without let or hindrance in their own homeland. If they have committed serious offences while abroad, including treason, they should be brought to justice here on their return. We do not have the principle of excluding people from their own land, quite apart from the breaches of international law that that would involve.
Mark Field
Although I share some of my right hon. and learned Friend’s concerns about riding roughshod over a lot of ancient liberties, does he not accept that what he says about “free-born British subjects” is very much a throwback to a bygone age? Many of our constituents would not recognise the notion that the individuals we are talking about are in any way free-born British subjects, because many of them have come here as immigrants, perhaps rather recently, got passports and then misused them, as our hon. Friend the Member for Stone (Sir William Cash) rightly points out, by going abroad and then, having renounced many of the liberties for this country, wishing to return. [Interruption.] I will be off my feet in just a moment, Mr Deputy Speaker—[Interruption.] Does he recognise that point?
Mr Grieve
I am grateful to my hon. Friend, but I must say that I profoundly disagree. I think that the issue is as relevant today as it has always been. British nationality, and British citizenship, are important rights, and they are shared, and should be shared, irrespective of a person’s background or ancestry. That is a fundamental principle on which this country operates and on which the House works. I consider it a very serious matter if we are to say to any group within society that they may be deprived of what is effectively their birth right, and that birth right is extended to all. I should make it quite clear that that in no way endorses the right of individuals to behave contrary to law. If they do so, they should be punished, and punished severely.
Sir William Cash
My right hon. and learned Friend and I have crossed swords on this matter on a number of occasions over the past 15 or 20 years—since he made his maiden speech. With regard to his assertions about the common law, does he believe that the common law would be sustainable in the context of the charter of fundamental rights, because that would refer questions of family life and other matters to the European Court of Justice? How could the common law survive on that basis?
Mr Grieve
The biggest threat to the common law is the statutes we pass in the House that undermine it. The principles of the common law are crystal clear in respect of the right of a British-born citizen and the Queen’s subject to reside in their homeland. Parliament, if it so wished, could undermine that. That has always been the problem with the common law. It is one of the reasons why we have such things as Magna Carta and habeas corpus, because the common law was insufficient. Indeed, I must say to my hon. Friend that it is one of the reasons why we have the Human Rights Act and the European convention on human rights, and why in fact those are additions to the common law that I happen to think can be on their own, while by no means perfect—I do not wish to be drawn further down that route—very valuable. However, the common law principle is clearly there, and when there is a common law principle, the important point is that we should interfere with it only very cautiously, particularly when it is so clear.
I want to make some progress and not to be diverted. The point at issue for the national whose passport has been removed and who will be made subject to this process is that they could be left in a very vulnerable condition in the location in which they find themselves. That is why I think judicial oversight would be so valuable for the Government, were they to accept it, because it would allow the reassurance that, in taking an action that in my view is reasonable, necessary and proportionate, and on which I wholly support my right hon. Friend the Home Secretary and my hon. Friend the Minister, there will not be untoward consequences that would bring that action into disrepute.
Sir Edward Leigh
With respect, does my right hon. and learned Friend not realise how out of touch he is? He talks about vulnerable people and the rights of free-born Englishmen, which is all wonderful stuff, but the people that the Secretary of State is trying to exclude are crazed jihadists who hate our liberties and our country, who cut off the heads of aid workers and who would love to come here and kill our children. His wonderfully old-fashioned and legalistic arguments are not appropriate for dealing with those sorts of people.
Mr Grieve
They might be crazed jihadists, and they might be suspected of being crazed jihadists. It might be that they should be brought to justice and imprisoned for the rest of their natural lives. All those things are possible, but I happen to believe in the presumption of innocence. If I may say so, I am a bit surprised, given my hon. Friend’s background, that he seems to be ignoring that. Of course I recognise the threat; that is why I am wholly supportive of the broad thrust of the Government’s approach. However, on trying to get the balance right, I happen to think that judicial oversight would be helpful in giving—if I may put it this way—the authority to the decisions and thereby ensuring that they are accepted within the communities that have more individuals who might be affected by them and that they are therefore unassailable. That would reinforce the values that underpin our society and be precisely the approach that we ought to adopt.
Mr Raab
Does my right hon. and learned Friend agree that, as a matter of efficacy, if we want to focus these powers on the crazed jihadi, rather than see mission creep with the powers stretched beyond their original intention, the surest way to do that would be by having a check through the courts?
Mr Grieve
I agree entirely. The truth, I suspect, is that we simply do not know the full spectrum of individuals who have been lured to places such as Syria and Iraq, drawn by the attraction of ISIL. Some will indeed be crazed jihadists, and some might be mass murderers, but others might be terrified teenagers who have realised that they have in fact stepped into a type of hell. All those things need to be borne in mind.
I do not wish to take up any more of the House’s time. I hope that this debate may encourage my hon. Friend the Minister to move in the direction I have suggested—I have every confidence that it will. I do not think that the issue will go away unless we deal with it. I hope that we can deal with it here, but we might have to do so in another place. Whichever it is, I know that my right hon. Friend the Home Secretary, who is very level-headed on these matters, will take on board the concerns that have been expressed, which in any case in no way undermine the thrust of what she is trying very properly to achieve.
Mr Winnick
Amendment 18, which stands in my name, has been grouped with those that we are now debating. I endorse what the right hon. and learned Member for Beaconsfield (Mr Grieve), the former Attorney-General, has said. I have been concerned from the very beginning, as those who have been involved in the debates know, that powers are being given to the Home Secretary without any kind of judicial oversight or intervention, and that seems to me to be inappropriate.
Let me say straight away that I recognise that there is a danger that some of the individuals returning from Syria could have been indoctrinated in such a way that they could inflict damage and terrorism on our people. Reference has been made—indeed, I referred to this in the Home Affairs Committee—to attempts to draw comparisons, if they can be drawn, with the situation that existed nearly 80 years ago when people volunteered to go to Spain to fight fascism. Although many of those people changed their minds to some extent when they returned—not about fascism, but about domestic politics—and did not have the same politics at age 60 or 70 that they had at 20, they were nevertheless always proud of what they did in Spain. Of those who survive, one thing is absolutely certain: there was no danger that they, having survived the civil war, would inflict terrorism on this country when they returned. No one has suggested otherwise. I am somewhat surprised, having looked into the matter, that the security authorities in the late 1930s were asked to keep an eye on those returning from the International Brigade.
When it comes to present-day events, the hon. Member for Gainsborough (Sir Edward Leigh) mentioned jihadis. Yes, that is a possibility, but I do not work on the assumption that all those, or the majority of those, who return to this country from Syria do so with the sole aim of inflicting terrorism. The possibility exists, unfortunately, but that is for a court, not the Home Secretary, to decide on all the evidence.
If the Home Secretary is advised—obviously, Home Secretaries are advised by their civil servants—on the various names that should be considered for a temporary exclusion order, and the Home Secretary agrees that an order should be made, that should go to a court. My right hon. Friend the Member for Delyn (Mr Hanson) made the point that David Anderson made in evidence both to the Joint Committee on Human Rights and to the Home Affairs Committee. He suggested that if the restrictions imposed on a citizen by TPIMs require a court order, the same should apply to a temporary exclusion order. The Home Secretary has argued, in effect, that TPIMs are different and have more serious implications than TEOs, but I do not accept that. I would have thought that a TEO was a more serious order. Nevertheless, if TPIMs are subject to a court order, it is difficult to argue that the court should have no role in TEOs. In his evidence to the Joint Committee on Human Rights, David Anderson asked where the courts were in all this.
I hope I am not being unduly critical of the House of Commons when I comment on the fact that, on a matter so central to civil liberties, there are so few Members present. I cannot deny that that is the case on the Opposition Benches too. To some extent it is a reflection on present-day parliamentary politics and perhaps politics outside that there is not the concern that there should be.
If the Home Secretary is to be given such powers without any form of judicial intervention, is it not likely that on future occasions when a Home Secretary of whatever Government asks Parliament for powers and it is argued that there should be judicial intervention, the response will be, “Well, on temporary exclusion orders Parliament decided otherwise”? Why should there be any curb on the Home Secretary of the day when it comes to new powers? The hon. Member for Esher and Walton (Mr Raab) referred to mission creep. That would be mission creep, all right.
I hope I am in no way lecturing or being pompous—heaven forbid a hundred times over—but on matters concerning the civil liberties of subjects, we should be extremely cautious. I recognise that there are dangers. I am not accusing the Government of exaggerating. All of us want to do our utmost to prevent terrorism. Every one of us without exception, wherever we sit in the House, wants to safeguard the lives of our fellow citizens.
Sir William Cash
The hon. Gentleman talked about the exclusion of the courts, and the right hon. Member for Delyn (Mr Hanson) said much the same from the Front Bench, because it is implicit in what he is proposing that the courts would have to be involved, but clause 2 states:
“Condition A is that the Secretary of State reasonably suspects”,
“Condition B is that the Secretary of State reasonably considers”
and
“Condition C is that the Secretary of State reasonably considers”.
In each case, what evidence is there that the courts would be excluded? If there is a requirement to comply reasonably with certain conditions, it is open to the courts to have that challenged by judicial review. I am glad to see the Minister nodding. I do not understand the argument.
Mr Winnick
The hon. Gentleman and I are never likely to reach agreement on these issues. There are honest disagreements that arose in the previous Parliament, where we had sharp differences of opinion. I respect his point of view; I hope he respects mine. Judicial review is not the right way of trying to avoid the courts’ involvement. To cite David Anderson again in his evidence to the Joint Committee on Human Rights, what good is it to someone in Turkey to try to bring judicial review? It is a sorry argument.
I am not saying that the hon. Member for Stone (Sir William Cash) is putting forward a sorry argument, but rather that the Government are doing so when they say, “There’s no need for the courts to be involved. There’s always judicial review.” In practice, it would be extremely difficult for such a process to take place. If the amendments were defeated and the Government’s measure went through, and if I were asked whether it would be better for judicial review to stay in, of course I would say yes, but it is no substitute for what we are trying to achieve.
Earlier today there was a point of order about Magna Carta, and in June we will celebrate 800 years since its inception. I have some comments and some reservations which I hope to express when Magna Carta is debated. I remind the House of article 39, which states:
“No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land.”
That has some relevance, as does article 40, which states:
“To no one will we sell, to no one will we refuse or delay right or justice.”
Those are good points, despite my reservations about the barons at the time. I do not think my ancestors were around then.
There is not the slightest doubt that if the Liberal Democrats were in opposition, they would not only support, but would have proposed, the sort of amendments that we have tabled. When the Division is called, hundreds of Members will come in to vote without hearing the debate and, unfortunately, the inevitable will happen unless Liberal Democrats follow what, given his interventions, I take to be the position of the right hon. and learned Member for North East Fife (Sir Menzies Campbell). He knows that we have the utmost respect for him. I hope the right decision will be taken. If not, at least there is the other place.
Sir Menzies Campbell
I must begin by apologising for not being present at the outset of the debate. The business of the House accelerated beyond my expectation and I am not as fleet of foot, perhaps, as I once was.
In the felicitous event that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and I had been sitting together in judgment, I would have contented myself by simply saying “I concur”, because there was nothing in what he said with which I would want to take issue. Indeed, there was a great deal in what the mover of the amendment, the right hon. Member for Delyn (Mr Hanson), said with which I would agree. It is not necessary for me to delay the House over-long. It seems quite clear that the issue is whether the commencement of the sort of proceedings that regulated return would involve should be a matter of Executive responsibility or whether there should be judicial oversight.
I suspect that those who believe in judicial oversight do so as a matter of instinct, and perhaps not necessarily of logic, whereas, on the other side of the argument, people will think that an Executive decision is sufficient. As I explained on Second Reading, I have come down on one side of the argument against the background of reservations that I had, and still have, about the legitimacy even of managed return. A matter of this kind essentially enervates; it goes beyond TPIMs. It is a fundamental thing to say to someone who is a British citizen, “You may not return to this country.” That being so, we should incline towards the whole notion of judicial oversight.
That is a question of principle, but there is a pragmatism about it as well, because it would mean that every case would be considered on its own merits and that the Home Secretary of the time would have the protection of the court in proceeding in this direction. If the matter is left as one of judicial review, as it almost inevitably would be, there would be a period of uncertainty. In the course of a judicial review, the standard is not to satisfy oneself that there is a justification for the order but to satisfy oneself as to whether the execution of a discretion has been reasonable. It is sometimes described as having to demonstrate that a decision made as part of a ministerial discretion is arbitrary, perverse or capricious. That is a much more limited and very different approach from that proposed in the amendments. There should be a proper warrant for something that has an enervating effect on the rights of the individual. If one takes the view that rights depend only on loyalty to the principles under which those rights are exercised, then that opens up a very substantial door into areas where, for example, anyone who took a life would inevitably not be allowed the protection of life imprisonment but would be regarded as someone who, having taken a life, should sacrifice his or her own life. Our law has moved very firmly in the direction of judicial oversight.
I will vote for these amendments if they are pressed—indeed, I have told the Liberal Democrat Chief Whip that I intend to do so—because I think that this is a matter of principle. I will do my best to persuade reasonable men and women of the Liberal Democrats here present that they should do so also.
Having heard the debate so far, and having heard what was said on Second Reading and in Committee, I hope that the Minister may feel that this is an opportunity to try to produce a solution that reflects the view of the vast majority of the House rather than one that divides the House. In matters of this kind, it is always vital that if one possibly can, one should accept the will, if not of the whole House, then of the vast majority of the House. These are inevitably controversial issues, not least, as I said, because they have an enervating effect on fundamental rights. I shall wait with interest to hear what the Minister says. I hope that he will take account, if not of what I have said, then of the very eloquent and measured contribution of my right hon. and learned Friend the Member for Beaconsfield.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I seek clarification from my right hon. and learned Friend, based on his considerable knowledge and experience, on what question the court would address if it is not the judicial review question as to whether the Home Secretary acted reasonably in the determination that he or she has made. What question would the court address under the proceeding that he would like us to have?
Sir Menzies Campbell
The question is one of the Home Secretary having to persuade the court that he or she was entitled to make the order that was sought. In doing so, consideration would have to be given to all the individual circumstances that lay around that application. When one has gone a step further to judicial review, the question is not whether the decision was right or wrong but whether it was reasonable. That is a wholly different element of judicial oversight from the one that the amendments seek to achieve.
The Minister is a sensible individual, and he will, I am sure, understand the extent of the unease—that is perhaps the best way to put it—about this matter across the Floor of the House. He has within his power the opportunity to remove that unease by being sympathetic towards the points that have been made in the speeches we have heard so far.
Pete Wishart
After almost four days of debate, this Bill has almost burst into life after I do not know how many hours. Today there have been all sorts of threats of Back-Bench rebellions. The Liberals were going to get up to something; there was going to be a vote against the Government; and there are newspaper articles suggesting all sorts of things. I thought we were going to have a really exciting debate.
Who could believe that something as important as counter-terrorism and security could attract so little attention from Members of this House? [Interruption.] I would say to the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) that I have spoken at every stage of these debates. I have turned up and played my part, and I feel that I have contributed to the debate, but where are our Labour friends and colleagues? They have made two contributions during these remaining stages; I do not know how many they made in Committee of the whole House. We are hearing a bit more from our Conservative friends today. I very much enjoyed the speech by the right hon. and learned Member for Beaconsfield (Mr Grieve); it was a worthy contribution and something we should be hearing more of.
Why so quiet? What is going on? Is it because this is rushed legislation that has gone through so quickly that people have not been able to keep up with what the Government intend to do? Our constituents will find it very peculiar that this debate has secured so little attention and so few contributions.
Sir Edward Leigh
Perhaps the answer to the hon. Gentleman’s question is that most Members of Parliament support the Government line.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Perhaps I could help a little. Obviously we want to get to the new clauses and amendments rather than discussing who has turned up and who has not.
Pete Wishart
Thank you, Mr Deputy Speaker.
Unfortunately I missed the beginning of this debate on temporary exclusion orders. I apologise to the right hon. Member for Delyn (Mr Hanson), because I wanted to welcome the Labour party out of the anti-civil liberties wilderness. These are actually worthy amendments. I do not think I have congratulated the Labour party on any measure it has taken on civil liberties and security in the course of the past 15 years. This is the Labour party of 90 days’ detention, of ID cards, of control orders, of national databases—
Mr George Howarth (Knowsley) (Lab)
I have listened with great interest to the hon. Gentleman’s contributions throughout the passage of this Bill. While he is on the subject of the Labour party, will he tell us whether he is likely to support the amendments tabled in the names of my right hon. Friend the Member for Delyn (Mr Hanson) and others?
Pete Wishart
That is what I am doing. I am congratulating the Labour party. This evening, for probably the first time in 15 years, I will be rushing through the Lobby to support the Labour party. Come on board! Re-establish the Labour party with its civil liberties—
Mr Deputy Speaker
Order. We need to get to the new clauses and amendments. I understand that you want to try to make this into a political broadcast, but I am not into that at the moment. I am into hearing your views on the new clauses and amendments, not on the history of the Labour party for the past 15 years.
Pete Wishart
Thank you, Mr Deputy Speaker.
We have these amendments today because there has been an intervention from David Anderson, the anti-terrorism supremo. We all have to listen very carefully to what David Anderson says about this. He is absolutely spot on, of course. With measures such as this, we need judicial oversight. A number of us could possibly trust the Home Secretary to carry out her function in approaching this with a reasonable degree of professionalism, as one would expect from a Home Secretary as upstanding as the current one. David Anderson gets to the heart of all this: the burden of proof, being able to test matters in court, and the rights of the individual who has been subject to these charges and has no recourse to justice to be able to test them in court and try to determine their innocence. That is not possible as things currently stand, and that is why I very much support what is on offer today.
We have to give people the opportunity to respond to particular charges laid against them. The idea that suspicion that they are involved in a certain activity is enough to stain their reputation and means that they have no opportunity of recourse to justice or to put their case is not good enough. These perfectly good amendments would be a very useful intervention. The Labour party has given us an opportunity to re-examine the issue.
Sir William Cash
I am concerned, and have been for a long time, about the apparent not indifference to but unawareness of the danger facing citizens of the United Kingdom if jihadists of the kind I will describe in a moment—my amendment 22 provides a definition—return to the UK and commit horrible and appalling atrocities similar to that which we witnessed in the case of Lee Rigby. I ask hon. Members to think about what they would say if one of their constituents were murdered in that unbelievably atrocious manner. I also ask them to consider whether there are people among the many hundreds—some suggest thousands—who have already gone abroad who may wish to return under cover of their jihadist activity and perpetrate and perpetuate their activities in our own homeland of the United Kingdom. If such murders and atrocities were committed, would our constituents and the British public as a whole think it right that those people had a right of abode here? I think that most of the British public would say that if the circumstances defined in my amendment were complied with, they would not want those people to return to the United Kingdom.
One then turns to the question of whether those people’s human rights and the issue of statelessness are such that they should override those considerations. I am profoundly concerned and disturbed to hear some colleagues suggest that a person’s right of abode, so-called human rights and the need not to be rendered stateless are so overriding that they should prevail even in the circumstances I have described and even following the atrocities that I fear could occur.
I am extremely grateful to my hon. Friend the Member for Gainsborough (Sir Edward Leigh) for his support, but I happen to know from discussions I have had that many other Members very much agree with the sentiments expressed in my amendments. I sincerely trust that, whatever happens—I have yet to decide whether I will press my amendment to a vote—the matter can be looked at again in the House of Lords.
I have heard on many occasions, both from Front Benchers and others, about the evidence that the Joint Committee on Human Rights received from Mr David Anderson, the independent reviewer of terrorism. I have looked at those proceedings, but nobody asked any questions about the 1961 convention on the reduction of statelessness, which lies at the heart of the issue. In September I heard Mr Anderson and others, some of whom are present, on the “Today” programme, strongly asserting the arguments that have now been made on the Floor of the House. I wonder whether they have reflected on the implications for the British public if we do not take proper measures to exclude the right people, by which I mean those who are pronounced jihadists and who, if they were to return, would by all accounts be likely to perpetrate the kinds of atrocities I have mentioned.
When the Prime Minister made his statement on 1 September 2014, I was concerned, having just heard so many contributions on the radio, about the importance attached to people not being made stateless and so forth, and about their human rights being of such overriding importance, irrespective of the impact they might have on the public or of individuals being murdered in atrocious circumstances. I asked the Prime Minister:
“On the matter of statelessness and preventing British terrorist jihadists from returning to the United Kingdom, has my right hon. Friend been briefed that, under article 8 of the United Nations convention on statelessness, domestic legislation in certain countries may render a person stateless where he has acted inconsistently with his duty of loyalty, has behaved in a way prejudicial to the interests of the state or has declared allegiance to another state and shown evidence of repudiation of allegiance? Does he not accept that that is exactly where we are now, and that it would be extremely important to get that right so that the Leader of the Opposition”—
who had made some derogatory remarks to the Prime Minister on that—
“understands that the matter can be made clear?”
The Prime Minister replied:
“My hon. Friend makes a good point, which shows exactly why we need to discuss and examine this issue further. The reason why everyone will want us to examine this is that it absolutely sticks in the craw that someone can go from this country to Syria, declare jihad, make all sorts of plans to start doing us damage and then contemplate returning to Britain having declared their allegiance to another state. That is the problem that we need to address, and my hon. Friend will be useful in doing so.”—[Official Report, 1 September 2014; Vol. 585, c. 34.]
Well, his hon. Friend will continue to be useful in that respect, because I think that it is very important that we properly examine in this debate not only potential atrocities but the legal basis on which arguments are presented both for and against such orders.
I have corresponded with the Minister for Security and Immigration. If he was good enough to listen, he might want to intervene because I am about to refer to our correspondence. I am failing in my attempt, so perhaps his Parliamentary Private Secretary, my hon. Friend the Member for Hexham (Guy Opperman), could give him a nudge. [Interruption.] That is very good of him. I just want to let the Minister know that I am about to refer to correspondence between me and the Department.
I wrote to the Minister, and had a reply. I will not go into every aspect of it, but I found that I had to write to him again on 15 December. His letter alleged that the convention on the reduction of statelessness did not really apply, but I made a point about article 8(3). The beginning of article 8(1) of the convention—bear in mind that the United Kingdom has signed it—clearly says:
“A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.”
However, article 8(3) goes on:
“Notwithstanding the provisions of paragraph 1…a Contracting State may retain the right to deprive a person of his nationality”.
Some states have and some have not gone along with the arrangements, but the article goes on to give the basis on which a state may retain the right to deprive a person of his nationality, and that is very much in line with the proposed new subsection (6A) in my amendment 22. It is clearly founded on the exclusions from the provisions of article 8(1).
Mr Winnick
A few moments ago, the hon. Gentleman referred to wishy-washy liberties. Is not liberty one of the most important reasons why this place exists?
Sir William Cash
Yes, it certainly is, but it is also subject to the question of what is the appropriate rule of law. The law—for example, on the right of abode, and in relation to the question of section 2 of the Immigration Act 1971—is what Parliament has decided is appropriate for the circumstances at the time. However, times have moved on and the circumstances are different. I have heard lawyers—I am one myself, and a former shadow Attorney-General—talk over and over again about the rule of law without asking this question: what is the rule of law based on? What circumstances does it apply in, and is it still relevant? We amend Acts of Parliament the entire time. This Bill and temporary exclusion orders are a new step forward, and they are a change in light of current circumstances. Looking across the Chamber, legislation relating to Ireland as it was in the days of the troubles was part and parcel of changes made at that time, and changes have been made to that legislation since. The answer is: liberty, yes, 100%, but not in circumstances where those who are prepared to perpetrate atrocities are allowed to get away with it.
Mr Winnick
Surely the rule of law must imply and mean in practice that no one’s liberty should be taken away except by the courts.
Sir William Cash
There are very sound reasons why the Secretary of State should have the right to determine these questions, as she does in many other cases. I have already made the point that at every stage in conditions A to D the Secretary of State may take only such action that she “reasonably” considers appropriate under the circumstances. The Bill already takes account of the possibility of judicial review.
Mark Durkan (Foyle) (SDLP)
The hon. Gentleman refers to conditions A to D, which refer to the Secretary of State “reasonably” suspecting or considering something. Amendment 22 states that
“the Secretary of State has provided evidence, whether or not conditions A to D are met”.
Provided evidence to whom or to what?
Sir William Cash
Provided evidence to those who will be making decisions about terrorism-related activities. It is not just about providing evidence to the court, which I think is implicit in what the hon. Gentleman is suggesting; it is about providing evidence about the facts described in the amendment. It is not necessary for the case to go to court, and the amendment leaves out the word “reasonable” in this context for that reason. If the Home Secretary provides evidence that is based on the person in question having repudiated their allegiance to the United Kingdom, and if that person has provided evidence of their allegiance to the new state by virtue of their actions and statements, that is enough in itself. That individual has done those things, and that is the evidence in question.
The legislative framework of this measure has already been mentioned, and I say to the Minister and my colleagues—some of whom I thoroughly disagree with on these matters—that it will be extremely difficult to exclude the operation of the charter of fundamental rights in applications of the kind likely to arise under the Bill. That is a serious problem because it will mean that under sections 2 and 3 of the European Communities Act 1972, the charter of fundamental rights will apply. That has already been made applicable—the European Scrutiny Committee has established that without a shadow of doubt, over and against the continuing belief, which has now been abandoned, that that charter does not apply to the United Kingdom. The charter of fundamental rights will apply, as will the Human Rights Act 1998. In those circumstances, the question of whether decisions will be taken by the British courts is a matter of extremely grave doubt; in fact, I would go further and say it is an impossibility. On the basis that the charter of fundamental rights does apply, if a decision were to go to the courts as in the Opposition amendments, it would be decided by the European Court of Justice under matters covered by the charter. That is a fatal objection. If the measure were to be carried out notwithstanding the European Communities Act 1972 it would be another story, but that is not what the amendments would do.
In conclusion, these are grave issues with great sensitivities, beliefs, convictions and principles at stake. There is an honest disagreement, to say the least, between myself and other Conservative colleagues, and I think we should put the British subject first, by which I mean those liable to be affected by jihadist atrocities, and not put forward the generalised view that the human rights lobby would prefer. This matter is too serious and too dangerous. It is not just about allegiance in its own right, but about a physical danger to the British public.
Mark Field
Unlike many of my colleagues I am more sympathetic to the Government’s position than others, although I respect the deep concerns felt across the House about broad issues of civil liberties. I have less concern about the temporary exclusion order being down to Executive authority, and in many ways the accountability of any Minister to come to the House and justify their actions counts for quite a lot.
The right hon. and learned Member for North East Fife (Sir Menzies Campbell) referred to the protection only of judicial review. If it were still down to old-fashioned Wednesbury principles I could accept that, but judicial review is now a rather broader body of law than was perhaps the case in the 1940s. It is now pretty substantial, which provides enough comfort—at least to my mind—for us to go down that route, rather than requiring the oversight that would come through David Anderson QC.
Mr David Heath (Somerton and Frome) (LD)
Does the hon. Gentleman accept that judicial review can look only at the process of reaching a decision, but that judicial oversight would be in a position to take further evidence on the correctness of the decision? Surely that is appropriate to these circumstances.
Mark Field
That is the principle of judicial review, as the hon. Gentleman is well aware, and judicial activism has put matters well beyond that particular point.
I have two more brief observations, and I have some sympathy with the hon. Member for Perth and North Perthshire (Pete Wishart), who is not currently in his place. My concern from the various whisperings around the Chamber in the last couple of hours is that the Government are trying to find some way of backtracking in the House of Lords on this matter. I think it would be a great discourtesy to this House if that came to pass. If we are to have a proper debate on this issue, it should be through the elected House as far as possible, rather than showing a bit of leg and letting things happen in the House of Lords. We shall see what the Minister has to say and how matters proceed in the other place.
I have one brief observation about all these issues and this sort of legislation, which is close to all our hearts. Governments of both colours are perhaps too utilitarian and practical in their outlook on such issues, and at times they need to take a broader view. The right hon. Member for Delyn (Mr Hanson) referred to our international reputation, and I could not agree more. Our international reputation on these issues counts for a hell of a lot, and on the 800th anniversary of the Magna Carta there is a sense in which the rule of law has been an important part of what we have been able, in terms of values, to turn out to much of the rest of the world.
I was also struck by the Snowden revelations made by Angela Merkel at the Reichstag, which recognised those states in the west that pride themselves on the values that have played an important part in developing human rights across the globe, affecting all 7.5 billion citizens of the world. We must watch and ensure that what we do does not set a precedent and an opportunity for dangerous dictators to utilise the fact that the rights of individuals have apparently been run over roughshod. There is no doubt in my mind that what is proposed in the Bill is necessary, but it is open to some debate whether some elements of it are entirely proportionate. It is a delicate balance. My instincts often are on the side of liberty on these issues. More often than not, it is right that we have some form of broader judicial oversight. As someone who is on the Intelligence and Security Committee, I recognise the importance of parliamentary oversight for some of the very important issues that require a focus on terrorism. I think the Government have broadly got it right in this regard. I hope the Minister will pay due attention to the concerns that have been raised and that, if there is to be backtracking, courtesy will be shown and it will come to this House rather than being left to another place. We have had an important debate, with contributions from Members on both sides of the House. The Minister should pay very close attention to the concerns that have been raised today.
Mark Durkan
Like other Members, I have listened to the debate and to the various points that have been made. What strikes me is that the parties, in the political ballet of this place as people swap Benches, have taken different positions on judicial oversight on previous occasions, adding to the observation that irony in politics is often hypocrisy with panache. It also reflects the fact that people are trying to deal with a Bill that may not be the Bill we designed. Certainly, I have profound reservations about the whole idea of temporary exclusion orders, based on my experience in Northern Ireland where counter-terrorism legislation was often counter-productive. Along with all the other dangers that other hon. Members have rightly highlighted in terms of the dangers posed directly by terrorism itself, we have to remind ourselves of the dangers of feeding what we are trying to fight. If people are trying to foster alienation and radicalism, we have to take care not to propagate the seeds they are trying to sow with legislation that might be misdirected or misguided.
Following your strictures, Mr Deputy Speaker, I will focus on the clauses and amendments before us. I want to make a point that relates to both the Opposition amendments and the Bill. The Bill contains conditions A to D in respect of temporary exclusion orders, while the Opposition new clause proposes conditions A to E. The difference is whether there should be judicial oversight to the issuing of a TEO. In some of the previous exchanges and interventions, questions have been raised about whether the option of a judicial review mechanism would provide a degree of judicial oversight. People have questioned where a court might be asked to look at something differently.
A court may find itself asked to consider whether an order has been issued appropriately, for example when somebody is prosecuted for breaching an order by returning. It may well be that somebody who has been found and charged in the UK, and who is the subject of a TEO, will say, as part of their defence, that condition C of the order was flawed. Part of their defence may be that they were in the United Kingdom when the order was made and that the Secretary of State should have had cause to know that. They may well be able to point to evidence that an element of the security services or police could, would or should have been aware that they were in the United Kingdom at that time. The order might well be challenged at the stage when it is meant to apply most—at the point of prosecution for a breach of the order. That would be a huge point of weakness. The Secretary of State could then be left to try to smother things, under closed material proceedings, and say that no evidence had been given that that person was known to the security services and that the security services knew that they were there.
We have seen that happen often. The hon. Member for Stone (Sir William Cash) referred to the experience of the troubles in Northern Ireland. How many times were there cases in Northern Ireland in which people, who found themselves in court in relation to charges for illegal paramilitary activity, gave evidence as part of their defence, and as part of the obfuscation against the charges brought against them, that they were actually acting as an agent or with the full cognisance of elements of the security services, the police or somebody else? That created a whole situation of disrepute and a sense of scandal around the application of the law, which did not do the rule of law, or confidence in the administration of justice, any good. It helped the propaganda efforts of many of those who were trying to challenge, with a subversive interest, the order of the state. There will be those who say that, in passing the Bill, we have to be alert to those dangers and to the wider malicious agendas of all sorts of nefarious forces and interests. We need to be alert to that.
The Bill states:
“Condition C is that the Secretary of State reasonably considers that the individual is outside the United Kingdom.”
If an order has been issued under judicial oversight on the subject of court approval, when it comes to any subsequent prosecution for breach of the order, the court making the criminal decision will have already known that a court had decided that the Secretary of State was acting reasonably. If the person claims that they were in the United Kingdom at the time of the order, the criminal court would be able to rely on the fact that the person should have challenged the order at that stage, by virtue of the fact that they were in the United Kingdom and could have presented themselves or got a legal representative to make that case or that suggestion, and so could remove that ground of challenge.
I raise that point not as some vague, remote technicality that somebody might say that they were in the United Kingdom when they were thought not to be. In current circumstances not related to the troubles in Northern Ireland, there is a situation—I will not go too deeply into the specifics of a case that is ongoing—where a constituent of mine was believed to have been fighting in Syria. It turns out that in the period the authorities believed that that person was in Syria, the person had in fact already returned to the United Kingdom and to my constituency. That person has been arrested and is now before the courts, but a judge has already said that he is minded to give consideration to the fact that in Syria the person was fighting against Islamic State and against the Assad regime.
That is not the material point I want to address, but the fact is that there have been circumstances where the authorities seemed to believe for a period that a person was outside the United Kingdom when the record now shows that they were inside the UK. The person may not have been making it evident, or going out of their way to advertise the fact that they were present in the UK. However, if the arrest of that person had been on the basis of breaching a TEO, they could well have been able to say that it did not stand or apply because they were in the UK and that the authorities should have known that.
The fact is that we have experience in Northern Ireland, and not just in Northern Ireland, where elements of the security services have known people to have been involved in certain things and have not necessarily shared that information with all the other forces of law and order, including the police service. We are to believe, from the de Silva report and so on, that often, and for their own purposes, different elements of the intelligence and security services know things that they do not share with others, and allow Ministers to act, speak and issue orders in full ignorance of what the intelligence and security services know. We cannot rule out that possibility in the future for all sorts of reasons. The best way of proofing against the risk of TEOs being brought into disrepute whenever someone is arrested for breaching the order, the best way of protecting the Secretary of State’s position in those circumstances, and what Members who support the Bill more than I do want to see, is judicial oversight when orders are made.
Sir Edward Garnier (Harborough) (Con)
The experience of the constituent of the hon. Member for Foyle (Mark Durkan), which I was interested to learn about, illustrates the difficulty that faces us. I do not suppose that anybody in the House—certainly not the Home Secretary or the Minister—wants to do anything that makes it more difficult to catch terrorists and others who wish to do us, our allies and our citizens harm. None the less, in our enthusiasm to deal with the problem, we need to come up with the best answer, and in my view the best answer includes much greater judicial oversight than is currently in the Bill.
I share the great honour, with my hon. Friend the Member for Stone (Sir William Cash), of being a former shadow Attorney-General. In fact, I was shadow Attorney-General twice, although I do not know whether that makes my arguments twice as good or half as good—I do not imagine it is of any relevance whatsoever. However, I think we need to extract from the Government a little movement. I hope that the Minister, in his response, can reassure me on this matter. I do not mind whether that movement comes in this House or the other place. I do not share the objections of my hon. Friend the Member for Cities of London and Westminster (Mark Field) to altering the Bill in the House of Lords. We are a bicameral Parliament, and if the Lords can come up with an answer that is politically acceptable, elegant and efficacious, let them do it. If it satisfies me and the Government, I am all for it.
Mark Field
My objection is not that there is not a great power of intellect in the House of Lords; it is that if the Government have already made up their mind to do it, they should do it here, rather than waiting for a defeat in the Lords.
Sir Edward Garnier
I see. That is a different point from the one I was addressing, so I apologise to my hon. Friend. Either way, I want the Bill adjusted for greater judicial oversight.
My hon. Friend is not as anxious as I am about the temporary exclusion orders in clause 3. I would not be as anxious as I am if the expression “temporary” related to a period far shorter than two years. To me, a temporary exclusion order means a matter of months, at the most, and possibly only days and weeks. Once one moves from days, weeks or a few months, one moves into something other than temporary, which bolsters the arguments behind the need for judicial supervision. I do not like the word “permission” in new clause 2 tabled by the right hon. Member for Delyn (Mr Hanson), but I do not think we should be frightened of judicial supervision. By “judicial supervision”, I mean getting to grips with the substance of the case, not judicial review, irrespective of the fact, as my hon. Friend accepted, that judicial review is a bit meatier and has more teeth than when it started. I share the concerns of many hon. Members, therefore, that although the Home Secretary—particularly this one—will be entirely well motivated, we should not allow her or her Ministers to persuade us that their motives trump our concerns about the absence of judicial oversight.
Sir William Cash
Would my hon. and learned Friend be kind enough to give way?
Sir Edward Garnier
I give way to a fellow member of the former shadow Attorney-General’s club.
Sir William Cash
The old cabal.
I wonder if my hon. and learned Friend would be good enough to answer this simple question: does he believe that the charter of fundamental rights could not get involved in this process? If so, what would his answer be?
Sir Edward Garnier
I am not going to answer that question, because it is not central to my point. When my hon. Friend and I meet elsewhere—perhaps in some shadow Attorney-Generals’ afterlife—we can have a long and fascinating conversation about the matter he has just raised, but if he does not mind, I want to make a few brief points.
Temporary is not two years; to my mind, it is something far shorter. I have no objection to the Home Secretary making a temporary exclusion order, but I prefer the expression used by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) on Second Reading when he talked about “managed return”. That is a much more accurate description.
Sir Alan Beith
Would the hon. and learned Gentleman be happier, as I would be, if, by the time the Bill returned from the Lords, it was a Bill about managed return, not exclusion, and if exclusion were the back-up to enforcing managed return?
Sir Edward Garnier
For all sorts of reasons, “managed return” is a more accurate description of what we are about, and I do not see there is any harm in being accurate. I do not know whether the Government will change the Bill to the extent of removing the expression “temporary exclusion”, except in the sense the right hon. Gentleman means, but I will not go to the cross over the matter; I just happen to think that “managed return” is a better description.
Sir Menzies Campbell
The hon. and learned Gentleman might recall that when the Home Secretary introduced the Bill she referred several times to “managed return” rather than “temporary exclusion order”, so perhaps he is pushing at a door that is more open than he expected.
Sir Edward Garnier
One never knows if the draught is going one way or the other, but let us hope that there is some meeting of minds. As I said, it is not a matter of fundamental principle; I just think it would be neater and more accurate to use the expression “managed return”.
I have no objection to the Home Secretary, in an emergency, making an order that governs the return of British citizens to this country, but within a short space of time—by that I mean hours and, at the most, a fortnight, three weeks or four weeks—the order should be supervised by the courts. Most obviously, it could be supervised by the Special Immigration Appeals Commission, which is now used to hearing matters in private. I know there are objections, but it is used to hearing from special advocates who can present information to the court on behalf of the respondent to the application, who, although the client, cannot hear all that is being said about him. SIAC would be the most obvious court to deal with these cases. The sooner they get to a court experienced in dealing with issues of national security and evidence that cannot be revealed to the wider world, the better. I have a little difficulty, however, with the Secretary of State being given the power to manage someone’s return and exclude them for as long as two years. We need to think about that, and I hope that the Minister, when he responds, will give me some comfort.
I am attracted by the thrust of new clause 2 tabled by the right hon. Member for Delyn, but I am not yet sufficiently persuaded that it will not be bettered by something the Minister, who is a man of great acuity, could come up with, if not this afternoon, then soon. I ask the right hon. Gentleman, therefore, to keep his new clause on hold and let the Minister, either here or in another place, deal with the problem in a way that is acceptable to the Government, the Opposition and those of us on the Government Benches—their loyal supporters—who would like to see the Bill adjusted. That way, before long, we could have a Bill that satisfies us all and deals with the problem of what to do about people who want to do disobliging things to us and our allies, either here or abroad.
Mr David Davis (Haltemprice and Howden) (Con)
I associate myself almost entirely with the assessment of the Bill by my hon. and learned Friend the Member for Harborough (Sir Edward Garnier).
Over the past several decades, any number of counter-terrorism Bills have been put before the House. Some have been justified; some have not. Some have been effective; some have not. Some have, in the words of the hon. Member for Foyle (Mark Durkan), fought terrorism, while some have fed terrorism. This Bill is a complex mix of measures, most of which I suspect are necessary, but it shares one characteristic with every single other counter-terrorism Bill I have seen here before: it brings more unfettered power to the Executive. With that go two problems. One is the increasing power of the Executive, which is a bad thing in itself, and the second is an increase in the likelihood of a miscarriage of justice.
I do not have a particular objection to a “managed return” approach to some of the individuals currently abroad committing crimes in other states. I do not subscribe to the “stateless person” concern, particularly when people have deliberately rejected their own allegiance to the state. I think there is a reasonable argument to be had on that, but I am concerned that this power will be effectively unfettered, which is what the Bill says at the moment, in the hands of the Home Secretary.
In common with my hon. and learned Friend the Member for Harborough and indeed others who have spoken, I shall listen very closely to what the Minister has to say. In my view, reform is necessary to bring about, ideally, judicial decision rather than judicial oversight. I would prefer this power to be one for the courts full stop—with all the proper appeal procedures that go with it. Judicial review is not good enough: it is too restrictive, too procedural and insufficiently material. My preference is for a judicial decision, but in its absence, for a close and unfettered judicial oversight. I say to my honourable and old friend the Minister that I hope he will be able to put the conscience of the House at rest today with his proposals. If not, I fear I shall have to support the Opposition in a number of their amendments and new clauses in the group.
Sir Edward Leigh
I hesitate to speak in the company of such distinguished lawyers, as I am just a former common or garden practitioner in the criminal courts, but I would like to give the view, as I understand it, of most members of the public. I very much hope in respect of what the public want that the Government will be firm today and will resist amendments tabled by the hon. Member for Walsall North (Mr Winnick). I accept that he is entirely sincere and consistent in his views, and would indeed resist the amendments tabled by the Labour party. I commend the amendments tabled by my hon. Friend the Member for Stone (Sir William Cash), which I signed. I fully understand that the Government might not be able to accept them today, but I hope they will take them away and look further at these entirely sensible amendments.
I wanted to speak today because I believe we need a sense of balance in this debate. We have heard reference made to “carnage”, “atmosphere”, “revolts” and the House of Commons being “up in arms” about this. Judging from how the debate has developed and from the number of Members attending it, I am not sure that that is necessarily the case. As I said in an intervention, I suspect that most Members of Parliament—and, more importantly, most members of the public—support what the Government are trying to do, and we will see what happens in the vote later.
We have these debates, and I quite understand where my legal friends are coming from, and liberty is entirely important. We are using language relating to Magna Carta, habeas corpus, and the God-given rights of free-born Englishmen; that is all very well, but I think the public view the issue in a different way. They are absolutely outraged that people who come here and are given British passports, which should be a tremendous honour and privilege—or indeed people who are raised here and have British passports—feel that this gives them the right to go abroad and fight for an extremist cause. These people not only hold views, but practise views that are wholly alien to everything this country has stood for for hundreds of years. These people are not even like Sinn Fein. At least Sinn Fein in their worst years, even if they were blowing up Members of Parliament, soldiers or innocent members of the public, presumably saw some sort of logic in their own eyes in what they were doing. We are talking about people who are religious fanatics whose idea of fun and aggro is to cut off the head of an aid worker.
The Government are not going to act in a vacuum. The Home Secretary is not going to act unreasonably. We need look only at what the Bill, which I support, says. It refers again and again to the Secretary of State needing to
“reasonably suspect that an individual is, or has been involved in terrorism-related activity”,
and to her “reasonably considering” that action is
“necessary for a purpose connected with protecting members of the public”.
The Secretary of State, furthermore, must
“reasonably consider that the individual is outside the UK”.
She has to act “reasonably”. Surely we must trust our Government and our Secretary of State to protect our people. If the Secretary of State acts unreasonably, we can surely trust the courts in a judicial review system to provide oversight and, if necessary, overturn it. I do not think for a moment that the Secretary of State would act unreasonably.
For the sake of argument, I refer to the amendment tabled by the hon. Member for Walsall North. As I understand it, he wants to replace the system whereby the Secretary of State has to act reasonably, presumably on the basis of intelligence, which may be nuanced, with a full court procedure. His amendment 18 states:
“The court may impose a temporary exclusion order on an individual following an application from the Secretary of State if the court is satisfied that conditions A to D are met.”
I have tried to understand how the amendments from the Labour Front-Bench team are more nuanced, but let me develop the argument. Those who oppose what the Government are trying to do are saying that there should be a court hearing in which all these factors can be discussed and through which we can assess whether a person—he may have gone to Syria, been a jihadist and all the rest of it—is a real threat to the United Kingdom.
I do not know a lot about intelligence, but I suspect that much of what will motivate the Secretary of State in her actions to exclude an individual will be based on intelligence. We are not talking about depriving somebody of their liberty. We are not talking about a free-born Englishman who goes abroad, gets in a spot of trouble, comes over here and is locked up. We are not talking about anything like that. We are talking about excluding somebody—temporarily, as I understand it—who the Secretary of State is reasonably satisfied has gone to fight jihad and engage in terrorist activity, and there is a real danger of them coming back here to blow up our children.
I suspect that a member of the public is not overly motivated by complex, legalistic arguments about judicial oversight, judicial review, delay and the rights of people to claim unfettered return. I suspect that a member of the public will be primarily, fundamentally and, indeed, probably wholly concerned about the safety of themselves and their family, and they will have trust. I trusted the last Labour Government. I know that the Governments of Tony Blair and the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown) received a lot of stick over this, but I think they were right in wanting to protect the public. I realise that it went against many of their instincts, but they rightly took the view that such was the nature of the threat that we were fighting a war. It is a situation rather like the one we faced in the second world war, in which some sort of deprivation of traditional liberties has to take place, although we are not actually depriving anybody of their liberty here. We are not putting people in prison. We are simply saying, “You have gone abroad to fight an extremist cause, and if you want to come back here, we think the Secretary of State has the right to exclude you.”
Sir Edward Leigh
I think we are talking about something slightly different. As I understand it, TPIMs deal with someone who is here and whose freedom of movement and operation in this country is being controlled. That is rather different from facing someone who has gone abroad to fight jihad. Presumably, intelligence suddenly arrives that these people are on their way back, so the Secretary of State has to act extremely quickly. I agree that the decision may be based on intelligence and that the sources of intelligence may not stack up in a court of law, but we are not trying to prove beyond reasonable doubt that these people are guilty of jihadism. We are simply saying that there is evidence, based on the available intelligence, to suggest to the Secretary of State that there is a real possibility that these people have fought jihad, have been brainwashed, are extremists, and, ipso facto, are a threat to our people. I think that is a bit different from TPIMs or indeed any other part of the judicial review system.
Mr Winnick
Following the atrocity of 7/7, public anger was very obvious and justified, given that 52 people had been murdered and so many others had been seriously injured as a result of terrorism. Surely, however, the role of the House of Commons following that atrocity was to assess whether or not the Government were responding correctly. If it is just a question of leaving it to the public and their anger, what is the purpose of the House of Commons?
Sir Edward Leigh
Of course I do not propose to leave it to the public and their anger. That is taking my arguments to an extreme limit. I am not suggesting that there should be a lynch mob and that everyone who comes back from Syria should be stopped by the public. We are not talking about the public. We are talking about the Secretary of State acting reasonably, on the basis of all the Government and intelligence sources available to her, to exclude someone temporarily from coming back to this country. This is not an assault on Magna Carta, habeas corpus or the traditional rights of English people; it is a sensible precaution, taken in circumstances in which we face jihadists who have no concept of our liberties, or indeed of any kind of logic. That is why I support the Government’s position.
Sir Edward Leigh
Before I end my speech, I had better give way to my good friend.
Mr Davis
It is necessary to protect public security while avoiding miscarriages of justice. Does my hon. Friend accept that, in a number of cases, the clear finding of the Special Immigration Appeals Commission—the court, a secret court, that will probably consider these matters—has been that the Home Secretary of the day has made a mistake, sometimes on the basis of fallacious evidence and sometimes on the basis of straightforwardly bogus evidence presented by the intelligence agencies? The protection against that, surely, is a court, even if it has to be a secret court.
Sir Edward Leigh
I broadly accept that point. Much as I admire the Secretary of State and her advisers, I freely accept that she may make a mistake. However, I think that, just as in the second world war, the threat is such that there must be some diminution of our traditional civil liberties to protect the liberty of the wider public. I am not saying that the end justifies the means, but we are in a very dangerous situation.
We are talking about the Bill; we are not talking about hypothetical situations. The Bill lays an injunction on the Secretary of State to act reasonably, and if a court finds that the Secretary of State has acted unreasonably, it can reverse her decision. I repeat, however, that we are not talking about some fundamental assault on civil liberties, or about depriving people of their liberty in this country. We are simply talking about a reasonable belief that people have fought jihad and a reasonable belief that they are a threat to our people. I think that the bulk of members of the public and the majority of Members of Parliament trust the Secretary of State to act reasonably.
Mr Raab
I want to make a few brief comments about the important and, in many respects, symbolic issue that is being raised in the wider context of the Bill.
I think that there are strong principled arguments in favour of judicial oversight in relation to the power of temporary exclusion, especially when it involves a British citizen. A range of points have been made about that, but I want to stress that this is a very strong power. We are talking about the exercise of state power—Executive power—against the citizen. I think that, both in that context and in the broader context, the presumption, or general principle, should be that there ought to be a judicial check. I say that first in the light of basic principles of natural justice, and secondly because the focused, efficient exercise of state power requires checks and balances. The House of Commons is one of those checks on state power, and the courts are another.
I do not think that judicial oversight would weaken the exercise of that power; I think that it would strengthen it, because it would prevent arbitrary abuse. It would ensure that the power was exercised against the crazed fanatic rather than the misguided youth who finds himself wrapped up in some business of which, on reflection, he genuinely wants no part, let alone mistaken cases involving the genuinely innocent. We know from the exercise of state power, particularly under recent counter-terrorism legislation, that there is a risk of innocent people becoming wrapped up in cases. We do not think that the Secretary of State or other Ministers act from any sense of bad faith, but, given the accumulation of state and Executive power, the broader that power becomes in the absence of checks and balances, the more likely it is that innocent people will be caught up in the net. That is my first principled argument.
My second argument is that there have been a number of objections to judicial consideration of the exercise of the power by the Secretary of State. It has been suggested that it may be an emergency power and that the courts are too slow. I think that it is the other way round. If British jihadis come back to this country after being up to no good in Syria, or wherever they may have been, it is hardly an emergency power. A wider argument could be that we are locking the stable door after the horse has bolted, but it is certainly not an emergency power in that sense, although of course we want to keep track of the individuals who are returning home.
I do not buy the argument that the courts would be too slow. In practical terms, of course, the individual could be barred from returning until the court had given due consideration to the application by either the Secretary of State or the individual concerned. I do not entirely understand either the public safety argument or the emergency argument against some form of judicial oversight.
The second point has been made about judicial review, but that is clearly about process rather than the substance relating to an individual case. Notwithstanding the proliferation of judicial review claims—which the Government are rightly trying to curtail—I do not think that judicial review will provide an adequate judicial check on the exercise of state power of this nature, given how intrusive it is in relation to the rights of the individual citizen.
Let me make one broader contextual point about the power and the amendments. Hundreds of British jihadis are coming home from abroad following some form of involvement in foreign conflicts and thousands of individuals are under the radar of M15. However, according to the Home Office’s annual update, released in March 2014, the number of people convicted of terrorism offences under terrorism legislation, or wider legislation, dropped from what was a pretty meagre 54 in 2006-07 to 27 in 20013-14.
The real hole in the Bill is the gaping gap in our ability to enforce the law, and that is true of successive Governments across the board. We have a huge, broad criminal base, and we have very wide powers, but what is missing from the Bill, and, to some extent, from in the debate, is a reference to measures—not necessarily legislative to improve law enforcement. We seem constantly to legislate, although not necessarily hyperactively: I think that a great deal of consideration has gone into the Bill. The elephant in the room is our inability to enforce the laws that we already have. I do not subscribe to the view that there is a zero-sum game between liberty and security. The justice system is a powerful tool in the fight against terror and should not always be viewed as some sort of heavy, onerous baggage that is weighing us down.
I hope that the Minister’s clarification of the compromise changes that are likely to be forthcoming in the Lords will be sufficient to enable me either to abstain or to vote with the Government if the new clause is pushed to a vote.
Sir Richard Shepherd (Aldridge-Brownhills) (Con)
I greatly appreciate the speech that we have just heard. It reflects many views that I have held for a very long time. The fear that I express about the current provisions of the Bill is not a criticism of the Ministers who introduced them, but it echoes some of the comments that have just been made by my hon. Friend the Member for Esher and Walton (Mr Raab).
When we undergo the whole process of facing the state as individuals, we are at a great disadvantage. I would not know which of our celebrated barristers was the effective one; I would not know how to protect myself adequately; I might not speak the language properly; I might not entirely understand the customs of the country in which I live. But what we are looking at in the Bill is surely beyond the exigencies of this moment. How is it that we reconcile our people, of all origins and all faiths? How is it that this land returns to the one that in my fictional memory was a happy, secure, less threatening place than it appears today?
I have a fear about the Bill and in particular about not allowing our traditional processes of proper judicial supervision or not being able, through the courts, to look at whether or not something is reasonable. It is that, in our fear for our own people, for those who were born here, we undermine the concept of allegiance and loyalty to the Crown and, more importantly, to our fellow citizens and our own country. That is why I am very cautious.
The power of the state grows greater; I hear echoes of that. It is true. In exigencies and times of threat and worry, we demand more and more of the compulsion of the state to answer our problems, but as has been pointed out, we have had more and more legislation on these difficult areas. A barrister may not know what their client is accused of. Secret courts have come into existence. All that is a modern feature.
During the second world war, we had the defence of the realm Acts. We are not there yet, but this is a compulsive process. My hon. Friend the Member for Gainsborough (Sir Edward Leigh)—Gainsborough, what a wonderful name—seems to think that the rule of law is just what the public want. I am a democrat and I believe that we exercise the right, and will do so shortly again, to determine where these fundamental decisions are made and who makes them. People say, “But the public demand,” but is it not the duty of the House to reflect on whether the outcome of that demand is the appropriate response? All I am asking in support of those who support the amendment is, should we not stand up for the processes in which we have trust, or had trust, and should we not be very cautious in the actions we take?
The Minister for Security and Immigration (James Brokenshire)
This has been a carefully considered and good debate. Some hon. Members have highlighted that, on previous occasions when we have discussed counter-terrorism legislation, the atmosphere has been quite febrile—perhaps there was a charged environment. Some have said today that it would almost be better if there were that charged atmosphere. However, we have had careful scrutiny, careful consideration and a close examination of the provisions on TEOs. I think that that adds to the debate and the discourse that we have had in the House.
I would also highlight the measured approach that the Government seek to take in ensuring that, in bringing measures to the House, we strike the right and appropriate balance, recognising a number of the points raised by right hon. and hon. Members during the debate. The Government have a proud record of upholding the rights of the individual and upholding civil liberties, including the right to privacy. We have abolished 28-day pre-charge detention and replaced control orders with a more proportionate regime. We have got rid of the draconian ID cards Bill. All that underpins the careful and considered approach that the Government take on these matters.
However, it is the first duty of any Government to keep their citizens safe. Again, that has been reflected in a number of the contributions that we have had. We must reassure the public that our security and intelligence agencies and the police have the powers they need at this time of a raised level of threat, of the situation in Syria and of travelling jihadists. We must ensure that we have measures on the statute book that are able to deal with that. That is precisely what the measures in the Bill, particularly the TEOs, provide.
James Brokenshire
I absolutely endorse what my hon. Friend has said. This is not about citizenship. This is a temporary exclusion order. I have said in the House on many occasions, and indeed in evidence to Select Committees, that individuals will not be rendered stateless. They will not be left unable to return to the UK for an indefinite period—they must be issued with a permit to return within a reasonable period of time if they apply for one and attend an interview if required to do so. Quite simply, the power ensures that the Secretary of State is able to control the return of certain individuals suspected of terrorism-related activity abroad and appropriately manage the threat that they pose once they have arrived back in the UK. Obviously, they will be excluded for a time during which the permission may be granted—indeed, they may choose not to return during that time—but the power is framed in that manner and does not link into the broader issues of statelessness that are of concern to some Members and have been addressed more recently in the Justice and Security Act 2013, for example.
Sir William Cash
Would the Minister be good enough to explain why there is no condition applied for a temporary exclusion order where the individual has clearly repudiated allegiance to the UK, has adopted jihad and has sworn allegiance to an organisation such as ISIL? In those circumstances, how could we possibly not want to exclude such a person?
James Brokenshire
I will come on to my hon. Friend’s amendments later, but the test is
“that the Secretary of State reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom”
and
“that it is necessary, for purposes connected with protecting members of the public in the United Kingdom”
to put the measure in place. I argue that the circumstances or scenario that my hon. Friend describes are potentially captured within the terms of the existing definition. However, I will return to his specific points in due course.
In the framework that we have adopted here, the individual’s passport would be revoked and they would be placed on a no-fly list, but their daily activities would not be disrupted in the same way as, for example, a TPIMs subject. This measure must be considered in that context. My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) highlighted the temporary nature of this; it is a two-year order that is capable of being renewed. As I have sought to describe, it is an issue of temporarily excluding during a period when someone may have made a request to return. The Bill clearly sets out the measures that would operate in those circumstances. Indeed, if deportation is envisaged the Secretary of State must, as clause 6 makes clear, issue a permit for return.
Turning to the amendments advanced by—
James Brokenshire
I promise that I will come back to my hon. Friend’s points, but I would like to get to the Opposition Front-Bench amendments. These amendments would require the Secretary of State to apply for permission from the courts before imposing a temporary exclusion order. The mechanism provided for in these amendments is almost identical to that in the TPIMs Act. As the Home Secretary stated in Committee, as the Minister with responsibility for national security it is right that she, not the courts, imposes an order of this kind. This is a discretionary power which will be used only in a limited number of cases where it will have the greatest impact.
Several Members have shared their views on the matter of oversight of this measure. I think a distinction is being drawn, and I will come on to the other amendments tabled in the group. It must be clear that, with responsibility for all other national security and counter-terrorism matters, it is the Secretary of State who is best placed to make an informed judgment about whether a temporary exclusion order is appropriate in each case, taking into consideration the wider context of the terrorist threat that we face. Indeed, as my right hon. Friend the Home Secretary outlined in Committee,
“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.”—[Official Report, 15 December 2014; Vol. 589, c. 1208.]
We must also consider in this context the level of interference with an individual’s rights as a result of the power, and I reiterate that a temporary exclusion order does not take away the right of an individual to return to the UK. 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. That is the approach we have taken.
Sir Edward Garnier
What the Minister has just said seems to support the suggestions made by me and others that this is not a temporary exclusion order. It is not an exclusion order at all; rather, it is a managed return order. If we get the semantics right, a lot of the other stuff fits better into place.
James Brokenshire
I hear the point my hon. and learned Friend makes, and the issue came up when we considered this in Committee, but I think it is right to describe it as a temporary exclusion order because although it clearly facilitates return—it manages return; it manages the control of an individual once they have returned to the UK and consent has been granted—it is exclusionary in its nature during the period prior to return. It seeks to prevent someone from returning without that permission being granted, because there is that other aspect: if someone does seek to return to the UK when they are subject to one of these temporary exclusion orders, it is potentially a criminal offence unless they can show due justification as set out in the Bill. I appreciate that my hon. and learned Friend would like to describe this in a particular fashion, but the focus is on the substance of it, and I hope he will understand the approach we are seeking to take, and how this is intended to operate in practice.
The Bill as currently framed would allow judicial review to be brought. That has been used by people to challenge decisions of the Secretary of State in other contexts from abroad. We frequently receive challenges of this nature from individuals abroad in relation to the use of other powers. It is important to recognise that.
Amendments 18 to 20, tabled by the hon. Member for Walsall North (Mr Winnick), go even further than the amendments tabled by the Opposition Front Bench, and would give the courts the power to impose a TEO following an application from the Secretary of State. The Government do not consider these amendments to be appropriate for the reasons I have outlined. I highlight to the House that requiring the Secretary of State to apply to the courts before a TEO can be made could create undue delay and decrease the operational value of the power. It is sometimes important that we are able to act quickly to obtain the maximum benefit from the operation of the powers, to meet the goal of keeping the British public safe from terrorism.
The Government are committed to the appropriate and proportionate use of the temporary exclusion power, but I note the views of David Anderson, the independent reviewer of counter-terrorism legislation. I have a great deal of respect for him and the contributions he has made on a range of matters, including the issue of judicial oversight of the process of granting a temporary exclusion order. Although this issue arises at a late stage in the Bill’s passage through this House, it is important, as has been reflected in many of the contributions. The House has not had the chance properly to consider the Opposition amendments. I hope they will be minded to withdraw them at this stage, and I can assure the House that the Government will look very carefully at the constructive suggestions from David Anderson and return to this issue in the other place.
On a point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), the Government have listened to the arguments made both in Committee and—with, I think, sincerity—in today’s debate, and also to the comments of David Anderson. I can give my hon. Friend the assurance that we will reflect on them and that the next stage when we would be able to respond to them is in the other place. No discourtesy is intended. Rather, we want to get this right and to reflect on the views that have been put forward. That is why I judge that this is the most appropriate way of addressing the issues highlighted today.
James Brokenshire
There are a number of issues that require further consideration. It is better to get this right and to consider things carefully, and the debates we have had in this House have enabled us to advance in that regard. Rather than, as has happened in other cases, having legislation rushed through both Houses of Parliament, we have enabled good and proper scrutiny of this legislation, to ensure that it is appropriate and we get it right.
Pete Wishart
Obviously, I cannot speak on behalf of Labour Front Benchers, but I hope they are not prepared to accept the Minister’s dissatisfactory response. Not only did the Opposition table these amendments last year but David Anderson said these things in November 2014, and the Government have failed to act. Why should we believe that they will do something now?
James Brokenshire
I have clearly recognised the issues highlighted by David Anderson and by right hon. and hon. Members during this debate. The hon. Gentleman should take reassurance from my statements.
Amendments 21 and 23, which are in the names of my hon. Friends the Members for Stone (Sir William Cash) and for Gainsborough (Sir Edward Leigh), seek to create additional circumstances under which a temporary exclusion order may be imposed. I recognise the intention behind the amendments, and of course the Government agree that anyone who has pledged allegiance to another state or territory and repudiated their allegiance to the UK should be handled appropriately. However, the measure before the House has been carefully crafted with the specific conditions that I have highlighted. Indeed, the amendments appear to go significantly beyond the measure and would mean that an individual could be made subject to a temporary exclusion order without the Secretary of State reasonably suspecting that they have been involved in terrorism-related activity abroad; without the Secretary of State reasonably considering that the imposition of such an order is necessary to protect members of the public in the UK from the risk of terrorism; and, crucially, without the Secretary of State believing that the individual is located outside the UK, which goes against the heart of the temporary exclusion power.
My hon. Friend the Member for Stone is seeking to advance an argument that is perhaps more about addressing statelessness and citizenship, which strays beyond the ambit of the Bill and the temporary exclusion order. We have previously corresponded on the issue in the context of the scope of the 1961 convention on the reduction of statelessness. We perhaps differ on the interpretation of some of the detail, but the Bill has been appropriately framed and allows the Secretary of State to act clearly to ensure national security by taking action against those persons whom she reasonably suspects are involved in terrorism-related activity outside the UK, which goes to the heart of the measure.
Sir William Cash
The Minister frames his response in a reasonable manner but, in line with the international convention on the reduction of statelessness, which is relevant to this measure and to which David Anderson did not refer when he appeared before the Joint Committee on Human Rights, it is an act of treason when a person repudiates allegiance. Such repudiation is not just a theoretical, academic act under an ancient 1351 enactment; it is the repudiation of allegiance to the state. When someone repudiates that allegiance and adopts an allegiance to another state, it is treason. Surely, by their self-denial and repudiation, they have denied themselves the right to the liberties that have been referred to continually by all my colleagues who have said that we must insist on the common law and on the liberty of the subject. Such people repudiate it themselves.
James Brokenshire
I recognise the strength of feeling that my hon. Friend and other hon. Members have on the need to ensure that we are acting appropriately to address the threat of terrorism and the dangers and harm that may be caused by jihadists who have travelled abroad and who may wish to return to this country. This measure is about precisely that, which is why it is framed in this manner and why we have legislated for prosecutions to be brought where people return to the UK after committing acts abroad that would justify prosecution in this country. I recognise my hon. Friend’s points, but our judgment is that the Bill properly reflects that and gives the appropriate power.
With those comments, I hope right hon. and hon. Members will be minded not to press their amendments.
Mr Hanson
This has been a useful debate, which is reflected in the fact that it has been longer than I expected. Significant concern has been expressed by right hon. and hon. Members on the Government Back Benches, by Liberal Democrat Members and by Opposition Members, including members of the Scottish National party. The hon. Member for Perth and North Perthshire (Pete Wishart) did not table any amendments to the Bill, so to criticise the Labour party for doing so is slightly unnerving.
Deep down, the Minister knows that he has lost the argument on this issue. The Government will return in another place with an amendment that will be broadly similar to what we have proposed today and that will have the approval of the Liberal Democrats and his own Back Benchers. That amendment will come back to this House and we will have another debate in a few weeks’ time in which we will once again agree that this is the right thing to do.
I wish to withdraw new clause 1, but the essence of this debate is new clause 3, on the appeal mechanism, so I wish to support new clause 3, give the House an opportunity to vote for what it will ultimately agree when another place has determined it and let this House today determine this policy. Therefore, I urge my right hon. and hon. Friends to vote in support of new clause 3, but I beg to ask leave to withdraw new clause 1.
Clause, by leave, withdrawn.
New Clause 3
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.”—(Mr Hanson.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The House proceeded to a Division, and Madam Deputy Speaker having directed that the doors be locked—
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. As there was a reason for the delay and a large number of Members were held up coming into the Chamber, we will unlock the doors.
Whereupon the doors were unlocked.
Mr Hanson
I beg to move amendment 9, page 1, line 8, at end insert—
‘(2) This section shall be repealed on 31 December 2016 unless both Houses of Parliament have passed a resolution that it should continue in force until a future date.
(3) The date specified in a resolution of both Houses of Parliament under subsection (2) may be modified by subsequent resolutions of both Houses of Parliament.’.
This amendment would require a vote in Parliament to renew the power to temporarily seize passports.
I hope that our discussions on this amendment will be shorter than those on the previous group, because it is fairly straightforward. It would put in place a closure date of 31 December 2016 on the power to seize passports, unless both Houses of Parliament passed resolutions that it should continue in force until a future date. As Members will be aware, the Bill sets out the power to seize travel documents from individuals who are thought—this is intelligence-led—to be travelling outside the United Kingdom for purposes relating to terrorism. Those measures have the broad support of my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) and myself; we did not oppose them on Second Reading or in Committee. However, if passed today in their current form, the measures would be in place in perpetuity, pending any amendment or removal by a future Government.
The point I wish to bring to the House’s attention is that the new powers being introduced today, as I think the Minister accepts, were subject to limited consultation prior to publication of the Bill. They give a range of potential powers, under schedule 1, for immigration officers, customs officials, qualified officers and senior police officers to ensure that passports are decommissioned for a period of 14 or 30 days. They allow the Government, under schedule 1, to bring forward a code of practice, which we have not yet seen and which is not yet in place.
There are powers set out in paragraph 14 of schedule 1 that allow the Secretary of State to make whatever arrangements he or she thinks appropriate in relation to the person during the relevant period or on the relevant period coming to an end. There are powers in place that, as we discussed in Committee, could lead to a range of mistakes and challenges and a serious deprivation of liberty. Again, although we support the broad thrust of those powers, the simple question before the House today is this: should the powers be in place in perpetuity, or should we have a sunset clause?
If the amendment were accepted, the sunset clause would allow for the powers to fall in December 2016. That would mean that the Government could introduce new legislation with amendments, taking into account the experience of those two years of operation. It could equally mean that in the run-up to December 2016 the Minister or Secretary of State, whoever that was, could hold a formal review, as we would expect, and introduce an order extending the life of the powers for a further period. It would require only a one-and-a-half-hour debate in the House of Commons under the affirmative resolution procedure. It is normal practice and has been done on a range of matters. Until recently, the Prevention of Terrorism Act 2005, for example, always contained a sunset clause and was renewed annually. It is a reasonable thing to do.
I propose that because the powers are new and extensive and have not yet been subject to wide consultation. We accept that the threat is current and severe, leading individuals to travel abroad, as we discussed on the previous group of amendments, but we do not know what it will be like in two years’ time.
Mr Hanson
As ever, we are picking arguments and discussion on a range of issues. We could table an amendment applying to the Bill as a whole, but the power relating to passports is new. We are revisiting amendments that we tabled previously to try to strengthen the Bill. We are testing the Minister’s view on a sunset clause in relation to passports. I am happy to consider a sunset clause on other aspects of the Bill.
Mr Heath
It is curious, though, to table an amendment that deals with the one thing that, in another form, is already on the statute book. Passports can be seized from persons suspected, for example, of football hooliganism to prevent them from travelling. Perhaps this is purely a probing amendment, in which case that is perfectly fair at this stage in the Bill, but if it is to be a substantive amendment, it seems illogical, if I may say so, for it to apply only to clause 1.
Mr Hanson
I am grateful for the hon. Gentleman’s contribution. Logicality is a matter of judgment. We have chosen on this occasion to table an amendment introducing a sunset clause, as we did in Committee. We voted on it in Committee and we have chosen to revisit the issue because we think it is worth revisiting, particularly because, as we shall discuss in a later group of amendments, there is no appeal mechanism in place—[Interruption.] The Minister says there is. Our view is that there is not, but we will discuss that on the next group of amendments.
We believe that there should be a sunset provision in place. The Minister has the opportunity again to discuss that, having previously rejected the principle. Were the hon. Member for Somerton and Frome (Mr Heath) on the Opposition Benches and were I on the Government Benches, I suspect that he would be arguing for such a proposal, though perhaps not just on clause 1. We will be happy to consider extending it in due course, if that is what the Minister wants. For today, we believe that a sunset clause should be in place. It is a fairly straightforward issue and should not detain the House for long. I commend the amendment to the House.
James Brokenshire
We discussed this matter in Committee, and I do not intend to detain the House for a great deal of time given the succinct way in which the right hon. Member for Delyn (Mr Hanson) highlighted his case.
Mr Hanson
The Minister issued a consultation document on 18 December, which was either the last day or the second-to-last day the House was sitting, and expected Members to know that at the time. He did not have the courtesy to inform me, although we had a debate on these matters. He needs to reflect on that fact. A consultation over Christmas? Perhaps he could do it in a better way.
James Brokenshire
The right hon. Gentleman was very clear to us about the need for consultation documents to be produced prior to Report stage, and that is precisely what we have done on this and on other matters. Equally, he should reflect on the fact that the Government have not, as has happened previously, waited until Royal Assent before publishing a number of these codes. We have absolutely adhered to the requests that were made in Committee by publishing consultation documents and drafts to enable a proper consideration of the relevant provisions. If that is preying on his mind in seeking to advance his request for a sunset clause, then I draw his attention to the fact that the code of practice has been published and the detail he may think is lacking is in fact available.
The power is subject to scrutiny through an initial review by a senior police officer and a further review by a senior police officer of at least chief superintendent level within 72 hours, with notification to the chief constable, and then, as we will debate in the next group of amendments, the ability, if the police wish to retain travel documents beyond 14 days, for a court review. Clear safeguards have been placed in the Bill. This will give the police, or Border Force officers directed by the police, an important power to seize travel documents, including passports and travel tickets, at a port to disrupt immediate travel based on “reasonable suspicion” that an individual is travelling for terrorism-related activity. The passport is not cancelled. The document can be held for up to 14 days, or up to 30 days if the retention period is extended by a court. As I said, we will discuss the detail of that in the next group of amendments. It would be a criminal offence for a person to refuse to hand over their travel documents when the power had been exercised. Crucially, the power gives the authorities time to investigate the individual involved and provides an opportunity to take alternative, more permanent disruptive action if appropriate. I welcome the fact that the right hon. Gentleman indicated, as he did previously in Committee, the broad support of Opposition Front Benchers for this measure, recognising the utility of the power set out in the Bill. The safeguards we have established should ensure that the power will be used in a fair, reasonable and lawful manner.
Introducing a sunset clause may send an inadvertent message to would-be jihadist travellers of our lack of intent to deal with the threat they pose. I know that that is not the right hon. Gentleman’s intention, but it could have that impact if they believe that the powers would end in two years’ time. Indeed, the proposal would inject an element of uncertainty into a measure that has been clearly framed and drafted, that is limited in scope and time, and that has clear oversight of police scrutiny measures and the court-related process set out in the Bill. The House has scrutinised the measures over several days of debate, both in Committee and, indeed, in the House this afternoon, and it is our judgment that those are not the usual circumstances in which a sunset provision would be contemplated.
Mr Hanson
Does the Minister think that a sunset clause in prevention of terrorism legislation gave succour and comfort to those people for whom it was intended, such as terrorists in Northern Ireland? I do not think it did and I resent the suggestion that we are trying to give succour to terrorism.
James Brokenshire
If the right hon. Gentleman was listening, he would know that I was clear that I do not believe that to be his intention. I said that it may be an inadvertent consequence. Often, it has become customary for sunset clauses to be inserted when legislation is passed by both Houses over a small number of days. That is not the context of this afternoon’s debate. We have had many hours of debate and discussion on the provisions, so it is our judgment that those circumstances do not apply.
Terrorism-related travel is a serious and ongoing issue and I think we will see an enduring threat of terrorism from Syria and Iraq for the foreseeable future. That is the reality of the challenge we face. The proposal is to inject a two-year sunset clause, but I think we will face continuing challenges during that time and law enforcement agencies need to have a range of tools at their disposal to deal with the threat in a necessary and proportionate way.
We cannot be confident that conflicts that attract these individuals will have been resolved in two years’ time. It would not be right to plan on that basis. That is why the Bill Committee overwhelmingly rejected a similar amendment when it was pressed to a vote. I encourage the right hon. Gentleman to withdraw the amendment. I appreciate that he is seeking to probe to ensure that the Bill’s provisions are scrutinised and challenged appropriately. I entirely respect that. Clearly, it would be open for a new Government to repeal the provisions if they saw fit and judged that appropriate changes were required if there was a subsequent review of counter-terrorism legislation. That would be the right time to do it, so I hope the right hon. Gentleman will feel able to withdraw his amendment.
Mr Hanson
I have heard what the Minister has said, but the Opposition still wish to examine the issue in detail and it would be useful for the other place to know that we believe that consideration should be given to a sunset clause. Perhaps it could also take on board the concerns of the hon. Member for Somerton and Frome (Mr Heath). I therefore wish to push the amendment to a vote.
Question put, That the amendment be made.
Mr Hanson
I beg to move amendment 10, page 30, line 14, schedule 1, at end insert—
“(c) the individual subject whose travel document has been removed may appeal against this decision in the courts over the evidence on which conditions in paragraph 2(1)(a) and (b) of this Schedule were met,
(b) the Secretary of State must by regulations make provisions about—
(i) the relevant court;
(ii) a time limit by which an appeal must have been heard;
(c) the power to make regulations under this section—
(i) is exercisable by statutory instrument;
(ii) includes power to make transitional, transitory or saving provision;
(d) a statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”
This amendment would create the right for an appeal in court following a temporary seizure of a passport, and requires the Secretary of State to set out in regulations a relevant court and time limit by which an appeal must have been heard.
Madam Deputy Speaker (Mrs Eleanor Laing)
With this it will be convenient to discuss amendment 11, page 30, line 14, at end insert—
“(c) the individual subject whose travel document has been removed may appeal against this decision in the courts over the evidence on which conditions in paragraph 2(1)(a) and (b) of this Schedule were met,
(b) the appeal must have been heard within seven days of an application,
(c) the Secretary of State must by regulation make provisions about the relevant court,
(d) the power to make regulations under this section—
(i) is exercisable by statutory instrument;
(ii) includes power to make transitional, transitory or saving provision;
(e) a statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”
This amendment would create the right for an appeal in court following a temporary seizure of a passport and require the appeal to have been heard within seven days.
Mr Hanson
The power to seize a passport is set out in clause 1 and schedule 1. For the sake of clarity, I reiterate that we support the general principle of seizure, provided there is sufficient evidence to warrant such action being taken by the officials listed in schedule 1. The question today, which we discussed in Committee, relates to proportionality and to the opportunity for individuals to make representations to officials on the reasons why the temporary seizure has been made. The decision to seize a passport is taken on evidence and on intelligence.
In Committee, we discussed—I hope we can revisit the discussion speedily today—the range of intelligence that could be linked to third party intelligence on the movement of an individual, or to intelligence secured by the agencies. There are a whole range of reasons for such intelligence to be gathered, but that does not necessarily mean that it is correct. There may be a range of reasons for mistakes or for concerns about intelligence. As we discussed in Committee, people may have legitimate reasons—weddings, business, tourism and so on—to travel abroad to areas with difficult challenges. I accept that it would be the exception and that if the Government or a qualifying officer seized a passport, it would be based on strong intelligence, but the purpose of the amendments is to provide a couple of options to put in place stronger oversight and appeal mechanisms for individuals who feel aggrieved. Amendment 10 would ensure a
“right for an appeal in court following a temporary seizure of a passport, and requires the Secretary of State to set out in regulations a relevant court and time limit by which an appeal must have been heard.”
Amendment 11 would do pretty much the same by creating
“the right for an appeal in court following a temporary seizure of a passport and require the appeal to have been heard within seven days.”
It is not only the Opposition who are concerned. In an article on 3 September, the right hon. and learned Member for Beaconsfield (Mr Grieve) wrote in support:
“Allowing police to confiscate passports at the UK border to prevent an aspiring young jihadi from leaving for Syria via Istanbul may be justifiable on good intelligence and a sensible extension of the home secretary’s powers. But unless there is some rapid means of review there must be the likelihood that mistakes will occur as the use of this administrative power increases and perfectly innocent young people will find their travel plans wrecked. We would be wise to insist on oversight, rapid review processes and compensation where justified.”
Bob Stewart (Beckenham) (Con)
If someone is going abroad with a British passport, either on business or for humanitarian reasons—to support a charity, for example—would it not be sensible, prior to departing the country, to drop a line to the Foreign and Commonwealth Office, saying, “I’m going there for this reason”? That might help and be a good guide when people come back that they were not out to do mischief.
Mr Hanson
I suspect that that would be a recipe for chaos in the Foreign Office and for difficult decisions having to be made across the board. If everybody who travelled to one of the countries or to a third party country first—such as Istanbul on the way to Syria—it could mean thousands of letters a day pouring into the Foreign Office saying, “I’m going to a particular country.”.
We need secure, targeted, intelligence-led activity to seize passports. That is what I expect and what I am reassured the Government will do. The purpose of our amendments is simply to provide that if someone feels aggrieved, mechanisms are in place for them to challenge the decision in court, should they so wish. There are such mechanisms in place now—for example, allowing people to challenge TPIMs—but mostly people do not challenge them, because they know their grounds are valid and that the Government have made the right decision. It is important, however, that we put mechanisms in place to cover those bases.
Mr Heath
I am not seeking to undermine the right hon. Gentleman’s cases and I am interested in what he is saying, but will he accept that the drafting of amendment 10 simply does not work? Were it placed where he wants it placed, schedule 1 would read:
“If an application for authorisation is granted…the Secretary of State must make regulations”.
It does not work. It is grossly defective in drafting terms. Whatever he does, I hope he does not press the amendment to a Division, although he may, of course, make sound arguments for why something similar should be in the Bill, which I hope can be addressed at a later stage.
Mr Hanson
The standard excuses are, first, speed and, secondly, the fact that we do not have a Home Office behind us. However, it is the principle of the amendments that I wish to discuss. I might disappoint the hon. Gentleman, because I will consider dividing the House, depending on the outcome of our discussions with the Minister. I am also working through a heavy cold, so I am sure this will be a marvellous day to consider the amendments, given his sympathetic eye for our dilemmas.
This is important. I still think we need a mechanism allowing an individual whose passport has been seized to appeal, if they so wish. I expect, as I have said, that the Minister’s grounds would be solid and that this particular power would not be undertaken lightly, but the appeal remains important.
James Brokenshire
I recognise that the right hon. Member for Delyn (Mr Hanson) advances a number of themes that we touched on in Committee. Equally, I recognise his ability to challenge and scrutinise the level of oversight provided in respect of this particular power. I respect that and the fact that the Opposition have given their broad support and recognition of the need for this provision, but the Government believe that the power strikes the right balance in the drafting between our freedoms and our right to safety and security.
A rigorous authorisation process is in place, which establishes a number of safeguards to ensure that the power will be used in a fair, reasonable and lawful manner. Under paragraph 4 of schedule 1, senior police officer authorisation must be obtained to retain the seized documents. The senior officer, who must be at least the rank of superintendent, must determine whether the test for exercise of the power is met in order to authorise. If not granted, the documents must be returned as soon as possible.
In addition, within 72 hours of the document seizure, a senior police officer of at least the rank of chief superintendent and of a rank not lower than that of the authorising officer in the case must review whether the decision to authorise the retention of the travel documents was flawed and communicate his findings to the relevant chief constable. The chief constable must consider those findings and take appropriate action.
Unless a court agrees to extend the retention period, the police may retain the travel documents only for a maximum of 14 days from the day after the documents were seized. If the police need to retain the documents beyond this period, they must apply to a court for an extension of time. This is provided for in paragraphs 8 to 12 of the schedule. The court will grant the extension only if satisfied that those involved in considering whether further disruption action should be taken in relation to the person had been acting diligently and expeditiously. The court can choose for how long to extend the retention period based on the circumstances of the case up to a maximum of 30 days from the day after the passport was seized.
Paragraph 13 provides that if the power is used two or more times against the same individual in a six-month period, the police would be allowed to hold the documents a third time for any five days before they need to apply to a court for an extension of time. The court is required to refuse to extend the duration of the travel documents’ retention unless exceptional circumstances apply.
Amendments 10 and 11 provide for a process for an individual to appeal to the courts against the decision to remove his or her travel documents at the port. Let me reiterate my earlier reassurance to right hon. and hon. Members that the current level of oversight of the exercise of this power is proportionate to the level of interference, and stringent safeguards already in place should ensure that the power will be used in a fair, reasonable and lawful manner. The advantage of the power is that it can be used immediately and to a threshold of reasonable suspicion. At the point of seizure, the individual will be informed that his or her travel documents were seized because there were reasonable grounds to suspect that he or she was intending to travel overseas for the purposes of involvement in terrorism-related activity outside the UK. The police are not detaining the individual or removing their passport privileges permanently.
To safeguard the use of the power, however, the legislation places a statutory duty on the police to return the travel documents as soon as possible if their investigations reveal that there are no reasonable grounds to suspect that the individual was seeking to travel outside the UK in connection with terrorism-related activity. The Bill already provides for a specific court procedure whereby the court may only grant an extension of the period for which the police can retain the travel documents if it is satisfied that investigations are being conducted diligently and expeditiously. If it is not, the documents must be returned.
After 14 days, the investigation should have progressed to the extent that a court can meaningfully consider whether the investigation is being conducted diligently and expeditiously, and the evidence that is heard should be tailored to the case that is being considered. As well as providing for a court hearing, the Bill allows an individual to seek, at any time, a judicial review of the initial passport seizure in the High Court, where closed material procedures will be available to allow full consideration of any sensitive material that led to the passport seizure. I do not believe that the amendment adds a significant extra safeguard in relation to the use of this power.
The amendments provide for a court to hear an appeal against the police officer’s original decision to form a reasonable suspicion that a person was travelling outside the United Kingdom for terrorism-related reasons. Amendment 10 provides for regulations to set
“a time limit by which the appeal must have been heard”,
while amendment 11 provides that the appeal must have been heard within seven days.
In view of the nature of the appeal, the amended provision would need to provide for closed material procedures with the appointment of special advocates. As the House will know, closed material procedures are resource-intensive and potentially time-consuming. Preparation for such a procedure—which amendment 11 requires to take place in under seven days—would divert resources at what is likely to be a significant time for the investigation, and I think that such a short period for a closed material procedure would pose serious problems of practicability. The new power would therefore be unlikely to be used as intended, to disrupt immediate travel on the basis of “reasonable suspicion” of terrorism-related activity.
James Brokenshire
The review process does not provide for that, but the consultation on the code of practice that governs the arrangements is open until 30 January, so there will be an opportunity for further representations to be made on the details of how the power would be used in the context of the code. That includes the details of the initial, immediate review by the senior officer and the 72-hour review by a further senior officer, followed by the submission of a report to the chief constable.
Bob Stewart
My children have three passports: French, Swiss and British. Is there any provision enabling someone whose British passport is taken away to be prevented from using another passport? I am sorry; that may be a silly question, and we may not be able to provide for such a power.
James Brokenshire
The Bill is, of course, a wider subject than the amendment, but my hon. Friend may wish to consult paragraph 1(7) of schedule 1, which defines a passport as
“a United Kingdom passport… a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom”,
or
“a document that can be used (in some or all circumstances) instead of a passport.”
Mr Grieve
I think that the hon. Member for Somerton and Frome (Mr Heath) made a good point. If a policeman forms a “reasonable suspicion”, subsequent evidence or information may cause him to change his view. It seems to me that at each stage of the review process it should be possible to take on board what the individual concerned has said, because that might change the view of the police and deal with the matter administratively at a much earlier stage.
James Brokenshire
Clearly, the police officer must hold the reasonable belief at that time, as I think my right hon. and learned Friend has accepted. Paragraph 2 of schedule 1 states that the paragraph applies where
“a constable has reasonable grounds to suspect that the person—
(a) is there with the intention of leaving”
the UK
“for the purpose of involvement in terrorism-related activity…or
(b) has arrived…with the intention of leaving”
again, for such purposes. Therefore, there is a requirement for that to be assessed. As I say, those issues can be considered as part of the consultation on the code of practice. I note the specific points that my right hon. and hon. Friends have made in that regard.
I turn back to the specific amendments. Given that the appeal is against why the police officer formed a reasonable suspicion about the individual’s travel intentions and exercised the power under the provision, the hearing would not take into account what the investigation had subsequently found about the individual’s intentions and whether that information strengthened the original decision or damaged it. That could result in a finding that the original decision was flawed and, regardless of the fact that the investigation has subsequently found evidence to strengthen the decision, the appeal is upheld and presumably the travel documents are returned. That is a risk that the Government are not prepared to take. Again, the right hon. Member for Delyn may wish to reflect further on that issue, taking into account some of the more detailed drafting issues that he has been alerted to in the debate.
Given the points that I have raised, notwithstanding the right hon. Gentleman’s initial indications, I hope that he will feel able, in the context of the safeguards in the Bill and the code of practice, to withdraw his amendment.
Mr Hanson
The Minister has tried to reassure the House that the clause and schedule provide sufficient safeguards. I still worry about the safeguards that are in place for those people who are aggrieved and feel they have a case that they wish to draw to the attention of the authorities.
Under amendments 10 and 11, an individual may have their appeal heard in court within seven days of an application. In most cases where the passport is seized, that right would not be exercised by the individual because I suspect that the Government would have taken sufficient steps to ensure that there were good grounds to seize the passport in the first place. However, I still think it is right and proper that individuals have the right to make representations effectively. Even if there are amendments that we can look at in due course, it is worth while the House sending a signal to the other place that this is an issue of principle for us and that we wish the issue to be revisited by the Government or by the other place in due course.
Question put, That the amendment be made.
Diana Johnson (Kingston upon Hull North) (Lab)
I beg to move amendment 8, page 11, line 3, at end insert—
(iii) any information beyond that which is necessary to allow the identification of the user from the public Internet Protocol address.”
This amendment would make it explicit that the extra data retention provided for in Clause 17 does not extend beyond that which is necessary for the purpose of identifying a user from the IP address. This amendment is not intended to impact on the rest of the Data Retention and Investigatory Powers Act, only the extra retention requirements created by Clause 17.
The amendment attempts to clarify the limit of data that may be subject to a retention notice allowed for under clause 17. To put this into context, we need to understand that the Government are attempting in clause 17 to increase the types of metadata that the Secretary of State may require communications service providers to store. The amendment seeks to clarify the limits on what those extra data actually are. The aim of the Government’s proposals is to ensure that CSPs store internet protocol address information: the information required to enable the identification of the device that received a communication from the IP address that received the communication. The Opposition support the principle of what the Government are trying to achieve, and this is the one area of the Government’s ill-fated draft Communications Data Bill for which there was clear evidence and a relative consensus. We agree that this will be a vital and proportionate tool in fighting not only terrorism, but other serious and organised crime, most notably online child abuse.
However, the Opposition have some concerns about how this measure will be implemented, both legislatively and in practice, which is why we have tabled amendment 8. Clause 17 amends the definition of “relevant communications data” for the purposes of section 2 of the Data Retention and Investigatory Powers Act 2014 and subsequently the meaning of “relevant communications data” within the Data Retention Regulations 2014, which were created under the powers conferred on the Secretary of State under section 1 of DRIPA. This is not perhaps the most straightforward way of implementing change, and it certainly adds to the confusion and suspicion about data retention.
The Minister informed the House in Committee that the Government did not intend to issue new regulations following on from this Bill, because the change in the definition of “relevant communications data” would alter the meaning of the 2014 regulations. So the combination of this primary legislation and the existing secondary legislation is meant to be sufficient to bring about a change in the types of data retained by CSPs. I believe that could create confusion in interpreting the regulations, which is exactly what we want to avoid when we are trying to increase confidence in the use of retained data.
If we look at the definition of “relevant communications data” in the 2014 regulations, we find that such data are specified in the schedule and that they are the same as those in the schedule to the Data Retention (EC Directive) Regulations 2009. Although the regulations make it clear that section 2 of DRIPA is not being prejudiced, no explicit reference is made.
Would it not be clearer for all concerned if the schedule were updated with clear explanations of what exactly is intended? As I explained in Committee, there are serious issues with the drafting of clause 17, and it contrasts unfavourably with the clear wording currently used in the 2014 regulations. If the Minister is not willing to make that update, will he accept amendment 8, as he agrees with its principle? In Committee, he argued that it was unnecessary, but accepting it would be an important step to achieving clarity.
James Brokenshire
I am grateful to the hon. Member for Kingston upon Hull North (Diana Johnson) for raising these important issues. This is a complex and technical area, and I am grateful for the opportunity to return to some of the points that we discussed in Committee. Communications data—the who, where, when and how of a communication but not its content—are a vital tool in the investigation of serious crime, including terrorism, and in safeguarding the public.
The hon. Lady explained that her amendment seeks to limit the scope of the provision to the retention of data that are necessary to allow the identification of a user from a public internet protocol address. She is trying to restrict the provision and to gain clarity, and as I explained in Committee, I do not think there is any difference between us on the principle. It is important that the provision goes only so far as is necessary to ensure that communications service providers can be required to retain the data necessary to link the unique attributes of an internet connection to the person or device using it at any given time—in other words, to link person A to person B. At the moment, internet service providers might not be required to retain that level of information. That was the Government’s clear intention when drafting the clause, so the provision is already limited in a way that I believe reflects what the hon. Lady intends.
Subsection (3) restricts the data to be retained to data that might be used to identify or assist in identifying the internet protocol address or other identifier that belongs to the sender or recipient of a communication. Any data that cannot be used to identify or assist in identifying the user of an IP address is already outside the scope of the provision, which deals with a number of the specific points about communications platforms that the hon. Lady highlighted.
I appreciate that the wording in the clause is quite technical, but I want to assure the House that great care has been taken to ensure that the Bill is tightly drafted. In particular, clause 17(3)(c) excludes so-called weblogs, a record of internet communications services or websites a user has accessed. The Bill provides for the retention of data relating to IP resolution and only such data. Anything else is already beyond the scope of what clause 17 permits. It is also important for the House to note that any requirement for communications service providers to retain data under the Data Retention and Investigatory Powers Act 2014, which the clause amends, may be imposed only where it is necessary and proportionate. Access to that communications data is then subject to robust safeguards, and the UK already has one of the most rigorous systems in the world for safeguarding the acquisition of comms data.
Before such data can be acquired, an application must be made that clearly demonstrates that the request is both necessary and proportionate to the objective of a specific investigation for one of the statutory purposes in the Regulation of Investigatory Powers Act 2000. The process is clear and accountable and includes a strong and rigorous system of oversight, which includes the interception of communications commissioner, who must have held high judicial office. Following DRIPA, he will report every six months on the interception of communications data, and of course he regularly inspects all relevant public authorities.
The hon. Lady asked whether we intend to issue new retention notices. The Government will issue new data retention notices to affected communications services providers following the enactment of the legislation. We will also enable law enforcement agencies to resolve a communication to an individual or device, not to ascertain which services or websites an individual has accessed. The data would be considered to be weblog data, as I have said, which is already excluded from the Bill.
A communication can include any message sent over the internet. The legislation relates not to the retention of what the message contained, but purely to the fact that a message was sent, which is the key distinction between comms data and what might be regarded as the interception of a communication. The provision amends the definition contained in DRIPA, not the meaning of the regulations. The definitions in the Act are used in the regulations, so there is no requirement to amend the regulations. Accordingly, I agree with the sentiment behind the amendment. If I have any reflections on the detail of the further points that the hon. Lady has highlighted, perhaps I can write to her further. However, with these assurances, I hope that she will withdraw the amendment.
Diana Johnson
I am grateful to the Minister for going through this very technical part of the Bill. I think it is helpful to have heard that explanation on the Floor of the House. I do not wish to press the amendment any further at this stage, although I think that it might be returned to in the other place, and so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Bill to be further considered tomorrow.