Counter-Terrorism and Security Bill
(9 years, 10 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
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);”.”