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.
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—
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.
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.
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.