Grand Committee
(9 years, 10 months ago)
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Arrangement of Business
(9 years, 10 months ago)
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The Deputy Chairman of Committees (Viscount Ullswater) (Con)
My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes.
National Networks: National Policy Statement
(9 years, 10 months ago)
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Baroness Kramer
That the Grand Committee takes note of the National Policy Statement for National Networks.
The Minister of State, Department for Transport (Baroness Kramer) (LD)
My Lords, I welcome this second debate on the Government’s National Policy Statement for National Networks. I will use the abbreviation NPS, if I may, in the course of this debate. This House previously debated the draft NPS on 8 May 2014 and made a valuable contribution to shaping that final document. I can confirm that the final NPS has been voted on and approved in the other place—the procedure that allows for the document to be formally designated. That said, I welcome the opportunity to update this Committee on the positive changes that have been made in response to comments received through both the parliamentary scrutiny process and the public consultation. For far too long we have suffered stop-start in infrastructure investment, which is in no one’s interest. Investment, such as we are seeing in road and rail, not only improves the transport system but creates jobs. This NPS represents long-term planning that looks to the future.
It might be helpful if I begin by clarifying the role and purpose of the NPS. The NPS has a specific purpose: it will provide planning guidance for promoters of nationally significant infrastructure projects on our road and rail networks and for strategic rail freight interchanges. It sets out at a strategic level the need for development of our national networks and establishes clear, high-level policies by which any nationally significant infrastructure project on these networks will need to be decided.
Our national networks are already under considerable pressure, which is expected to increase further. Long-term drivers of demand to travel—GDP and, particularly, population—are forecast to increase substantially over the coming years and continue to influence the path of travel demand, even taking into account other important drivers such as changes to demographics. The development of our national networks and the improved connectivity it provides can also unlock regional economic growth and regeneration, particularly in the most disadvantaged areas. Broader environmental, air-quality, safety and accessibility goals will also generate requirements for development to address safety issues, improve the environment and enhance accessibility for pedestrians and cyclists. The final NPS has benefited from earlier discussions with noble Lords in these areas; I will highlight some of those in more detail later in my speech.
Of course, the NPS needs to be seen in the context of other, wider transport strategy documents, such as the rail investment strategy and the recently published road investment strategy. These documents show that the Government take the need to invest in transport infrastructure seriously. The first ever road investment strategy outlines how £15.2 billion will be invested in our strategic roads between 2015 and 2021 and is part of a radical transformation of how we run our major roads. Between 2014 and 2019, Network Rail will be delivering a £38 billion programme to help transform the busiest parts of Britain’s rail network, helping to deliver more and better journeys. The Government’s rail investment strategy, also known as the HLOS, will support more than £11 billion of infrastructure enhancement in that period to run and improve the rail network, supporting economic growth and jobs and delivering a greener, more cost-efficient railway that is better for freight and better for passengers. All that is in addition to the investment committed for HS2.
The national policy statement supports a significant and balanced package of improvements across the road and rail networks, including improvements in safety, resilience, maintenance, environmental performance and access for cyclists and pedestrians. Indeed, the development of the strategic road network is primarily about upgrading the existing network rather than building new roads. Almost 40% of the investment in this and the next Parliament is for maintenance, and more than 80% of the schemes in the current programme are smart motorways.
Following the previous debate on the draft NPS held on 8 May last year, I have kept noble Lords who expressed concern updated on progress. The final NPS has taken those concerns into consideration and addressed them as far as possible. Those concerns included road traffic forecasts and appraisal, as well as impacts on local roads and transport policies. Some of those issues were too complex and technical to address in a debate and so I wrote individually to those noble Lords.
Turning to the final NPS, I would like to set out how a number of issues which have been raised by noble Lords have been dealt with in the final document.
I begin with forecasts. Road traffic forecasts and their prominence in the draft NPS were challenged in the consultation and parliamentary scrutiny process. The updated forecasts in the NPS have made use of new scenarios that take into account changes in travel behaviour that have been observed over recent years. These indicate that even with conservative scenarios of overall traffic growth, we still expect significant growth on the strategic road network. We also expect greater divergence between traffic in different locations. We have highlighted in the final NPS that the Government’s aim is to tackle congestion rather than meet the level of growth forecast. This is why I can say confidently that we are not reverting back to a policy of “predict and provide”.
It is important to understand that the NPS does not mean that the national traffic forecasts will be used as the means to justify individual developments. Individual schemes will need to use local models to justify development and to understand local impacts. They will be subject to a full transport business case.
For rail, passenger demand is predicted to continue to grow significantly. Total average growth in passenger kilometres from 2011 to 2033 is predicted to rise by just over 50%, including phase 1 of HS2.
I turn to the environment. Following the consultation and earlier debates, we have further strengthened environmental protections. For example, we now have a presumption against road widening or new roads in national parks and areas of outstanding natural beauty. We have also made a number of other changes, including strengthening the text on biodiversity, landscape, land use and noise.
The NPS recognises that integration between modes is important, and the route strategies that feed into the rail and road investment strategies provide ample opportunity to integrate development where that is sensible. There is now an explicit expectation in the NPS that assessment of alternative transport solutions and modes takes place at the investment appraisal stage—that is, prior to the NPS—and evidence that that has taken place should be available.
The road investment strategy shows us that with improvements in design, the progressive decarbonisation of the vehicle fleet, and higher environmental and safety standards, there is no longer a forced trade-off between a well functioning road and rail network and a well protected environment. Some funds in the road investment strategy have been ring-fenced to ensure that interventions are sustainable and beneficial to society as a whole. They include a £250 million cycling, safety and integration fund to deliver, among other things, improved cycling facilities on 200 sections of the network, and a £150 million innovation fund to exploit novel and innovative technologies and techniques in road construction and management.
This Government take air quality seriously, and the NPS recognises the impact that new road and rail infrastructure can have on it. Over £2 billion has been invested in measures to increase the uptake of ultra-low-emission vehicles, sustainable travel and green transport initiatives. The Government have also committed £100 million to improve air quality on the strategic road network as part of the road investment strategy. This is on top of a commitment to have environmental measures built into all new road schemes as standard.
The policy in the NPS states that promoters of nationally significant infrastructure projects should identify air quality impacts and put suitable mitigation measures in place. These measures may affect the project design, layout and construction and may comprise measures to improve air quality in pollution hotspots outside the immediate locality of the scheme. The measures could include changes to the route of a new scheme, barriers to trap or disperse emissions or speed control. Where a scheme results in a zone that is currently compliant with the air quality directive becoming non-compliant, or if the proposed timescale in which a zone is expected to achieve compliance is affected, the NPS is clear that the scheme should not go ahead.
We have listened to concerns raised on the importance of reducing carbon. The Government have already set stretching legally binding carbon budgets, which the NPS supports, but a planning inquiry on an individual road development is not the place to have a debate on our national carbon reduction strategy. Carbon impacts will still continue to form a key part of the transport appraisal and decision-making process for road schemes. We make it clear that applicants for any new schemes should provide evidence of the carbon impact of the project and an assessment against the Government’s carbon budgets.
The final NPS is clear that applicants should include design as an integral consideration from the outset and that independent, professional advice on design is taken. Visual appearance should be a key factor in considering the design of new infrastructure, as well as functionality, fitness for purpose, sustainability and cost. Good design goes towards ensuring that a development is sustainable, as aesthetically sensitive as possible, durable, adaptable and resilient. It contributes to safety and accessibility so that all users, including disabled people, have their needs met. The new company, Highways England, if established under the Infrastructure Bill, which is progressing through the Commons at the moment, will be required to establish a design panel to provide advice on design issues, which will be invaluable in ensuring that development takes account of geographical, environmental and socioeconomic considerations. This is further evidence that we have listened and responded on the matter of design.
New developments provide an opportunity to make significant safety improvements; indeed, some developments may have safety as a key objective. Our roads and railways are among the safest in the world but there is always room for improvement. The rail industry is required by law to consider the impact on safety of any proposed changes. The frequency of train accidents with passenger or workforce fatalities is now at the lowest level ever, despite more passengers and miles travelled.
The Government’s vision, in which Britain remains a world leader in road safety, is set out in the national Strategic Framework for Road Safety. The NPS sets out clear guidelines on this. A scheme will not be granted development consent unless all reasonable steps have been taken and will be taken to minimise the risk of road casualties arising from the scheme, and the scheme contributes to an overall improvement in the safety of the strategic road network. The road investment strategy includes a key performance indicator of reducing fatalities and serious injuries by 40% by 2020. I take this opportunity to remind the Committee that the NPS is a high-level long-term planning document that does not name specific schemes, as that would not be appropriate in such a document.
I ask that noble Lords recognise that this final NPS is much improved, following their valuable contributions and public consultation. The NPS has been produced following the requirements of the Planning Act 2008. As I mentioned, it is a high-level planning document. Consideration of issues such as the mode and integration are dealt with much earlier in the phase than this planning stage—essentially, at the investment appraisal stage.
What we have is a document which provides greater certainty for those developing much-needed transport infrastructure, along with robust environmental and safety protections and design requirements, which should help speed up the process for nationally significant infrastructure projects.
I hope that the Committee will welcome this much improved document, and I beg to move that the Committee has considered this NPS.
Lord Shipley (LD)
My Lords, I welcome the Government’s response to the public consultation. It is clear, as my noble friend said, that there has been significant scrutiny. There is evidence that the draft has benefited from that, and the quality of the responses received has clearly been helpful in achieving that.
I place on record that infrastructure investment under this Government has risen over recent years and commend the Government for their commitment to achieving that and rebalancing the economy as they seek to do, because it is important to recognise that transport planning helps to drive growth in all parts of the UK.
I want to raise two specific issues. One relates to integration of transport systems across the UK; the other is a specific query relating to freight. I note that most organisations responding were supportive or neutral. It is noteworthy in paragraph 12 of the executive summary that there were requests for the NPS to adopt a more integrated approach across transport modes. In paragraph 4.11 of the Government’s response, they acknowledge that the,
“professional planning community and scheme promoters also wanted the NPS to provide spatial specificity highlighting where development and specific schemes were needed”.
The Minister rightly referred to that.
I understand that transport strategy, as is made clear in paragraph 4.16, is,
“beyond the scope of this consultation”.
That is understandable, because the NPS is a planning document which represents the decision-making framework for national road, rail and freight interchange projects. It is fundamental to growth strategies, but it is not a national transport plan, although some parts of it share some similarities with it. My point is that we need a UK-wide strategic transport plan. You can call it that, you can call it a strategy or you can call it a policy, but it needs to be a practical, deliverable statement of policy intent to put the road investment strategy, the rail investment strategy and all other transport strategies into context. That context is connectivity for all parts of the UK to support growth.
Let me give a specific example of what I am getting at by referring to the planning for HS2. I have been puzzled by paragraph 1.9 in the section on the policy context that says that it,
“does not cover High Speed Two”,
because of the hybrid Bill process, although it does set out the,
“policy for development of the road and rail networks and strategic freight interchanges”.
I understand why that is the case given that there is a hybrid Bill for HS2. My query relates to the availability of the plan and the money for connecting existing transport capacity with HS2. As the House of Commons Transport Committee said in recommendation 10, the NPS should,
“make explicit reference to the desirability of connecting HS2 to the classic rail network, so that people from around the UK can benefit from the new high speed rail line”.
My question is: will HS2 link adequately with existing networks and what about the new linkages that will be required where new HS2 stations are constructed outside city centres? I wonder who is doing the thinking on that, who is planning what they will be and who is assessing where the budget will be made available from to pay for it. So that is connectivity. I think that it would be hugely helpful for there to be a UK-wide transport plan that sought to look well into the future, as best we can, about what is needed for all parts of the UK.
I mentioned a specific question in relation to freight. For strategic roads, the NPS covers a very small part of the total number of roads, understandably, but for freight the NPS actually covers two-thirds of freight. My question is whether our policy on connectivity for freight ports is robust enough. Are we clear how—over, say, the next decade—we are going to ensure that all the pinch points, which still exist in some places, that restrict or slow down the connection of goods into ports for export, are assisted? Secondly, on the question of the rail gauge, I have always thought that the work being done by the DfT on rail gauges was sufficient to ensure that containers could move easily to ports. However, there is a question around the potential size of containers and their growth. Although it is true that there may be extra capacity forthcoming through HS2, I wonder what the thinking is on the larger-gauge rail freight systems if they could actually get more freight off the roads and on to rail.
Lord Berkeley (Lab)
I am grateful to the Committee for allowing me to speak for a short time. I apologise for turning up late but my programme said that we were going to start at 3.45 pm. I apologise to the Minister in particular for missing the first part of her speech. I declare an interest as chairman of the Rail Freight Group.
Generally, I welcome this national policy statement. It has been some time coming but in the main it is good, and it will do an awful lot to make strategic development easier and possibly quicker—we will have to see how that works—and should certainly help integration, although the noble Lord, Lord Shipley, has put some questions down that I look forward to hearing the answers to.
I came across an example a week or two ago when I was privileged to go to the Port of Felixstowe and meet the biggest container ship in the world, which came in there. The Chinese ambassador was there along with other important people. The noble Lord, Lord Deighton, was there, making a very important speech about how good the UK was for business, and how with these big containers you need proper road and rail links inland to ensure that the containers can get away and arrive. I did not say anything in the speeches but I went up to him soon afterwards and said, “The solution is in your hands. Why don’t you speak to the Secretary of State for Transport and a few other colleagues and get the Felixstowe branch doubled and improve the links across the country, which are really bogged down?”. He said, “Well, I’m talking to Hutchison Ports”. I said, “That’s wonderful, but they’re not the people who will actually be doing it”. Maybe the Minister could take that on board and see where it has got to, because it is a major hang-up in getting these extra numbers of containers on to the network to where they want to get to or come from.
My concern echoes the criticism of the Commons Transport Committee about the projections for road and rail that the NPS does not explicitly address the criticisms that many people have made. In a Question in your Lordships’ House a few months ago, we debated the fact that the predictions always show an increase in road traffic, when in fact if the predictions 20 years ago had been true, which said that we would more or less double the amount of traffic, we would probably have more than three times the amount of traffic now than we actually do.
There are many other problems that point to a failure of being able to consider alternative modes. If someone is proposing to build a motorway, or to widen a motorway, to increase the capacity, will anybody look at the alternative for taking it by rail? I think it probably stems from the way in which the projections are done. If you build a bypass or something and you get many millions of cars saving half a minute on their journey, and if you aggregate that up, it will give you a wonderful cost-benefit, in the positive sense, to build the road, without looking to see whether those people could have gone by rail or have cycled or walked. There has been massive criticism of this from groups such as the Campaign for Better Transport and the CPRE, which the Minister will have seen. I wonder whether the time has now come—now that this NPS will, we hope, be confirmed and published and we can all work to it—to reflect on whether there could not be more detailed discussion and investigation into the traffic forecast modelling that the department used, to consult all the experts and to see whether we can get something that is a little more acceptable to many of the users and developers.
Lord Davies of Oldham (Lab)
My Lords, first, I am grateful to the Minister for the way in which she presented the issues in her opening contribution. It was welcome to see the extent to which it was a question not of “predict and prescribe” but of “listen and respond”. That is to be much commended. That is listening and responding not only to the general public consultation but to debates in this House and in the other place, which have also contributed significantly to a much improved government position. Still, as the Minister would expect me to say, the Government’s position falls short of the aspirations that have been presented on this side of the Committee.
I am very glad that my noble friend Lord Berkeley was able to enter the debate in the gap, as I feared that I would have to spend considerable time on the issues of rail freight and the relationship to road/rail connections. He provided a crucial dimension on that link and questions for the Minister to answer. I particularly appreciated the speech of the noble Lord, Lord Shipley, on connectivity, which I am sure is at the heart of these issues, not just in the areas that he mentioned, but the relationship between the strategic road structure and local roads. We all know that those responsible for our local roads—our local authorities—are having a parlous time at present in sustaining the quality and effectiveness of the roads. It would not be possible to have this debate, however far-reaching and far-looking it was, without emphasising to the Minister that there is a real need which needs to be incorporated into any documents of this kind.
My noble friend Lord Berkeley was kind when he said that the document has been a long time coming. It has been a mighty long time—what I would call a Parliament—in coming. It is, after all, the product of the Planning Act 2008, and here we are with the coalition Government, having taken up the reins of office in 2010, producing a planning document—let me emphasise again that it is a planning document and not a policy document—a couple of months before the next general election. So the Minister stands chided that the Government have neglected these critical issues, and they are critical. The Minister’s response to what has been said in criticism of the original documents shows how critical these issues are. The Government have largely neglected these issues over a considerable time, and that is bound to be a cost to the nation.
It is not as if the Government are not practised at the art of postponing big policy positions until after the general election. This document at least obliges them to respond to a debate in this House a couple of months before the election. However, action—the question of what resources will be available with the Government’s commitment to eliminating the deficit by 2018, if they are in office—raises profound issues. Those can of course be brushed aside by their strategy of not committing themselves too far before the general election. It is a bit like the airport issue, where all the real issues will be dealt with after the next general election.
As my noble friend Lord Berkeley indicated, we welcome the statement because it should ensure that fairer and quicker decisions are taken on major infrastructure projects. We are glad that the extensive work has been done and that there has been the opportunity for a response to the initial documents, which I think on many sides were regarded as somewhat inadequate to the issues which confront us. The Government came in for much criticism, some of it from the Opposition, but the Government would expect that. After all, that is the Opposition’s job.
The Minister mentioned the Select Committee on Transport in the other place. It emphasised the issues which were developed in the other two speeches that we have heard thus far. In particular, what has been emphasised is the link-up between road freight and rail. The rail freight interchanges are clearly critical, as an issue of connectivity, to the expansion of the economy and the effectiveness of conveying freight. My noble friend Lord Berkeley gave us a most interesting and up-to-date example of that. It was a tremendously important one when we think of the amount of trade that we have with China these days, although I wish that he had picked on the process of the outward movement of goods rather than their inward movement. I would like to think that that massive vessel he referred to and the containers on it were full when going back to China as well as when arriving at Felixstowe in such extraordinary and welcome circumstances, given the size of the vessel.
I hope that the Minister will talk a little more fully about rail freight interchanges and the clear objectives that we must have on almost every dimension of transport policy to get goods, as much as we can, off our crowded roads and on to an expanded rail capacity. This part of the programme might well have been accelerated if this document had been produced somewhat earlier in the Government’s life. However, the statement, after all, is meant to carry across changes of government as an infrastructure position to which both major parties in broad principle subscribe. The other major parties also subscribe to the principles that infrastructure requires some continuity of investment and production. The Minister will be in no doubt that we broadly welcome the statement in those terms. As she will know, we did not press the issue to a vote in the other place.
One issue which I think the Minister touched on and indicated that the Government were responsible for—but I do not think she has given satisfactory responses at this stage—is in response to that criticism which came in from outside bodies, fully voiced by the Select Committee on Transport in the other place, that there seems to be little in the way of serious integration of modes of transport in this country. After all, this statement is no roads and rail statement; it is a roads statement and a rail statement. That indicates the important point that we have to think in terms of the effective connectivity between two major forms of transport on land.
On roads, many well informed critics have detected a return to “predict and provide” rather than clear evaluation of priorities. As my noble friend Lord Berkeley and the noble Lord, Lord Shipley, noted, Governments’ record on prediction—more than one Government—does not give one the greatest degree of confidence and is often characterised by an overestimation of traffic demand. The Campaign for Better Transport was quite emphatic in its criticism of the estimates. The Minister touched on that in her opening statement, but I hope that she will furnish us with more detail on how this will be presented in a more effective and confident form than has been the case in the past.
The central forecasts for rail have remained despite the anxieties of Network Rail, which is in a position to make serious judgments on the matter. It is clearly concerned that if expansion is not carried out rapidly enough, present problems of overcrowding in certain parts of the country will remain. We know of parts of northern England where it is acute, but my goodness there are still major problems on commuter lines into London and our other major cities in England. An issue which stood out in the discussion on HS2 was that something had to be done about New Street station in Birmingham because of the sheer pressure of commuter numbers there and the necessity for that station to be vastly improved. Unless that situation is to deteriorate, we need a bit more than HS2, which after all is a considerable way in the distance. We need within this framework some clear realisation of what needs to be done.
The Minister will forgive me if I failed to listen to her opening remarks carefully enough, but it was extraordinary not to hear the word resilience, and I do not think that it appears much in government documents. That gives one the thought that it does not occupy minds much in government in circumstances where we are anxious about climate change and the ferocity of certain aspects of climatic events. The Dawlish phenomenon may not be unique. I give the fullest praise for the way in which Network Rail reconstructed the line at Dawlish so effectively and so quickly, but it did not alter the fact that a significant section of western England was close to being cut off for many weeks. We can think of other pinch points that might be a good deal more disastrous than the line that goes through Dawlish down to the south-west. I hope that the Minister will therefore acknowledge in her response the necessity in planning for rail for a degree of resilience that enables us to overcome real disruptions of existing networks and indicate how provision is made for alternative strategies in the mean time.
Prior to the debates and the Transport Committee’s response, I had anticipated having considerable criticism for the Government’s approach to carbon emissions, which I thought was pretty cursory. In her speech opening the debate, the Minister spent considerable time on that matter, so I will not take it amiss if she feels that she does not have to repeat all that in her winding-up speech. I take pleasure in the fact that that has come to the fore of thinking in circumstances where we know that carbon emissions are an important aspect of the quality of life and health of the public. Certain people happen to inhabit areas much more exposed to that problem than others, and they deserve consideration.
I know that the Minister is concerned about the Highways Agency and the strategic roads, and so she should be, because they are critical. They take so much of our freight and we all rely on an effective motorway system. However, I hope that she will say something about the question of local roads. After all, they are the receivers from and, we hope, deliverers to the main highway system, and there is precious little in the statement about the interconnectivity of local roads.
We broadly welcome the statement. After all, we look forward in a few months to starting to implement certain aspects of it. However, we would feel a good deal more confident about the brief which we will pick up if the Minister gave us some convincing replies to the questions asked by the three of us who have spoken after her in this debate.
Baroness Kramer
My Lords, as usual, this has been an excellent debate, with a significant number of issues raised. I very much appreciate the informed way in which this House approaches what to me are some of the most fascinating issues that a Government could look at, because transport is essential for both quality of life and the economy of the country.
I shall try to address some of those issues. First, this is a planning document and it may well be that some of the issues raised fall very far outside the scope of a planning document, so if I mention those only in passing or omit them, please forgive me. Your Lordships know that I am always happy to discuss those broader issues.
Let me first pick up the issue of forecasting. I am rather pleased with what I think has been a real consideration of methodologies for forecasting now reflected in this final NPS. It is probably true to say, if we look at some of the historical numbers that we have had, that the methodology that has typically been quite reliable for the road network outside the major cities, especially outside London, did not seem to reflect changing patterns within London. Your Lordships will find in the document that more factors have now been brought in. That has been thought through in a broader way to derive the current set of forecasts. Also, the forecasting part of this document looks across a range of scenarios. The reality is that even when you look across a range of scenarios and take a pretty conservative position, there is still a powerful drive in the direction of growing demand.
However, as I said in my opening speech, recognising all that, the Government’s programme has still focused very much on existing roads, hotspots and congestion, rather than a new roads strategy, so we are certainly not in “predict and provide” mode, but we must be conscious as we move through all this work that we are paying attention to growing demand. Frankly, if that was not part of the understanding process, we would find ourselves in real difficulty. A look at the description and discussion of forecasting in the document itself might be of real interest to those with concerns around these issues. A great deal of attention has been paid to this area and, in my eyes, the forecasting is certainly much more sophisticated and appropriate than some which we might have seen in the past. I am not saying that it was bad but that there are more complexities now, which are being introduced into that process.
I want to pick up quickly on the issue of resilience. Chapter 2 of the NPS does that rather well, frankly, so I stress it because resilience is crucial. However, if we are talking about the performance of Network Rail, that is really outside the scope of the planning document. There are lots of issues to discuss there which are not really part of the NPS, but keeping resilience within the frame for an NPS is important and does matter.
Lord Berkeley
But surely resilience, either on rail or road, includes having alternative modes when something goes wrong. Is that not part of planning?
Baroness Kramer
First, that is reasonably well covered but in terms of determining how you cope with resilience, the resilience study for the south-west—a study which the noble Lord, Lord Berkeley, will be very aware of—was also interesting because all modes were looked at in its production. However, it seems to me that it has to be apropos the event location that one is coping with, so we would need resilience on individual modes as well as for broader access. The NPS has that within its language. Part of the way in which the department and the Government are now working is also demonstrated by something like that resilience study, which addressed that wide range of issues. It is picked up again in the RIS where, for example, something such as the A303 is absolutely critical to resilience in access down into the south-west, even though the crisis was on a rail line at Dawlish. To tell the honest truth, I think we have that one sorted.
There are issues of integration and considering an overarching transport plan, which my noble friend Lord Shipley addressed and the noble Lord, Lord Berkeley, to some extent echoed. First, if one were to look at page 102 of the planning document—the very last page—it is quite instructive because it shows, as it were, the food chain. To me, the work on looking at alternative modes and setting out a broader transport plan happens much earlier up the food chain than in this planning document. It is too late by the time that progress has got as far as the NPS. There is a section called “strategy and policy”, which is a crucial area to bring in this thought around various modes and a much broader perspective on transport. Critically, and as I think I said in my speech, when it progresses to the investment planning and decision-making phase that would be where the RIS, the route utilisation strategies and the work required in the various control periods for Network Rail would appear. It is at those stages that those issues need to be addressed.
Once it gets to planning, it is not that one ignores integration and alternative modes but we would be just past that point when this document begins to apply. I think that is healthier. I say that for this reason: I look at what seems to have been real progression in this area over the last few years. If I had looked at transport planning even four or five years ago, I am not sure that when we looked at HS2 we would have been so incredibly focused as we are now on building that east-west connectivity across the Midlands and the north. It has become an implicit part of looking at HS2 to talk about not just HS3 but much more complex work. A significant part of the responsibility for that has now been devolved to Transport for the North—that is, having remembered its acronym, TfN—which will be producing its initial report in March. That devolved engagement is crucial to that step. That comes well before we would ever get to an NPS; it is a much earlier piece of thinking. Also, when we look on a project-by-project basis, Sir David Higgins of HS2—my noble friend Lord Shipley specifically raised HS2 and connectivity—has said that that is a key theme. He works closely with Network Rail around those issues, because as he builds rail infrastructure, building in the rail interconnection or ensuring that it is optimised will be key. Indeed, one reason that we have not finalised the route for phase 2 is that it is so important to bring connectivity into that picture. Much of that is relatively recent thinking, but it comes at a much earlier stage than the NPS. Very important issues have been highlighted, but I am not sure that they are something for this document. In fact, it would almost be a failure if we were suddenly to start considering that at the NPS stage. It has to have been dealt with much earlier in the process.
I completely agree with the noble Lords, Lord Davies and Lord Berkeley, that rail freight interchanges are crucial. I think that there is now general satisfaction with the provision for that as described in the NPS document. It takes what the industry and much—although not all—of the environmental community thinks is an appropriate approach. We are investing heavily in access to the ports. The noble Lord, Lord Berkeley, will know of the upgrade from Felixstowe to Northampton. Across the various controlled periods, we are looking at the necessary improvements for port capacity. An area that will need a lot of focus in future years is that HS2 releases west coast main line, east coast main line and Midland main line in ways that create capacity for freight that we have not been able to explore historically. Although freight always has to be near the centre of our thinking, there will be a great deal of change as we explore how we can maximise the benefits of that freed up capacity. That will be important.
On modal shift, we have our revenue fund—about £80 million—to try to encourage a modal shift from road to rail. I am now falling back entirely on memory, but I think that the road investment strategy highlighted some parts of that strategy as ensuring relevant port connectivity. If that is not right, I will write back to your Lordships, but I certainly remember that being a great subject of conversation and I am pretty sure that it ended up in the road investment strategy.
My noble friend Lord Shipley talked about continental gauge. My husband, who is now long dead, was one of the supporters of Central Railway, which proposed a dedicated freight line. I think that a Member of Parliament in the other place, Kelvin Hopkins, is a supporter of Eurorail. A number of such projects are coming forward; none is proposed at the moment. It will be complex to consider them until we have a sense of what HS2 releases.
Lord Berkeley
Just for the record, Kelvin Hopkins MP has a scheme which he has been promoting for several years. It is still on his table; whether it is on anyone else’s table, I cannot say.
Baroness Kramer
I do not think that it has come forward to Parliament. I am giving a personal view, but I believe that a major project on that scale is outside the NPS, just as HS2 is, and that the hybrid Bill process would be used because it affects so many communities and so many localised planning issues that require people to have a voice. I cannot believe that it would be appropriate to handle it in any way other than through the hybrid Bill process, but I could certainly be proved wrong in future. My sense is that it belongs there rather than within the NPS framework.
I think that I have covered most of the issues that were raised. As I have said, they are all crucial to transport thinking, so I appreciate the fact that they have been raised in the context of this opportunity to discuss transport. However, we have also to recognise that the NPS is a very specific document meeting a very specific purpose and it is with that in mind that I am narrowing down my comments. The NPS does not introduce new policy; it states current policy. It is a planning document and it is central to our long-term economic plan. We have responded seriously to discussion and debate in this House and the other place as well as in public consultation because we have wanted to get it right. I hope that, on that basis, your Lordships will feel able to support the document today.
House of Lords
Schools: Arts Subjects
(9 years, 10 months ago)
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Baroness Kidron
To ask Her Majesty’s Government what steps they will take to ensure that arts subjects have equal weighting in the new Progress 8 measure.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, a rich cultural and creative learning experience is an essential part of a good education, and Progress 8 will provide schools with more incentive to enter pupils for arts subjects than the existing performance table measures. The current indicator captures only five subjects, including English and maths. Progress 8 will capture eight subjects, leaving more space for arts subjects.
Baroness Kidron (CB)
I thank the Minister for his vocal recognition of the importance of arts subjects. However, the question relates to the formal place of arts subjects in schools and the widespread concern that they have been downgraded as a result of the reorganisation of performance measures. Since arts subjects fuel our economy and enrich our cultural life, does the Minister not agree that they should be entitled to the same prioritisation and levers through Ofsted and Progress 8 as the subjects associated with the EBacc?
Lord Nash
I entirely agree with the noble Baroness on the importance of arts subjects, but we are starting from a very low base. Under the last Government, the number of pupils taking a core academic suite of subjects collapsed from 50% to 22%. Under this Government, the figure is back up to nearly 40%. We hope that with Progress 8 building on our EBacc we will now see an increase in arts subjects—and we have seen an increase in arts GCSEs in 2013 and 2014.
Lord Geddes (Con)
Does my noble friend agree that dance and music, in particular, form part of an all-round education?
The Lord Bishop of Peterborough
My Lords, does the Minister agree that the encouragement of arts or liberal humanities subjects is for the benefit of human flourishing and is also essential for preventing the development of extremism in religion and politics, and is therefore to be positively encouraged by government?
Baroness McIntosh of Hudnall (Lab)
My Lords, I think that everybody in this House would accept that the Government’s focus on STEM subjects has its merits, but does the Minister agree that the crude distinction made recently by his right honourable friend the Secretary of State between the value of STEM subjects and the value of arts-based subjects is unhelpful and that whatever he says about schools being encouraged to offer the arts, it is almost inevitable that subjects that are not promoted will be marginalised and that pupils will lose out?
Lord Nash
On average, pupils take over 11 key stage 4 subjects, so there is plenty of scope for the arts. The Secretary of State does not underestimate their importance, but we need to encourage more young people—particularly young women—to consider widening their options to STEM subjects.
Baroness Williams of Crosby (LD)
Does the Minister agree that much of the advance of this country’s influence on the world in the last few years has lain in the field of film, literature, theatre, drama and television? In area after area we have received remarkable awards from international bodies and a widespread recognition of the extraordinary contribution that the arts and theatre in this country have made to our standing in the world.
Baroness Coussins (CB)
My Lords, is the Minister aware that the Progress 8 measure could be the kiss of death for languages, as it does not stipulate which EBacc subjects need to be taken? The recent increase in take-up because of the EBacc is likely to be reversed, and some head teachers are already saying that languages will be downgraded in light of the Progress 8 measure. What will Her Majesty’s Government do to counter that?
Baroness Whitaker (Lab)
My Lords, to follow the point made by the noble Baroness, Lady Williams, another area where the UK has an international lead is in design and technology. The Government recently announced that they are postponing the structure of the new design and technology course. When will they announce it?
Baroness Perry of Southwark (Con)
Does my noble friend agree that the introduction of the new Progress 8 measure will enable every child to have a broad and balanced curriculum—much more so than in the past?
Lord Nash
I agree entirely. We want every child to engage in a broad and balanced curriculum; Ofsted will inspect against that, and, as I have already said, many more options are now available through Progress 8. Previously we had what the shadow Secretary of State described as the “great crime” of the C/D borderline; we will now value many more subjects widely and will rate Bs to As and Es to Ds much more highly than we have in the past.
Baroness King of Bow (Lab)
Does the Minister agree that none the less, if the current weighting formally undervalues elements of arts and culture within the curriculum such as art, music and sport and the other areas we have heard about in this interesting exchange, should that not be reviewed? This is about whether we have a broad and balanced curriculum, as the Minister acknowledged, which in turn requires schools to be inspected on a broad and balanced basis. Surely it becomes more important to us every day that our education policy shapes our young people to have a broad and balanced outlook.
Lord Nash
Ofsted does inspect on a broad and balanced curriculum; it looks in part at how pupils will participate in and respond to artistic, sporting and cultural opportunities. However, I refer to my earlier point, which the Benches opposite did not like: we started from a very low base. I should think that all Members of the House should be very pleased with the increase in and substantial enhancement of cultural and academic courses that we have produced.
Baroness Janke (LD)
My Lords, will the Minister say what plans the Government have to address teacher shortages in arts and languages subjects, and will he say if he has a plan to evaluate Progress 8 in the medium term?
Lord Nash
We have our bursaries for arts. In music, for instance, there is £9,000 for music graduates with a first. We now have nearly 500 teaching schools and have designated 145 schools as specialist leaders of education in arts subjects. However, of course we will evaluate the performance of the Progress 8 measures as we go along.
House of Lords: Governance
(9 years, 10 months ago)
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Lord Hunt of Kings Heath
To ask the Leader of the House what discussions she plans to hold on reviewing the governance of the House of Lords in the light of the report of the House of Commons Governance Committee.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, I discuss governance of the House in my meetings with the leaders of the other party groups, the Convenor, the Lord Speaker, the Chairman of Committees, the Clerk of the Parliaments and others, including the noble Lord himself, and will continue to do so. The report to which he refers will help to inform conversations on this subject in future.
Lord Hunt of Kings Heath (Lab)
My Lords, the noble Baroness will know that, among other recommendations of the Select Committee which have yet to be accepted by the Commons, it recommended that there should be a review of shared services between the two Houses and that there should be a drawing up of a medium-term programme towards a single bicameral services department. Does she accept that there is merit in providing joint services between the two Houses, provided that the House of Lords is an equal partner? Does this position of equality extend to discussions in future about the refurbishment of the estate?
Baroness Stowell of Beeston
The noble Lord is right to highlight in the report from the Commons committee a recommendation for us to explore the prospect of more shared services. I certainly support reviewing the scope for extending shared services between the two Houses when they would deliver greater value for money and lead to more effectiveness.
It would be premature for me to express a view on having a single department. Let us focus on what is possible and what would make sense in terms of us working together on those shared services. As the noble Lord rightly says, in any such arrangement, as exists already on shared services, the House of Lords must be an equal partner with the House of Commons.
Lord Forsyth of Drumlean (Con)
Does my noble friend recall the report from Sir Roy Griffiths in the 1980s on the health service, when he said that if Florence Nightingale were wandering the corridors of the National Health Service with her lamp, she would almost certainly be looking for who was in charge? Would that not also apply if she were wandering the corridors of the Palace of Westminster?
Baroness Stowell of Beeston
I think that my noble friend is referring to this House specifically. We are a self-regulating House, and we are all responsible for ensuring that we do what we exist to do, fulfil our purpose and serve the public correctly. As for accountability, that is quite clearly shared between me, the Lord Speaker and the Chairman of Committees.
Lord Tyler (LD)
My Lords, is it not obvious that we are in one sense not a self-regulating House, in that so much of our business is in fact decided between the two Front Benches, through the usual channels? Would now not be a good time, bearing in mind what has been undertaken at the other end of the building, to revisit the recommendations of the group led by the noble Lord, Lord Goodlad, and, in particular, to look at the role of our Lord Speaker, who, after all, we elect to make sure that we are a self-regulating House—and, in particular, to look at her role, speechless, during Questions?
Baroness Stowell of Beeston
I do not know whether the noble Lord was present during our recent debate on procedures in this House, but I certainly made the point when responding to similar points raised during that debate that we are all accountable for ensuring that Question Time works efficiently. As for the responsibilities of the Lord Speaker, it was considered very carefully during this Parliament; there was a Division on the matter in this House, and the House decided that it would retain the role of Lord Speaker as it currently exists.
Lord Foulkes of Cumnock (Lab)
My Lords, the noble Baroness in replying to that debate, which I initiated, did not answer any of the questions. What is the point of having a Speaker if we do not give her any responsibilities whatever? Surely, now that we have had two Speakers over the past few years, it is the time to review the position, look at it again and let this House decide again in the light of experience.
Baroness Stowell of Beeston
I am sorry the noble Lord feels that I did not respond to the questions that were put to me during that debate, as I felt that I gave a very comprehensive response to the points that were raised. It is not that long ago since we considered the role of the Lord Speaker. As I have just said, we debated it, there was a Division and the House made clear its view on the matter.
Lord Cormack (Con)
My Lords, fundamental to the Question of the noble Lord, Lord Hunt, is the relationship between the two Houses. While it is crucial that we continue to recognise the constitutional supremacy of the other place, we do not have to recognise its geographical or territorial supremacy. Therefore, it is very important indeed that this House is equal with the other when we are talking about joint services.
Baroness Stowell of Beeston
My noble friend is absolutely right. To be absolutely clear, some joint services are already operating between this House and the other place. The joint procurement service is the most recent example of this—through that joint procurement service we have already achieved some significant savings and ensured that the service provided remains effective and operates well. However, my noble friend is right: when we look at other possibilities of services being shared, we have to ensure that we do not end up being in any way subordinate to the House of Commons.
Baroness Farrington of Ribbleton (Lab)
My Lords, would the Minister care to comment on the final point made by my noble friend Lord Hunt on equality in decisions taken about the refurbishment of the Palace of Westminster? Surely we do not want a situation where this House is excluded from the Palace of Westminster for too long.
Baroness Stowell of Beeston
The noble Baroness is right to remind me that I did not address that important point. We have already agreed that a Joint Committee of both Houses will take decisions relating to the Restoration and Renewal Programme. One House will not take a decision in the absence of the other: it will be a joint decision.
NHS: Clinical Negligence
(9 years, 10 months ago)
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Lord Sharkey
To ask Her Majesty’s Government what are the causes of the £3.1 billion increase in the National Health Service’s potential liabilities for clinical negligence to £25.7 billion between 31 March 2013 and 31 March 2014.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, there are several factors behind this increase. These include the rise in numbers of patients cared for and the complexity of their care. In addition, there has been a general rise in litigation across a number of sectors, including the NHS, which is driven in part by no-win no-fee agreements. High costs incurred by claimants in bringing civil litigation have also played a role in the increasing clinical negligence cost and associated provisions.
Lord Sharkey (LD)
In the last five years, NHS spending has grown by 12%. In the same period, liabilities for negligence have actually doubled. With the current rate of growth, they will take only six years to reach around £50 billion. The Medical Defence Union thinks that is unsustainable and has suggested reducing liabilities by changing the law. It suggests allowing courts to take account of the fact that the NHS and local authorities can provide some of the treatments required by successful claimants. Does the Minister agree that this is part of the way forward?
Earl Howe
My Lords, moneys paid in settlement of clinical negligence claims cannot be reclaimed or recycled in the way that my noble friend appears to suggest because, in the nature of NHS care, it is free from the patient’s perspective. We are, however, concentrating on various ways to reduce the number of clinical negligence incidents and, indeed, to improve patient safety, which is of course part of the way in which we can reduce the number of claims in the first place.
Lord Hunt of Kings Heath (Lab)
My Lords, what view have the Government taken of the Medical Defence Union recommendation for repeal of the Law Reform (Personal Injuries) Act 1948? In essence, that would mean defendants could buy NHS healthcare packages as opposed to the more expensive private care packages, and, presumably, would reduce some of the cost of the claims that are currently going through.
Lord Willis of Knaresborough (LD)
My Lords, following the passage of the Health and Social Care Act, there are now some 350 other qualified providers. Will my noble friend confirm that they all get support through the Department of Health for any clinical negligence claims? If that is so, how much was paid out in 2013? Further to the point made by the noble Lord, Lord Hunt, if a claim is made within the private sector or third sector, will such providers be prevented from providing that claim within their organisations if negligence was proven?
Earl Howe
My Lords, potentially, independent sector providers may elect to be members of the negligence scheme, although only in respect of their NHS services. Therefore, only NHS-related liabilities would be covered in those circumstances. It is a pay-as-you-go pooled scheme, and I do not therefore have the figure that my noble friend requested. If I can get the figure disaggregated for him, I would be happy to write. In answer to his last question, I take it that he is asking whether the provider would be allowed to continue treatment, having been found to be negligent or having admitted negligence. That decision would be clinically led, with the patient exercising choice in each individual case.
Lord McFall of Alcluith (Lab)
My Lords, may I suggest an examination of the area of clinical governance? I and my family are not alone in having a negative experience of a disjointed, rather than an integrated, clinical governance network, where communication between departments and individuals was virtually non-existent. The admirable Reith lecturer, Dr Atul Gawande, examined the concept regarding why doctors fail, and one of the main reasons he came up with was that policies that fragment a unified system rather than cohere the system were in the interests of neither patients nor the NHS, as can be seen with these claims.
Earl Howe
The noble Lord makes a series of good points. He may be interested to know that part of the series of pledges that form the Sign up to Safety campaign, which hospitals can apply for, can include the principles of being transparent with people—including about any mistakes that have been made and what is being done to tackle safety issues—and collaboration, by taking a leading role in supporting local collaborative learning, so that the system genuinely can work together and learn together.
Lord Phillips of Sudbury (LD)
My Lords, is my noble friend satisfied—I am thinking, for example, of the scandal of whiplash claims—that the legal resources available to the NHS are sufficient for the task?
Baroness Finlay of Llandaff (CB)
My Lords, does the Minister agree that complaints need to be dealt with rapidly, preferably by a phone call or home visit, rather than in the current slow systems that often compound the anger of those who feel that they have been wronged by the NHS and which therefore make the procedure of litigation more likely? There should, rather, be rapid settlement, a very sincere apology and lessons learnt with follow-up.
Earl Howe
I agree with the noble Baroness. We view it as important that NHS organisations manage complaints in a positive manner and use the information obtained to improve service delivery. Saying sorry is important. People who complain often want an apology, an explanation and an assurance that the same thing will not happen to someone else.
Lord Roberts of Llandudno (LD)
My Lords, do the figures we have been given today include Wales, Scotland and Northern Ireland? Are those claims included in the total figure?
Raif Badawi
(9 years, 10 months ago)
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Baroness Falkner of Margravine
To ask Her Majesty’s Government what discussions they have had with the government of Saudi Arabia regarding freedom of speech in the light of the sentence passed on Raif Badawi.
The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)
My Lords, we are seriously concerned by Raif Badawi’s case. The UK condemns the use of cruel, inhuman or degrading punishment in all circumstances. We have recently raised Mr Badawi’s case at a senior level with the Saudi authorities. The UK is a strong supporter of freedom of expression around the world. We have raised a range of human rights issues with the Saudi authorities, including the right to freedom of expression.
Baroness Falkner of Margravine (LD)
My Lords, I thank my noble friend for that reply. Before I ask my supplementary question, I need to declare that as vice-president of Liberal International I have worked with the Saudi Liberal Forum, although not Mr Badawi himself. Mr Badawi was imprisoned for such innocuous sentiments as saying that secularism is,
“the most important refuge for citizens of a country”.
His lawyer, Waleed Abu al-Khair, has been sentenced for breaking allegiance to the ruler. As a Muslim I do not recognise either of these so-called offences as being against Islam. Does the Minister agree that the Saudi tweeter who said:
“It’s religious extremism that deserves punishment because it’s what brought us the Islamic State and not liberalism which fights extremism”,
has captured the essence of the argument rather better than the Saudi authorities? Can she tell the House whether the United Kingdom Government have offered political asylum to either Mr Badawi or his lawyer, Waleed Abu al-Khair?
Baroness Anelay of St Johns
May I deal with the question about asylum, raised by my noble friend at the end? Clearly, as the House will appreciate, all applications for asylum are considered on an individual basis when they are made. As far as I am aware, no such process has been initiated in this case.
My noble friend goes to the heart of the question about our position in this country on freedom of expression. I have made it clear that we condemn the physical punishment which has been applied to Mr Badawi. My noble friend asked more widely for an overview of our position on what has caused terrorism. In Oral Questions, where necessarily I have to be rather succinct, I can say that our view is that Islam itself is not the cause of terrorism. The Saudi authorities are aware of that. We agree with them that it is not Islam that caused it. It is a perversion of the form of Islam outside Saudi Arabia within Syria and Iraq. The Saudis have tried to assist us in the coalition. Clearly, we have different views about how freedom of expression can carry on in different societies. The Deputy Prime Minister and the Prime Minister have made that clear. We continue to make representations about the treatment of human rights defenders and others within Saudi Arabia itself.
Lord Bach (Lab)
My Lords, the world has been deeply shocked by reports of the treatment received by Mr Badawi. We welcome what the Minister has said this afternoon and we welcome, as we understand it, the Government’s intention to raise the issue with the Saudi Arabian Deputy Foreign Minister in London later this week. Surely, the Government have already made representations to the Saudi Arabian Government, pointing out that the treatment is a breach of international human rights law, arguably constituting torture. Do the Government agree with that? Will the Minister please keep the House informed as to the Saudi response?
Baroness Anelay of St Johns
My Lords, the noble Lord, Lord Bach, goes to the heart of the problem and I am grateful to him. Saudi Arabia has signed up to the convention against torture and is therefore in breach of that. We have made our own representations on that very clear. My right honourable friend the Foreign Secretary made it clear today in the House of Commons that we deplore this kind of corporal punishment being applied and we will continue to make representations at the highest levels. Later this week, my right honourable friend the Foreign Secretary will make representations to the Saudi Government when their representatives are in London to discuss other matters relating to ISIL. I undertake to keep the House informed as and when any progress is made. Certainly, discussions continue and we have co-operated within the EU on matters of démarche on this issue too.
Lord Alton of Liverpool (CB)
My Lords, on freedom of speech, does the Minister agree that this is not just about freedom of expression but, under Article 18 of the 1948 Universal Declaration of Human Rights, about the freedom to believe or not to believe, as in the case of Raif Badawi? In addition to torture, does she not agree that the reported 90 beheadings last year— 10 in this past month alone—in Saudi Arabia are one reason why groups such as Daesh have been able to take the law into their own hands in places such as Syria, emulating what has been done routinely in Saudi Arabia?
Baroness Anelay of St Johns
My Lords, one of the priorities of the Foreign Office is that the death penalty should be abolished throughout the world. However, it is clear that Saudi Arabia is not yet in a position where it will consider that. Sharia law is part of the very nature of its operations in the judiciary, and therefore we are not going to move to abolition. However, that does not stop us making strong representations about it. The House can be assured that at every opportunity I make the point that the death penalty does not work—quite simply, it is wrong in itself. The more we can explain that to countries around the world, the more we can improve the kind of result that we had in the United Nations vote before Christmas and the more we can persuade other countries to follow the right route, which is to abolish the death penalty.
Lord Lea of Crondall (Lab)
My Lords, do the Saudi Government claim that the autonomy of their penal code is unqualified? If so, they will not accept the Universal Declaration of Human Rights. However, if it is qualified, is there not a procedure whereby they can be taken through a process in the international community?
Baroness Anelay of St Johns
My Lords, in this respect, as the noble Lord, Lord Bach, hinted, the Saudi Arabian Government have signed up to the convention against torture but they are in breach of that. The United Nations can consider that and take it into account in any action it feels it wishes to take, if any.
Lords Spiritual (Women) Bill
Government of Wales Act 2006 (Amendment) Order 2015
(9 years, 10 months ago)
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Baroness Randerson
That the draft order laid before the House on 5 November 2014 be approved.
Relevant document: 13th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 13 January.
Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015
(9 years, 10 months ago)
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Lord Wallace of Tankerness
That the draft order laid before the House on 18 November 2014 be approved.
Relevant document: 14th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 13 January.
Counter-Terrorism and Security Bill
(9 years, 10 months ago)
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Lord Bates
“( ) In Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services)—
(a) in Part 1 (services), after paragraph 45 insert—“Extension of time for retention of travel documents45A (1) Civil legal services provided in relation to proceedings under paragraph 8 of Schedule 1 to the Counter-Terrorism and Security Act 2015.
Exclusions
(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.”;
(b) in Part 3 (advocacy: exclusion and exceptions), after paragraph 22 insert—“22A Advocacy in proceedings before a District Judge (Magistrates’ Courts) under paragraph 8 of Schedule 1 to the Counter-Terrorism and Security Act 2015.””
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, the Government have tabled this amendment to provide that civil legal aid may be made available at hearings of applications to extend the 14-day time period in which an individual’s travel documents may be retained in England and Wales. This issue was raised by my right honourable friend Dominic Grieve in Committee on 15 December and it is a matter in which the Joint Committee on Human Rights has expressed an interest.
Legal aid for judicial review is already available in England and Wales, subject to the statutory means and merits test, including for legal challenge by those subject to the temporary passport seizure power. However, this amendment is necessary to ensure that, subject to the means and merits test, civil legal aid may be made available in relation to applications to extend a temporary passport seizure to a district judge—magistrates’ courts— in England and Wales, as set out in paragraph 8 of Schedule 1 to the Bill.
The Scottish Government have confirmed that civil legal aid is already available in Scotland under the Legal Aid (Scotland) Act 1986. The secondary legislation which sits under that may require some amendment and that will, of course, be taken forward through the Scottish Parliament. We are speaking to the devolved Administration in Northern Ireland about whether civil legal aid is already available there, subject to the statutory means and merits test, for individuals subject to the power in that jurisdiction. If an amendment is necessary to cover the availability of legal aid in Northern Ireland, we will bring one forward in due course.
Amendment 1 will amend Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO for short. It will add the provision of legal aid in the proceedings set out in paragraph 8 of Schedule 1 to the Bill as a form of civil legal services for which legal aid may be made available in England and Wales. The matters covered are subject to all the exclusions set out in part 2 of Schedule 1 to LASPO. The amendment also ensures that advocacy before a district judge—magistrates’ courts—may be included in the civil legal aid that may be made available for these proceedings by amending Part 3 of Schedule 1 to LASPO.
The amendment does not alter the statutory means and merits test, nor does it make civil legal aid available for any other civil legal services in England and Wales. The Government consider that an amendment to the scope of the civil legal aid scheme in England and Wales is appropriate in these circumstances due to the important nature of the proceedings set out in paragraph 8 of Schedule 1 to the Bill, the limitations on an individual’s ability to present their own case in these circumstances and the absence of an alternative route to resolution. I beg to move.
Lord Rosser (Lab)
My Lords, as the Minister has said, the amendment provides for legal aid for proceedings before a district judge in the light of an application for an extension of the 14-day period. We fully support the Government’s change of heart on this point about legal aid. As the Minister mentioned, the amendment states that its provisions are subject to the exclusions in Parts 2 and 3 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So that we are clear on exactly what those exclusions mean, it would be helpful if the Minister could clarify what their impact would be in reality, in respect of legal aid being provided, or not, in applications for an extension of time for retention of travel documents, which is the issue covered by the amendment.
Baroness Hamwee (LD)
My Lords, I too am glad that the Government have addressed the matter of legal aid. There was clearly going to be a call for that. My question, which is a sort of prequel, is about whether advice would be available to a traveller at the point when travel documents are seized and retained. Legal aid is becoming confined to proceedings rather than advice, but this is an important point in the whole process.
Lord Bates
My Lords, I shall try to deal with the point raised by the noble Lord, Lord Rosser, although I acknowledge that I do not have a specific heading relating to it and I may have to write to him to expand on it. Currently, the availability of legal aid depends mainly on where the proceedings or legal processes are taking place, which is related to the point made by my noble friend Lady Hamwee. In general, if the proceedings or processes are taking place in England and Wales, the individuals involved can apply for civil legal aid so long as the matter is within the scope of the LASPO merits and means tests. The noble Lord asked about that precise issue and how that will be applied. If notes are not able to reach me by the time I sit down, I will put that in writing.
We will come to the other point made by my noble friend Lady Hamwee in more detail in later groupings. What we are talking about here is the first period where the issue of the temporary seizure of a passport comes before the courts, what representation is made, how it is funded and how it is made available. There is not a legal process before that, which is a matter that can be debated later on and we will have responses to it later on. We are talking here about the 14-day point at which it comes before the court for approval to extend the period of seizure up to 30 days. With those explanations and the assurance that I will come back to this matter, I hope that the amendment will be agreed.
Lord Rosser
“( ) This section shall be in force for two years from the date of the passing of this Act and shall operate thereafter subject to an affirmative resolution in each House of Parliament.”
Lord Rosser
My Lords, Amendments 2 and 55 provide for the new powers in the Bill to seize travel documents, including passports, from individuals thought to be leaving the country for purposes related to terrorism and the power to place an individual on a temporary exclusion order in order to provide for what the Government have described as a managed return to cease two years from the date that this Bill becomes an Act unless both Houses have passed affirmative resolutions providing for the powers to continue in force until a later date.
The powers in question in the Bill would enable immigration officers, customs officials, qualified officers and senior police officers to take a passport away from an individual and leave them in a situation where they were no longer a passport holder for a period of 14 days or, following a court review, 30 days. The powers in the Bill also provide for the Home Secretary to make whatever arrangements he or she thinks appropriate in relation to the individual concerned during the period when they have no passport or on that period coming to an end.
The temporary exclusion order requires an individual not to return to this country unless that return is in accordance with a permit issued by the Secretary of State prior to the commencement of the journey back or, alternatively, the return is the result of the individual’s deportation to this country. As the Bill says, the effect of the temporary exclusion order while it is in force is that the issue of a British passport to the excluded individual while he or she is outside the United Kingdom is not valid. These two measures in the Bill as it stands will be as permanent as any other legislation passed in this House which likewise does not contain a clause providing that it ceases to have effect on a certain date unless both Houses have passed resolutions before then providing for it to continue.
The reason for these new powers being sought is that the security situation has deteriorated, particularly as a result of some hundreds of people leaving this country, often at very short notice or unbeknown until a very late stage by family or friends, to join up with, or otherwise become involved with, terrorist organisations, not least in Syria and Iraq. The power to take away the passport and other travel documents is to give the authorities an opportunity to make inquiries about an individual in question and their intentions, and within 14 days or 30 days decide whether to return the passport or travel documents or take another course of action. The power to invalidate an individual’s British passport while a temporary exclusion order is in force is to enable that individual’s return to this country to be made subject to complying with terms determined by the Secretary of State.
It may be that it is the Government’s view that the worsening in the security situation as a result of individuals leaving the country to engage in terrorist activity, or subsequently seeking to return, is effectively a permanent development. If that is the case, it would be helpful if the Government said so. If it is not their view, there is a real danger that this measure, which, presumably, most if not all would prefer it had not become necessary to enact, will remain on the statute book long after it is really needed. Governments of all political colours and relevant authorities do not always willingly give up powers—in this case significant powers in relation to retention or invalidation of passports—which they might feel, even after the immediate need has passed, could still come in useful at some time in the future.
The purpose of our amendments is to ensure that there is a proper debate on the need for these powers to continue, in this case, beyond a period of two years from this Bill becoming an Act. The knowledge that Parliament has to agree will help concentrate minds on whether the case still exists, which it may well might, and will at least ensure that the measures which are being introduced in the light of a particular security development in respect of people from this country travelling to engage in terrorist activity or subsequently returning from such activity or involvement does not continue on our statute book longer than the national security situation demands. I beg to move.
Lord Phillips of Sudbury (LD)
My Lords, I strongly support Amendments 2, 3 and 4. The measures contained in the Bill are of fundamental importance, but they are extremely difficult to construct in a way which holds an appropriate balance between state security and individual liberty. The notion in the amendments that the outcome of what we are doing should be reviewed by the independent reviewer within two years and put to Parliament is eminently sound. My only query is whether or not the role of the independent reviewer in looking over the consequence of this part of the Bill might not be better addressed to the whole of it. There are other parts of the Bill whose outcomes are no less difficult and problematic to anticipate. I hope the Government will give a positive response to these amendments.
Baroness Ludford (LD)
My Lords, on Amendment 2, can the noble Lord opposite explain whether there is any particular reason for choosing two years for the sunset clause, after which time, subject to an affirmative resolution, there would be a permanent continuation? What is the logic behind that two-year split? Why is there not, in a sense, a rolling sunset clause every two years? If there is a rationale to it, perhaps the noble Lord can explain the reason for that two-year review and then no more, as it were, apart from the normal rules that apply to primary legislation.
Baroness Buscombe (Con)
My Lords, I, too, would like to understand from the shadow Minister opposite why a period of two years has been chosen. What is the logic? In seeking to explain Amendment 2, he appears to have concluded that there is a strong chance that this measure may not be necessary at the end of a two-year period. I wish that he was right on that—even if he had a hunch that it could be right—but all the commentators that one has been listening to, some more expert than others, have explained to us, as have the Government, that we will probably face great difficulty in the area of counterterrorism for a number of years. In that case, I suggest that a two-year period is far too short, indeed unreasonable, given that an affirmative resolution of both Houses takes time and energy away from the job in hand.
On Amendment 3, I made clear at Second Reading that I support the independent reviewer having the opportunity to review this legislation in the fullness of time. However, I think that producing an annual report is far too onerous and unnecessary. I do not support these amendments.
Lord Carlile of Berriew (LD)
My Lords, I do not understand the two-year period contained in these amendments. The issue which we are dealing with and which is covered in this clause is, unfortunately, going to last for more than two years. Does the Minister agree that having a two-year sunset clause—even if there were to be a sunset clause at all—would send out a completely incorrect message to those who are minded to go abroad and participate in jihad? We have to show some enduring determination over this issue.
My second concern is that these amendments are too prescriptive for the work of the Independent Reviewer of Terrorism Legislation. Can the Minister confirm that the independent reviewer is able to look at all provisions relating to counterterrorism legislation? Surely it is right that the independent reviewer should be able to focus on those issues which are revealed during the course of a given year as causing concern and report on those, rather than being required to report on too many specific issues? We heard at Second Reading that the current independent reviewer is doing something like 180 days per year. When I started as independent reviewer in 2001, just after 9/11, I was doing 40 days per year. By the time I finished, in early 2011, I was doing 140 days per year. Prioritising the independent reviewer’s work should surely be left to that person.
My final point is this. A great deal of respect has rightly been paid to the current independent reviewer. If the independent reviewer highlights a provision that is not working, surely that is at least as powerful as any sunset clause ever could be?
Lord Pannick (CB)
My Lords, I will not comment on the independent reviewer because, as I understand it, we are not dealing with Amendment 3. We will come to that. I support Amendment 2 and Amendment 55, which are in this group.
The noble Lord, Lord Rosser, will say if I am wrong, but my understanding of the reason for having a sunset clause with a particular period of time is that there are concerns, which I think are understandable, that the new powers for seizure of passports and for temporary exclusion may raise problems about the practicalities and consequences of these powers. It therefore seems entirely appropriate that, after a period of time, Parliament should take a hard look again at the impact of these powers and consider whether or not they are justifiable and having beneficial consequences. I am satisfied that it is right and appropriate to introduce these powers at this time. However, along with many others, I would be reassured about the diminution in civil liberties which is involved if we stated on the face of the Bill that Parliament will look again at this matter after a defined period. If two years is too short, then we can make it three or four years.
Lord Hannay of Chiswick (CB)
My Lords, at Second Reading of this Bill I asked the Minister whether the Government had given any consideration to sunset clauses in the two provisions that are being discussed in this amendment. He did not reply in winding up the debate and so I look forward with great interest to his response now. Perhaps I may say that the principle of having a sunset clause on these two provisions is rather compelling because it is important to show that we do not believe that this state of affairs, to which we are now responding quite properly and proportionately, is there for ever. The signal that it is not a permanent part of our law is a good one to send, but I would certainly not attach any importance at all to the short period of two years that is suggested. That really is rather unrealistic in the circumstances we face. For me, it is the principle of having a sunset clause, not its duration, that matters. I would be grateful if the Minister, when he comes to reply to the amendment, could address this matter now.
The Marquess of Lothian (Con)
My Lords, I wonder whether my noble friend could help me because I have missed this somewhere else. When looking at the time factor here, what is the legal and international status of someone who has been subjected to a temporary exclusion order? Are they in fact stateless during that period?
Lord Hylton (CB)
My Lords, I would like to support the words of my two noble friends who have recently spoken. We will otherwise be faced with a situation where each new outbreak of terrorism somewhere or other will lead to a cutting back and diminution of traditional, well known and respected civil liberties.
Baroness Warsi (Con)
My Lords, perhaps I may start by seeking the leave of the Committee to speak. I did not speak at Second Reading because I was suffering from a kidney infection and therefore was not able to be in the Chamber for the whole day. I have given notice to my noble friend the Minister and he is content for me to speak in Committee. I hope that noble Lords will allow me the same leave.
I rise to support both Amendments 2 and 55 and the comments of the noble Lords, Lord Pannick and Lord Hannay. I do not intend to make a Second Reading speech at this stage. The issues in relation to the concerns about this legislation are well known. I accept that we are in incredibly difficult times at the moment, and the more so in the light of what has happened over the past few weeks. We have seen the situation change again in relation to ISIL this morning. These are indeed difficult and troubled times, and I therefore understand the need for the Government to respond in order to protect our citizens.
However, I would dispute the comments made earlier that we need to send out a strong message to terrorists that we are serious about this. The message to send out to terrorists is that we hold our civil and individual liberties incredibly strongly, we value them hugely and we will not put forward legislation that permanently takes away the very liberties that terrorists would like to take from us. Putting a sunset clause into the Bill sends out a clear message that these are difficult times and we are responding to them, but that we are not going to change the way we do things in the United Kingdom permanently by giving away those liberties which terrorists would like us to give away. I therefore support the need for a sunset clause.
Amendment 55 gives comfort to those of us who are concerned about how this legislation will play out. We can all accept that there will be many individual cases where these powers will be used in subsequent years but it will turn out to be the case that they have been used incorrectly. The fact is that we as a Parliament should be able to say that at a certain time, whatever colour of Government we have at that point, we will reconsider these matters in light of how the powers have been applied and in the light of how we find the world at that time. An indication that this is not a permanent change would give some comfort to those of us who are concerned about these powers.
Lord Macdonald of River Glaven (LD)
My Lords, I agree that we should not give away our freedoms in response to terrorism. However, I am satisfied that, properly crafted, this legislation need not do so. It would be a good idea if part of that crafting were to include a sunset clause, primarily for the reasons set out by the noble Lord, Lord Pannick. It is the practicalities of this measure—how it will work in practice—that are most in doubt. Those practicalities will significantly impact on the rights of people on whom the orders are imposed. So a sunset clause is a good idea. It is also a good idea for the reason set out by my noble friend a moment ago.
Two years is too short. The threat will be with us for much longer than two years, so that will be too short a time to assess the workings of this legislation. However, I support the idea of a sunset clause so that the House can thoroughly review how the legislation is working in practice.
Lord Hope of Craighead (CB)
My Lords, I will add briefly to the point made by the noble Lord, Lord Pannick. It relates to Amendment 7, to which I hope to return later, and concerns the problem of humanitarian assistance.
I do not want to elaborate just now, but there are concerns about people who offer humanitarian assistance in difficult areas such as Somalia, Syria and possibly Gaza. The way in which terrorism is defined in the Terrorism Act 2000 has a chilling effect on their activities, because of the risk that they might be caught up in what is thought to be a terrorist offence when they are actually trying to co-operate with the bodies there to provide humanitarian assistance. Of course, a prosecution—or a conviction—is a very different matter. However, the way that this measure is proposing to adopt in the fight against terrorism is a decision taken by a constable. It is a much easier thing to take at that stage.
The chilling effect of the threat of that kind of measure being taken against people who seek to provide humanitarian assistance may be quite considerable; it is difficult to assess at the moment. There is, however, considerable force in the point that the House should be able to look again at the way the measure is operating once we know what the effect is on those trying to carry out humanitarian efforts in these difficult areas.
The Lord Bishop of Durham
My Lords, it is worth reminding ourselves of the speed of change in the world that has led to this legislation. If these proposals had been before us even 18 months ago, I suspect that we would not even have entertained them. Therefore, the speed of change that has brought them about demands that we say that we do not wish to forgo our existing liberties, some of which would be restricted by this Act, without having recourse, in two or three years’ time, to a serious look at whether the measures are working. So I fully support the idea of a sunset clause. I am prepared to accept that two years may be rather too brief, given all the circumstances and the likelihood that we are going to live with this for some time. I would, however, encourage the House to support these amendments in some form, since I believe that the removal of our liberties that is encompassed in these clauses is so serious that we should not put them into permanent place.
Lord West of Spithead (Lab)
My Lords, I strongly support the inclusion of a sunset clause, for the very good reasons that have been given. The only debate is, really, how long. Two years is possibly too short. We need to think about how quickly we will be able to gain information about how it is working, what the full implications are and so on. Equally, however, we do not want it to be too long. So how long is a piece of string? I would think perhaps three or four years. However, I believe absolutely that we should have a sunset clause.
Lord Butler of Brockwell (CB)
My Lords, while I agree with noble Lords who have argued that two years would otherwise be too long, one merit of the proposal is that the Data Retention and Investigatory Powers Act 2014 has to be renewed, and there might be something to be said for considering these powers in the context of that, so that we get a comprehensive anti-terrorism Act at the same time. That might argue for a shorter sunset period.
Lord West of Spithead
I think that has to be done by the end of this year—which I believe is too short.
Baroness Buscombe
Can the Minister also tell us now, or at a later stage, whether sunset clauses were imposed by the then Labour Government in the anti-terrorism Acts of 2000 and 2001 and, if so, what the terms were?
Lord Bates
My Lords, we have had a very good, short debate on this, with a lot of contributions that in many ways highlight the difficulties that there are in this area when it comes to reaching any common ground as to what the position should be. I am grateful for the two amendments which have been introduced calling for a sunset clause on Chapters 1 and 2, and will outline the Government’s position on this. As was touched on before, it cannot of course be about whether this is a matter of principle, because clearly it is something that the Government have looked at in respect of other chapters of the Bill.
I will give the Committee the reasons why we have come to the position that we have on these particular amendments. The problem that we are seeking to address with these powers is not of a short-term nature—a point very well made by the noble Lord, Lord Carlile. We do not know how long it is going to be there for or how the threat that we are facing might mutate into different fields and theatres. From that point of view, we felt that having a set date and time on which those powers fall would send the wrong signal. I will come back to the reasons for that. Terrorism-related travel is a serious and ongoing issue, and we can expect the threat posed by British citizens returning from fighting alongside terrorist groups abroad to be present for many years to come. It is important that our law enforcement agencies are equipped to protect the British public from individuals who pose a risk.
Amendment 2 seeks to introduce a sunset clause to the temporary passport provisions. It would ensure that the power would be repealed in two years’ time, unless both Houses pass a resolution that it should continue. The precautions we have established should ensure that the temporary passport seizure power will be used in a fair, reasonable and lawful manner. They are aimed at striking the right balance between our civil liberties—which the right reverend Prelate was absolutely right to focus on—and our right to safety and security, which a number of noble Lords, including my noble friend Lady Buscombe, referred to. The House of Commons considered these factors very carefully, as your Lordships have, and it came to an overwhelming view that it did not feel that a sunset clause was necessary in relation to Chapter 1.
Amendment 55 would introduce a sunset provision to the temporary exclusion power in Chapter 2 of Part 1. Your Lordships will be aware that the Government have tabled amendments to introduce strong judicial oversight of the use of this power. The courts will have a number of opportunities to review whether each temporary exclusion order is imposed appropriately and to ensure that the power is used proportionately against individuals suspected of terrorism. In the light of these strong safeguards on the use of both the temporary passport seizure power and the temporary exclusion power, the Government do not think that it is necessary to bring the power to an end after two years. Indeed, introducing sunset clauses to these powers in two years might, as my noble friend Lord Carlile said, inadvertently send the wrong message to would-be jihadist travellers by suggesting that we lack the intent to deal with the threat that they pose to us.
There are two points here. I reflect on the views and the great experience that my noble friend Lady Warsi has in this area through her excellent work in office. She led for the Government on this, and therefore I listened very carefully to what she said about civil liberties, but there are two sides to this. There is of course the side that deals with the ability of people to travel, and the disruption of travel, which effectively is what we are talking about here. Measures are available under the royal prerogative, under which a passport is not seized but can actually be cancelled, and there is no sunset clause and no basis of appeal for these measures. Under the Terrorism Act 2000, too, there are powers to disrupt and deal with passports. Again, they are not subject to a sunset clause.
Lord Phillips of Sudbury (LD)
Does the Minister not accept that there is a difference between the judicial oversight, on which he laid some emphasis, and the political oversight that comes from having a sunset clause? Her Majesty’s justices can take only certain legal considerations into their protection of legislation. They cannot consider the wider political considerations that bear upon the matter in hand. Does he see the distinction?
Lord Bates
I see the distinction between the issues—as did the other place and the Constitution Committee. But in this area, we believe that a sunset clause is not necessary in relation to this chapter of the Bill. In other parts, such as Part 2, when we will come to TPIMs, the sunset clause is there. It is not a general principle written through the Bill; we are looking at this area by area, and we remain open to advice from your Lordships’ House, Parliament and the independent reviewer as to what their thoughts are on the necessity of that.
People have not happened upon the sunset clause up to now because they have found it too difficult to arrive at a precise point for where the amendment should be. Should it be at two, three or four years? We have heard a range of different discussions. It remains there, open to review, and the procedures will be subject to regulations, which will give rise to further debate and scrutiny, but it is not appropriate to offer a fixed and arbitrary time limit for this chapter of the Bill.
Lord Rosser
I thank all noble Lords who have taken part in this debate. I have not been sitting here counting up the numbers but I have a feeling that there was rather more support for the general thrust of my amendment than opposition to it. Obviously, I am grateful to the Minister for saying that he will take away what has been said today and reflect further on it—without, I accept, making any commitment to come back with a change—and I am grateful to him for saying that he will look at the matter in the light of the comments that have been made today.
I have to say that I find a little odd the Minister’s comment at the end that the problem was—at least this is how it came over to me—how long should it be before the powers cease unless they are continued by affirmative resolution of both Houses? I have been asked the question; I am not wedded to two years. If it is possible to have discussions and come to an agreement on another period that might gain wider support, the issue at stake is that there should be, after a certain period, a look at whether we still need these powers in force, in view of the fact that they are quite significant new powers. If the issue that the Government have is determining the appropriate length of time—because, after all, not to put anything in the Bill in a sense determines a period of time; that is, there is no review at all—I hope that the Minister will be willing to have discussions on that point.
We have already had different views expressed about the message that the powers ceasing to continue after a certain period, unless renewed, sends. I am afraid I rather subscribe to the view that the message that it sends if you do not have it in is that these powers could continue, metaphorically speaking, for ever and a day, although I appreciate that another view has been expressed that they might be seen as a sign of weakness on our part. As I say, that is not a view to which I subscribe. I do not think that reviewing the need for the continuation of these powers is a sign of weakness at all because obviously there is a distinct possibility that in looking at the situation one might decide that the powers should be renewed.
We have also had a discussion about the role of the independent reviewer, which presumably will be discussed in the next group of amendments. Of course, the issue of the sunset clause covers the question of the current worsening of the security situation, with people from this country going abroad, apparently to engage in acts of terrorism, and subsequently returning. That involves the two issues we are talking about: passports and temporary exclusion orders. I say only to the Minister that within not too long a period of time—although I am flexible about what that should be—the problem arising from people going from this country to engage in terrorism and seeking to return may be a lesser problem than it is now, as opposed to other issues related to terrorism still being fairly high up the list.
That is what the proposed sunset clause deals with: specifically, people going from this country to engage in terrorism and subsequently coming back. It is because we consider it a problem at present that we are talking about and supporting the powers in the Bill. But it is conceivable that, over not too long a period, that specific point may not be the problem it is at the moment, and we ought to have some powers in the Bill to be able to reflect on whether the case is still there for continuing the powers that we are talking about today.
As I say, I am grateful to the Minister for agreeing to reflect further and to all noble Lords who have taken part in the discussion. I beg leave to withdraw the amendment.
Lord Rosser
“( ) The Secretary of State shall commission an annual report to be laid before each House of Parliament by the Independent Reviewer of Terrorism Legislation on the exercise of powers contained in this section.”
Lord Rosser
As mentioned in the debate on the previous amendment, the group of amendments to which Amendment 3 belongs requires the Secretary of State to commission an annual report to be laid before both Houses by the Independent Reviewer of Terrorism Legislation on the exercise of the powers contained in Chapters 1 and 2 of Part 1 and in Part 2, which relate to the seizure of travel documents and temporary exclusion from this country. The amendments also require the Secretary of State to publish annual figures on the usage of these powers, and for an annual review of the arrangements made by the Secretary of State under the powers in paragraph 14 of Schedule 1 to be published and laid before both Houses.
I think I am right in saying that in its recent report the Joint Committee on Human Rights drew attention to the fact that neither of the new powers in Part 1 concerning the seizure of passports and managed return are made subject to independent review. It seems that the Minister told the JCHR that the Government had considered independent review, but apparently they were satisfied that any review of the extensive new powers in Part 1 should not extend beyond that carried out by parliamentary Select Committees. The Joint Committee on Human Rights referred in its report to the fact that the Independent Reviewer of Terrorism Legislation had commented on this issue, saying that if the powers we already have under the Terrorism Act need independent review, then surely the new powers in Part 1 also need independent review. It could be said that if that review took place it might help to inform a discussion on whether the powers needed reviewing if there was a sunset clause in the Bill. The Joint Committee on Human Rights said that, like the Independent Reviewer of Terrorism Legislation, it believed in principle that the operation in practice of the new powers to impose restrictions on the travel of terrorism suspects should be subject to independent review, and therefore it was recommending that the powers in Part 1 concerning passports and managed return should be subject to review by the independent reviewer.
In moving Amendment 3, I am also speaking to the other amendments in this group. I hope that the Minister will be able to give a positive response to them.
Baroness Hamwee
My noble friend Lord Carlile has already referred to the fact that the independent reviewer can, does and did look at far more than is spelled out in statute. My inclination would be to spell that out, but to spell out that the independent reviewer’s powers extend to all terrorism legislation. I have half a clause drafted to that effect for later in Committee stage. That does not mean to say, as these amendments suggest, that that should necessarily be annual. It may need to be done more than annually. Some legislation—I think it is the asset-freezing legislation—requires quarterly reports. As time goes on, subject to the eventual decision about a sunset clause, it may be not so necessary to report as frequently. Perhaps more importantly, I would prefer that a report was not subject to commissioning by the Home Secretary. A future Home Secretary might decide not to commission a report, and we can all see where that might go.
This is an important issue. I am glad that it has been raised, and it has been covered quite substantially already this afternoon. I am not convinced that this is quite the way to go about it. We need to look at the comments made by David Anderson on the scope of the role and the balance between its constituent parts, and not pick bits off in individual parts of the Bill.
Lord Pannick
My Lords, I agree with the noble Baroness, Lady Hamwee: these amendments raise a very important subject. For my part, I agree with paragraph 7.8 of the report from the Joint Committee on Human Rights that it is absolutely essential that the independent reviewer’s remit is extended to cover all terrorism legislation. I would be quite content to leave it to the independent reviewer to decide when it is appropriate to publish reports. It seems entirely unnecessary and inappropriate to require reports to be published annually.
Lord Carlile of Berriew
My Lords, I spoke earlier and will not repeat what I said. Listening to this debate, I agree entirely with what was just said by the noble Lord, Lord Pannick, and my noble friend Lady Hamwee. It is essential that the independent reviewer has the flexibility to report on any issue that relates to counterterrorism legislation in the order in which he deems it appropriate, subject of course to commissions being given by the Government, or possibly by Select Committees or others, from time to time.
Baroness Buscombe
My Lords, I will add to what my noble friend Lord Carlile said. Speaking as a member of the Joint Committee on Human Rights, it is certainly my understanding that we kept this aspect of our report purposely broad to ensure flexibility and to leave it to the experience and expertise of the independent reviewer in supporting a role for them in reviewing this and all other counterterrorism legislation, ensuring that he or she should not be pinned down by prescription, in either content or time limits.
Baroness Ludford
My Lords, I agree with my noble friends and the noble Lord, Lord Pannick, on the need for both broad scope and flexibility in powers for the independent reviewer. On Amendment 4, can the noble Lord, Lord Rosser, say whether there is any further detail on the requirement that:
“The Secretary of State shall publish figures on the usages of powers”?
What sort of degree of detail or scope was envisaged?
On Amendments 41 and 41A, it may just be that I am a little befuddled, coming back from much less complicated EU legislation to more complicated domestic legislation. However, as I read those amendments, they seem to refer only to a review of the arrangements for food and accommodation, because they are specifically inserted after paragraph 14 of Schedule 1. I am not sure that that refers to a review of the whole powers under Clause 1 and Schedule 1 because it seems to be rather specific about just the powers in paragraph 14. Indeed, the term “arrangements” seems to refer only to the arrangements appropriate for the person, which, according to the draft code of conduct, relate to food and accommodation, and so on. It may be that I am completely on the wrong track here; if so, I will be most grateful for the noble Lord’s clarification.
Lord Ashton of Hyde (Con)
My Lords, I am grateful to the noble Lord for tabling these amendments, which cover issues concerning the oversight and accountability of officers who exercise the powers in Part 1.
Amendments 3 and 55A would require the Independent Reviewer of Terrorism Legislation, David Anderson QC, to report annually on the exercise of powers contained in Part 1. I am grateful to the noble Lord for tabling this amendment because it allows us the opportunity to give due consideration and attention to a very important matter—that of ensuring that there are appropriate checks and balances and independent scrutiny of our counterterrorism powers, including those introduced in the Bill.
We have discussed at length the need for the measures contained in the Bill before us today, as the eight hours of debate in Second Reading amply demonstrated, but it is of course a cardinal principle that these important powers are subject to robust independent scrutiny. As most noble Lords have said, the recent report by the Joint Committee on Human Rights on the measures contained within this Bill included a recommendation that the remit of the Independent Reviewer of Terrorism Legislation be extended to cover those areas of our domestic counterterrorism laws which are currently not subject to independent review. I think this, among other things, is recognition of the excellent job which David Anderson QC has done in his current role and the high regard in which he is held. I wanted to take the opportunity to make that point. I hope that virtually all noble Lords who spoke will be reassured that the Government are giving careful consideration to the points raised by the Joint Committee and, indeed, to David Anderson’s last annual report, which covered similar ground.
Another part of this Bill, Part 7, deals with the vital matter of checks and balances by providing for the creation of a Privacy and Civil Liberties Board. I very much look forward to our consideration of that part of the Bill, which I know from the various contributions made at Second Reading and today will be of particular interest to a number of noble Lords. Clearly, there is more to be said about how the board will operate and how it will genuinely support and enhance the independent reviewer’s capacity. It is apparent that we cannot simply keep adding to the independent reviewer’s role. David Anderson has himself been clear that he is operating at the limit of his capacity, as my noble friend Lord Carlile mentioned, and that there is a need for reform of the independent reviewer role. I hope that our debate on Part 7 will allow us to explore these broader considerations.
However, we need to consider the whole question of oversight in the round. If I may say so, it seems a little premature to take this amendment in isolation ahead of the wider debate that I know we are going to have when we get to Part 7 of the Bill. So I ask the noble Lord to withdraw the amendment today in the knowledge that we will certainly consider the issue which it raises during our deliberations of the broader issues about how our oversight arrangements for the use of counterterrorism powers should be structured and resourced, which we will be having next week. I refer, too, to my earlier remarks that we are giving consideration to the JCHR report as well as to the last annual report from David Anderson.
Amendments 4, 41, 41A and 50A introduce a requirement to publish statistics on the use of the passport seizure and temporary exclusion powers on an annual basis and introduce an annual review of the arrangements made by the Secretary of State under Paragraph 14 of Schedule 1, which allows the Secretary of State to make arrangements he or she thinks appropriate in relation to persons whose travel documents have been retained for the retention period. The Government are committed to increasing the appropriate transparency of the work of our intelligence, security and law enforcement agencies, but it is essential that this is done without damaging national security or effective law enforcement and, above all, public safety.
The Government have committed to publishing an annual report on disruptive and investigative powers. The first report, covering the operation of these powers in 2014, will be published shortly. We intend to cover the use of the new passport seizure power in future annual reports. This approach is consistent with our approach to similar disruptive and investigative powers, such as the exercise of the royal prerogative to cancel or refuse to issue a British passport, which are included in the annual transparency report. We will also include the exercise of the temporary exclusion power in these reports.
For the reasons I have given, I therefore hope that your Lordships will feel reassured about the exercise of these powers and, accordingly, I would be grateful if the noble Lord would withdraw the amendment.
Lord Rosser
Once again, I thank all noble Lords who have taken part in this debate. I hope that if I have misunderstood, the Minister will immediately put me right, but, as I understand it, he is saying that the Government will look at the issue of independent review of these parts of the Bill, or how that might be done, as part of discussions we will have on a later section of the Bill. Have I understood that correctly, or have I misunderstood it?
Lord Ashton of Hyde
The noble Lord has understood it correctly. We will discuss these matters further in Part 7. I also said separately that we are considering the report of the Joint Committee on Human Rights.
Lord Rosser
I thank the Minister for that clarification. Obviously, I am very grateful to him for his comments, which are extremely helpful. I will withdraw my amendment in a moment, not least in the light of his very helpful response.
I hope that the noble Baroness, Lady Ludford, will not mind if I do not give a detailed response to her question. However, I will look at the issue she raised about some of the amendments that we have tabled. In the short time since she raised the point—obviously, I was trying to listen to what was said in the debate—I have not had a chance to do so. Clearly, if they are wrong, that has been a slip-up on our part. However, I will have a look at the wording to see whether I share her view that that may be the case. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
This is a probing amendment, picking up a point which I raised at Second Reading. The passport which can be seized is either a United Kingdom passport or, according to paragraph 1(7) to the first schedule, one issued by another country,
“or by or on behalf of an international organisation”.
It is the passports of other countries and the international organisations’ documents that I would like to ask my noble friend about. UK passports are not the property of the passport holder and I believe it is the case in some other countries that the passport remains the property of the state. Perhaps my noble friend can confirm the position. Therefore, the first and obvious question is: what international discussions have there been and what agreement, if any, has been reached about this provision? Are other states happy, or at least relaxed, about the seizure of their property? Might there not be occasions when they would themselves ask to have the passport back?
Some international organisations issue laissez-passer documents, of which I think the UN is one. Is this provision compatible with our obligations to those international organisations? As I say, this is a probing amendment, as, I think, are all our amendments today. I hope that my noble friend can assist. I beg to move.
Lord Rosser
My Lords, we have Amendment 16 in this group. Paragraph 4 of Schedule 1 deals with authorisation by a senior police officer for retention of a travel document. The travel document could, of course, be a non-UK passport. The purpose of our amendment, which provides for the relevant embassy to be informed immediately if a travel document is being retained, is to ascertain how the Government intend to manage the seizure of non-UK travel documents and the individual concerned, including where there is dual nationality.
Bearing in mind that the individual in question, who will presumably be a foreign national, will be unable to leave this country for a period of time, who or what will be informed of this who would not have been so informed if the individual in question was a British national with a British passport? If the country of which the individual concerned was a national became aware, or was made aware, that the passport had been retained and travel denied, would we, if that country so requested, prevent the individual travelling until it had carried out and implemented the kind of measures and procedures which we are providing for under the temporary exclusion orders?
If we were satisfied that the foreign national in question whose passport had been retained was seeking to go to another country, which was not their own, for purposes associated with terrorism, what action might we take? Would we consider legal proceedings against them in this country; would we deport them back to their own country; or would we allow them subsequently to continue on their way to wherever it was they were going?
This is very much a probing amendment to find out how the Government would manage the situation, or what actions they would take in relation to the seizure of non-UK travel documents and the individual concerned. I hope that the Minister will clarify some of the issues that I have raised, as well as those raised by the noble Baroness, Lady Hamwee.
Lord Bates
My Lords, I am grateful to my noble friends Lady Hamwee, Lord Thomas and Lady Ludford for tabling Amendment 5 and for providing advance notice of their amendments. The debate on this group has also concerned Amendment 16, tabled by the Opposition, and to which the noble Lord, Lord Rosser, has spoken. I will seek to address the issues that both amendments raise.
Amendment 5 would amend the definition of a passport to exclude,
“a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom”.
It would prevent police officers and designated Border Force officers exercising the power against individuals travelling on a foreign passport. This would mean that the police could not use this power to disrupt the travel of foreign nationals they reasonably suspected to be travelling overseas for terrorist-related activity. In the case of British citizens with dual nationality, the amendment would have the effect that the person’s British passport could be seized but their foreign passport could not. I accept the probing nature of the amendment, and I am sure that my noble friend is aware of that point but is seeking to elicit further information and reassurances.
The increasing number of people leaving the UK and Europe for the purpose of engaging in terrorism-related activity overseas—and returning with enhanced terrorist-related capabilities—means that we need proportionate powers to counter the real threat that we face from terrorism at home and abroad. This power will send out a robust message to anyone considering travelling to and from the UK for the purpose of involvement in terrorist activities.
It would not be appropriate—indeed, it may unlawfully discriminate against British citizens—if the police were able to use this power against British citizens suspected to be travelling overseas for terrorist-related activity but unable to use this power to disrupt the travel of foreign nationals. The power therefore applies to British citizens and foreign nationals, including European Economic Area nationals. Databases at a port would be updated to disrupt any further attempts at travel for the period in which the travel documents have been retained.
Passports are the property of the issuing authority—my noble friend sought clarification on this—and it is an International Civil Aviation Organisation, ICAO, standard for the issuing authority to be shown on the passport. There is no legal requirement to inform other issuing authorities when passports are seized or surrendered in other circumstances, such as to meet bail conditions. That would be the same for a British national in another country subject to similar actions.
Amendment 16 would require the police to inform the relevant embassy or high commission if the police exercised the power at Schedule 1 against their country’s citizens. If a foreign travel document is seized under this power, we will consider whether to notify the Government concerned on a case-by-case basis. In some cases, there could be concerns about the consequences for an individual if information like that is made available. Individuals affected can, of course, if they choose, seek consular assistance from their Government’s representatives here.
Foreign Governments are not routinely notified when their passports are seized or surrendered in other circumstances, such as under Schedule 7 to the Terrorism Act 2000, when a passport can be held for up to seven days for examination purposes, or when an individual subject to a terrorism prevention and investigation measure is prohibited from possessing a travel document.
My noble friend Lady Hamwee asked about the definition of travel documents. Our definition is anything that is or appears to be a passport, ticket or another document that permits a person to make a journey by any means from within the UK to outside the UK. It would include, for example, a boarding pass. A passport means a UK passport or a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom or by or on behalf of an international organisation or a document that can be used in some or all circumstances instead of a passport.
I was asked whether the power applied to diplomatic passports. Under international law and treaty diplomats may enjoy certain immunities. This power cannot be used to breach one of those. I think that is fairly clear.
The noble Lord, Lord Rosser, asked whether we would return a foreign national’s passport to their country, if it was requested. Passports are the property of the issuing authority, as I have already mentioned. There is no legal requirement to inform issuing authorities when passports are seized or surrendered. If the issuing authority requested it to be returned, we would consider whether it was appropriate to do so. In most circumstances we would expect to return it unless it was required, for example, as evidence in connection with a prosecution.
I have tried to answer the points of what I know were probing amendments. I hope with those bits of explanation and justification my noble friend will feel free to withdraw her amendment.
Lord Thomas of Gresford (LD)
I wonder whether the Minister can help me. It just occurred to me, as I was listening to him, about a foreign national who is in transit through this country. Is this power exercisable to remove the passport of a foreign national who is simply passing through this country with a view to going to a further destination?
Lord Bates
I will check this, because it is a very important matter, but intuitively my belief would be that the answer is yes, because they would be in the United Kingdom and they would be reasonably suspected by the authorities or the police of intending to travel overseas from this country for terrorist-related activities. I will check on that and if it is not the case I will write to the noble Lord.
Lord Hope of Craighead
My Lords, I think there may be different types of transit. There are certainly some instances in an airport where you pass through and do not actually go through immigration control. You are simply passing from one airline service to another and you bypass the place where the police officer would be to seize your passport. Other people in transit may have to remain for a while, possibly because they want to see somebody or collect luggage. It may well be that the noble Lord is entirely right that in that situation, because you are confronted by a constable with the power, the power would be exercisable —so it may depend very much on the circumstances of the individual traveller.
Lord Bates
I agree and I shall seek clarification on that. It may also be the case that the power is triggered when someone on a no-fly list comes in, even though effectively they are not entering UK territory. However, when they arrive in the UK, they have to present their passport and travel documents—and, as I argued in my answer, at that point I would expect any action to be taken. Again, these are very important points and I will check with the authorities on how this will work in practice. It is probably covered in the draft code of practice on the seizure of passports, which is currently out for review. If so, I will certainly make sure that those views are noted as part of the consultation process.
Lord Pannick
The answer may be that the powers apply in the case of a person at a port in Great Britain. That is at paragraph 2 of Schedule 1, and “port” is defined in paragraph (1)(8) as including “an airport”. From that, my understanding is that if you are at the airport, whether on the land side or the air side, the power will exist. However, I should be very grateful if the noble Lord could write with the answer to all noble Lords who are interested in this matter.
Lord Bates
That seems to be excellent legal advice and I am sure that it is absolutely correct. Certainly we will review it and, if that is not the case, we will write.
Baroness Hamwee
My Lords, the point about not passing through immigration control occurred to me as well as noble Lords were speaking. Then my mind turned to the question of what would happen if someone was travelling on one passport but carrying the passport of another country and switched half way through the journey. All this goes to the workability of these provisions, which is really the overarching question that noble Lords are asking. I do not think that I am alone in finding it a little difficult to imagine quite how the powers will operate in some circumstances.
It is not always easy to probe something without suggesting the opposite of what one intends. There is another example of that coming up shortly. So the noble Lord is right: I was not trying to take the words out but merely probing.
I am not sure—I may have missed it—whether the Minister referred to international organisations other than quoting what is in the schedule. Perhaps I may look at that after today and, if necessary, have another word with him. It looks as though I may not need to withdraw the amendment quite yet.
Lord Bates
I am just looking for help in order to answer my noble friend Lady Hamwee. The answer that I gave on diplomatic immunity was that, under international law and treaties, diplomats may enjoy certain immunities, and this power could not be used in breach of those. Therefore, that is clear. In relation to the point that the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick, raised on transit passengers, my briefing note says, reassuringly, “Yes, your answer was accurate”. That is helpful. There may be cases where it is appropriate to use this power against transit passengers and, in practice, these will mostly occur following prior information provided to the police about an individual’s intention to travel. The power can be exercised both air side and land side, including against passengers who do not present at immigration control. I hope that that is helpful to noble Lords.
Baroness Hamwee
My Lords, that depends on somebody knowing that the passengers are there if they remain air side. I may have this wrong and I accept that my amendment did not take out the reference to international organisations. They may have the equivalent of diplomatic immunity. I was not thinking of that; I was thinking of the large international organisations which issue a laissez-passer, as I understand it. Maybe that is something on which I could have a word with my noble friend. He nods; I am grateful for that. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall also speak to Amendment 7. Amendment 6 is one of those probing amendments which may seem a bit unexpected or counterintuitive coming from me. It seeks to inquire whether the reference to intention in paragraph 1(10) covers recklessness. The words I have used are, “recklessly as to the consequences”. Will my noble friend share with the Committee the Government’s thinking on restricting the term to intentionality?
My second amendment, already trailed by the noble and learned Lord, refers to humanitarian assistance. This is another probing amendment to ask how the Government plan to deal with workers travelling out who are associated with reputable organisations such as the Red Cross. I accept that this is a difficult area because there can be individuals who are not with such organisations but who, in their own minds, are going out to provide humanitarian aid. They might be so closely associated with those who are fighting that they would be seen by others as providing something which is closer to military support than the broader humanitarian assistance.
We need to find a way through this difficult area, but at this stage perhaps my noble friend can explain the Government’s thinking on this issue and what work they have done with the big, overstretched—I am sure they could do without a further consultation, but there you go—humanitarian organisations working in the Middle East. I beg to move.
Lord Hope of Craighead
My Lords, as I hinted earlier, I wish to add a little more detail in support of Amendment 7, in the name of the noble Baroness. The background to what I am going to say comes from my experience chairing the Joint Committee on the Draft Protection of Charities Bill, which has been considering a clause which would seek to add offences under the Terrorism Act 2000 to the list of offences a conviction for which will result in automatic disqualification from being a trustee of a charity. That may seem a little bit removed from what we are considering this afternoon, but we have heard evidence on that issue from various witnesses speaking about the chilling effect of the risk of prosecution under the terrorist legislation on the efforts of those who seek to provide humanitarian assistance in areas which are under the control of, for example, proscribed organisations.
Among our witnesses was the chairman of the Muslim Charities Forum, who said:
“I go to difficult areas like Afghanistan, South Sudan and Chechnya. Recently, two weeks ago, I was in Iraq, in Baghdad. I have been in Somalia, in Mogadishu and other countries. I think counter-terrorism legislation is preventing us from having access to the neediest people. There are proscribed groups in those areas, and we know them. They are the gatekeepers. How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world?”
That was the problem to which he drew our attention.
Among our other witnesses was the Independent Reviewer of Terrorist Legislation, David Anderson QC, to whom the noble Lord rightly paid tribute early this afternoon and I entirely endorse his remarks. He said that charities operating in these areas run the risk of falling foul of terrorism law—for example, by delivering relief to a general population which may include individuals or groups designated as terrorists. He suggested that increased risk could deter charities and their trustees from delivering humanitarian support. He was talking about the risk that would be created by extending the definition that disqualifies people from being trustees on conviction for these offences. As I mentioned earlier, we are talking about a rather softer mechanism, which is very important but depends on a decision taken by a constable at the point of entry.
One of the points to which David Anderson drew our attention was that there are examples in other countries where this issue has been addressed. The Minister might be interested to know that the kind of exception which the noble Baroness is suggesting can be found in connection with the broad definition of terrorism when one studies, for example, legislation in Australia or New Zealand. They have specific exceptions in terrorism law to meet that point, including that of association with proscribed organisations for the purpose of providing humanitarian aid. That is very important and it is rather odd that it is raised as a tiny, probing amendment in a debate on a temporary exclusion order. It runs right through the effect of the broad definition of terrorism, which Mr Anderson described as quite disturbing because of its breadth, and adds a great deal of force to the noble Baroness’s amendment.
I invite noble Lords to think carefully about that because the humanitarian effort is something all of us would wish to support. Given the amount of effort that the Government rightly put into providing aid overseas, it would be most unfortunate if it is being cut off because of this kind of measure. Of course, there are ways in which it can be done without embarking at all on this kind of risk area, but those who are right at the frontier in these very difficult areas should not be discouraged by legislation of this kind if it is possible to protect them against its effects. The humanitarian exception may be one of the more important issues that we are considering today. I would be very interested, and I am sure that the noble Baroness would be too, to hear how the Minister would wish to consider the point.
Lord Harris of Haringey (Lab)
My Lords, I, too, want to say a word about Amendment 7. I have some difficulty with the arguments being presented in favour of it. I accept that there is clearly a potential issue about humanitarian assistance in terms of other terrorist legislation, but Schedule 1 relates to, “Seizure of passports etc from persons suspected of involvement in terrorism”. The paragraph is referring to an individual at a port in Great Britain where a constable has reasonable grounds to suspect that person of being involved in terrorism. To amend in terms of humanitarian support seems completely unnecessary. Surely, it is palpably obvious to a constable making this decision that this is not someone engaged in terrorist activity if what they are doing is humanitarian activities.
If, however, an exception is put in, which says that you except people who might be engaged in humanitarian activities, a situation would be created in which people will purport to have been providing humanitarian assistance rather than anything else. It seems to me that, although there is a genuine debate to be had about humanitarian activities and the extent to which crossing into various areas might be deemed to apply, this is a circumstance in which a constable is exercising a judgment about whether the individual in front of him is engaged in terrorist activities. If they are palpably humanitarian, there is no suspicion. If, however, they are given the option of pretending to be humanitarian so as to avoid the constable having the right, it seems to me that an additional problem is being created.
Lord Ashton of Hyde
My Lords, I am grateful to my noble friends for tabling more probing amendments. The Minister and I will be well and truly probed by the end of the Committee stage.
We have had an interesting debate, with arguments expressed on both sides. The definition of “involvement in terrorism-related activity” used in Schedule 1 is the same throughout the Bill. It may be helpful to explain to the Committee that this definition has already been changed from that which exists in previous legislation in line with the recommendation of the Independent Reviewer of Terrorism Legislation that the definition of terrorism-related activity in the TPIMs Act should be narrowed.
The effect on the current Bill is that involvement in terrorism-related activity does not include conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct which facilitates or gives encouragement to acts of terrorism, or which is intended to do so. David Anderson described these individuals as those who are at three stages removed from actually committing a terrorist act: the giving of support to someone who gives encouragement to someone who prepares an act of terrorism. This change in definition is consistent with the public protection to which the legislation is directed.
Amendments 6 and 7 would amend the definition of involvement in terrorism-related activity as it currently appears in the Bill. The provision to which Amendment 6 relates refers to,
“conduct that gives encouragement to the commission, preparation or instigation”,
of acts of terrorism, whether or not the conduct is intended to do so. The amendment would amend the definition to conduct that gives intentional or reckless encouragement. To answer my noble friend Lady Hamwee, we believe that reckless encouragement is included in the current definition and we believe that accidental or reckless encouragement should be captured when its consequence is to encourage the commission, preparation or instigation of acts of terrorism.
The provision to which Amendment 7 relates refers to,
“conduct that gives support or assistance to individuals who are known or believed by the person concerned to be involved in”,
the commission, preparation or instigation of acts of terrorism. It is clear that the support or assistance which falls within that definition is that which supports or assists individuals with acts of terror. We do not want to specify explicitly—this point was well made by the noble Lord, Lord Harris of Haringey—that those providing humanitarian assistance, however defined, are excluded from the definition of involvement in terrorism-related activity. For example, as the noble Lord mentioned, it is possible that a person acting in a humanitarian capacity can also give support or assistance that would enable others to engage in terrorism.
My noble friend Lady Hamwee asked whether we have consulted NGOs or charities on this, and the noble and learned Lord, Lord Hope, mentioned its possible chilling effect on charities. We have not specifically consulted, but such organisations are capable of referring to the consultation. We would encourage them to do so and to reply to it.
I want to reassure your Lordships that support or assistance is, in this legislation, quite clearly that which supports or assists individuals with acts of terror and not any other legitimate activity.
Lord Hope of Craighead
Does the Minister appreciate the difficulty our witness was talking about of having to deal with people he described as “gatekeepers”? There is a risk of misunderstanding where someone is trying to get through the gate, as it were, into these difficult areas and is being told what to do, as a condition of getting through to provide the assistance, by the so-called “gatekeeper”, who may well be in a proscribed organisation. There is a considerable risk, so we are told, of being thought to be providing assistance to him because you are telling him what to do, whereas in fact what you are trying to do is to take the aid through to those who really need it. I appreciate the point that is being made, but I wonder whether the Minister will consult a little more carefully on this sensitive issue to see whether it is being accurately dealt with in sub-paragraph (10)(d) on page 27.
Lord Ashton of Hyde
I take on board the point made by the noble and learned Lord. I will go back and make sure first of all that I have understood it correctly and then that we have looked at this, though I cannot give any guarantee as to the outcome.
On the basis I have outlined, I hope that noble Lords are reassured that this is specifically to do with acts of terror, and I invite my noble friend to withdraw the amendment.
Baroness Ludford
Just before my noble friend sits down, would he clarify whether I understood correctly that someone could be caught by sub-paragraph (10) if they had accidentally committed any of these activities of giving encouragement or offering assistance? Is this because of general principles of law or interpretation? Maybe I misheard him. Perhaps he could enlighten me.
Lord Ashton of Hyde
I did say that we believe that accidental or reckless encouragement should be captured when its consequence is to encourage,
“the commission, preparation or instigation of acts of terrorism”.
Baroness Ludford
Is there not rather a difference between accidental and reckless?
Lord Ashton of Hyde
I completely agree that there is a difference between those two words, but they are not mutually exclusive.
Baroness Hamwee
My Lords, of course there is a difference and it is not just about mutual exclusivity, but I do not wish to pursue that at this point.
On the second of the amendments in this group, one never knows where one’s probing is going to lead. Although the noble Lord, Lord Harris of Haringey, may disapprove of my drafting, I am glad that I raised it. I do not think that it will necessarily be palpably obvious to an immigration official why somebody is seeking to leave the country. I accept that the point is not confined just to this schedule and I think it is worth consideration. I would be grateful to have a conversation with the noble and learned Lord, Lord Hope, as to whether we can use the opportunity of this legislation to try to deal with the point more widely. I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
My Lords, my amendments in this group are Amendments 8, 14 and 15. Amendment 8 provides that, for the powers relating to search and seizure in respect of travel documents in paragraph 2 of Schedule 1 to be exercised, a constable must have “evidence or intelligence” to suspect that the person in question is there with the intention of leaving this country for the purpose of involvement in terrorism-related activity rather than “reasonable grounds” as provided for in the Bill.
This power of seizure of travel documents in this way is a new one and is presumably expected to be exercised only where the relevant authorities have either some hard evidence in respect of the individual whose travel documents they intend to retain or intelligence of a nature which they believe, bearing in mind its nature and source, may well prove accurate.
The Bill does not make provision for the person whose passport is seized to be informed, even in outline, of the reasons for the authorities suspecting that they may wish to travel abroad for purposes associated with terrorism and neither does the draft code of practice require a person who is subject to the exercise of the power to search for and seize travel documents to be told anything about the reasons underlying the suspicion that the person is intending to leave the country for the purpose of involvement in terrorism-related activity.
It is important that this new power should be exercised, as I have no doubt whatever is the intention, in a responsible and proportionate manner. The question is this: what do the Government intend the phrase “reasonable grounds” to mean if it does not mean suspicions based on evidence or intelligence? If it does mean that, why not say so in the Bill? No doubt the Minister will address that point in his reply.
Amendments 14 and 15 provide that an individual whose travel document has been removed may appeal against this decision in the courts over the evidence on the basis of which the conditions in paragraph 2(1)(a) and (b) of Schedule 1 were met. Those conditions relate to suspicions that the person is leaving the country for the purpose of involvement in terrorism-related activity or has arrived in this country with the intention of leaving it soon for that purpose. The use of these new powers of seizure of travel documents, including passports, will no doubt be undertaken in an appropriate, reasonable and proportionate manner. But since the tests as set out in the Bill are to be ones of “reasonable suspicion”, there is inevitably scope for genuine mistakes to be made on occasion. Our amendments provide for a right of appeal in court following the temporary seizure of a passport, initially for up to 14 days, over the reasons which led to that administrative decision under the terms of the Bill, a decision which, if wrong, could have significant implications for a person who found themselves, because of that decision, unable to travel outside the country for a period that could be up to 30 days. No doubt if further information had come to light in the mean time prior to the appeal which either strengthened or weakened the case for the original decision to seize the travel documents, that would also be placed before the court. Judicial review alone would not achieve this objective since it would not enable the person whose passport had been seized to challenge directly the basis on which the power had been exercised; namely, whether there were reasonable grounds to suspect that they intended to leave the country to become involved in terrorism-related activity.
It is of course the case that under the Bill the police have to apply to a court for an extension of time up to a maximum of 30 days if they wish to retain the seized travel documents beyond the maximum of 14 days laid down in the Bill. However, the court making that decision is not reviewing the reasons that led to the decision being made to seize the travel documents, but simply whether the authorities considering whether further disruptive action should be taken against the individual concerned had been acting diligently and expeditiously. An authorisation process of the decision to seize travel documents will exist up to the level of chief constable, but there is no provision within that process for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. That authorisation process surely cannot be regarded as an alternative to a right on application to have the decision to seize travel documents reviewed by a court. I hope that the Minister will be prepared to consider carefully the points I have made in support of my three amendments. I beg to move.
Lord Hope of Craighead
My Lords, I should like to say a word about Amendment 8. With great respect to the noble Lord, Lord Rosser, I think that the phrase used in the Bill, if it is properly understood, accommodates the point he is seeking to raise. I speak about this with a certain amount of background because the very first judgment I was asked to write when I began my career as a Lord of Appeal in Ordinary in this House was in a case called O’Hara against the Chief Constable of the Royal Ulster Constabulary, reported in 1997 as Appeal Case 286. What we had to do in that case was consider the meaning of the phrase. A bit of research revealed that it has actually been with us for something like 100 years and has been used repeatedly in measures such as the Public Order Act 1936 and other measures where a constable is being asked to take a decision as to whether to exercise a power of search, entry or something of that kind. That situation is analogous to the one we are contemplating in regard to the position of the constable under this schedule.
What, then, do the words mean? As we said in the judgment, they concentrate on what was in the mind of the constable at the time that he exercised the power. But it is important to appreciate that there are two aspects to what was in his mind. One is what we described as the subjective aspect, which is whether he formed a reasonable suspicion. However, the important point, which is a reply to the noble Lord, Lord Rosser, is that there is also an objective element, because he has to be able to say what the objective element was. There must have been reasonable grounds for the suspicion that he formed. They are the grounds that were in his mind at the time when he was judging whether they were reasonable. That is directed to the information that he had when he decided to do what he did. That raises certain questions. What was his information? Where did it come from? What was its content? How could one say whether it was reliable? In particular, who imparted the information to him?
These are the kind of questions that anyone examining the issue would wish to have answers to. The point is not so much whether the information was true or not, because that is not something that the constable can judge at the time. The point is what information did he have and did it include information that purported to be intelligence, which is the kind of point that the noble Lord was raising.
Properly understood, this phrase, which every constable is trained to understand, and the courts are well used to, is really able to accommodate the point quite adequately, and I suggest that the safest course is to stick to the familiar phrase, given the import of the phrase as understood and as explained in the case of O’Hara.
Baroness Hamwee
My Lords, with no such authority —neither mine nor anyone else’s—I wrote, against Amendment 8, “If it is reliable intelligence is it not already covered?”. Intelligence may be less than reasonable; evidence may be more than is reasonable. I am not clear what standard would be required by the provision as amended. The noble and learned Lord has made my point much more clearly and authoritatively.
I have a number of amendments in this group. Amendments 10, 12, 13 and 21 all provide for the giving of reasons for the suspicion and for allowing the person the opportunity to make representations at the different stages of the process. I hope that both those items are self-explanatory: there should be an explanation, at the very start and at each stage, and the person concerned should be able to make representations—make representations is about the right level; I am not quite saying make a case—and to state their position.
Amendments 17, 18 and 19—
Lord Harris of Haringey
Before the noble Baroness moves on, she said that she felt the arguments to be self-explanatory. Perhaps, for the assistance of the Committee, she could talk a little about what she means by the reasons. If you present an individual with the reasons, are you in fact asking that all the material that has led to that reasonable view being taken be presented? That could require the provision of intelligence material, which could have an implication for government. It would be helpful, therefore, to understand what the noble Baroness thinks would be sufficient to meet the requirement to provide reasons.
Baroness Hamwee
I do not think that the noble Lord was present when I said that all our amendments today, and no doubt on subsequent days, will be probing ones. I think he was here when I said that many of our amendments—not just the ones that I and my noble friends have tabled—are about the workability of these provisions. I am sure that the Committee would like to understand what will happen at each stage.
I do not of course expect an immigration officer to come out with the kind of address that might be made to the Bench at a later point, but there is a very great difference between that and seizing the document under the provisions in Schedule 1. I dare say that the code of practice—and any additional guidance—will deal with this. I hope that it does, because I think it ought to. I am going to talk later, under a different amendment, about perceived discrimination, which I am sure the noble Lord will be as concerned about as I am. That is, in part, addressed when those who are exercising powers are as clear as they reasonably can be at any given stage about why they are doing so.
One set of amendments would change the 14-day period to seven days. The Joint Committee on Human Rights raised this point and drew comparisons with other provisions, such as those relating to property rights under the Anti-terrorism, Crime and Security Act, where an application must be made to a court to retain cash after 48 hours; equally, where a person is arrested under Section 41 of the Terrorism Act 2000 on reasonable suspicion of being a terrorist, a judicial warrant of further detention must be applied for within 48 hours of arrest. The JCHR recommended that seven days should be substituted for 14 days. I would have hoped that the committee did not make this point, but that would be adequate time to assemble the material that needs to be presented—and indeed to assemble the presentation—to the court, which in any event can extend the time.
The last of my amendments in this group, Amendment 28, amends Schedule 1(8). Under paragraph 8(4),
“the judicial authority must grant an extension if satisfied that the relevant persons have been acting diligently and expeditiously”.
My amendment would add a reference to “reasonable grounds”. In other words, it seeks to ensure that the judicial authority would apply the same test as under paragraph 2.
Baroness Ludford
My Lords, in relation to this group, without I hope stretching anyone’s patience, I will just repeat two questions that I asked at Second Reading, to which I do not think I got an answer. The first question, which may be very daft, is why it is not possible to use powers under Schedule 7 to the Terrorism Act to retain passports for up to seven days. Why can those not be used for outward travel? The Minister may not be able to instantly answer that. Secondly, how do you stop a rolling renewal? I gave the analogy of declaring the whole of Greater London a terrorism exclusion zone. How do you stop that just being renewed on a repetitive basis?
Lord Pannick
My Lords, in relation to the amendment of the noble Baroness, Lady Hamwee, concerned with the giving of reasons, and in relation to the concern of the noble Lord, Lord Harris, I suggest that the answer is the one given by the Joint Committee on Human Rights, from paragraphs 230 to 233. The obligation in the Bill should surely be that there is a duty to give the gist of the reasons. No one would suggest that all detailed reasons must be given, but if someone is told that their passport is being taken away they should be told the essence of the reasons why if this power is to be acceptable and not criticised as obviously unfair. It may be necessary to write in an exception. There may be security reasons why not even the gist can be given. It is fundamental that if you exercise a power of this sort you give the gist of the reasons for doing so.
Lord Thomas of Gresford
I wonder if the Minister could consider a concrete and perhaps not too remote example. Let us suppose the authorities in the United States were to send an e-mail to the authorities in this country, saying that X should be stopped; he is passing in transit through the UK and going to Ukraine— for instance—for terrorism purposes. Would that be reasonable grounds for stopping him and removing his passport? I would like the Minister to consider that. There would be no evidence or intelligence in the hands of the British authorities. A reason given to the passenger could, I suppose, be that their country says that their passport must be taken away; but would that be reasonable grounds? Could that possibly be the basis of the decision by the policeman or immigration officer?
Baroness Warsi
Following on from my noble friend’s comments, would our response and assessment of what would amount to reasonable grounds differ depending on the country that was making that request and on the laws of that country?
Baroness Kennedy of The Shaws (Lab)
My Lords, I declare an interest as a member of the Joint Committee on Human Rights.
I have a number of amendments in this group and they all relate to judicial oversight of the powers to remove passports and travel documents. They are all ways of giving weight to the right to a fair hearing, as provided by Article 6 of the European convention. Basically, they are ways of making the oversight of the power procedurally fair and it is on procedural fairness that I want to make this contribution.
The relevant parts of Schedule 1 provide for a judicial role and are modelled to some extent on the provision made for warrants for further detention in Schedule 8 to the Terrorism Act 2000. That governs the detention of a person arrested on reasonable suspicion of being a terrorist. If you make a close comparison of the two schedules, it becomes clear that the procedural safeguards that were introduced into the Terrorism Act are not present in this Bill. This makes it significantly weaker as a result.
When Schedule 8 to the Terrorism Act was procedurally strengthened it was as a result of some of the recommendations of the previous Joint Committee that I was not on. That kind of coherence should be there in legislation of this sort. At the moment Schedule 1 is not compatible with the European Convention on Human Rights; the requirements on fair hearing are certainly not. I want to outline where the weaknesses lie, which is why I have tabled my amendments.
Amendment 24 refers specifically to,
“a warrant of further retention”,
to draw that analogy with the warrant for further detention that exists in the previous terrorism legislation. I have an amendment relating to gisting too. I repeat what others have said: a person who is having this power exercised against them really should know the basis on which the documents have been taken and there is the need for an extension. It is just not good enough to say, as it does in the Bill, that we should be preventing people dragging their feet or not being diligent enough. While we want to ensure that people are acting diligently and expeditiously, there has to be more to it. There should be some requirement to consider the grounds for the retention of the documents, so I have inserted that into my Amendment 27.
This is all drawing on the report of the Joint Committee on Human Rights. With regard to Amendment 29, I urge the Committee to recognise how important it is to have oral argument in something as important as this. To have it done just in writing is not good enough. This is all fair hearing stuff. I really urge the Government to have regard to the ways in which this has been done in previous legislation.
With regard to Amendment 30, I am very concerned that while the Bill provides for a closed material proceeding at the extension hearing, there is no provision for special advocates. I am no great fan of special advocates— that process of having secret hearings—but I certainly feel that if you are going to have a closed material proceeding, you really must have protections for the person who is having their documents taken. I urge the Government to look at this again because I do not think that Strasbourg is going to think that it is compliant. Strasbourg has accepted the procedure that we have introduced here but one of the things it sees as being an important element is the role of the special advocate. There is a case waiting to come up in Strasbourg—Duffy—but I think we will find that this is going to fall foul of our obligations. Having special advocates involved is a very important element here.
Amendment 31 is really just tidying up in order to make the procedures parallel with those in Schedule 8. Amendment 32 says that if the court allows closed material proceedings, the state must provide a summary. Of course, if the state does not want to do that and there are special reasons why the intelligence agencies do not want it to be in the public domain, it is open to the state to withdraw. I think it is important that we use the model of other legislation that we have to help us get the best kind of legislation that the Government are seeking in this set of circumstances.
Those are the reasons for my amendments. I support the reduction to seven days that is being proposed by the noble Baronesses, Lady Hamwee and Lady Ludford, and the noble Lord, Lord Thomas of Gresford. I hope that the Government will see why it is important that we create fair proceedings around this special set of powers.
Lord Macdonald of River Glaven
My Lords, I support what the noble Baroness has said. There cannot be any doubt that the power to exclude British citizens from their own country is a wholly exceptional power of the sort that we have not seen before. In fact, it is warranted by the threat that emanates from the globalisation of terror and the ease with which young men in particular, but some young women as well, can pass in and out of parts of the world that are controlled by terrorists, and of course the threat that they represent to us when they return from those zones.
However, it is the exceptional, drastic nature of this power, warranted though it is, that requires that procedural fairness is absolutely guaranteed by the processes under which the power is exercised. It is because the power is so extraordinary that it is so important, in order to avoid the scenario that the noble Baroness was talking about at the outset of this debate, that we observe the highest degree of procedural fairness. To that extent, I support what she has been saying.
Lord Bates
My Lords, this has been a substantial debate, which is not surprising because there are 24 amendments in the group. I will run through a full response and then address in particular the key concerns and comments which were made. They have been particularly helpful because they provide an opportunity to flesh out the workability of the options before us.
This debate is about judicial oversight of the temporary passport seizure power. I am grateful to noble Lords whose amendments we are considering and all those who contributed their expertise—very deep expertise in the case of the noble and learned Lord, Lord Hope, who has experience of the judgments in which he has taken part and has written.
These amendments cover a number of areas including: requiring the police to inform a person of the reasons his or her travel documents are being seized; allowing an individual to make representations at the point of seizure; creating a statutory right for the person whose travel documents have been seized to appeal the police officer’s decision to a court; and reducing the initial period of retention from 14 days to seven days. I reassure noble Lords that the power is already subject to considerable safeguards proportionate to the level of interference. Safeguards already in place will ensure that, as the noble Lord, Lord Rosser, sought, this power will be exercised in a fair, reasonable and lawful manner and in a responsible and proportionate way. Crucially, individuals can already challenge the exercise of this power, if they choose to do so, by seeking a judicial review. Given the safeguards and constraints on the use of the power, we believe it is the appropriate form of court scrutiny to which the exercise of the power should be subject.
Let me briefly summarise for the Committee the safeguards that we already envisage. The decision to exercise this power will be made by a trained police officer and subject to authorisation by a senior police officer of at least the rank of superintendent who must be satisfied that the test for exercise of the power was met. If the travel documents are still being retained 72 hours after they were seized, a police officer of at least the rank of chief superintendent must carry out a review of that decision and communicate his findings to the relevant chief constable, who must consider and take appropriate action.
Unless a court agrees to extend the retention period, the police may retain the travel documents for a maximum of 14 days from the day after the documents were seized. This timescale has been set deliberately. The investigation should have progressed to the extent that a court can meaningfully consider whether the investigation into whether there are grounds for further action to be taken is being conducted diligently and expeditiously, and the evidence heard should be tailored to the case being considered. A statutory code of practice for police and Border Force officers, which is currently open for consultation, will make provision for how officers are to exercise the powers and guard against any risk of improper use.
I have listened to today’s debate and noted the implication that taking a passport for up to a maximum of 30 days is an infringement of liberty equivalent to detaining an individual in a police cell. Indeed, the amendment tabled by the noble Baroness, Lady Kennedy, to name an extension of the seizure period a “warrant of further retention” seeks to draw that exact analogy. Even if we were not facing the threat that we are from foreign fighters, I hope that noble Lords will agree that this is not an appropriate analogy. Individuals subject to this power will remain at liberty. During the period that the police hold that person’s passport, the police and others would work diligently to investigate the situation further.
As the Bill stands, there is a clear threshold that must be met to justify the exercise of the power, and it can be used only at a port or border. The police are not empowered to detain the individual or remove his or her passport privileges permanently under this power. The legislation places a statutory duty on the police to return the travel documents as soon as possible if their investigations do not substantiate grounds to support further action being taken in respect of the person. In the light of the extensive nature of those safeguards, the Government believe that the changes proposed in these amendments are not necessary given the relatively limited impact of the power, and the amendments could have the unintended consequence of inhibiting its use. In other circumstances where a police officer forms a reasonable suspicion about an individual’s activities, there is no automatic court hearing to challenge his or her decision.
I hope that noble Lords will see that while a number of these amendments are helpful on the face of things, they could be damaging to national security if the police are required to justify their reasons for reasonable suspicion. To consider what information can be disclosed without prejudicing national security can take time and cannot be rushed. The use of reasonable suspicion as an evidential standard is used in relation to many other police powers, as the noble and learned Lord, Lord Hope, said. What constitutes reasonable suspicion will depend on the circumstances in each individual case. There must be an objective basis for the constable’s state of mind based on the facts, and it must be specific to the personal conduct of the person.
Although we cannot deal with hypothetical cases such as the one I was invited to comment on by my noble friends Lord Thomas and Lady Warsi, I can say that evidence will come to the police officer from many different sources. The point is that he must have reasonable suspicion and reasonable grounds for his suspicion that something is wrong. I know that in many cases the people most concerned to ensure that the individual does not travel abroad are the individual’s family and friends, who care for them, so information may come from that source. In some circumstances it may come from other sources, which we would want to take great care to protect. That is why we have this test in place at present; I will come to some of the specifics in a minute.
Under Schedule 7 to the Terrorism Act 2000, to which my noble friend Lady Ludford referred, people may be questioned by the authorities for the purpose of determining whether they appear to be persons who are or have been concerned in terrorism without any prior suspicion, and anything found on them, including their passports, can be retained for up to seven days for examination purposes. Under Schedule 7 there is neither a statutory right of appeal nor an automatic court review of passports permanently cancelled under the royal prerogative. If the police apply to the court to extend the retention period of the passport, they will issue a notice to the individual informing him or her of the reasons for the seizure and retention of the travel documents, provided that that information did not prejudice national security. The information provided will enable a person to understand why they are under investigation and will help the court—if the police apply to extend the retention period—to consider whether the case is being considered diligently and expeditiously. Your Lordships should also be aware that a person subject to this power is not prevented from making representations at any time, including at the point of seizure.
Due to the nature of the appeal or review envisaged in a number of these amendments, the court would need to provide for closed material proceedings with the appointment of special advocates. As the House will know, closed material proceedings are resource intensive and it would be challenging for such a hearing to take place within that initial seizure period. Indeed, by the time it is heard the travel documents might already have been returned or alternative disruption action have been taken.
A number of the amendments sought to reduce the initial seizure period to seven days. The 14-day period was set following consultation with the police; by that point the investigation should have progressed to the extent that a court can meaningfully consider whether the investigation into whether there are grounds for further action to be taken is being conducted diligently and expeditiously, and the evidence heard should be tailored to the case being considered.
As I previously outlined, the Government have established rigorous and stringent measures to ensure that this power will be used in a fair, reasonable and lawful manner, that the 14-day retention period is proportionate to the level of interference, and that safeguards are already in place to ensure that travel documents are not retained any longer than absolutely necessary.
Let me just deal with some specific points raised in the debate. First of all, the noble Lord, Lord Rosser, raised the issue of judicial oversight and review. In a judicial review, the court will consider whether the police officer’s decision was reasonable and in compliance with the public law and human rights principles. It will not substitute its own view on whether the test was met. However, the level of scrutiny is a high one and appropriate to this power. When we are dealing with closed material procedures, special advocates and gisting, on the point that the noble Baroness, Lady Kennedy, raised, the Justice and Security Act provides the basis by which closed material procedures could be used in such a judicial review challenge. The police may apply to the judge for an order to exclude an individual or representatives from the court hearing. The Bill sets out the circumstances in which this may happen—for example, if evidence of an offence under the Terrorism Act would be interfered with or harmed. The court is not examining the police officer’s decision to seize the travel documents; there is no explicit provision for special advocates to be appointed. However, case law suggests that magistrates would have jurisdiction to appoint special advocates if considered appropriate or necessary.
The noble Baroness, Lady Ludford, raised a couple of questions at Second Reading, and I am sorry that I did not get around to responding to them then, but I shall try to do so now. She asked, quite reasonably, why we could not use Schedule 7 to the Terrorism Act 2000. That schedule and this power have different tests and focus on different things. Schedule 7 is a no-suspicion test that focuses on the commission, preparation and instigation of terrorist offences. Any documents can be retained for seven days for the purposes of examination only. This new power has a reasonable suspicion test, and only travel documents can be retained for up to 14 days in the first instance. That is because the purpose, as we have set out, is that this is disruptive; it seeks to disrupt the travel plans of somebody who is reasonably suspected of travelling abroad for the purposes of terrorism-related activity.
The noble Baroness also asked about the rolling renewal of an extension. The power is exercised for 14 days initially and can be extended—so documents may be retained for up to 30 days with the permission of a court. The power cannot be renewed beyond 30 days because, at the end of that time, some alternative course of action might be taken. It might be a TPIM or a prosecution of some type, but the travel documents cannot be retained for longer than 30 days.
I have tried to address most of the issues raised. I shall deal with the particular, formal response about reasonable grounds, on the point raised by my noble friends Lord Thomas and Lady Warsi. It is for the police officer to decide whether he or she has a reasonable suspicion on which to exercise the power. Police officers are familiar with making decisions to this threshold. A request from another state would not be sufficient for a police officer to form a reasonable suspicion for him or herself—but, of course, we have intelligence-sharing arrangements with other states, and they may provide information to a level that would be sufficient for a UK police officer to form a reasonable suspicion about the individual’s travel intentions. In the consultation document that has been referred to, on page 8, there is a very detailed setting out, as noble Lords would expect, of what constitutes reasonable suspicion. Of course, extensive training would be given to those who would exercise that very serious power—I accept that is the point being made—before it is actually used.
With those assurances and explanations, I ask the noble Lord to consider withdrawing his amendment.
Baroness Hamwee
My Lords, I realise that there is plenty of material in the Minister’s response for us to read and think about. However, at the start of his response, he said that an officer should not have to justify his suspicion. I wondered whether he was equating that with gisting, which was raised by the noble Lord, Lord Pannick, and others, because I do not think that they are the same thing. If he does not want to commit to answering that point now, perhaps I may have a word with him about that between now and the next stage.
Lord Bates
I am happy to expand further on that but, effectively, the justification I referred to was that the police officer would have had to have arrived at a position where he believed that there was a reasonable suspicion, and that the reasonable grounds test had been met. He would then have to justify that to a senior officer of the rank of superintendent or above and then, after 72 hours, that would have to be a chief superintendent and it would have to go to the chief constable, so it was in that setting that I was referring particularly to the justification rather than gisting.
Lord Rosser
I thank all noble Lords who have taken part in this debate and thank the Minister for his very full reply which, as the noble Baroness, Lady Hamwee, has already commented, will probably need to be read through fairly carefully in Hansard to make sure that the different points that he made are fully digested. As I understand it, based on the Minister’s reply, the Government do not have any intention of going down the road of either my Amendments 14 and 15 on judicial oversight or, indeed, of the proposition made by the Joint Committee on Human Rights, which was of a different nature but clearly addressed the same issue. I think I am right in saying that the Government are not making any movement at all in the direction of either my amendments, or, indeed, the views of the Joint Committee on Human Rights. Have I understood that correctly?
Lord Bates
My Lords, the noble Lord seeks to draw me on this. This is the Committee stage of a very important Bill and we are very much listening and reviewing your Lordships’ comments. I am inviting the noble Lord to withdraw his amendment and therefore, obviously, signalling that we are not comfortable with it as it stands.
Lord Rosser
I give the assurance now that I intend to withdraw the amendment, so there is no need for the Minister to think that I am about to test the opinion of the Committee, if that is what is running through his mind. I was seeking to ensure that I had correctly understood the thrust of his reply on behalf of the Government, which I think I have interpreted correctly. I suppose that we can all wait in hope that the Government may change their mind, but the Minister did not say that he intended to reflect on the points that were made in the debate today, as he did in relation to other groups of amendments, so I think, for that reason alone, one puts a rather different interpretation on what he said on this group from the interpretation that one might justifiably put on what he said in response to previous groups.
I do not think that we have moved any further on the issue of people being given some indication of the reasons for the powers that be having suspicions that they intended to leave the country for the purpose of involvement in terrorism-related activity. I will need to read Hansard, but I thought that the Minister said that it was open to an individual to make representations at any time, including on seizure, but perhaps I misunderstood what he said. If he did say anything along those lines, I was going to ask him exactly what representations and to whom, but perhaps I misunderstood the reply.
I think that we have different views about what can and cannot emerge as a result of judicial review, since I think the Minister was of the view that somehow that contained a power to review the grounds on which a decision had been made as opposed to not being able to look at that issue, which is my understanding of what judicial review would involve. It would not encompass that question. However, once again, I will read carefully what the Minister said.
We then had the comments in relation to the application to court to extend the period from 14 days up to a maximum of 30 days. Once again, as I understand it, that court is considering only whether the authorities are acting diligently and expeditiously and is not considering the reasons behind the decision—that is, the reasons behind the suspicion. So, in that sense, we do not seem to have moved any further forward in the light of the Minister’s reply. Likewise, I do not think that he responded to another point I made, although I did not specifically ask him to do so. I simply made the statement that, under the authorisation process, there is no provision for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. As I say, I do not think that the Minister commented on that, so I assume that my version is correct and that there is no provision for them to consider representations. So I think the point of view of those who have tabled the amendments must be that they have not made any progress so far. However, as I said, I will want to read carefully the Minister’s response, as I am sure will all other noble Lords who have taken part in this debate, in order to ensure that we have fully understood it. In the mean time, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
Amendments 22, 42 and 43 in this group are also in my name, and Amendment 11 is in the name of the noble Lord, Lord Rosser.
Amendment 9 has rather an automatic, almost knee-jerk—or perhaps wrist-jerk—wording that anyone who has dealt with contracts for more than five minutes is likely to produce; namely, if something is in someone’s possession, does that adequately cover the situation or do you need to refer to the item as being under that person’s control? Again, this issue is about workability. I raised it with the Bill team some two or three weeks ago, before Christmas, and asked what would happen if it were not the individual but a companion who was holding the travel documents, and what powers would be available to get at those documents. When people are travelling as a pair or in a group, an individual does not always carry his own documents at every point. I understand that the amendment’s wording is wide enough because I think that the documents must always come into the individual’s possession, but I thought that it was worth getting clarity on that in Committee.
Amendment 22 seeks to amend paragraph 6(4). That paragraph states that on reviewing the retention of travel documents:
“The relevant chief constable must consider those findings and take whatever action seems appropriate”.
That is a wide phrase and I do not think the Minister will be surprised that my point boils down to whether he can share with the Committee what is anticipated to be within the range of “appropriate” and how this will be dealt with. Will it be covered by guidance, a code of practice and so on?
My other amendments in the group, Amendments 42 and 43, concern the perception of discrimination in the exercise of these powers—an issue that I have already raised today. I accept that this is an immensely difficult area; I have referred in the amendments to training, including equalities training, and recording the performance of the exercising of the powers. The latter is certainly covered by the draft code, which I saw after I had tabled the amendment. However, I will probably not be the only Member of the Committee who is aware of concerns about discrimination or who has received from one organisation a copy of a briefing to its members to make representations to MPs. It says:
“The proposed legislation could bear serious consequences for British Muslims including”,
and lists a number of items. It then states:
“This is a deeply troubling piece of legislation for British Muslims and will change our lives forever it is passed in its current form”.
I have no easy answer on how to deal with this but the Government must, I am sure, have been considering the perception, particularly in the light of the fact that those against whom it is sought to exercise those powers are likely—that may be the wrong word—to come disproportionately from Muslim communities. I felt that the matter had to be aired for us to seek some reassurance, which I hope the Minister will be able to give. I beg to move.
Lord Rosser
I have Amendment 11 in this group, to which I wish to speak. Schedule 1 includes the procedure for the authorisation by a senior police officer for the retention of a travel document, and states in paragraph 4:
“The document may be retained while an application for authorisation is considered. Any such application must be considered as soon as possible”.
The effect of my amendment, which is more a probing amendment, is to provide a time limit within which the application for authorisation must be considered—namely, within 12 hours—rather than leaving it somewhat open-ended, as provided for in the Bill.
No doubt, the Minister will indicate in his reply why it was felt desirable not to lay down a specific maximum time limit but to leave the provision without any time limit at all by using the phrase “as soon as possible”. The length of time taken for the application for authorisation to be dealt with is presumably—although I should be grateful if it could be confirmed or otherwise—in addition to the period during which the travel document can be seized, as laid down in the Bill. If that is the case, it is important that such authorisations are not delayed but are dealt with expeditiously. How long do the Government believe it will take for applications for authorisation to be considered, and how long do they consider is reasonable in that context? Who will decide whether it has been dealt with as soon as possible? Who can take any action, and through which channels, if they consider that the application has not been dealt with as soon as possible? How will they obtain the evidence for that?
I was going to ask the Minister: in what circumstances do the Government envisage that it would not be possible to consider an application within 12 hours? It may be that he will say in reply that he considers that an application should be dealt with in considerably less time than that but, bearing in mind my amendment, which aims to find out more about the reasons for the government wording, it would be helpful if the Minister could say what kind of factors leading to a delay—for example, beyond the period laid down in my amendment —the Government would believe were still compatible with dealing with the application as soon as possible. I hope that he will respond to these points, either now or subsequently.
Baroness Hamwee
My Lords, I had intended to say a word about Amendment 11. Given that this is Committee, I may do so. I am sympathetic to the questions that the noble Lord has asked, although—as I suspect he may agree—12 hours is too long. However, the point that has been exercising me is whether it is a good idea to have a maximum period, or whether that might become the standard and efforts to deal with the matter as soon as possible will not be made. Perhaps the individuals will think, “I’ve got so long to deal with it and will therefore take that long”.
Lord Harris of Haringey
My Lords, I wish to comment on Amendments 42 and 43 in this group. I have to say that the grouping is slightly odd because it relates to a whole range of different issues. I assume that the purpose of the amendments of the noble Baroness, Lady Hamwee, is to ensure, first, that the way in which the action of removing someone’s passport is carried out is mindful of equalities issues and the background of the people concerned; and, secondly, that a proper record is kept of what is done, so that any subsequent look at how the powers had been applied can show that they had been applied proportionately. I have no objection to that; indeed, it goes to the essence of the point about this power and the subsequent powers—the extent to which they will be exercised in such a way as to achieve their purpose but avoid a situation in which they alienate a particular community by reinforcing the narrative that suggests that that community is being oppressed or whatever.
In that context, it would be helpful if the Minister could indicate how frequently it is anticipated that these powers will be used? Are we talking about six, 600, 6,000 or 60,000 times a year? It makes a significant difference because if every time people from a particular community try to leave the country they have to go through these procedures—and these documents are held for a period, whether for six, 12 or even two hours—that will produce resentment. If the powers are to be used in a much smaller number of cases, it may be that the proportionality will seem to be more reasonable. It would be useful if the Government, in asking for these necessary powers, were to confirm how frequently the powers would be used. I am sure they have considered that. Perhaps the Government can say, having thought through the information and intelligence that has been available for, say, the past six months, how many times they think they would have sought to use these powers.
Baroness Ludford
My Lords, I, too, will speak to Amendments 42 and 43, which I strongly support and to which my name is also attached. The draft code of practice refers to the need for an objective basis for the constable’s state of mind and how such information must be specific to the personal conduct of the person and not formed on the basis of assumptions about attitudes, beliefs or behaviour of persons belonging to particular groups. Training in equalities would want specifically to address the danger of stereotyping or behavioural assumptions. There has been a great deal of concern in the last decade and a half about what might sometimes be called racial, ethnic or religious profiling. One of the things that distinguishes this country from, for instance, France is that we believe—and this also relates to the need to record statistics on the use of the powers—that it is a useful exercise to record statistics which include, as indeed does our census, a voluntary question on ethnic identity and religious practice because it helps inform social, economic and, in this case, legal lessons to be learnt. It is not helpful, as is sometimes done in other countries, to pretend that we are colour and identity blind, because that actually means that we are blind in terms of the policy conclusions drawn. The need for training to avoid discriminatory behaviour and stereotypical assumptions and to record how the constables and other qualified officers behave and perform their duties is a useful addition to the Bill.
Baroness Buscombe
My Lords, listening to this debate and a debate on the previous amendments, some of which I was listening to on my screen elsewhere, I say we must not lose sight of just what an incredibly difficult task our intelligence services and police face in relation to counterterrorism. As I said at Second Reading, we do not know all that the intelligence services know. We must not tie their hands too much and be too prescriptive. I suggest that these powers are not being sought lightly. We have to be really careful when we debate “how many hours” and “as soon as possible” in Committee to step back now and again to remind ourselves why we are here and what we are debating.
With specific reference to these amendments, I have some sympathy with my noble friend Lady Hamwee in relation to “possession” or,
“under his or her control”.
That sounds more all-encompassing; perhaps that comes from my legal background as well. It would be good to hear the Minister’s view on this.
In relation to Amendment 11, “evidence”, “as soon as possible” and “12 hours” have been mentioned. We need to give the security services the freedom—if that is the right word—to be able to do their job and need to trust them to some considerable degree to do the right job. I worry about the reference to statistics and so on in relation to later amendments in this group. Of course we must be concerned about discrimination but at the same time how can we know—and how can my noble friend the Minister, with respect, stand here today and say—how many times we think these measures will be sought or used? We are in an incredibly difficult place at the moment on a global level. We have to do all we can to protect our citizens and collaborate with others across international boundaries to ensure to the best of our ability that we can counter terrorism. In that case, we should not ask for statistics at this stage. I understand where and why statistics look good and that we can look back and say that this made sense or that did not, or that it looks as if we have overused this or that power. Let us give the freedom necessary for the security services to do the job properly or to the best of their ability in the most difficult circumstances, remembering also that the circumstances have changed considerably since our last counterterrorism Bill. We are now in a situation where the speed to be able to act is absolutely of the essence, given that so much of this relates to information and evidence coming from possibly multiple sources and often digitally, in which case with enormous speed. We are asking our security services to act in response to that speed and the speed with which the perpetrators, those who we are seeking to prevent from carrying out terrorist acts, are able to act against us.
Baroness Warsi
My Lords, my noble friend Lady Buscombe makes some incredibly important points, many of which I agree with. Like her I pay tribute to the huge work done by our intelligence services, which are overseen by a very thorough oversight process. Noble Lords will be aware that not all services are perfect and mistakes can be made and it is therefore important that all our services, including our intelligence services, work within parameters.
The lawyer in me always says when I look at legislation, “What is the mischief we are trying to fix?”. When we pass legislation it is important that we bear that in mind. While I accept that these are difficult times and it is important to make sure that we are protected, it is also important that we ensure that we do not make the challenges we face worse. Huge progress has been made under this Government with the reform to stop-and-search powers. There has been progress in the right direction with many communities that felt alienated by the use of such powers and felt that their co-operation with, for example, the police would have been so much better had the powers not been exercised in a way that led to profiling and discrimination. We are all aware of arrests made under terrorism legislation that did not lead to charge and charges that did not lead to convictions. The numbers were so overwhelming at one moment that it appeared the powers were being in used in a way that was doing more harm than good. In those circumstances it is important for us to ensure—not just because discrimination is wrong and we should fight it—that in exercising these powers we do not discriminate and make the problem worse. In those circumstances I support many of the comments made by my noble friend Lady Hamwee and the noble Lord, Lord Harris.
Lord Ashton of Hyde
My Lords, I am grateful to all noble Lords for their contributions to this debate. My noble friend Lady Buscombe pointed out the need to trust the authorities within reason. We accept that there should be proportionate oversight and controls. The issue in this area, as in so many areas of the Bill, is drawing the line correctly between civil liberties and the need that the authorities have to deal with the threat.
These amendments cover issues concerning the seizure of travel documents, the process to authorise the retention of travel documents and the code of practice. Amendment 9, in the name of my noble friend Lady Hamwee, seeks to amend the powers and conditions of seizure relating to travel documents, from the documents being in a person’s “possession” to them being,
“under his or her control”,
based on my noble friend’s experience of corporate law. As the Committee knows, this power disrupts an individual’s immediate travel by removing his or her passport while he or she is investigated. The police then have time to investigate the individual’s travel plans and their reasons for travelling, and to consider whether a longer-term disruptive measure is necessary.
Lord Harris of Haringey
That is more helpful than the noble Lord might have thought when he received that note. To put it in context, if 600 or so—different numbers have been bandied about—individuals have gone out to take part in activities overseas, are we talking about specifically targeting that sort of number or about a rather broader sweep? That is what I am trying to get at.
Lord Ashton of Hyde
We would obviously like to stop as many as we can from going, but I am reluctant to give the numbers, or even a broad indication of them, today. I will go back and find out how much we would be prepared to discuss numbers or even ranges but I would not like to commit myself now, if that is all right.
Lord Pannick
I am very grateful to the noble Lord, who has been very helpful. He referred, on several occasions, to the draft code of practice and to the consultation, which I understand will finish at the end of this month. The Bill comes back on Report only a week later. Are the Government going to be able to give the House their views on the consultation and what they are minded to do in relation to the code of practice at that stage? It is a very short period of time, but unless we know what the Government’s views are it is going to be very difficult to debate these issues.
Lord Ashton of Hyde
A lot depends, of course, on how many responses there are to the consultation. I am unable to make a firm commitment today but it will be as soon as possible and if I can get more and clearer information on the subject I will let the noble Lord know.
I hope noble Lords will feel some reassurance and I would be grateful if the noble Baroness will withdraw her amendment.
Baroness Hamwee
My Lords, I am grateful to noble Lords who made the points on equalities, discrimination, the perception of discrimination and so on far better than I did. There is, again, material to consider and perhaps I—and others—should be encouraging responses to the consultation on the draft code. The Government may not wholly welcome a shedload of comments but that is what consultation is about. I beg leave to withdraw the amendment.
Baroness Hamwee
“12A A judicial authority shall have the power to direct payment of compensation by the Secretary of State to any person whose travel document is seized (whether or not retained).”
Baroness Hamwee
Amendments 35 and 40 relate to practical and legal provisions. The first, probing, amendment allows a judicial authority the power to direct the payment of compensation to a person whose travel document has been seized. I would not suggest that such a power might be used in anything other than the exceptional circumstances, but there would be disruption and damage—I think that is the right term—to a person whose travel documents have been seized and whose travel has been massively disrupted. If you miss a flight, you miss a flight. You might be delayed by some hours or, depending on your destination, by some days. You might miss some important engagement or event, even if you are delayed by only a couple of hours, because you miss a connection, and so on. I do not think I need to labour the point. Have the Government considered whether there should be a power to direct payment of compensation? If not, why not?
Lord Pannick
My Lords, I am not surprised that the Bill does not include any power for the judicial authority to order payment of compensation. As a matter of administrative law, the lawful exercise of an administrative power, provided it is carried out in good faith, will not normally lead to a right for the claimant to claim damages. One hopes it never happens, in this context or others, but if these powers were to be exercised in bad faith, or if there were some other form of misfeasance in public office, the individual concerned—the victim—would already have a right to claim compensation from the state. Amendment 35 is not necessary to cover cases of bad faith or misfeasance in public office. If it is intended to extend to other cases, I would not support it.
Lord Hylton
My Lords, when the noble Lord replies, will he deal with the specific issue of abortive travel costs—flights that have been booked and paid for—and accommodation, which probably means hotel rooms, because the journey cannot be continued?
Lord Harris of Haringey
My Lords, this comes back to the earlier point about whether the various powers in the Bill are proportionate and effective. What is being done to minimise the risk that they are going to exacerbate problems with particular communities? It is not simply a question of whether the powers have been issued improperly. In that case, I hope that compensation would be paid. It is more about when the powers may have been exercised entirely properly but are wrong in the sense that there was a reasonable suspicion, a passport was seized, investigation over a few hours demonstrated that this was completely wrong and the journey was permitted.
Under those circumstances, the person concerned, who had absolutely no malign intent, will have a real sense of grievance which will be reflected among all their friends, relatives and entire community, and which might be disproportionate to what was achieved. That is not the wrong use of the power: it is just the use of the power under circumstances in which it turned out that the intelligence or suspicion was wrong. That would then have a consequence. I appreciate that this could open up a whole mare’s nest of other circumstances in which this issue might arise. However, I hope that the Government have given this some thought because it is the sort of issue which could provoke a sizeable backlash in terms of people’s consideration of how these powers are being used—powers which otherwise people in that community might feel are reasonable.
Lord Pannick
The reason why the law does not award damages for the good-faith exercise of administrative powers in circumstances that turn out to be erroneous is because, if you confer a right to damages in those circumstances, you inevitably deter the authorities from taking action in the first place. I think that in this context we would wish to avoid deterring the security services from taking action for which they have at the time reasonable grounds.
Lord Harris of Haringey
I do not want to get into an extended dialogue. I understand exactly the point, but it is a fine balancing act and there is a real issue. If we are saying that one of the concerns is the extent to which these powers are exercised proportionately, given not only that it is extremely important for the entire community and entire society that these powers are exercised and that they exist but at the same time we are trying to avoid a situation in which there is a backlash, these matters need to be considered. I am sure that the Government have considered them and perhaps the Minister will give us an indication as to how they have tried to strike that balance, not in the circumstances where the powers have been used incorrectly or inappropriately but simply when this has happened.
I do not want to go back to the numbers question, but if for example we found that these powers were exercised quite widely because there was a real concern about people going overseas for terrorist purposes but necessarily because of those concerns there were a large number of false positives, the backlash in the communities concerned would be extremely great. It is just the same argument that arises about a very large number of stops and searches taking place—not that compensation arose there—simply to deter a small number of people.
Lord Thomas of Gresford
Accepting the view of the noble Lord, Lord Pannick, that we should not give a course of action to someone who has had their passport removed, if the Minister were to give an assurance that the state will be open to ex gratia payments in appropriate cases, the fears expressed by the noble Lord, Lord Harris of Haringey, would be met. Ex gratia payments are frequently made in circumstances where there has been a degree of injustice. One cannot imagine any greater sense of injustice than to have one’s flight removed and the cost of a hotel imposed without any possibility whatever of being recompensed.
Baroness Butler-Sloss (CB)
Sympathetic though one may be to how individual people may feel, perhaps I may respectfully say that my noble friend Lord Pannick is absolutely right.
Lord Ashton of Hyde
My Lords, we have had an interesting debate on this small group. I hope that I will be able to address most of the points raised by your Lordships.
Amendment 35 seeks to allow the court to direct that the Secretary of State should pay compensation to any person whose travel documents have been seized under Schedule 1. This is regardless of whether or not these travel documents have been retained. Protecting the public from terrorism is the central aim of this power. The power to seize and retain travel documents can play an important role in the detection and prevention of terrorism, and using the power fairly makes it more effective. The Government completely accept the dangers involved with minority groups, as referred to by the noble Lord, Lord Harris, and my noble friend Lady Warsi in another debate, and the effect if this power is not used fairly.
However, if the power—this is exactly what the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said—is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss. This principle is consistent with the exercise of other police powers: if a power was exercised lawfully, there is no requirement to compensate the individual. I take completely the point made by the noble Lord, Lord Harris, that this can have effects that have wider ramifications but, to use the noble Lord’s own words, that would open up a mare’s nest. Therefore, we do not agree that we should change precedent so that compensation is paid in these circumstances.
Complaints about the conduct of examining officers or the treatment of an individual during the seizure and retention of travel documents may be directed to either the police or the Border Force, depending on which officer seized and retained the travel documents. The draft code of practice explains how an individual may complain. If an individual wishes to challenge the police officer’s decision, she or he may seek redress—again, the noble Lord, Lord Pannick, referred to this—including compensation, from the courts. This is the appropriate avenue to challenge the police’s operation of this power and is in line with procedures in similar circumstances.
The noble Lord, Lord Hylton, asked about travel costs and whether the Government would compensate. As with the compensation principle generally that I outlined, if it is exercised in good faith, this would not lead to a requirement to pay compensation. However, at present, if someone’s flight is disrupted due to the use of Schedule 7 to the Terrorism Act and the police judge that no further action is required, they will often work with the individual and the airline to help them get on another flight, which happens reasonably often. They would do the same with this power where reasonably practicable. Under this Bill, we could also provide assistance to individuals who have had their documents seized, are not resident in the UK and do not have any means to provide for their continuing stay in the UK.
Amendment 40 seeks to illustrate the type of arrangements that may be made by the Secretary of State in relation to a person whose travel documents are retained under Schedule 1. The illustrative examples provided are to include payment for accommodation and making alternative travel arrangements. The power to seize and retain travel documents can play an important role and using the power fairly makes it more effective. The Government are clear: the power in Schedule 1 must be used fairly and proportionately, with respect for the person to whom the power has been applied, and must be exercised in accordance with the prescribed procedures and without discrimination. A failure to use the power in the proper manner will reduce its effectiveness. Amendment 40 is superfluous, as the power under paragraph 14 in Schedule 1 is deliberately broadly framed and could include the Secretary of State making arrangements which include payment for accommodation and alternative travel arrangements for those whose travel documents have been retained.
Protecting the public from terrorism is the central aim of this power, but it is right that we make such provisions to meet our obligations under the European Convention on Human Rights. Therefore, if necessary, an individual who has no means to provide for himself or herself would be provided with basic support for the period that his or her travel documents have been retained. This would involve basic temporary accommodation and subsistence if the individual has no other means to support themselves.
However, we assess that the use of this power against those who do not already reside in the UK will be infrequent. In other cases, where for instance a UK resident has had their travel disrupted, if the power is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss, which is consistent with the exercise of other police powers. For the reasons that I have set out, I hope that my noble friend will feel able to withdraw the amendment.
Baroness Hamwee
My Lords, the explanation given by the noble Lord, Lord Pannick, was exactly as I had understood the position to be. However, for the reasons covered by the noble Lord, Lord Harris of Haringey, I felt that it was important that we set out during our proceedings the reasons for compensation not being payable. I took care to use the phrase “very exceptional”. Perhaps that was not quite strong enough. As to the suggestion made by my noble friend Lord Thomas of Gresford about the possibility of an ex gratia payment, one would not presumably need statutory provision for that by definition. However, it is an interesting suggestion.
Lord Ashton of Hyde
My Lords, I apologise that I did not refer to that in my reply. There is no provision at the moment. We have not decided or made any provision to make ex gratia payments.
Baroness Hamwee
I was suggesting that it would not need provision by virtue of being ex gratia. After today, perhaps we can think about whether specific provision would be needed to allow an ex gratia payment to be made. The examples given in paragraph 14 are helpful and some of the examples given in response to Amendment 35 probably were at least equally applicable to that paragraph. However, we are at Committee stage and, as I keep saying—I hoped that I was being reassuring—all our amendments today are probing. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendments 37, 38 and 39 are also amendments to paragraph 14. They are probing amendments as to what arrangements the Government might have in mind for the companions of an individual whose travel documents are seized. The Minister may feel that he has covered the ground in his answer to the previous group of amendments but, to put it briefly, if there is anything more that he can say to flesh out the provision, I am sure that the Committee will be glad to hear it. I beg to move.
Lord Ashton of Hyde
My Lords, this will be a brief debate—in fact, hardly a debate.
The amendments in the names of my noble friends have allowed us to think about the implications of this power for the travelling companions of a person whose passport has been seized. Amendments 37 and 39 seek to extend the protections in paragraph 14 of Schedule 1 to any persons travelling with an individual whose travel documents have been retained. It would allow the Secretary of State to provide assistance to the accompanying persons during the retention period and would provide that his or her presence in the UK was not unlawful under the Immigration Act 1971 for the retention period.
As I previously set out, the police can exercise the power in Schedule 1 only based on reasonable suspicion. It is possible that the police may reasonably suspect the intentions of one person travelling in a family group but have no suspicions that the entire family is planning to travel overseas for the purpose of terrorism-related activity. In such a hypothetical circumstance, the accompanying family members may require means to lawfully remain in the UK with the stopped person while the police investigation was on-going and the person’s travel documents were retained. This may be particularly relevant if the power was exercised against a person who was under 18.
These amendments would also allow the Secretary of State to provide assistance to those accompanying an individual who had his or her documents seized, or were not resident in the UK and did not have any means to provide for their continued stay in the UK. I am grateful to my noble friends for shining a light on such a circumstance. However unlikely it may be to occur in reality, they have highlighted a potential gap in the current provisions and the Government are committed to considering this issue in greater detail.
Paragraph 14 provides protections to the individual that would apply during the period that his or her travel documents were retained and he or she was unable to leave the UK. Amendment 38 seeks to alter this to include where a person is “unable to make the journey to which the travel relates”. The additional wording is unnecessary, as being unable to make a journey to which the travel relates is captured in the current drafting, which is “unable to leave the United Kingdom”. However, as the amendment has raised some interesting points on how this provision could be applied, the Government are committed to considering this issue, too, in greater depth.
I hope that my brief reply has satisfied my noble friend and has done all that is required.
Baroness Hamwee
Yes, indeed. I wonder whether officials in the Home Office have been undertaking role-play as to all the different circumstances that might apply when these powers could be exercised, because, as I said, one of the concerns of the House is always about workability. I am grateful to my noble friend. I beg leave to withdraw the amendment.
Baroness Hamwee
My noble friend is aware of this point—at least I hope that he is, because I sent an e-mail on it. Schedule 1 provides for the usual 40-day period in paragraph 19 and I had intended to ask the Minister to confirm that that period is suspended during the Dissolution of Parliament. However, the question now has a second limb, because the Government have tabled Amendment 45, which refers to a similar 40-day period but actually spells that out. I wonder why there is a distinction between these two. I am not objecting to this. The Statutory Instruments Act 1946 covers the point, but dealing with it in detail in the new schedule raises a question that needs to be sat upon with regard to the first schedule.
Lord Bates
I am happy to respond to my noble friend and to thank her for giving advance notice that she intended to speak on this. She asked whether the 40-day period described in paragraph 19 is suspended during Dissolution. I can confirm that the period would be suspended. However, in reality, our intention is for the code of practice to come into force the day after Royal Assent, using the affirmative procedure, as these powers are urgently needed by law enforcement. My noble friend noted that the new schedule in Amendment 45 suspends the 40-day period. It may not be possible to timetable the debate on the court rules necessary to implement the temporary exclusion order provisions by Dissolution. However, we are confident that the House will debate the code of practice on the exercise of the passport seizure provision before Dissolution.
Baroness Hamwee
I am grateful for that answer, but I am not sure that I entirely understand the procedure that the Minister referred to at the start of it. I wonder if he might write to noble Lords about how this would operate.
Lord Bates
ScheduleUrgent temporary exclusion orders: reference to the court etcApplication1 This Schedule applies if the Secretary of State—
(a) makes the urgent case decisions in relation to an individual, and(b) imposes a temporary exclusion order on the individual. Statement of urgency2 The temporary exclusion order must include a statement that the Secretary of State reasonably considers that the urgency of the case requires the order to be imposed without obtaining the permission of the court under section (Temporary exclusion orders: prior permission of the court).
Reference to court3 (1) Immediately after giving notice of the imposition of the temporary exclusion order, the Secretary of State must refer to the court the imposition of the order on the individual.
(2) The function of the court on the reference is to consider whether the urgent case decisions were obviously flawed.
(3) The court's consideration of the reference must begin within the period of 7 days beginning with the day on which notice of the imposition of the temporary exclusion order is given to the individual.
(4) The court may consider the reference—
(a) in the absence of the individual,(b) without the individual having been notified of the reference, and(c) without the individual having been given an opportunity (if the individual was aware of the reference) of making any representations to the court.(5) But that does not limit the matters about which rules of court may be made.
Decision by court4 (1) In a case where the court determines that any of the relevant decisions of the Secretary of State is obviously flawed, the court must quash the temporary exclusion order.
(2) If sub-paragraph (1) does not apply, the court must confirm the temporary exclusion order.
(3) If the court determines that the decision of the Secretary of State that the urgency condition is met is obviously flawed, the court must make a declaration of that determination (whether it quashes or confirms the temporary exclusion order under the preceding provisions of this paragraph).
Procedures on reference5 (1) In determining a reference under paragraph 3, the court must apply the principles applicable on an application for judicial review.
(2) The court must ensure that the individual is notified of the court’s decision on a reference under paragraph 3.
Interpretation6 (1) References in this Schedule to the urgency condition being met are references to condition E being met by virtue of section 2(urgency of the case requires a temporary exclusion order to be imposed without obtaining the permission of the court).
(6A)(b)(2) In this Schedule “the urgent case decisions” means the relevant decisions and the decision that the urgency condition is met.
(3) In this Schedule “the relevant decisions” means the decisions that the following conditions are met—
(a) condition A;(b) condition B;(c) condition C;(d) condition D.”
Lord Bates
My Lords, in moving Amendment 44, I shall speak also to the other amendments in the group.
As I have made clear to your Lordships, the Government are absolutely committed to the appropriate and proportionate use of the temporary exclusion power. As we indicated that we would, we have looked very carefully at the constructive suggestions from David Anderson, the Independent Reviewer of Terrorism Legislation, on the matter of judicial oversight. Following this consideration, we have tabled amendments which seek to introduce oversight of the power in line with his recommendations. Specifically, the amendments propose the creation of a permission stage before imposition of the temporary exclusion order—also very much in line with the amendments tabled by the Opposition. In addition, they propose a statutory judicial review mechanism to consider both the imposition of the order and any specific in-country requirements. I will address each of the elements in turn.
For the permission stage, the court would be asked to consider whether the decision to impose the temporary exclusion order “is obviously flawed” using principles applicable under judicial review, and whether to grant permission for it to be imposed. There would also be a provision for retrospective reviews in urgent cases, where the Secretary of State has deemed the situation of such urgency that the order must be imposed without prior permission of the court. I must point out that this provision for a retrospective review is an additional safeguard which is absent in other amendments which have been tabled. The court would have the power to refuse permission for the order, where prior permission was being sought. In retrospective review cases, it would have the power to quash the order. I hope noble Lords will agree that this gives the courts a significant role in the imposition of a temporary exclusion order.
The second element of judicial oversight which the Government are seeking to introduce is a statutory judicial review mechanism. The in-country elements of a temporary exclusion order will not be imposed until the individual has returned back to the United Kingdom, allowing law enforcement partners to assess the most appropriate measures to manage the risk posed by the individual at that time. The statutory judicial review will ensure that the individual, if he or she applies for it on return to the UK, can challenge any in-country requirements placed on them. Of course, ordinary judicial review would always have been open to the individual, but putting it on a statutory footing in this way provides some additional structure which I hope will be reassuring to the House. Most importantly, the individual will not have to seek permission from the court for there to be a review.
The government amendment provides that the court would not only have the power to consider in detail—and quash—the specific in-country requirements placed on an individual, but it would also have the power to consider again whether the relevant conditions for imposing the temporary exclusion order were and, in respect of the ongoing necessity of the in-country measures, continue to be met, and again have the power to quash the whole order or direct the Secretary of State to revoke it. This is in line with David Anderson’s recommendations and means that there is a further opportunity for judicial scrutiny of the imposition of the order as well as the in-country requirements.
The government amendments place considerable power with the courts in the temporary exclusion process, allowing effective judicial scrutiny of that power both before and after its use. I hope that this provides the reassurance the House seeks in respect of court oversight of this measure, and also in respect of the importance the Government place on an appropriate and proportionate use of this power. I beg to move.
Baroness Ludford
My Lords, I thank the Minister for explaining these welcome amendments. Something is puzzling me and it may simply be my lack of understanding of the field. The test which the court has to determine in the case of prior permission, under Amendment 52, or in the review of urgent TEOs, under Amendment 44, is whether the decisions are “obviously flawed”. I am challenged to understand the position with an in-country statutory judicial review in Amendment 65, which I understand would follow the normal principles of judicial review, including necessity and proportionality. I know that the independent reviewer referred to a test of “obviously flawed” in a commentary that he made, but I do not understand the justification for the difference in the test in Amendments 44 and 52 compared to the statutory judicial review in Amendment 65. The phrase “obviously flawed” seems both a high and a somewhat problematic threshold: obvious to whom? I would have thought that the application of that test would create some difficulties. However, I may be on entirely the wrong track.
Baroness Butler-Sloss
My Lords, I want to ask a rather practical question. The whole of Clause 2, together with the amendments, appears to deal with someone over whom the Government assume there will be some degree of control. I take the example of someone who has gone to Syria and comes back through Syria to the airport in Istanbul. He then seeks to fly back to England and is made the subject of a temporary exclusion order. What is to happen to that person in Istanbul? What are the Government of Turkey to do with this person? If you stop them at an airport outside the United Kingdom, is there not a very real danger that they will just go back into Syria or into Iraq? What I have not understood about this temporary exclusion order is what will happen to these people who are not able to come back to this country.
Lord Lang of Monkton (Con)
My Lords, your Lordships’ Constitution Committee managed to produce, at fairly short notice because this was a semi-fast tracked Bill, a report in which we drew attention to the absence of judicial oversight and expressed considerable concern about it. Therefore, I welcome the development that my noble friend the Minister has announced today. I do not, for one moment, suggest that we were the only organisation which drew attention to this gap and called for change. The Independent Reviewer of Terrorism Legislation, David Anderson, was considerably more robust in his wording than we thought it appropriate to be. He pointed out that,
“in peacetime we have never accepted the power of the Home Secretary simply to place someone under Executive constraint for two years without providing for some relatively speedy process of appeal”.
It seems that the principle of what we, and others, have called for has now been met and I welcome what my noble friend has said.
Baroness Warsi
I thank my noble friend for introducing these amendments and for the progress that has been made. I also thank him for the incredibly helpful briefing session he held last week. Perhaps he can help me with something that did not come out of that session, if this is the right moment to deal with it. What is the Government’s thinking on the extent of time these orders are intended to apply for? The Minister in the Commons, James Brokenshire, indicated that it was intended that these orders would be in operation potentially for only two or three days. I am not sure whether that is the case and I should like clarification on that point if the Minister here were able to give it today.
Lord Pannick
My Lords, I too welcome these amendments, which introduce judicial control. The Government have listened to the Constitution Committee and the independent reviewer. They have also listened to the observations made from all sides of the other place and indeed here at Second Reading.
The noble Baroness, Lady Ludford, raised a concern about paragraph 3(2) in the proposed new schedule set out in government Amendment 44 and the reference to whether the decision is “obviously flawed”. I draw her attention to the fact that its paragraph 5(1) states that:
“In determining a reference under paragraph 3, the court must apply the principles applicable on an application for judicial review”.
So my understanding—I would welcome the Minister’s confirmation—is that when the court asks whether the decision itself is obviously flawed, it will apply the principles of judicial review. It will ask whether the decision has been made on a lawful and proportionate basis, for a proper purpose and other matters of that sort, although of course the court will not look at the merits of whether a lawful decision has been made.
There is one other matter to which I draw attention in the schedule being introduced by government Amendment 45. Paragraph 5 of the proposed new schedule expressly confirms that:
“Nothing in paragraphs 2 to 4, or in rules of court … is to be read as requiring the relevant court to act in a manner inconsistent with Article 6 of the Human Rights Convention”.
That is very important indeed and I welcome the fact that the schedule expressly confirms that the court should comply with Article 6. I ask the Minister to tell me if I am wrong, but I am not aware of anything in the Bill which suggests that the courts, in exercising their judicial control powers, should be required to depart from our obligations under the human rights convention, and indeed the noble Lord, Lord Bates, has made a statement on the front page of the Bill under Section 19(1)(a) of the Human Rights Act 1998 that in his view the provisions of this Bill,
“are compatible with the Convention rights”.
I hope that that will give some further reassurance to those who are concerned about these powers.
Baroness Smith of Basildon
My Lords, I welcome the government amendments and I thank the Minister for his explanation of them. I also welcome the Government’s conversion to the principle of judicial oversight in regard to temporary exclusion orders. That is because it has to be said that any measure which seeks to restrict the movements of an individual and restrict their right to return to the country of which they are a citizen is a hugely significant power. I will not go into the other points that have been raised because we have yet to discuss the detail of how the exclusion orders will work, but the noble Baroness said that they would remain in force for two days. My information suggests that they can remain in force for two years from the date they are first imposed.
The Government previously insisted that this was a power for the Home Secretary alone, but that was not a view we could share. Both the Home Secretary and the noble Lord have referred in their comments to judicial review. That was already in place, but judicial oversight is, as we have heard, something that the Constitution Committee referred to and the Joint Committee on Human Rights said would be a necessity. Indeed, from the beginning we have been convinced of the need for parliamentary scrutiny of this aspect of the Bill. At Second Reading in the other place on 2 December, the shadow Home Secretary, my colleague the right honourable Yvette Cooper, rightly pointed out that there is such a judicial process for TPIMs and stated that we would be tabling amendments on judicial oversight. The Home Secretary responded in Committee on 15 December saying that such oversight was not necessary because it was the operation of a royal prerogative in terms of cancelling a passport, and that it was less restrictive than the conditions under TPIMs. The debate continued through to the Report stage, where again we tabled amendments which both the government parties voted against on the explanation from the Minister that there had not been,
“the chance properly to consider the Opposition amendments”.—[Official Report, Commons, 6/1/15; col. 208.]
Three weeks has been long enough for noble Lords to consider the Bill, but it was not long enough for Home Office Ministers to consider our amendments. That is why I am particularly grateful to the noble Lord. In the 10 days since it was voted down in the House of Commons, the Government have found time to consider the issues and table amendments. It is a minor point, but I received an e-mail about this last Friday evening, which was a little late. Also, it would have been nice to have had the amendments with that e-mail. Perhaps that could be considered for the future when letters about new amendments are sent out at a late stage.
However, those are minor matters as compared with the fact that the Government have come around, and we greatly welcome that. The case for judicial oversight of this has been clear from the beginning. We understand and appreciate that there are times when a swift application and decision have to be made, but the Government have rightly recognised in their amendments that that should be subject to judicial processes.
Perhaps I may raise a couple of points for clarification. There are some differences between the amendments we tabled at the start of the process and government Amendment 52. First, the new amendment does not require the Secretary of State to set out a draft of the proposed notice in the temporary exclusion order application, unlike subsection (2) of the proposed new clause in our Amendment 54. Why do the Government not think it necessary to set out the draft of the proposed TEO notice, as we propose? Secondly, proposed new subsection (2) provides that the court may, in addition to giving the Secretary of State permission to impose a TEO,
“give directions to the Secretary of State in relation to the measures to be imposed on the individual”,
who is subject to such an order. That is not in the government amendment. There may be good reasons for that, but it would be helpful to know from the noble Lord the reasons for those changes.
We are committed to judicial oversight along with the other measures we have proposed. We have not had total success, although the Minister has agreed to reconsider some of them. These measures should be subject to a sunset clause; that is, a renewal requirement for Parliament to look at them again. We also think that Parliament should be assisted in that consideration. There should be further scrutiny in the form of a report from the independent reviewer and a report on their use from the Home Secretary. All these measures are important, but we are pleased that the Government have accepted the need for judicial oversight. It will not threaten the ability of the Home Secretary to impose a TEO where there is intelligence and evidence to support that measure, as the noble Lord has clarified. However, what judicial oversight does provide is legitimacy and validity to the order. That, I think, will provide the public with greater reassurance when they see these orders being imposed.
We support these amendments, but it would be helpful if the noble Lord could give us an explanation of the differences between our proposals and those set out in the government amendments.
Lord Bates
I am grateful to all noble Lords for their broad welcome for the amendments which have been put forward. As the noble Lord, Lord Pannick, said, we have listened in the other place, which is why my honourable friend the Minister for Security and Immigration, James Brokenshire, said that he would seek to bring forward measures in this House. We have listened to the Independent Reviewer of Terrorism Legislation and what we have proposed has been moulded by and fits in with what he sought to set out. We have also been significantly influenced by the persuasive report of the Constitution Committee, to which I referred earlier. Again, I thank my noble friend Lord Lang for his thoughtful work, which has been extremely helpful. That has all come together and we have made our recommendations and presented the amendments.
Let me deal with some of the points raised, in no particular order. However, certainly on the human rights side, I stand by the declaration that I made in the Bill. It is a very important statement in terms of giving assurance to people about the proportionality of what is being proposed regarding temporary exclusion orders and how they will operate.
Baroness Smith of Basildon
The Minister said that the in-country application of a TEO—if I understood correctly—would be two years. Am I incorrect, then, in my understanding that if a temporary exclusion order were served either at the address or in person, the person’s return would be subject to that for two years, so that if at any time in that two-year period they sought to return to the UK they would be subject to the conditions of the TEO? Is he saying that that is incorrect and it is only the in-country provisions of the TEO that last for two years?
Lord Bates
I will clarify that point to make sure I have got it absolutely right. My belief, however, is very much that we are talking here about two elements. On the in-country element, technically—of course, we are dealing here with legal processes and they would have to be reviewed—if the person were to refuse the conditions of their return they would not be able to return and therefore the order would effectively remain in place while they are not in the country. The intention, however, would be that there would be reasonable requirements about being accompanied, the time and place, their mode of travel, the fact that they would be met, and the in-country element would expire at that point. However, I will look again carefully at the words that I used and clarify them if need be.
The noble Baroness also asked why we would not provide the court with the conditions to impose on an individual at the application stage. Temporary exclusion orders differ from TPIMs in that the imposition of a TEO is likely to be put in place many months before the individual returns to the UK and is subject to in-country measures, as I have mentioned. The nature of the individuals who will be subject to TEOs means that the specifics of their cases will vary, and it would be inappropriate for the security services and police to decide on the conditions so far in advance. The individual will be served with the conditions of their return to the UK and will be able to challenge these conditions as part of the statutory review.
The temporary exclusion order remains in force for two years. This includes both the out-of-country provision and the in-country element. In practice, how long the in-country obligation lasts will depend on how quickly the person returns, which is what we were discussing there.
I think that I have covered the point of my noble friend Lady Warsi about the briefing session. I am grateful that she found that helpful.
Baroness Warsi
I hesitate to rise but the discussion that took place was about the purpose of the temporary exclusion order. The clear sense that I got from the briefing and subsequent discussion with the Minister was that the whole purpose was to facilitate a controlled entry back into the United Kingdom, and a controlled entry back into a programme of potential deradicalisation and whatever that would involve, a move by the Government which I hugely support and welcome. I felt that if the whole purpose of this temporary exclusion order was not to keep people out of the country—as has been suggested in the press—but was about managing somebody’s return, to make sure that we protected the security of our citizens, then we are talking about an incredibly short period for which the person would find themselves outside the United Kingdom but a much longer period subject to conditions within the United Kingdom. If that is the case, I would be grateful if it was clarified at the Dispatch Box.
Lord Hylton
Before the Minister replies to that, can he include in his reply whether the Government have studied the experience of countries such as Denmark and Germany, which have working knowledge of how returns of such people can be satisfactorily dealt with?
Lord Bates
On the point just raised by the noble Lord, Lord Hylton, we have been very mindful of the fact that we need to work, not in isolation but in partnership with other countries. The level of co-operation and working across Europe in particular with our European colleagues, not least because of the events in Paris, has increased dramatically. We want to learn what works best. To answer my noble friend’s point, these orders will not exclude somebody from the UK per se. Through them we are saying that if you have been abroad and we believe that there is evidence that you have been engaged in terrorist activities we are not simply going to allow you to drift in and out of this country with impunity. That would need to be managed and supervised. We want that to happen—it is the purpose of the temporary exclusion orders.
My noble friend Lady Ludford—it now seems like a little while ago—was the first to speak about this. She raised a point about the tests and the phrase “obviously flawed”. Here, we are seeking to introduce a permission-stage model and a statutory judicial review mechanism similar to those already in place for the TPIM and asset-freezing regimes, which will consider both the decision to impose the TEO in general terms and for the in-country elements. Having considered these suggestions, we tabled these amendments in line with the recommendation. It is, as was said, simply consistent with those other elements to which we are referring. I hope that that has been helpful.
Baroness Ludford
I apologise for prolonging this, but I forgot to ask my noble friend something earlier. I am trying to understand the architecture of all this. Under the new clause relating to prior permission of the court, in Amendment 52, proposed new subsection (9) says:
“Only the Secretary of State may appeal against a determination of the court under … this section”,
and the urgency provision. I wonder whether that is a bit unfair on the person. Why would the individual not have a comparable right of appeal? Is there a clear reason why that is the case?
Lord Bates
Again, I will write if necessary, but I think the answer is simply that in that example, it is the Secretary of State who has made her decision and then subjected that decision to scrutiny by the courts. The courts will obviously make their judgment, and therefore the appeal is in connection with that particular part of the process. The individual concerned with that has access, through different routes, to judicial review of the temporary exclusion order. On the point about the Secretary of State, the individual is not involved in that stage, but will have the chance to challenge the substance. We are basically talking about two not quite parallel but different parts of the process. Therefore, the rights of appeal apply to different entities or individuals, as appropriate to those elements.
With those comments, I commend the amendments standing in my name in this group and invite noble Lords to consider not pressing theirs.
Lord Bates
ScheduleTemporary exclusion orders: proceedingsIntroductory1 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 TEO 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; “TEO proceedings” means proceedings on—(a) an application under section (Temporary exclusion orders: prior permission of the court),(b) a reference under Schedule (Urgent temporary exclusion orders: reference to the court etc),(c) a review under section (Review of decisions relating to temporary exclusion orders), or(d) an application made by virtue of paragraph 6 of this Schedule (application for order requiring anonymity).Rules of court: general provision2 (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 relevant 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.Rules of court: disclosure3 (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 rights5 (1) Nothing in paragraphs 2 to 4, or in rules of court made under any of those paragraphs, is to be read as requiring the relevant court to act in a manner inconsistent with Article 6 of the Human Rights Convention.
(2) The “Human Rights Convention” means the Convention within the meaning of the Human Rights Act 1998 (see section 21(1) of that Act).
Rules of court: anonymity6 (1) Rules of court relating to TEO 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; (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, a temporary exclusion order.
Initial exercise of rule-making powers by Lord Chancellor7 (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) If 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 advisers8 (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 advocate10 (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 a “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.Relationship with other powers to make rules of court and other proceedings11 Nothing in this Schedule is to be read as restricting—
(a) the power to make rules of court or the matters to be taken into account when doing so, or(b) the application of sections 6 to 14 of the Justice and Security Act 2013 (closed material proceedings).”
ScheduleTemporary exclusion orders: appeals against convictionsRight of appeal1 (1) An individual who has been convicted of an offence under section 9(1) or (3) may appeal against the conviction if—
(a) a temporary exclusion order is quashed, and(b) the individual could not have been convicted had the quashing occurred before the proceedings for the offence were brought.(2) An individual who has been convicted of an offence under section 9(3) may appeal against the conviction if—
(a) a notice under section 8, or a permitted obligation imposed by such a notice, is quashed, and(b) the individual could not have been convicted had the quashing occurred before the proceedings for the offence were brought.Court in which appeal to be made2 An appeal under this Schedule is to be made—
(a) in the case of a conviction on indictment in England and Wales or Northern Ireland, to the Court of Appeal; (b) in the case of a conviction on indictment or summary conviction in Scotland, to the High Court of Justiciary;(c) in the case of a summary conviction in England and Wales, to the Crown Court; or(d) in the case of a summary conviction in Northern Ireland, to the county court.When the right of appeal arises3 (1) The right of appeal under this Schedule does not arise until there is no further possibility of an appeal against—
(a) the decision to quash the temporary exclusion order, notice or permitted obligation (as the case may be), or(b) any decision on an appeal made against that decision.(2) In determining whether there is no further possibility of an appeal against a decision of the kind mentioned in sub-paragraph (1), any power to extend the time for giving notice of application for leave to appeal, or for applying for leave to appeal, must be ignored.
The appeal4 (1) On an appeal under this Schedule to any court, that court must allow the appeal and quash the conviction.
(2) An appeal under this Schedule to the Court of Appeal against a conviction on indictment—
(a) may be brought irrespective of whether the appellant has previously appealed against the conviction;(b) may not be brought after the end of the period of 28 days beginning with the day on which the right of appeal arises by virtue of paragraph 3; and(c) is to be treated as an appeal under section 1 of the Criminal Appeal Act 1968 or, in Northern Ireland, under section 1 of the Criminal Appeal (Northern Ireland) Act 1980, but does not require leave in either case.(3) An appeal under this Schedule to the High Court of Justiciary against a conviction on indictment—
(a) may be brought irrespective of whether the appellant has previously appealed against the conviction;(b) may not be brought after the end of the period of 28 days beginning with the day on which the right of appeal arises by virtue of paragraph 3; and(c) is to be treated as an appeal under section 106 of the Criminal Procedure (Scotland) Act 1995 for which leave has been granted.(4) An appeal under this Schedule to the High Court of Justiciary against a summary conviction—
(a) may be brought irrespective of whether the appellant pleaded guilty;(b) may be brought irrespective of whether the appellant has previously appealed against the conviction;(c) may not be brought after the end of the period of two weeks beginning with the day on which the right of appeal arises by virtue of paragraph 3;(d) is to be by note of appeal, which shall state the ground of appeal;(e) is to be treated as an appeal for which leave has been granted under Part 10 of the Criminal Procedure (Scotland) Act 1995; and(f) must be in accordance with such procedure as the High Court of Justiciary may, by Act of Adjournal, determine.(5) An appeal under this Schedule to the Crown Court or to the county court in Northern Ireland against a summary conviction—
(a) may be brought irrespective of whether the appellant pleaded guilty;(b) may be brought irrespective of whether the appellant has previously appealed against the conviction or made an application in respect of the conviction under section 111 of the Magistrates’ Courts Act 1980 or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (SI 1981/1675 (N.I. 26)) (case stated); (c) may not be brought after the end of the period of 21 days beginning with the day on which the right of appeal arises by virtue of paragraph 3; and(d) is to be treated as an appeal under section 108(1)(b) of that Act or, in Northern Ireland, under Article 140(1)(b) of that Order.”
Lord Bates
Baroness Smith of Basildon
My Lords, I think what has come out of the last debate is that we are all trying to find our way through how the temporary exclusion order is going to work. I come back to the point I made at Second Reading about whether they should ever have been called temporary exclusion orders. I suspect they were named as such because of the Prime Minister’s statement that he was going to exclude people who had fought abroad as terrorists and prevent them from coming back to the UK, which of course is not what is being proposed. “Managed return” is a better description, but we need to understand exactly how that managed return will work in practice—a point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Warsi. This is a probing amendment, as is Amendment 59, which we will come on to later, to try to tease out some of the detail of how this will work in practice.
Amendment 49 leaves out the requirement that the Secretary of State “reasonably suspects” that the individual has been involved in “terrorism-related activity” outside the UK and inserts “has evidence”. In this amendment, we are trying to seek some further information on how the process of issuing the temporary exclusion order will be managed. It would be helpful if the Minister could give some information on the evidence threshold. What evidence would be required for the Home Secretary to reasonably suspect that condition A has been met and that someone is, or has recently been, involved in terrorism-related activity? As previously discussed, the imposition of such an order will have a similar legislative impact to a TPIM, and will restrict an individual’s movements over a period of time. There may be other obligations, either through TPIMs or, for example, to engage in perhaps the Prevent programme or Channel.
The Government’s fact sheet is very interesting. It states that MI5 would have to make an application to the Secretary of State for her to consider. Is that the only route to a TEO—for MI5 to apply to the Secretary of State with information and to ask her to consider it? The Bill states only that certain conditions have to be met; it is the fact sheet that refers to MI5. The fact sheet also refers to the threshold, where it merely repeats the “reasonably suspects” wording. I am seeking some clarity on the threshold and on the process. Will a TEO always, and in all circumstances, be considered only on evidence from MI5 or the wider security services? Are there any circumstances where a Home Secretary, or any other Minister including the Prime Minister, could initiate the process? Are there any circumstances in which a Home Secretary could issue a temporary exclusion order without, or against, the advice of MI5? That is what the fact sheet says but, again, it is woolly on the legislation.
I think the noble Baroness, Lady Hamwee, mentioned humanitarian support earlier. What if someone has left the country—for example, to go to Syria—to be involved in humanitarian support, and although it is quite likely that is what they have been doing there, there is not hard evidence to prove it but, equally, there is not hard evidence to say that they are engaged in terrorism? What, then, would fulfil the definition of reasonable suspicion? When the legislation is in place—and if the Government get their way and do not agree to a sunset clause—it will not just apply to current threats but this will be law for ever and in any circumstances in the future.
We have to ask whether there is a value judgment to be made as to how the UK views the cause on the side of which somebody goes to fight. I want to just explore this with the Minister. I wonder whether he can help me, as I genuinely do not know the answer and am trying to find a way through this. Let us take the case of somebody with dual nationality who travels abroad to fight on the side of a cause in their second country that the UK would support. It has not been unknown in history for us to change sides, but let us say they have gone to another country, we support the cause they are fighting for, and they have dual citizenship of that country and this one. What about the British-Iraqi Kurd who, on his own evidence, leaves to fight against ISIL and against extremism? Could they find themselves subject to a temporary exclusion order? I know that the noble Lord cannot comment on intelligence matters, but just for this amendment it would be helpful to have some clearer explanation of what the Government mean by “reasonably suspects”, and what the evidence threshold will be for imposing a TEO. I beg to move.
Lord Ashton of Hyde
My Lords, this allows us to consider the legal threshold for issuing a temporary exclusion order. Before I get on to what our position is, I shall answer a couple of the noble Baroness’s questions.
She asked about the basis on which reasonable suspicion is used in the power to seize and retain travel documents at a port. The test uses the evidential standard of reasonable suspicion that is used in relation to many other police powers. What constitutes reasonable grounds for suspicion will depend on the circumstances in each individual case. There must be an objective basis for the constable’s state of mind, based on facts. Such information must be specific to the conduct of the person. It can include observation of the person’s behaviour, information obtained from any other source or a combination of these. Reasonable suspicion cannot be formed on the basis of assumptions about the attitudes, beliefs or behaviour of persons who belong to particular groups or categories of people. To do that under Schedule 1 on this basis would be discriminatory.
The noble Baroness also asked whether the Home Secretary will make a TEO application only on the basis of an application from MI5. It will be for the Secretary of State to decide whether the tests are met. In practice, she would base her judgment on advice from the security services. The final decision will of course be hers, even though, in practice, she will generally require input from the security services to establish reasonable suspicion.
Baroness Smith of Basildon
Perhaps I might press the noble Lord further on that point. The other purpose of my question was to ask whether the Secretary of State or any other Minister, including the Prime Minister, would be able to initiate the process. Would they ever be able to act against or without the advice of the security services in imposing a TEO?
Lord Ashton of Hyde
I think it would be better if I clarified that and came back to the noble Baroness. I do not want to say something that is incorrect on the precise details of this. I could make a guess, but I would rather not.
The noble Baroness’s amendment would mean that the Home Secretary would be required to have evidence that an individual has engaged in terrorism-related activity abroad rather than having a reasonable suspicion. The reasonable suspicion may well be based on intelligence, which is clearly not always the same as evidence. This change would greatly reduce the number of individuals against whom the Home Secretary could use this power. The result of this would be that the Government would not be able to control the return of individuals suspected of fighting alongside terrorist groups and would have fewer tools available to manage the threat these individuals posed to the British public.
Furthermore, where there is clear evidence that an individual is engaged in terrorism-related activity, it is likely that we would be in a position to seek their prosecution, which would be preferable to placing them under the conditions of a temporary exclusion order. Such a high test would also bring them within scope of the much stronger TPIM regime. Given the less stringent obligations of a TEO compared with the other measures, the Government’s view is that such a test would be disproportionate. On that basis, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I am glad that my noble friend made those concluding remarks, referring particularly to prosecution where it is possible.
Should we be comforted by the distinction between the words in Condition A, “reasonably suspects”, with an emphasis on “suspects”—the noble Lord referred to “reasonable grounds for suspicion”, which we covered earlier today—as against, in Conditions B and C,
“the Secretary of State reasonably considers”?
That seems to require more of the Secretary of State. Conditions A to D must all be met, so we can look at them together and see an escalation of the seriousness of the Secretary of State’s views, if I may put it like that. I could understand the concerns of the noble Baroness if we were to look only at Condition A, but I do not think that we can look at it in isolation.
Baroness Smith of Basildon
I am grateful to the noble Baroness for trying to help the Minister but the purpose of the amendment was merely to probe the issues around the evidence base for “suspects”. She was taking me very literally on that.
I am grateful to the Minister for his response and glad that he will write to me on the point that I raised with him. Could he also write to me on the second point, which he did not address? This was about somebody who might have dual nationality and was fighting against terrorism, for instance. I gave the example of a British Iraqi Kurd who was fighting against ISIS. It would be helpful if he could clarify that.
The purpose of this amendment and my next, Amendment 56, is to tease out how this will work. The Government need to answer some of these complex questions. It is a big and important power, but we need to understand how it will work. I am grateful for the Minister’s help and his offer to write to me, and I beg leave to withdraw the amendment.
Lord Bates
“(6A) Condition E is that—
(a) the court gives the Secretary of State permission under section (Temporary exclusion orders: prior permission of the court), 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.”
Lord Bates
“Temporary exclusion orders: 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 a temporary exclusion order on the individual.(2) The function of the court on the application is to determine whether the relevant decisions of the Secretary of State are obviously flawed.
(3) 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.(4) But that does not limit the matters about which rules of court may be made.
(5) In determining the application, the court must apply the principles applicable on an application for judicial review.
(6) In a case where the court determines that any of the relevant decisions of the Secretary of State is obviously flawed, the court may not give permission under this section.
(7) In any other case, the court must give permission under this section.
(8) Schedule (Urgent temporary exclusion orders: reference to the court etc) makes provision for references to the court etc where temporary exclusion orders are imposed in cases of urgency.
(9) Only the Secretary of State may appeal against a determination of the court under—
(a) this section, or (b) Schedule (Urgent temporary exclusion orders: reference to the court etc);and such an appeal may only be made on a question of law.(10) In this section “the relevant decisions” means the decisions that the following conditions are met—
(a) condition A;(b) condition B;(c) condition C;(d) condition D.”
Baroness Hamwee
Baroness Hamwee
My Lords, I wondered whether the noble Baroness was adopting this one.
Baroness Hamwee
I think we are all being as co-operative as we can be on this: we are aiming at the same thing.
Briefly, Amendment 56 amends Clause 3, which provides that notice of the imposition of an order must include an explanation of the procedure for making an application under Clause 5. My amendment would provide that it should also include,
“the Secretary of State’s reasons”.
This is simply for the reasons that we discussed earlier: an individual affected needs to have an understanding, not necessarily—almost inevitably not—of the fine detail, but of the gist of the reasons why. This might not be the right term in this context, but in normal terminology it covers what I mean. Having knowledge of the procedure is not a great deal of use unless one knows the reasons for the Secretary of State’s decision. I did not quite keep that to under a minute but I beg to move.
Lord Bates
My Lords, I appreciate that this is the last group of amendments before we seek the permission of the House to break. I am grateful to my noble friend for raising this point, which relates to the information provided to the subject of a temporary exclusion order.
It is, of course, important that the individual is informed that they are subject to a temporary exclusion order—after all, that is the point of it—and that they are given some indication of why this is the case. However, I trust your Lordships will understand that it is not appropriate for the individual to be provided with detailed reasoning behind the Secretary of State’s decision, which is likely to include sensitive information, the disclosure of which could damage national security and put lives at risk.
Any notice given to the individual would state that the Secretary of State has reasonable suspicion that they have been involved in terrorism-related activity abroad. We believe that this is sufficient disclosure, which informs the individual of the basis for the decision while protecting sensitive information.
My noble friend was brief in moving her amendment. I have been fairly brief in responding to it but I hope I have answered the point she was making. I therefore ask her to withdraw her amendment.
Baroness Hamwee
My Lords, I am conscious of the time. I think that was one of those answers that may raise further questions, which perhaps I will keep for another day. As there is another debate about to happen, I beg leave to withdraw the amendment.
Health: Human Papilloma Virus
(9 years, 10 months ago)
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Lord Patel of Bradford
To ask Her Majesty’s Government what action they are taking to include all adolescent boys in the national vaccination programme for human papilloma virus.
Lord Patel of Bradford (Lab)
My Lords, I am most grateful for the opportunity to discuss the very important issue of whether adolescent boys as well as girls should be included in the national vaccination programme for HPV—human papilloma virus. I thank all noble Lords who will be speaking in this short but important debate, and express my gratitude to Peter Baker, former chief executive of the Men’s Health Forum and the current campaign director of HPV Action, for all his expert advice and guidance.
This debate is particularly timely because the Joint Committee on Vaccination and Immunisation—JCVI—is currently looking at whether the national HPV vaccination programme should include boys. I have a particular interest in the outcome through my role as chair of the All-Party Parliamentary Group on Men’s Health. Some two years ago, the all-party group held a meeting jointly with the All-Party Group on Sexual and Reproductive Health in the UK. The chair of that group, my noble friend Lady Gould of Potternewton, and I heard evidence from two distinguished speakers—Professor Margaret Stanley from Cambridge University and Mr Peter Greenhouse, a consultant in sexual health from Bristol—which absolutely opened my eyes to the avoidable risks to the health of men caused by HPV infection.
I realised that HPV is not just a problem for women. It does not cause just cervical cancer but other cancers in women and a wide range of cancers in men as well. We know that HPV can cause, in men and women, cancers in the head and neck, as well as anal cancer. In women it can cause vaginal and vulval cancer, and in men penile cancer. In fact, worldwide HPV is understood to cause 5% of all cancers and is thought to be behind the steep rise in oral cancers in the past 20 years.
Unfortunately, HPV is a very common and easily acquired sexually transmitted infection. The majority of people—probably over 80%—will be infected with HPV at some stage in their lives. The good news is that most people’s bodies clear the virus naturally and it causes no lasting damage. But in others it can persist, especially if they have weakened immune systems, and can lead to potentially life-threatening problems. HPV is not just a cause of cancer; it is also responsible for genital warts and a very unpleasant but fortunately much rarer condition called RRP—recurrent respiratory papillomatosis. This can cause serious breathing problems and is very difficult to treat.
Thirty-six organisations have come together as HPV Action to make the case for gender-neutral vaccination; in other words, protecting both males and females from the consequences of HPV infection. These 36 organisations are major names in the fields of cancer, sexual health, men’s health, oral health and public health; in fact, one of them is the Royal Society for Public Health, of which I happen to be a vice-president. HPV Action has informed me that some 2,000 cases of cancer in men are caused each year in the UK by HPV. Around 48,000 men also develop genital warts as a result of HPV infection, and about 600 men and boys live with RRP. This is a huge burden for the individuals affected and their families, and a significant issue for the NHS, which has to find the resources to treat and care for them.
It seems patently unfair that we exclude boys from a vaccination programme that can easily prevent a wide range of diseases, including several types of cancer. This makes no sense on the grounds of equity or public health. I also wonder if it might even be unlawful to exclude boys from this programme under our current equality legislation. I would be very interested to hear from the Minister whether this is the case and whether an equality impact assessment has been undertaken on this issue.
With regard to the JCVI’s timescale for a decision on adolescent boys, in 2014 it stated that it would be in a position to make a recommendation later this year. Unfortunately, in the past few weeks we have heard that the JCVI will not be taking a view until early 2017. Given the facts and figures that I have just presented, this delay is totally unacceptable. I ask the Minister to meet the JCVI urgently to discuss how the decision-making process can be accelerated. Any continued delay is causing many, many more people to suffer avoidable ill health. In fact, I believe that the case for vaccinating boys is already proven and that Ministers should make a decision now to vaccinate boys as soon as possible.
Of course, as always, there are arguments put forward that seek to justify excluding boys. I will briefly address a couple of these. First, it has been argued that the current vaccination programme for girls is so good that it protects males as well. It is true that the programme reaches over 80% of girls; 80% is the level at which the population as a whole is believed to be well protected. The UK HPV vaccination programme is without doubt one of the best programmes in the world for girls. But it is not perfect. There are some areas, notably in London, where vaccination rates in girls are well below 80%. The latest data for Enfield, for example, show that just 67% of girls received all the doses they needed. A recent study by University College London also found that girls from black or other ethnic minority backgrounds were less likely to have been vaccinated than girls from white or Asian ethnic backgrounds. These shortfalls leave large numbers of unvaccinated girls and women at risk of contracting HPV and limit the efficacy of the wider vaccination programme.
Evidence from Denmark clearly shows that while HPV vaccination for girls is reducing the incidence of genital warts in girls, it is not reducing the incidence of warts in boys. This suggests very strongly that boys are continuing to be infected with HPV, either by unvaccinated Danish girls or by girls from countries without a vaccination programme. Men in the UK, as in Denmark, do not conveniently have sexual contact just with women brought up in their own country. It is also the case that not all men have sexual contact with women of their own age group. For those men who have partners who are older than the first female cohort to receive the vaccination, the risk of HPV infection and disease will remain.
Secondly, there are some who believe that the problem with not vaccinating males is largely confined to those who have sex not only with women but also—or instead—with men. It is true that men who have sex with men are, in general, more seriously affected by HPV. Rates of anal cancer in this group have risen sharply in recent years, and anal cancer rates are even higher in men who have sex with men who are HIV positive. It has been suggested that the solution to this problem could be to offer HPV vaccinations to men who have sex with men, on attendance at a GUM clinic. Indeed, this step was recently recommended by the JCVI. In my view, and in the view of HPV Action and other experts, this is a useful but certainly nowhere near a sufficient response. It might be of some help to individuals who receive the vaccine, but it is not an effective solution for all men, or indeed for all men who have sex with men.
That is because we know that people generally become infected with HPV very soon after their first sexual experiences. That is why it is best to vaccinate before a person begins sexual activity. It is also best because the body’s immune response is greater if the vaccine is administered before the age of 16. But if we wait until men who have sex with men turn up at GUM clinics, they are likely already to have had sex with one or more sexual partners. There is lots of evidence to prove that the median age of men approaching GUM clinics is their late 20s and early 30s.
As we cannot practically or ethically identify and vaccinate the 12 and 13 year-old boys who will in their adult lives go on to have sexual activity with other men, the only effective way to protect men who have sex with men is to vaccinate all boys. This would, of course, also protect all other men and increase the level of protection for unvaccinated girls, especially in those areas where, as I have just mentioned, vaccination rates are below 80%.
The proposal to vaccinate all boys has far-reaching support. In fact, it is now hard to find anyone in the field of public health in the UK who does not support gender-neutral vaccination. Significantly, other countries are already vaccinating their boys. Australia, several Canadian provinces and Austria have already introduced gender-neutral vaccination programmes, and the United States is recommending vaccination for both sexes.
I want briefly to mention the issue of cost. HPV Action estimates that the additional cost of extending the HPV vaccination programme to boys in the UK would be in the region of £20 million to £22 million. This relatively small cost has to be set against the economic impact of HPV-related disease. In England, the cost of treating genital warts alone is estimated to be more than £52 million a year. The cost of treating RRP has been estimated at £4 million a year and there are the costs of treating a rising number of HPV-related cancers.
I serve as chairman of Bradford Teaching Hospitals NHS Foundation Trust, so noble Lords will appreciate that I am very interested in health interventions that are cost-effective, as this one clearly would be. But, ultimately, any decision about whether to vaccinate boys should not be made solely on a financial basis, although that is very clear cut. I believe that public health, equity and, above all, the human costs of HPV-related disease for both sexes must be the primary considerations. I would be grateful if the Minister could assure the House that the Government will act quickly to vaccinate both boys and girls in the UK.
Baroness Hollins (CB)
My Lords, I thank the noble Lord, Lord Patel of Bradford, for initiating this important debate. It comes at a time of growing consensus within the medical community that now is the right point to extend HPV vaccination to all boys. It is the only effective and equitable solution to protect against HPV infection. I want to focus my remarks during this debate on the role of HPV in a range of cancers affecting men and the growing evidence that the best way to target HPV in boys is to vaccinate them in school. I shall also raise concerns about a group which is often overlooked in discussion: men with learning disabilities. I ask the Minister to remember this group of men in his response.
There is no doubt that incidences of cancers associated with HPV are going up. The UK has seen a recent rise in the incidence of HPV-related oropharyngeal carcinoma among men, and I understand from the research of Professor Margaret Stanley, who has already been mentioned in this debate, that this has the fastest rising incidence of any cancer—15% a year. Over the past four decades, rates of anal cancer in both men and women in the UK have risen steadily. It is estimated that 90% of anal cancer in men is related to HPV infection, and roughly six people die every week in the UK from this cancer. Infection with HPV is also responsible for nearly all cases of genital warts.
Men who have sex with men are especially at risk of exposure to HPV infection because they are completely outside the vaccinated herd. Reflecting on the comments of the noble Lord, Lord Patel, I presume that if only 80% of girls are vaccinated, since girls are only half the population, that must reduce the effectiveness of the herd to 40%. Does it? The incidence of anal cancer in this group is estimated to be similar to that of cervical cancer in an unscreened population of women.
A not insignificant number of boys will be sexually abused before reaching adulthood, including boys with learning disabilities, who are at much higher risk of abuse and are less likely to have received sex education or to know how to report abuse. Although some improvements have been made, the sexual health needs of those with learning disabilities have, for the most part, been overlooked. This is particularly worrying as evidence suggests that men with learning disabilities who have sex with men are less likely to identify themselves as gay and therefore are less likely to have access to formal or informal sexual education, which places them at even greater risk of getting STIs or even HIV.
It is against this backdrop that HPV Action has been formed. It is a coalition of organisations that support gender-neutral vaccination. It includes the British Dental Association, the Royal College of Obstetricians and Gynaecologists, the Royal Society for Public Health and the Faculty of Public Health, among others. All agree that the case for vaccinating both sexes against HPV is growing stronger. The House will wish to be reminded that my interests include being chair of the board of science of the British Medical Association. The British Medical Association, which represents doctors, has also said that it now believes that there is an overwhelming case for expanding the school-based HPV vaccination programme to include boys. This was debated at the 2014 annual representatives’ meeting, and members voted to accept this evidence and advocate for equity in the vaccination programme.
It is clear that scientific and medical opinion now largely believes that HPV vaccination will prevent many cases of head, neck and penile cancer, and an increasing number of clinicians and public health organisations in the UK recommend HPV vaccination for boys. There is also a growing consensus that the most effective approach to providing this protection to boys would be to provide vaccination in school. To ensure that vaccine recipients are protected, they must receive the immunisation prior to the initiation of sexual activity. As such, there are concerns that providing immunisation only at GUM clinics would not do this effectively. It is not practical to offer HPV vaccination only to men who have sex with men because, to be most effective, boys should receive the vaccine prior to the age of sexual activity. The optimum age for this would be 12 or 13. It is clear that 12 or 13 year-old boys would not attend GUM clinics. We have already heard that the median age for first attendance is around 28 or 29. Boys of 12 or 13 may be unaware of their sexual orientation.
In the existing school-based vaccination programme, we already have an appropriate mechanism for vaccine delivery. From September last year, the HPV vaccination schedule was reduced to two doses. This reduction now provides capacity—this is an important point—to extend the school-based HPV vaccination programme to include boys. I believe that this presents us with a real opportunity, and providing HPV vaccination to all boys in schools will guarantee that high vaccine coverage rates are achieved. If we were to take this step, we would not be the first. Australia, Canada and the USA already offer HPV vaccination to boys.
The introduction of HPV vaccination to protect women against cervical cancer has made a significant contribution to reducing incidences of HPV infection among young women in the UK. This undoubtedly represents a significant health gain. However, there is now overwhelming evidence—and consensus—that there is a case for expanding the school-based HPV vaccination programme to include boys.
Baroness Gould of Potternewton (Lab)
My Lords, I, too, congratulate my noble friend Lord Patel of Bradford on securing this important and rather urgent debate. It is urgent because there are more than 100 different types of HPV being passed from one person to another, not only by sexual contact but by skin-to-skin transmission and through non-sexual routes of HIV transmission, which include vertical transmission from mother to newborn baby. As my noble friend said, HPV is very easily acquired. It is reckoned that most women and men will acquire it at some time during their lives.
This discussion on vaccination for boys takes me back to the early 2000s, when we made similar requests for HPV vaccination for girls, when I was chair of the Independent Advisory Group on Sexual Health and HIV. We need only look at the success of that campaign. It is now the norm for secondary schoolgirls aged 11 to 13 to be routinely offered the vaccination as prevention against cervical cancer. Boys were not included at the time, although our campaign argued strongly that Gardasil should be the chosen vaccine so that they could be vaccinated against genital warts. Not to include boys was a mistake, which we are now trying to rectify.
Since then, the non-vaccination of boys has been a growing issue and concern, as it has become evident that in fact it has serious public health consequences. As a result, as has been said, the BMA reports that there is a growing consensus in the UK that extending vaccination to all boys represents the only effective answer to the question of how to ensure that all are protected against HPV infection. To add to the list of organisations that we have already heard, that is also supported by Cancer Research UK and Jo’s Cervical Cancer Trust and a large number of organisations that work in the field of men’s health.
As has been said, there is increasing evidence of the association between HPV and the many types of cancer and precancerous lesions caused by HPV. A reduction of precancerous lesions would help to reduce the rate of penile and anal cancer in men, as confirmed by Cancer Research UK. As it says, 90% of anal cancer in men is related to HPV infection. A recent statement by the Royal College of Surgeons makes it clear that scientific evidence suggests that the vaccination of boys could help to prevent anal cancer and cancer of the oropharynx and tonsils. The college goes on to say that those types of cancer are increasing. Data from 2012 showed that while there were 2,483 cases of cervical cancer and decreasing, there were also many cases of oropharyngeal cancer and tonsil cancer, which is fast growing.
On getting throat cancer, the actor Michael Douglas got a great deal of publicity—as though it was something unique—when he spoke out about the link between the virus and throat cancer. That view is supported by the Throat Cancer Foundation, which also firmly believes that schoolboys should receive the HPV vaccine to protect against throat cancer. James Rae, head of the foundation, has called the disease a “ticking timebomb”, because boys are routinely exposed to a virus that can cause loss of life. Nor should we ignore in that list of cancers, as has been said, the possibility of head and neck cancers occurring because of HPV.
The importance of the vaccine Gardasil is that it is a protection against genital warts. HPV is responsible for nearly all cases of genital warts. Genital warts are not only a source of infection but can be a source of sexual shame and embarrassment. The medical treatment can be long, often requiring multiple visits for treatments from which there is, unfortunately, no absolute cure. Clinical trials in Australia have shown that the vaccine is 89% effective in preventing genital warts but less effective in those who have already been exposed to HPV. That outcome surely illustrates and identifies not only the need but also the sense of early intervention well before boys become sexually active and are potentially exposed to the virus. To roll out the vaccine to boys would also help to reduce incidence of cervical cancer in women. Equally, at the appropriate age we should also give children information about the risks and about the protection that condoms and dental dams provide. However, they will not absolutely remove transmission; the greater guarantee has to be a vaccine.
At the start of the review in 2013 the JCVI set up a sub-committee to assess whether the programme should be extended to adolescent boys, men who have sex with men or both. As has been said, the review was due to report in 2015. The JCVI concluded that men who have sex with men should be offered the HPV vaccine, and of course that is welcome. However, that will not protect the majority of men who have sex with men because, as has been said, they attend GUM clinics at a rather later age, by which time they may have had multiple sexual partners and so be at risk before they attend a sexual health clinic.
The question that has to be asked, as other noble Lords have asked, is: why the two-year delay to 2017? That delay seems to focus on the model being developed by Public Health England. Maybe the Minister can tell the House if representation has been made to Public Health England, which I spoke to this evening, so that the Government can honour their original and welcome commitment.
I will make two final points. The cost of a jab of vaccine is £45. If that is multiplied by the nearly 400,000 boys who should be vaccinated, the total cost would be around £23 million per annum. We might say that that is a lot of money, but if that figure is set alongside the cost of the treatments for the consequences of HPV, there would be savings, be it in the treatment of the various cancers or of genital warts. To take just two instances, it is estimated that the treatment for throat cancer costs the NHS £45,000 per patient. The cases are not all caused by HPV, but the number that is caused by it is growing, so there could still be substantial savings. Add to that the cost of treating genital warts of the figure we just heard—£52 million each year—and add the cost of treatment for anal and penile cancers and head and neck cancers. Put it all together and it is clear that over a period there would be savings to the NHS. Can the Minister say whether that exercise has been undertaken, so that we can show that in fact there is a financial case for implementing the vaccination of boys against the HPV virus? In addition, the fact that the HPV vaccination schedule has been reduced to two doses should mean that there is the capacity within the existing school-based programme to extend that vaccination programme to include boys.
My second and last point relates to the question of equity. Withholding a health intervention from any group at risk of easily preventable diseases is inequitable and discriminatory. Not vaccinating boys may be, as has been said, in breach of the Equality Act—I think it is—because it discriminates against boys who are at risk because of the withholding of a particular health intervention. Vaccinating girls is not sufficient; men will continue to have sexual contact with unvaccinated women, whether in this country, where according to Public Health England the critical 80% threshold for girls is not being met in many parts of the UK, or they may have sexual partners outside the UK. It might also be said that providing vaccination to gay men only discriminates against heterosexual men. Therefore, this question of discrimination should be looked at.
The human cost of HPV-related diseases has to be the primary consideration, and this is a genuine opportunity to make progress in the fight against cancer by a simple jab at a cost of £45. Lives can be saved each year if boys are given the same vaccination that protects girls from developing cancer. Other countries have been named, such as Canada, Australia and the United States, but one country has not been mentioned: South Korea, which has vaccinated boys and shown the efficiency of the vaccine. I therefore ask the Minister why we have to wait another two years for a decision, or even longer before the programme starts. The answer has to be prevention—a programme of prevention that provides for a gender-neutral vaccination strategy in schools for all 11, 12 and 13 year-old boys and girls.
The Countess of Mar (CB)
My Lords, I am grateful to the noble Lord, Lord Patel of Bradford, for bringing this question to our attention this evening. I am afraid that I do not share his enthusiasm or that of my noble friend Lady Gould for HPV vaccines.
I know that the Minister is aware of my concerns about the safety of human papilloma virus vaccination when it is used in girls. The problems that I have taken to him over the past two years do not apply only to girls and young women in the UK. Wherever HPV vaccine programmes exist there also exist high numbers of adverse reaction reports. After only six weeks, the Japanese Government withdrew their recommendation for the administration of HPV vaccine as a result of adverse event reports for Gardasil that were 26 times higher, and those for Cervarix 52 times higher, than those for the annual flu vaccination. One-quarter of these adverse events were considered serious. Denmark has recorded a quarter of adverse events as serious, while Italy reports adverse events at a rate of 219 per 100,000, 10 times higher than most of the other vaccines administered in Italy. According to the High Court in India, where 24,000 girls were vaccinated during demonstration projects, an estimated 1,200 were left with chronic health problems and/or autoimmune disorders. In the USA, HPV vaccines account for nearly 25% of the entire Vaccine Adverse Event Reporting System, or VAERS, a system that was established in 1990—and HPV vaccines were not introduced before mid-2006. In France, Spain and Colombia, there are ongoing court cases relating to girls who are suffering chronic ill health following HPV vaccination. In the USA, the National Vaccine Injury Compensation Programme has awarded $5,877,710 dollars to 49 HPV vaccine-damaged victims, and to date there have been 200 claims filed. This demonstrates that my concerns are not confined just to the UK.
Merck, the manufacturers of the vaccine Gardasil, admits in its own research documents, where Gardasil is compared with a new vaccine, Gardasil 9, that of 7,378 girls who were vaccinated, 2.5%—that is, 185—suffered serious adverse events. It also admits that 3.3%—that is, 240—suffered autoimmune disorders. A serious adverse event must fit one of the following criteria: death; life-threatening; disability or permanent damage; hospitalisation; congenital abnormality or birth defect; or the requirement to intervene to prevent permanent impairment. It is likely that such events in the general population would be higher because certain at-risk groups are excluded from clinical trials but not from vaccination programmes.
Cancer rates are always quoted as so many per 100,000; in the case of the Gardasil clinical trial, there would be 2,500 serious adverse events per 100,000 vaccinated. UK cancer cases are identified as 8.8 per 100,000 and with deaths as three per 100,000. UK HPV vaccine yellow card adverse reaction reports have been identified at 341 per 100,000, with serious reports numbering 108 per 100,000. We must not lose sight of the fact that the MHRA admits that possibly only 10% of adverse events are reported. A report represents a person and, within that report, the symptoms experienced by the individual are listed. The MHRA identifies the number of reports received, and the number of symptoms from individual reports are put under the appropriate headings in the MHRA statistics.
Interestingly, at the meeting of the JCVI HPV sub-committee, the MHRA reported:
“No significant new safety concerns have been identified during 2012/13 since Gardasil was introduced”.
In the light of what I have already said, I ask the Minister just how significant a serious reaction must be before it becomes a safety concern. How many have to report serious reactions before preventive action is taken? Are more than 108 per 100,000 young people to have their lives destroyed in order to save a possible 8.8 per 100,000 lives from cancers which, if detected early by the PAP screening programme for cervical cancer, which is not known to cause deaths or serious side-effects, can be treated?
Had the Minister been at the meeting of the All-Party Parliamentary Group for Vaccine Damaged People last week, he would have heard of the tragic lives many of the young women are leading. He would have seen videos of two young women who are bedridden—young women who, had they not been vaccinated with Cervarix or Gardasil, would have been leading active lives and, instead of being totally dependent on their parents, would have been about to fly the nest, go to university and be productive members of society. They represent many more in the UK and worldwide whose lives have been totally destroyed.
Gardasil has been on the market in the USA since June 2006 and has two of the high-risk HPV strains, 16 and 18, which are believed may lead to cervical cancer. The VAERS is now receiving reports from Gardasil-vaccinated women who have developed HPV infection, cervical dysplasia or cervical cancer. There are some 15 high-risk strains of HPV which are thought to be cancer-causing. These reports could well represent only the tip of the iceberg. Even the Minister’s honourable friend Anne Milton acknowledged on 7 July 2011 that:
“There is a possibility that other HPV strains could replace HPV 16 and 18 following the introduction of the HPV vaccination programme. However, there is no data with which to determine whether and how quickly this would take place”.
I have read the JCVI interim position statement on HPV vaccination of men who have sex with men, dated November 2014. It seems that the jury is still out as to the science behind offering HPV vaccination to this group, though they would appear to be the most vulnerable to HPV infection. I believe that the JCVI is rightly cautious. I understand that the human papilloma virus has never been proven to cause cancer by itself and that HPV vaccines have never been proven to prevent a single case of cancer. Other risk factors must be present for cancer to develop. According to the World Health Organization, only 0.15% of all people exposed to any high-risk strain of HPV will ever develop cervical cancer. There is no guarantee that eliminating one risk factor for the development of cancer will have any impact on the disease incidence or mortality rate, and there is no guarantee that any suppressed oncogenic HPV type will not mutate over the next 20 years to become more dangerous.
I have seen what has happened to our girls and young women when vaccination goes wrong. Do we really want all young boys to be just as vulnerable?
Baroness Wheeler (Lab)
My Lords, I, too, am very grateful to my noble friend Lord Patel for securing this debate and providing the opportunity to address this important issue. I also pay tribute to his contribution and work as chair of the All-Party Parliamentary Group on Men’s Health and to his dogged and persistent campaigning on the need to give teenage boys the HPV vaccine to prevent men getting cancers. Indeed, we have been very fortunate today to have the expert contributions from other strong campaigners on this and other key sexual health issues.
As we have heard, there is certainly a compelling case for challenging the Joint Committee’s 2008 conclusion that evidence did not support applying the universal programme of HPV vaccination for girls to boys. We have heard today how the contention that for boys such a programme would provide little additional benefit or be cost effective—because vaccine efficacy was high, and high coverage in girls would provide herd protection for boys—is increasingly difficult to sustain.
HPV Action, which leads the campaign for a gender-neutral HPV vaccination programme, is an authoritative voice on this issue and an umbrella body whose members include a wide range of leading public health, cancer, oral health, sexual health and men’s health organisations. The BMA, the Royal College of Physicians, the Royal Society for Public Health, and the charities Cancer Research and others, such as Jo’s Cervical Cancer Trust, all strongly support the campaign for the vaccine and the vaccination itself. The latter stresses that vaccinating both girls and boys at a young age may be the best way to achieve the greatest protection for females against the risk of cervical cancer, and that extending the vaccine to boys would provide universal protection to both sexes from many other HPV-related cancers. The BMA points to “overwhelming evidence” supporting extending the HPV vaccine to all boys as well as girls before they start having sex. Indeed, there is growing consensus in the UK and internationally that extending the HPV vaccination to boys represents the only effective, equitable solution to ensure that all are protected.
We can also acknowledge that the JCVI’s recent recommendation for men who have sex with men—MSM—to be offered HPV vaccinations when they attend sexual health clinics is an important step forward. However, we have heard today the strong concerns that this is not enough to protect MSM, and that the reality is that most MSM will remain unvaccinated. The most effective protection for MSM and heterosexual men is to vaccinate all adolescent boys before they become sexually active. The JCVI consultation on MSM ended this month. Does the Minister have any update on the level of response and do the Government have an estimated date for receiving the JCVI’s final advice?
There is also strong evidence that vaccinating boys will also help to protect women. The Royal Society for Public Health says:
“While the vaccination for girls does offer herd immunity for boys, this doesn’t take account of transient populations and presumes that males remain within the herd. Men may still contract HPV elsewhere (e.g. travelling abroad) or from females in the UK who have had the vaccination”.
On HPV vaccine for adolescent boys, the JCVI, in its November 2014 MSM interim statement, expresses disappointment that the modelling work on the impact and cost-effectiveness of the programme by Public Health England is not able to begin until this year, when, as we have heard, it had originally been expected to have taken place so that recommendations could come through this year. The JCVI is right to stress that it would be inadvisable to take shortcuts in the process of modelling which might undermine the validity of the results, but I hope that the Minister acknowledges the widespread concern that the delay and the revised estimated date for the recommendations of early 2017 is causing. I hope that he can shed some further insight on the reasons for the PHE delay and on what action the Government will be able to take to help the JCVI bring this date forward. The HPV action estimate is that every year that passes leaves 400,000 boys unvaccinated and unprotected. That is a worrying figure indeed. The noble Baroness, Lady Hollins, expressed particular concern about the position of boys with learning difficulties. I look forward to hearing the Minister’s response to that because it is obviously a very important issue.
Obviously, the JCVI work on the impact and cost-effectiveness of vaccinating adolescent boys is crucial, balancing the cost of the vaccination programme with the cost of treating HPV-related diseases, which is considerably more. My noble friend Lady Gould spelt out the costs involved in that. The RSPH’s call to action on extending the vaccine programme to all 12 to 13 year-old boys calls for the negotiation of a cost-effective HPV vaccine based on the Australian Government’s experience, which managed to secure a reduced cost per dosage of the vaccine for boys. My noble friend Lady Gould also referred to the changes last year in the vaccination programme for girls from three doses to two. The savings involved in that could have the potential to be invested in extending the programme to boys.
Finally, I underline the RSPH’s call for the need for a major campaign to increase public awareness of the risk of transmitting or contracting the HPV virus, and the potential impact that HPV can have on everyone. This is especially important in schools as a key part of the PSHE schools programme. Labour is strongly committed to, and in favour of, sex and relationship education being compulsory in all publicly funded schools in an age-appropriate way. The Minister will know that we tabled key amendments on this during the course of the then Children and Families Bill, but there was strong resistance from the then Education Secretary, Michael Gove. We also underlined the need to update the statutory sex and relationship guidance issued by the education department to schools, which has not been updated since 2000. In the spirit of joined-up government, I conclude by asking the Minister if the Department of Health will lead the way on this. Is it undertaking any work on this, and will he ensure that HPV awareness forms part of this work?
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I begin by congratulating the noble Lord, Lord Patel of Bradford, on securing this debate and on bringing this important subject to your Lordships’ House. I understand the noble Lord’s concerns on this issue. Vaccines provide vital protection from a large number of diseases, including the human papilloma virus. We need to ensure that they are used as effectively as possible and that those who would most benefit from them are included in any vaccination programmes that we implement.
As has been mentioned, the Government are advised on all immunisation matters by the statutory body, the Joint Committee on Vaccination and Immunisation. The JCVI keeps all immunisation matters under review, providing advice and recommendations to Ministers on all current and potential vaccination programmes. It is, therefore, to the JCVI that we look for expert advice when considering issues such as those raised today.
The UK’s current HPV vaccination programme, based on advice from the JCVI, began in 2008, and its aim is to prevent cancers relating to HPV infection, specifically cervical cancer. HPV is a sexually transmitted disease. Our main objective, therefore, is to provide HPV vaccine to young women before they reach an age when exposure to HPV infection increases and vaccination would become less effective because many would have already been infected. For that reason, the vaccine is offered to all girls in school year 8—that is, at ages 12 to 13 years. As HPV is responsible for virtually all cases of cervical cancer, prevention of this disease remains the primary aim of the current programme.
The UK’s HPV vaccination programme has been a considerable success. Almost 8 million doses have been administered across the UK since 2008 and this country has among the highest rates of HPV vaccine coverage achieved in the world. In England, 86.7% of girls eligible for routine vaccination in the 2013-14 academic year completed the three-dose course and 89.8% have received at least two doses of vaccine.
The noble Baroness, Lady Hollins, asked about herd immunity. When recommending introduction of the programme in 2008, the JCVI considered that once 80% coverage among girls was achieved, which we have now attained, the vaccination of boys was likely to provide little additional benefit in preventing cervical cancer in girls. As the noble Lord, Lord Patel, made clear, with high uptake of HPV vaccine among girls, many boys will also be protected against other HPV-related cancers such as anal cancer and head and neck cancers, because transmission of HPV between girls and boys should be substantially lowered.
However, as I mentioned, the JCVI keeps all vaccination programmes under review and has recognised that under the current programme the protection that accrues from reduced HPV transmission from vaccinated girls may not be provided to men who have sex with men, or MSM, because they are less likely to have sexual contact with vaccinated women. Given increasing evidence of the association between HPV infection and oral, throat, anal and penile cancers, and the impact of HPV vaccination on such infections, the JCVI set up an HPV sub-committee in October 2013 to consider a number of key issues around HPV vaccination, including the question of potentially extending the programme to MSM and adolescent boys—that is, to protect those who may go on to become MSM—or to both. The committee has also noted the public, parliamentary and third-sector concern about this issue and agreed that evaluation of potential extensions to the programme to include MSM, adolescent boys, or both, should be a priority.
Your Lordships may be aware that last November, following very careful consideration of the evidence, the JCVI published for consultation provisional advice that a targeted HPV vaccination programme should be introduced for MSM aged between 16 and 40 years attending genitourinary medicine and HIV clinics. The JCVI consultation ended on 7 January 2015 and we await the committee’s final advice on this matter.
The JCVI’s HPV sub-committee is also giving consideration to work modelling the impact and cost-effectiveness of extending HPV vaccination to adolescent boys. I am advised that it is currently anticipated that a model being developed at Warwick University could be presented to the sub-committee in the second half of this year. A separate model being developed by Public Health England may not now be completed until early 2017. I also understand that the JCVI and its HPV sub-committee may need to consider both studies before taking a final view on the impact and cost-effectiveness of extending HPV vaccination to adolescent boys and may therefore not be in a position to do so before early 2017. The JCVI has noted that the cost-effectiveness of an HPV programme for adolescent boys is not certain, because the high coverage rates achieved for adolescent girls are highly likely to interrupt HPV transmission and provide indirect protection for boys to such an extent that there may be little additional benefit to be accrued from extending the programme. However, the committee agreed that a detailed cost-effectiveness analysis was required to fully understand the potential benefits of any proposals.
The noble Baronesses, Lady Gould and Lady Wheeler, asked why there has to be this two-year delay. Work to model the impact and cost-effectiveness of vaccinating adolescent boys with HPV vaccine is dependent on the completion of work by PHE on an individual-based model for HPV screening, as the intention was to use the completed screening model as a basis on which to model adolescent male vaccination. An individual-based model is critical to proper assessment of an adolescent boys’ vaccination programme. Individual-based models are very complex and mathematical; they simulate the impact of an intervention on individuals within a population through time and take a considerable amount of time and resource to develop. The screening model is now not due to be completed until early this year. Although disappointed that modelling work on the cost-effectiveness of HPV vaccination of adolescent boys by PHE will not begin until early 2015, the JCVI agreed that in order to expedite the work it would not be advisable to take any shortcuts, which could undermine the validity of the outputs. As I said, the PHE model may not now be completed until early 2017. The HPV sub-committee will meet during 2015 to review the progress of these studies and will report its findings to the JCVI following consideration of work modelling the impact and cost-effectiveness of extending HPV vaccination to adolescent boys.
Your Lordships will be aware that the NHS budget is a finite resource. New vaccination programmes and extensions to existing programmes will usually represent a significant cost to the health service, in terms of both vaccine purchase and its administration to individuals. It is therefore essential that any advice or recommendations from the JCVI on changes to the national vaccination programme be supported by evidence to show that they would be a cost-effective use of resources.
The noble Lord, Lord Patel, asked about an equalities assessment. An equality impact assessment was completed in 2008 for the introduction of the national HPV vaccination programme for girls. At that time, vaccination for boys for HPV was considered to be not cost-effective for the prevention of cervical cancer.
The noble Countess, Lady Mar, raised the issue of the Japanese experience. HPV vaccines, in fact, remain licensed for use in Japan and continue to be available for girls and women who wish to receive them. The decision of the Japanese authorities temporarily to stop their active recommendation for immunisation due to reports of chronic pain was a precautionary move while they gathered more data. However, EU regulators have reviewed the issue and concluded that there is currently insufficient evidence to indicate that HPV vaccines may be a cause of chronic pain or chronic pain syndrome, which has also been associated with needle injection itself—that is to say, not specific to the vaccine. It remains the case that a causal relationship with HPV vaccines has not been established.
The Countess of Mar
My Lords, I am sorry to interrupt, but even the manufacturers recognise autoimmune dysfunction as a result of their vaccines.
Earl Howe
My Lords, I will take that point away and respond to the noble Countess in writing, as I do not have briefing on it. Suffice it to say, lest there be any doubt, we consider vaccine safety to be of paramount importance. The Medicines and Healthcare products Regulatory Agency has closely evaluated the safety of the HPV vaccine since it was first introduced in this country. The agency takes every report of suspected adverse reactions very seriously and keeps safety under continual review. Again, the view remains that there is currently insufficient evidence to indicate that illnesses are a side-effect of the vaccine.
The MHRA recently completed an epidemiological study of myalgic encephalomyelitis and chronic fatigue syndrome following HPV vaccination. This found no evidence to suggest that the vaccine may be a cause of the condition. The results of the study were published in a peer-reviewed scientific journal in 2013, as I am sure the noble Countess is aware. It is estimated that more than 30 million females worldwide have been vaccinated with HPV vaccine. The United States health authorities have also extensively reviewed HPV vaccine safety and the World Health Organization is assured by its safety.
Time is against me, so I will write to noble Lords on those points that I have not been able to cover. Let me just say that this is very much work in progress. Clarity on timelines cannot be achieved until the JCVI HPV sub-committee has met and reviewed the available evidence. We anticipate that sufficient evidence for the JCVI to be able to offer final advice on the vaccination of men who have sex with men will become available during 2015 but that sufficient evidence for the JCVI to be able to offer advice on the vaccination of adolescent boys may not now become available until 2017 at the earliest. I am afraid that I cannot give any comfort on an earlier date. I recognise that 2017 seems a long way off. However, I hope that the noble Lord will agree that it is essential that the JCVI does its work thoroughly and comprehensively before finalising its advice to the Government. He asked whether Ministers will meet the JCVI to discuss this. I will pass that recommendation to my honourable friend Jane Ellison MP, the Minister for Public Health.
The noble Baroness, Lady Hollins, requested that the issue of men with learning difficulties should specifically be brought to the attention of the JCVI. All girls are covered, regardless of disability, so this is an issue that could be brought to the attention of the JCVI and officials will do that.
Finally, I thank the noble Lord once again for initiating today’s debate. I very much hope that the discussion has been helpful in providing reassurance of our commitment.
Counter-Terrorism and Security Bill
(9 years, 10 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I shall speak also to Amendments 62, 63 and 64. The Committee will be pleased to know that I am aiming to be extremely brief on all the amendments left in my name for today.
Amendment 57 is an amendment to Clause 3(6), which provides:
“If a temporary exclusion order is revoked, it ceases to be in force when notice of its revocation is given”.
I am intrigued to know why the effect of the order continues until notice is given. By definition, there is a delay between the decision to revoke and the notice of revocation. Although this is not the whole of the point I am making, I am not sure whether notice being given means a notice received or a notice, as it were, sent out. In any event, there is a time difference between the decision and the notice, and I should have thought that the revocation should take effect immediately.
Amendment 62 is an amendment to Clause 8, which provides for the obligations on an individual who returns under an order. Here, the notice imposes the obligations on an individual who is subject to the order and who has returned to the UK. Are there no obligations in a period before the return to the UK or is this something to do with the proceedings which have taken place in the UK? The status of somebody who is subject to an order but has not returned intrigues me. Are there no obligations which may apply to an individual before he returns to the UK? The obligations are backed up by Clause 9, which is about offences if restrictions are contravened. My question here is about status.
Amendment 63, also an amendment to Clause 8, is similar to Amendment 57. I note that the notice of the obligations comes into force when it is given and is in force until the order ends. Is there a point at which the notice is deemed to be given? My amendment will provide for it actually to be given. My noble friend will understand that I am seeking to understand when it comes into force.
Amendment 64, also to Clause 8, is similar to Amendment 57 in that the variation or revocation should come into effect immediately, not take effect when notice is given, and the same questions are raised as for the earlier amendment. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to my noble friend for bringing forward these amendments, which provide an opportunity to put further information on the record as to how temporary exclusion orders will work in practice. Amendment 57 seeks to provide that a temporary exclusion order ceases to be in force immediately when revoked, not when notice of revocation is given. We believe it is important that notice of revocation is given and that this is the point at which the order ceases to be in force. It is right that the individual concerned is made aware that the restrictions and obligations imposed on them will no longer be in place.
Similarly, Amendment 64 seeks to ensure that any variation or revocation of the in-country obligations placed on an individual come into effect immediately rather than once notice has been given to that individual. In the same way, we believe that it is right that notice of revocation is given and that this is the point at which the obligations cease to be in force. It is important that the individual concerned is made aware that the obligations imposed on them will no longer be in place. More importantly, it is vital that the individual is informed of any variation to the obligations before these variations take effect to avoid an unintentional breach, which could lead to prosecution.
Amendment 63 seeks to provide that notice of any in-country obligations comes into force when an individual is actually given the notice. As the individual will have returned to the UK under the terms of the temporary exclusion order, we will usually know the whereabouts of the individual and, in practice, should always be able to serve the notice on them in person. But it may be expedient for an individual as well as for the authorities for notice of a variation, for example, to be posted to the individual rather than served in person. In addition, there may be circumstances in which an individual absconds and is therefore no longer at the contact address. In all those circumstances, it is right that notice can be deemed to have been given, provided proper procedures are followed. Parliament will be able to review those procedures, but I can assure your Lordships that they will be based on well established practice in relation to immigration decisions.
Finally, Amendment 62 seeks to allow the Secretary of State to impose the in-country obligations of a temporary exclusion order on an individual who is about to return to the UK, as well as on those who have already returned to the UK. The in-country elements of a temporary exclusion order cannot be imposed until the individual has returned to the United Kingdom, a point on which my noble friend sought clarification. This will allow law enforcement partners to assess the most appropriate measures to manage the risk posed by the individual at that time, which may be a matter of years after the decision to impose the order was originally taken. It may even be appropriate to arrest and prosecute the individual, rather than impose any in-country measures on them. Therefore, it would not be appropriate to apply the in-country measures to someone who is about to return. It is better to wait until the individual is in the UK and form an assessment about the in-country measures at that stage.
In terms of the obligations and when they come into effect before return to the UK, the obligations made against the individual will apply only when the individual returns to the UK. Before that point, the individual will be subject to the temporary exclusion order in that their return will be disrupted and controlled, and they may be subject to conditions under the permit to return. But they will not be subject to in-country measures until they return for the reasons that I have outlined. I trust that that is a helpful reply to my noble friend and I invite her to withdraw her amendment.
Baroness Ludford (LD)
I apologise that I did not come in before my noble friend spoke but something he said has prompted me. In resisting Amendment 63 in the name of my noble friend Lady Hamwee to require an actual giving of notice, he referred to cases where it could be deemed to have been given. I think that that would refer to Clause 10, under which the Secretary of State may make regulations about the giving of notice under Clause 3. The Clause 10 states:
“The regulations may, in particular, make provision about cases in which notice is to be deemed to have been given”.
My noble friend referred to immigration case law. First, will he give us an idea of what circumstances qualify as “deemed”? Secondly, how much would be included in those regulations under Clause 10 about the criteria or circumstances, or what would qualify in substance as deeming to give notice?
Lord Bates
I am grateful to my noble friend for seeking clarification on this issue. The clause follows the same procedures as apply to other measures that might be introduced, such as those concerning immigration. Clearly, we would like to serve the notice in person but, given that the person might be overseas and engaged in terrorist activities, that might not be possible. However, that cannot be a reason why the order cannot be deemed to have been served. Therefore, we have followed the same routes as in immigration cases and the notice would go to their last known address.
I am grateful to my noble friend for giving me the opportunity to expand on this point. The key issue is that we want the individual to get the message that they are subject to a temporary exclusion order because we want them to make contact with the authorities so that they can have a properly managed return to the UK. We do not want the risks which might occur of somebody turning up and seeking to board a flight and only at that point discovering that their travel documents have been invalidated. It would serve everyone’s purpose that the procedures are followed and that people are made aware. I hope that is helpful to my noble friend.
Baroness Hamwee
My Lords, I thank my noble friend for his reply. At the same time as he was saying that it is important that the individual knows—I absolutely go along with that—he also said that it is possible for there to be deemed notice. I need to read how those two fit together. I take the point that there is a distinction between variation of obligations and the revocation of an order. Of course, one is accustomed to a notice sometimes having to be served by post or whatever—there are many instances where a notice is deemed to have been given—because if that were not the case the prospective recipient of the notice could always avoid being given it by slipping around.
I was a little alarmed by my noble friend’s comment, if I heard him aright, on Amendment 62 that it could be years before an individual came back, which takes us back to earlier discussions. However, the Minister has covered the ground and I will do my best to cover his answer properly when I read it. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Clause 4(3) provides that an individual’s,
“failure to comply with a specified condition has the effect of invalidating the permit to return”.
My amendment would confine that to a “material failure to comply”. A deliberately absurd example would be if the individual was 10 minutes late for an appointment. There must, presumably, be some de minimis provision around this and I would be grateful if the Minister could flesh this out. In my view, minor or trivial breaches should not invalidate the permit to return.
Amendment 60 is on similar lines. It is an amendment to Clause 5 under which, specifically, the Secretary of State can refuse the permit if the individual fails to attend an interview. Amendment 60 proposes that the individual’s failure to attend should be an unreasonable failure—the bus is late or whatever. I am picking trivial examples in order to point up what I think needs to be pinned down.
Finally, Amendment 61 would leave out subsection (3) of Clause 5 which provides that the,
“return time must fall within a reasonable period after the application is made”.
I can see that we would not want the individual roaming the world for a year and going off the radar, but I would like to probe how this would operate. I am concerned, as much as anything, with the workability of the provision. At the end of the day, it would be for a court, but how is “reasonable” to be determined and who determines it? I beg to move.
Lord Ashton of Hyde (Con)
My Lords, this brief debate has discussed the permit to return which would be issued under a temporary exclusion order so that an individual can return to the UK. The amendments tabled by my noble friends seek to specify that a permit to return is invalidated only if the individual’s failure to comply with a specified condition is material and that the Secretary of State may not refuse to issue a permit to return for failure to attend an interview unless the individual unreasonably fails to attend that interview. I appreciate the rationale behind these probing amendments but I hope I can reassure my noble friends that they are not necessary in this instance.
Conditions will be put into a permit to return where the Secretary of State considers they are necessary in order to protect national security. Any failure to comply with a specified condition will therefore be material, on a common-sense definition of the word. Amendment 58 would have the effect of ensuring that a person is not criminalised by an inadvertent failure to comply, but this is already provided for by the “reasonable excuse” defence in Clause 9 and the amendment is therefore superfluous.
Amendment 60 seeks to provide that the Secretary of State may not refuse to issue a permit to return for failure to attend an interview unless the individual unreasonably fails to attend that interview. I can reassure your Lordships that, in such instances, the Government would exercise discretion on what constitutes a reasonable or unavoidable failure. The Bill already provides that the Secretary of State retains the ability to issue a permit to return even if she has required someone to attend an interview and the person has failed to do so. Clearly, in the case of a reasonable failure, the Secretary of State would be minded to allow the person to return in a controlled manner, which is, after all, the object of the exercise.
Finally, Amendment 61 seeks to probe the timeframe for return specified in a permit to return. The Bill provides that the return time specified in the permit must be within a reasonable period after the application is made. This is a key provision for the temporary exclusion power because it ensures that it meets our requirements under international law. What constitutes a reasonable period, which is what my noble friend Lady Hamwee asked, will of course be determined on a case-by-case basis, and it will need to take account of factors such as the frequency of flights to and from the country where the person subject to the order is.
On the basis of these explanations, I hope that my noble friend feels that I have addressed the issues being probed by these amendments. I invite her to withdraw Amendment 58.
Baroness Hamwee
My Lords, on the explanation about material failure and so on, it seems that there is a distinction between the consequences of failure under Clause 4, the situation under Clause 5, and the offences which are dealt with in Clause 9, to which the Minister pointed the Committee. There are other consequences to the failures which are the subject of my first two amendments. I would like to think about that a little further. I thought that I was going to get a reassurance based on case law as well as common sense, which do come together quite often. I had not quite expected to be pointed forward to Clause 9, so I will have a think about that after today. For now, certainly, I beg leave to withdraw the amendment.
Baroness Smith of Basildon (Lab)
My Lords, Amendment 59 is a probing amendment to try to get some of the detail of what is really involved in how a temporary exclusion order will operate. It is around the permit to return. Clause 4(8) states that:
“It is for the Secretary of State to decide the terms of a permit to return (but this is subject to section 5(3))”.
That is the subsection which the noble Baroness, Lady Hamwee, has just sought to delete in an amendment. However, all Clause 5(3) does is state that the return must be made,
“within a reasonable period after the application is made”.
There is no opportunity for Parliament to look at the detail of this procedure or indeed to consult, so the amendment we propose is that the procedure should be published and that there should be some consultation on it. By tabling the amendment, we hope to get a response from the Minister that will help us to understand the workability of these measures—a term used quite a lot in the Immigration Act. Are these measures going to be workable in practice? If they are workable, will they have the effect that is intended?
When the Secretary of State initially rejected judicial oversight of temporary exclusion orders in the other place, she said that they were less restrictive than TPIMs. I think that temporary exclusion orders are a significant power for a Home Secretary to take. In itself, a significant power is not a reason for opposing it, but it does make the case for the Government to provide absolute clarity on what is involved and how it is to work in practice. I hope that that is what we are going to do today. I shall be absolutely clear: we see the value of and we support managed return. We have made that clear throughout the proceedings. But there are a number of issues around the support provided for managed return. For those who return disillusioned, there is an opportunity to engage in the Prevent or Channel programmes, which will be of enormous benefit and support to them and to their families. There is also the opportunity to ensure that they are subject to TPIMs, if appropriate. The Joint Committee on Human Rights has made the point that it is far preferable to take preventive action early on rather than having to take more serious action at a later stage. However, if these orders and that type of preventive action are to work, they will have to be effective in their process and in their practical application. They need to be both effective and efficient.
Many questions arise when reading the Bill, the Explanatory Notes and the Government’s factsheet, which is perhaps more helpful in identifying questions to be asked than in giving answers. I give one example of why it is so important that we make sure that we have got this right. In the past few weeks we have had cases—noble Lords will be aware of them—of nurses who have been treating Ebola patients in Sierra Leone returning to the UK. We were all told that there was a managed process in place to ensure that if they had Ebola—if they might be infected and ill—that would be identified at the airport and certain procedures would be put in place before they could return home. As we have seen from press reports, that kind of managed return was not as successful as the Government had indicated.
Baroness Hamwee
My Lords, at Second Reading it was clear that a number of us were finding it difficult to get our heads around how this would work at the point of the process that the noble Baroness has indicated. I wrote down a list of questions and I have crossed most of them out, because she has been so thorough in the questions that she has asked of my noble friend.
Whether in this form of amendment or something similar, it is immensely important that there is transparency and general understanding of what the processes are, and of how they should work. First, this is because of the civil liberties and restrictions inherent in all of this. Secondly, we want regular reports on how the process is working. We want the independent reviewer to be able to report and he probably needs criteria to report against. The issues that the noble Baroness has raised are hugely important. I am sorry to use the term “workability” again. Shall I slightly change the tune to “operability”? We want the operability to be satisfactory.
Baroness Warsi (Con)
I support this important probing amendment. I hope it will provide an opportunity to iron out some of this detail. With a provision such as this, especially when there are real concerns within certain communities about the motivation for it and the impact that it will have on them, transparency of process is essential. Therefore, the more that we can get in the Bill, and the more of detailed process that we can have, the more that will help to get what we want to achieve.
This amendment returns to the purpose of the exclusion orders. In many ways, the temporary exclusion order would probably have better been called the controlled entry order or even the managed return order. In that way, it would have been much more reflective of what the TEO is trying to do. It would have said what it was on the tin and would have dealt with some of the controversy that surrounds it. It may be that this is something that Ministers will want to reconsider. Maybe they will. It is general election year, so maybe they will not.
Following on from the noble Baroness, Lady Smith, on the importance of the detail of the process, I should like to ask one or two questions. Have we considered the implications of what we would be expecting other states to do in relation to our commitments under other international obligations? We can take the example that the noble Baroness gave, of someone being detained but subsequently tortured or mistreated somewhere overseas, wherever it may be. There is a lot of talk of places such as Turkey, but this person could be engaged in terrorist activity in Afghanistan and return via Pakistan. What are implications of this and what assurances about these countries would we have?
How would these people be returned? If a person is considered to be a dangerous individual who has in some way been involved in terrorist activity, I am not sure I would want to be sitting on a commercial flight back from Istanbul with them. Have we considered the implications of returning these people and the resource implications of having to pay for individual flights for them to be returned?
Lord Harris of Haringey (Lab)
My Lords, a series of very important questions have been posed to the Minister. I want to add just a few more. It is important that there is clarity as to how this is going to work, for all the reasons that the Committee has touched on already about the possible blowback and the negative implications of this clearly not working or not working in the way that Ministers hope it will. There are some very serious and complicated issues.
I have still not fully understood—I appreciate what was gone through at Second Reading—why this is not, in practice, rendering an individual stateless. I am told that this is because it is just temporary. But the Bill contains the power to renew it for a further two years, and potentially indefinitely. First, what is the justification for having any power to renew a temporary exclusion order? Surely within two years it will have been possible to arrange this managed return, so why is it there? Surely it must imply that there is an expectation that some orders will be renewed and the thing will be continued and will go on and on. In which case, we need to understand why that is and why it does not in effect render the individual stateless.
Secondly, I want to hear from the Minister the implications in terms of how other nations will react to the fact that there is an individual in their country who has been labelled by this country as a suspicious person who has engaged in acts of terrorism, which is why a temporary exclusion order has been served on them. What are those countries going to do with the individual concerned? The noble Baroness, Lady Warsi, raised the issue of torture, and I do not think that is fanciful. These are individuals whom the British Government have labelled as people we are so concerned about that we want to put restrictions on what is going to come back with them. Other countries are not as squeamish or civil libertarian as perhaps we are in this country or some other European states and they will say, “Right, if the British Government say this individual is potentially dangerous, we must react as though they are potentially dangerous”. We know what happens in some of those countries to people whom they regard as potentially dangerous.
The cynical—those who are trying to manufacture trouble on this, trying to feed the narrative that leads to violent extremism and jihadism—will say that this is exactly what the Government want. They want people to be permanently excluded. They would be delighted if they are then tortured in another country. That is what cynical conspiracy theorists will say about this, so it is critical that we understand what the status in another country will be of people whom we have labelled in this way. What will be the level of consular protection and support? Will this be by agreement with the countries concerned? What will we do in cases where we do not have the sort of relationship with the countries concerned that will enable that to happen? What if the country says, “Okay, the British Government say this person is dangerous and that he cannot fly. We aren’t interested in that. We are deporting him to the United Kingdom”? Presumably, if such people turned up on the doorstep, they would immediately be subject to a TPIM. I assume so, but that would not be a managed return; they would have just arrived because they had been deported. What if they are deported somewhere else? What happens about the recipient country?
These are important questions. The way in which we treat individuals about whom we have suspicion is extremely important because other countries will assume that because we are treating them as suspicious, there is something that they, too, should be concerned about, and they may take steps accordingly.
I hope the Minister will make the best of the very large number of notes that he has now received on all these points. These are important issues that we need to clarify. While we as a nation must do what needs to be done in respect of individuals who have been in a war zone and come back radicalised and potentially very dangerous, we need to understand how that process will work, and it is not clear to me that this is the most effective and least potentially counterproductive way of handing those cases.
Baroness Warsi
I have another question because we may not come back to this after today. It may well be that there are details out there in relation to what the managed programme will look like, including the potential deradicalisation programme and the Prevent work that would be done. Other than what is already available, for example though Channel, are there any programmes which the Government will present as options for people when they return? If there are, will the Minister supply me with details of them before the next day in Committee?
Lord Judd (Lab)
My Lords, this is an immensely significant amendment. Since I think the Minister is the sort of person who listens, I cannot imagine that he will not be prepared at the end of this debate to agree to take this matter away and look at it again to see what can be done.
I listened very attentively to what the noble Baroness, Lady Warsi, said. She has great insight. It rings true to me that if you are trying to keep the good will of the young and—very often in a healthy sense—radical members of the community, transparency is indispensable. I remember talking to a front-line policeman at the time when we were considering 42 days’ detention. He was working with the community. He said that the people who really matter in situations of this sort are those with street credibility. They may have been tempted by or even have tampered with, the wrong kind of activities, but they have street credibility. How do you strengthen them in their understanding and hold the line? That is why what the noble Baroness, Lady Warsi, said is crucial.
Then I listened to my noble friend Lord Harris. I have a very strong bond with him. I must not say this too often, but I knew him when he was a schoolboy, and I have always been delighted to see how he has developed and come on because I was great friends with his father. But my noble friend, who usually has a very balanced approach to police matters, argued this point. How on earth do we think the international community will respond? It seems to be the ultimate in cynicism to say, “We are so worried about this person that we won’t let them come back, so we’ll just leave them with you”. That is extraordinary. We are the people who are trying to win good will in the world so that we can work together. That is an amazing thing to do. We therefore need to have a lot more reassurances on that.
If I am allowed to make this point—I hope I will not be accused of sentimentality; I am being hard-headed about this—whatever our good intentions and however thorough the work, mistakes will be made. There is the possibility of the nightmare of somebody finding himself or herself excluded and left in limbo, knowing that he or she is innocent. It is difficult to imagine what we are creating and generating as regards the humanitarian situation there. Of course we understand—you cannot say it often enough—how real the threat is and how tough action is necessary. However, that tough action has to be transparent in its justification.
Baroness Ludford
My Lords, I recall a point I made at Second Reading. The human rights memo notes at paragraph 13 that the Secretary of State proposed to adopt a practice on TEOs equivalent to her,
“practice of not depriving individuals of British citizenship”,
if that would expose them to a real risk of treatment that would be contrary to Articles 2 or 3 of the human rights convention. The Government do not believe that the convention applies if those persons are not within the UK’s jurisdiction, so it is adopted as a practice. However, I asked at Second Reading whether it would be possible to incorporate in the Bill—it is a point worth focusing on even if it said only in a code or regulations—that it is the practice of the Secretary of State not to impose a TEO if that would expose an individual to a real risk of treatment under Article 2 of the convention on risk to life or Article 3 on risk of torture or inhuman treatment. Perhaps there is some way to incorporate that as rather more than a practice.
Lord Bates
My Lords, it has been helpful to go through the Bill as the result of the amendments, trying to tease out as much as possible about the workings of the system. Certainly a good many questions have been raised; I will try to respond to as many of them as possible. As regards those that I do not get round to responding to, I will read the Official Report and write in the correct way and then we can return to it on Report should the noble Baroness wish to do that.
It is worth making a few contextual comments. Upwards of 600 people from this country have travelled to the Middle East. Everybody knows that; there is a certain flinching and the reaction is, “Don’t say that again”. However, if that was not the nature of the threat, we would not be bringing forward this measure. About half of those people have returned to the UK. Some might say that that poses quite a risk. We know—it is not an unreasonable thought—that a number of terrorist organisations would seek to advance their warped and perverted cause by seeking to bring down an airliner or blow it up; that is not manufactured but is a real threat to us. Therefore, when the authorities have produced sufficient evidence for a reasonable belief that someone has been involved in terrorist activities, and that that has been tested through a court, if we simply said that they should be able to board a flight on the way home back to the UK, some might say that we were failing in our duty of care to the people in the country and to those on the airliner. As my noble friend Lady Warsi rightly said, none of us would like to think about our children, let alone us, travelling on a flight that may contain people who have been engaged in that activity.
Lord Judd
I thank the Minister for picking up my point; he says that he is trying to put some context around the reality—and he is. It would help me if he put some context in terms of time. All this sounds very neat on paper but, in reality, how long will it all take for the individual who is out there?
Lord Bates
I shall come to that point in the pile of papers that have found their way to me. But I can anticipate a theme that will come through these notes—we want it to be as quick as is possible, bearing in mind the safety of the return. That is what we want it to be, and I am sure that that will be the message. The second part of the message will be to say that each case will be slightly different. The difficulty with being too prescriptive is that you tie people’s hands in responding in slightly different ways to slightly different levels of intelligence or knowledge about a particular individual. Effectively, the purpose of the order is that we want that person to return to the UK in a managed and safe way.
Baroness Smith of Basildon
I am grateful to the noble Lord for that. I understand why he introduced his response in the way that he did. However, does he accept that the questions asked by most noble Lords, and certainly my questions, did not challenge the process or the principle of managed return? What we are seeking is that the return should be as efficient, effective and speedy as possible to ensure that somebody is returned home. I am sure that he was not trying to suggest that we would in any way want to put British citizens at risk or in danger. However, for a managed return to have credibility and to be effective, it has to be efficient. I appreciate that circumstances differ but there are certain scenarios that have to be addressed so that we can have confidence that the process will not be like the one for addressing Ebola, which did not work out in practice. It has to be efficient and effective. Those are the very points on which we are seeking responses.
Lord Bates
The noble Baroness is absolutely right. I very much appreciate the constructive and thoughtful way in which she has engaged with the Bill on behalf of the Opposition. Not one of the questions posed by the noble Baroness or by any other noble Lord on this amendment was anything other than fair and reasonable and seeking elucidation on the serious power that we are introducing here. Equally, when I introduce the problem as the precursor to the power, I am not trying to make a point. I simply want to put it in context so that people reading this part of our proceedings can see how we are approaching this issue.
As regards the specific points that were made, the noble Baroness, Lady Smith, asked whether all TEO subjects would be escorted back to the UK by police officers and whether we would pay for their flights. Whether a temporary exclusion order subject is escorted back to the UK by UK police officers will be decided on a case-by-case basis. Similarly, whether the UK Government would meet the costs of the return flight would depend on the facts of the individual case. In some cases, the individual may be deported by the other country involved, which may provide escorts and meet the costs. In some cases, no security may be needed for the escorts and the individual may easily be able to bear the costs or, as my noble friend Lord Ashton said in a previous example, it may be possible to rearrange the flight departure.
The noble Baroness expressed concern that these people might just melt away. Obviously, we cannot create a power for detention extraterritorially, but we will liaise with the other country in advance. In most circumstances we would expect the other country to take steps to manage the person involved. We would deal with the issue through the diplomatic network and our embassies in most countries around the world. Our staff would be in contact with their opposite numbers. Certainly, the hope and the anticipation is that where a TEO has been put in place, the issue would be addressed before the person ever turned up at the airport. As soon as is practicably possible after the person comes on to the radar, they would be contacted, informed about the temporary exclusion order and the process of managing the return would be initiated.
Will these people have consular access? They are British citizens, as I said to the noble Lord, Lord Harris, and they have the same right to seek help as any other British citizen. My noble friend Lady Warsi asked whether they could be returned as detainees. I realise that that has a particular meaning in international law. As set out in the Bill, the individual may return to the UK under the terms of a permit to return. But they may also return if they are deported by another country. In practice, the difference between the two methods of return would not affect the treatment of the individual on their return to the UK, as their return would not have breached the temporary exclusion order. They would then both be subject to the in-country obligations.
The noble Lord, Lord Harris, referred to rendering a person stateless but the person will retain the right to return to the UK and to seek consular help. However, the individual may choose not to return or not to engage with their order, but that would be a matter of their own choosing. My noble friend Lady Warsi referred to the risk of torture. The Home Secretary will not seek to impose a temporary exclusion order where she considers that doing so would create substantial grounds to believe that the individual would face a real risk of torture or inhuman treatment, in keeping with the human rights obligations in the Bill. The noble Baroness, Lady Smith, asked about international discussions. We are engaged in discussions with our international partners. Other countries have been interested in this measure and sought to discuss with us the details. These discussions have so far been positive. Our partners recognise that this is a shared threat and are keen to engage in a shared response.
As to the requirement to attend a deradicalisation programme on their return, the requirements placed on the individual once they are back in the UK will be decided on a case-by-case basis. These may include a requirement to engage with a programme potentially comprising reporting, notification of change of address and deradicalisation activities. I do not have a note on the specific point raised by my noble friend Lady Warsi on whether other programmes might be considered. There are deradicalisation programmes such as Channel and Prevent but, at this stage, I am not aware of any other efforts to create new programmes. We are very much focused on making the ones that we have work and making them as effective as possible.
The case studies put to us by the noble Baroness, Lady Smith, were helpful. She gave the example of Mr A being detained in another country. This will depend on the laws of the other country. When a person is notified of a temporary exclusion order, they will be told how to get a permit to return. If they arrive at the airport in another country, that country may well seek to detain the person. The person would then be able to liaise with the British authorities through the authorities of the other country to agree the terms of their permit and the process of managed return. I am grateful to the noble Baroness for raising this point but I can assure her that the Government have existing successful processes in place to prevent individuals travelling to the UK and for managing the arrival of certain individuals into the country. For example, we operate a no-fly list as well as a procedure to arrest certain individuals for terrorist-related offences when they arrive in the UK. Unlike the case she raised on Ebola, we are talking about named individuals who have been informed about the order prior to returning. These systems will therefore ensure a controlled return and the authorities on this side are aware of what is expected of them.
In terms of a reasonable timeframe, the Bill makes it clear that there is a duty on the Secretary of State to issue a permit to travel to a subject of a temporary exclusion order within a reasonable period. The next question is: what is a reasonable period? That will be determined on a case-by-case basis. It will need to take account of factors such as frequency of flights to and from the country and, of course, the level of co-operation from the individual who is the subject of the temporary exclusion order.
I have given a reasonable number of replies. I think that my noble friend Lady Hamwee raised some other points on which I do not have notes. She can either remind me of them—I am happy to give way—or I am happy just to stand by the undertaking that this is a complex matter with areas of detail on which I am happy to reflect and write ahead of Report stage.
Baroness Hamwee
My Lords, I am grateful to my noble friend for giving way. I was not going to go back to the points I had made although my point about the independent reviewer having criteria against which to report is actually sort of overarching, picking up on the other points. I want to put to him that while we all understand that decisions have to be taken case by case, that does not negate the need for a structure and clearly understood procedures to which reference can be made for all the reasons given about not further alienating the subjects of orders, their families and so on. The noble Baroness was very clear about the dangers, as was the noble Lord, Lord Harris.
I am not, of course, dismissing the assurances that the Minister has given, but I do not think they are quite on the point that I have been alerted to by this debate about having a framework and procedures that are not made up on the hoof but which are known and understood before they are ever applied.
Lord Judd
The Minister as usual has given a very full reply. There is one basic issue which troubles me in terms of hard-headed security. If you have got somebody so potentially dangerous that you are taking this action why is it safer to have them outside your jurisdiction rather than at home under your immediate jurisdiction?
Lord Bates
On the point raised by the noble Lord, Lord Judd, we are seeking to bring them back but in a safe way. We recognise that they are our responsibility. At the moment it is not quite—I have to be careful about saying this—a revolving door with people being able to come and go as they will but there needs to be structure, security and some action to seek to prevent people going and, where that has failed, a managed return. The situation is very dynamic, which the noble Baroness, Lady Hamwee, I am sure appreciates and the terms of the permit of return will change over time. We are in the process of beginning to engage with countries to work with them on these problems and to say how the process should work. If we become too prescriptive in putting down in primary or secondary legislation what that process should be, it does not allow us to be more flexible in the case of the individual or the country concerned. That is why we are asking for a bit of flexibility but we are mindful that that requires judicial oversight. People are not stranded out there. They are given a permit to return. They are able to have a judicial review of the process and the actual permit or order has gone through an element of judicial scrutiny before it is made, so elements are there.
I was asked about the independent reviewer’s criteria and I have just got a note on that. His discretion is not constrained in the other areas and we believe that he would not want it to be constrained in this area. That is, I suppose, the point made about the Independent Reviewer of Terrorism Legislation overseeing this aspect of the order.
Lord Harris of Haringey
This follows on from the point that my noble friend Lord Judd has just made. This is a very serious step that is being taken. The Minister says, “We are simply managing the return and it is intended to be temporary”. What, then, is the purpose of Clause 3(8), which says:
“The imposition of a temporary exclusion order does not prevent a further temporary exclusion order from being imposed … (including in a case where an order ceases to be in force at the expiry of its two year duration)”?
What are the circumstances that require a provision for going beyond two years? Are we really saying that the managed return is going to take longer than two years? It seems to open up the possibility that this is in effect about permanent exclusion.
Lord Bates
The circumstances are not that the managed return is going to take more than two years; they are that the individual may be out there for longer than two years. The original order might lapse before he or she seeks to return to the UK and, in those circumstances, we would seek to renew it. We have talked about two separate elements. One is when the person arrives, and that relates to safe return. There are then the in-country elements of the temporary exclusion order, which would come into effect only once the person arrived back in the UK. That is the argument for it. We are seeking a degree of flexibility with a review process—
Lord Harris of Haringey
I am sorry; I am trying to follow the Minister’s argument. He is saying that two years might elapse before the individual comes back to one’s attention. Perhaps I am misreading it but Clause 3 states that the Secretary of State must give notice of the imposition of the order and that:
“A temporary exclusion order … comes into force when notice of its imposition is given”.
How can you give it if you cannot find the person? Therefore, what is the argument? Is it that the individual will disappear for two years, as you will not have been able to impose the order because you do not know where they are?
Lord Bates
I hope that I can help the noble Lord here. Perhaps the problem is my poor explanation of this issue. We are saying that of course notice is deemed to have been given but the person may well not present at a port seeking return to the UK until after a period of two years. At that point the order could be renewed so that their travel documents would be invalidated and they would have to seek a permit. That is the intention. I am aware that there will be other issues and I will look at this matter very carefully. I think that it has been helpful to hear the Committee’s views on this and to hear the questions that have been raised.
Baroness Warsi
Following on from the issue just raised by the noble Lord, Lord Harris, I completely understand that there could be a situation in which an order could effectively be issued—perhaps upon the family, who might have some contact with the individual; I do not know how this would work—and then the person would effectively say, “I don’t care. I’m going to stay in Syria and carry on fighting”. He stays out there for two years and two days and therefore you have to impose a second order. I understand the logic behind that. The concern is probably not so much about those people who do not want to come back but about those who may want to come back but are excluded under the temporary exclusion order.
This does not have to be done today but it might be helpful to the Committee if the Government could give an indication of their understanding of or thinking on the potential time periods that we expect somebody to be outside the country. This was the question that I raised at the briefing session. If, for example, you serve a temporary exclusion order on X and X turns up at Istanbul Airport and says, “I understand that I have a temporary exclusion order. I want to come back. I want to take part in whatever scheme you want me to take part in”, or, “I want to come back and defend myself because the allegations you have made against me are untrue and I want to clear my name”, how long do we anticipate that person being outside the country?
I go back to the way in which this order was briefed. It was briefed by the Government as, “Those crazies who want to do us harm and go out there to take part in terrorist activity will be thrown out of our country and kept out of our country”. That is not what the Government are saying now. They are saying that these orders are about bringing somebody back in and managing the process for our sake, for their sake and for the security of this country. If that is the case, and this is all about bringing people in, not throwing them out, why are the Government so reluctant about giving timescales for bringing them in but quite liberal in giving them for how long they can stay out?
Lord Bates
We are not talking about throwing people out here. The context is that we are talking about people who went out to be involved in terrorist activity, potentially with an organisation that is seeking to plot and motivate those individuals to commit terrorist acts back in the UK. In the very helpful example given by the noble Baroness, somebody—let us call them Mr or Miss R, R standing for “Reasonable” —recognises that there is a temporary exclusion order. Their family has alerted them to that and they are concerned about it. They do not particularly want to initiate the judicial review when they are out there, although they would be entitled to. They just want to get back as quickly as possible and sort the whole thing out because they think a terrible mistake has been made. They arrive in Istanbul; flights are not an issue as there are several each day from there to London. There is also a consulate there so they would have access to consular services. For the reasonable person, their return could be managed in a matter of days. I do not need to carry on with Mr U —Mr Unreasonable—who seeks to challenge through judicial review, which he is entitled to do from outside the process, and seeks to dispute having any restrictions on his return. Clearly, that may take longer but our desire is that it should happen as quickly, smoothly and safely as possible.
Lord Harris of Haringey
This will be my last hypothetical. As a nation, we take the position that there are certain countries to which we will not deport people, particularly if they have a label around their neck, because it is assumed that they will be tortured. If an individual on whom a temporary exclusion order sits is in one of those countries and we have labelled them as somebody whom the Secretary of State reasonably suspects of being involved in terrorism-related activity and reasonably considers a danger to the people of this country, is it not likely that that country—one to which we would not deport people—will arrest them and potentially, because on our say-so this person is extremely dangerous, torture them? Where does that stand in terms of our normal position on human rights?
Lord Bates
It stands in the same position I gave in my earlier answer. If the Secretary of State had a reasonable expectation that imposing a temporary exclusion order on an individual in a particular country might give rise to torture, then that order would not be issued in those circumstances because of the impact it would have on their human rights. I hope that offers reassurance on that element.
Baroness Smith of Basildon
My Lords, the noble Lord has had a very trying experience in addressing all the questions. I have one more thing to say about the point made by my noble friend Lord Harris. It may be that the person was not in the country to which we would not deport people because of torture when the temporary exclusion was put on them but only when they tried to return. There needs to be some thinking about how that would work.
I am grateful to the Minister for the thought that he has put into his responses tonight. He has addressed some of my concerns. The only reason I was asking my questions was to make sure that this works. The noble Baroness, Lady Warsi, made a very powerful point at Second Reading. The Government oversold this and that is what has created so much suspicion and concern. If we had stuck with managed return orders to make it clear that we wanted people to return and to manage that return in the interests of the security of UK citizens, that would have alleviated some of the concerns and fears that people have. What has caused a lot of concern is the term “temporary exclusion order” and looking for a policy to give effect to part of what the Prime Minister said in his statement.
I am grateful for the Minister’s offer to write to me. I think he said at one point that the permits were subject to judicial oversight. Will he check that? I understand it is the exclusion order.
Baroness Smith of Basildon
I am grateful for that. All the Bill says is:
“It is for the Secretary of State to decide the terms of a permit to return”.
There is no framework. I fully understand, and I think we all appreciate, that the terms of every permit will not be exactly the same. It is entirely reasonable for the Government to have flexibility in dealing with that. But there should be a framework, which is what we are talking about in terms of my purely probing amendment. The more I think about it, the more sense it makes. The framework should be something that the Home Secretary can consult on before implementing. I am not referring to the individual terms of every permit but the framework in which it would operate.
The noble Lord said that this is entirely different from the Ebola situation because they are named individuals whose return would be expected. The return of the nurses who returned in January was expected. They were all on the same flight and they expected to be met at the airport. Having been met at the airport, their experience was described by them as an absolute shambles. I say that there are similarities not to be difficult but to indicate that there is experience of why these things have to be managed very carefully.
There are a few questions that the noble Lord did not answer. I asked whether consulate authorities would be notified if there was someone who was subject to a TEO in their area and if it was thought that they were about to travel. He answered part of that to say what the consulate’s role would be, but would they be notified of a TEO?
Lord Bates
The consulate would be an integral part of the TEO process in communicating to the country that that order was in place.
Baroness Smith of Basildon
That is helpful and I am grateful. I am still uncertain as to the progress made in discussions with other countries. Other noble Lords picked up on that point as well. There are still a number of questions to be answered. The only reason for asking these questions is to ensure that we get it right. The worst-case scenario will be to have people subject to TEOs who, for some reason, cannot return or their return is managed badly, and that there are some problems. They may return under a false name. We want to ensure that people who want to return are able to do so in a managed way, and that when they return they are interviewed and may be subject to TPIMs if that is appropriate. That is the safest way to treat those who may cause risk to British citizens, and the safest and the best way to protect British citizens. I am grateful to the Minister for his effort. He has reassured me on some points but there are still some outstanding points. I hope he will look through Hansard, and perhaps offer the opportunity to talk to him and officials to iron out any further concerns that we have. I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, Amendment 61 has been wrongly listed and should apply to Clause 5. Therefore, I am calling it now.
Lord Bates
“Review of decisions relating to temporary exclusion orders
(1) This section applies where an individual who is subject to a temporary exclusion order is in the United Kingdom.
“(2) The individual may apply to the court to review any of the following decisions of the Secretary of State—
(a) a decision that any of the following conditions was met in relation to the imposition of the temporary exclusion order—(i) condition A;(ii) condition B; (iii) condition C;(iv) condition D;(b) a decision to impose the temporary exclusion order;(c) a decision that condition B continues to be met;(d) a decision to impose any of the permitted obligations on the individual by a notice under section 8.(3) On a review under this section, the court must apply the principles applicable on an application for judicial review.
(4) On a review of a decision within subsection (2)(a) to (c), the court has the following powers (and only those powers)—
(a) power to quash the temporary exclusion order;(b) power to give directions to the Secretary of State for, or in relation to, the revocation of the temporary exclusion order.(5) If the court does not exercise either of its powers under subsection (4), the court must decide that the temporary exclusion order is to continue in force.
(6) On a review of a decision within subsection (2)(d), the court has the following powers (and only the following powers)—
(a) power to quash the permitted obligation in question;(b) if that is the only permitted obligation imposed by the notice under section 8, power to quash the notice;(c) power to give directions to the Secretary of State for, or in relation to—(i) the variation of the notice so far as it relates to that permitted obligation, or(ii) if that is the only permitted obligation imposed by the notice, the revocation of the notice.(7) If the court does not exercise any of its powers under subsection (6), the court must decide that the notice under section 8 is to continue in force.
(8) If the court exercises a power under subsection (6)(a) or (c)(i), the court must decide that the notice under section 8 is to continue in force subject to that exercise of that power.
(9) The power under this section to quash a temporary exclusion order, permitted obligation or notice under section 8 includes—
(a) in England and Wales or Northern Ireland, power to stay the quashing for a specified time, or pending an appeal or further appeal against the decision to quash; or(b) in Scotland, power to determine that the quashing is of no effect for a specified time or pending such an appeal or further appeal.(10) An appeal against a determination of the court on a review under this section may only be made on a question of law.
(11) For the purposes of this section, a failure by the Secretary of State to make a decision whether condition B continues to be met is to be treated as a decision that it continues to be met.”
“Temporary exclusion orders: proceedings and appeals against convictions
(1) Schedule (Temporary exclusion orders: proceedings) makes provision about proceedings relating to temporary exclusion orders.
(2) Schedule (Temporary exclusion orders: appeals against convictions) makes provision about appeals against convictions in cases where a temporary exclusion order, a notice under section 8 or a permitted obligation is quashed.”
Baroness Hamwee
Baroness Hamwee
My Lords, Clause 10(3) provides:
“The Secretary of State may make regulations providing for legislation relating to passports … to apply … to permits to return”.
The amendment, which would rather inelegantly extend this by adding “and generally with regard to the passport of an excluded individual”, is designed to probe how a passport becomes valid again. If a passport is invalidated under Clause 3(9), what provisions will there be about the return of a passport on revocation or in the event of an unfavourable outcome of proceedings? In other words, there are more issues around passports than are dealt with in the relatively narrow provisions of Clause 10(3) and I hope that my noble friend will be able to add something to our understanding of how this will operate. I beg to move.
Lord Bates
My Lords, we have had a long day of debates which has benefited from the great insight, experience and expertise in your Lordships’ House. I am grateful to all noble Lords who have contributed.
Amendment 67 seeks to provide that regulations are made by the Secretary of State relating to passports of individuals who are subject to temporary exclusion orders. Under a temporary exclusion order, an individual’s British passport will be cancelled and invalid for travel. In the event that the order was quashed, revoked or otherwise came to an end, it would be open to the individual in question to apply for a further passport. There will be no need for the Secretary of State to make further regulations for circumstances in which the individual no longer had a valid passport as there is a well established process already in place for obtaining passports.
I hope this helps and reassures my noble friend and that she will feel able to withdraw the amendment.
Baroness Hamwee
My Lords, I confess that, stupidly, that had not occurred to me. If the individual applies for a passport, it will not be available instantly—they rarely are. However, most importantly, he should be informed that that is what he has to do. This takes us back to the points that have been made on clarity. I am glad now to understand how this will operate. However, as ever, it raises extra points—probably far more than I have mentioned—but the Minister will be pleased to know that I beg leave to withdraw the amendment.
Lord Bates
““condition A”, “condition B”, “condition C”, “condition D” or “condition E” means that condition as set out in section 2;
“court” means—
(a) in the case of proceedings relating to an individual whose principal place of residence is in Scotland, the Outer House of the Court of Session;(b) in the case of proceedings relating to an individual whose principal place of residence is in Northern Ireland, the High Court in Northern Ireland;(c) in any other case, the High Court in England and Wales;”
Lord Bates
“Chapter 2: consequential amendments
(1) In paragraph 2 of Schedule 1 to the Senior Courts Act 1981 (business allocated to the Queen’s Bench Division), after paragraph (bd) insert—
“(be) all TEO proceedings (within the meaning given by paragraph of Schedule (Temporary exclusion orders: proceedings) to the Counter-Terrorism and Security Act 2015) (proceedings relating to temporary exclusion orders);”.(2) In section 133(5) of the Criminal Justice Act 1988 (compensation for miscarriages of justice)—
(a) omit “or” at the end of paragraph (e);(b) after paragraph (f) insert “or(g) on an appeal under Schedule (Temporary exclusion orders: appeals against conviction) to the Counter-Terrorism and Security Act 2015.”(3) In section 18 of the Regulation of Investigatory Powers Act 2000 (exclusion of matter from legal proceedings: exceptions)—
(a) in subsection (1), after paragraph (dd) insert—“(de) any TEO proceedings (within the meaning given by paragraph of Schedule (Temporary exclusion orders: proceedings) to the Counter-Terrorism and Security Act 2015 (temporary exclusion orders: proceedings)) or any proceedings arising out of such proceedings;”;(b) in subsection (2), after paragraph (zc) insert—“(zd) in the case of proceedings falling within paragraph (de), to—(i) a person, other than the Secretary of State, who is or was a party to the proceedings, or(ii) any person who for the purposes of the proceedings (but otherwise than by virtue of appointment as a special advocate under Schedule (Temporary exclusion orders: proceedings) to the Counter-Terrorism and Security Act 2015) represents a person falling within sub-paragraph (i);”.”