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.
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.
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
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.
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
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 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).”
Lord Bates
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.”
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.