Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 3 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I shall speak also to Amendment 13B. Clause 25 provides that “due regard” must be given—I emphasise the word “due”—to,
“the need to prevent people from being drawn into terrorism”.
I have to say, preliminary to speaking to the detail of this amendment, that the more that I have thought about it, in one sense the less concerned I am about Clause 25(1). It is not the heavy duty that in some ways it has been presented as, but probably in some ways it simply encapsulates common sense. That is in one sense. Where I find a real problem is in the elaborate infrastructure or superstructure—I am not sure which it is—that has been built around this simple proposition and the context in which the clause, and the whole of Part 5, is now being viewed: the feeling among the Muslim communities that they are being got at. That is why I am still of the view that it would be far better not to have a statutory duty with all the bureaucracy, costs and difficulties that that carries. However, my amendment is much more modest than that principle.
As I said, Clause 25(1) provides for “due regard”. Under Clause 28, the Secretary of State is to issue guidance, and under subsection (2) of that clause the authorities must “have regard” to the guidance. Therefore, is the heavier duty the duty in Clause 25? Is there significance in the difference? Is it technical perhaps that Clause 25 is about a statutory duty and that Clause 28 is about guidance, which does not have the same status as legislation and therefore less regard might be had to it? However, what was a two-faceted question became triple-faceted when the Government laid an amendment on freedom of expression in universities. I do not want to anticipate the debate on that issue but I note that the institutions are to pay “particular regard” to the freedom of speech duty in the 1986 Act. So we now have three levels. Indeed, the Secretary of State is to have “particular regard” to that duty when issuing guidance and considering directions.
It is clearly important to understand the relative weight of these terms. In respect of education, perhaps the freedom of expression duty, because it prompts particular regard, trumps the duty concerning preventing people being drawn into terrorism. On reading all this again, I have to say that, as well as being about the relative weight, it is about which duty is the one in the new clause. In other words, the hierarchy seems to be particular regard, due regard and then plain regard. I am looking for assistance from the Minister on this.
Amendment 13B provides that,
“each specified authority shall have”—
why not?—
“regard to the impact … on local communities”,
which I have put in the plural, and on people connected with the authority, and,
“of the manner of the exercise”,
of this on local communities.
Among various briefings over the past few days, I have received the response to the Prevent duty guidance consultation from the London Borough of Sutton. I should like to share with your Lordships some of the comments that have been made. It states:
“There is a further issue of risk of negative impact from the duty if it is undertaken without careful consideration of local context. There is already evidence to suggest that the delivery of interventions such as around female genital mutilation and honour based violence adding to polarisation of communities. The interventions are important but must be delivered with understanding”.
In the response, a young Muslim woman is quoted as asking,
“‘why in my class are the girls taken out and spoken to about FGM and honour based violence and everyone looks at me and the other girl in a headscarf—these things have nothing to do with my life and are not risks I’m interested in. I’d rather know more about how to stay safe walking across my park’”.
As the London Borough of Sutton response says:
“The guidance is silent on such issues”.
The phraseology of this amendment was prompted by an amendment moved by the noble Baroness, Lady Smith, towards the end of the last day in Committee on the new Privacy and Civil Liberties Board. We have quite properly spent time in our debates emphasising the importance of a positive approach to community engagement—in other words, engagement, not disengagement—and it being a continuing process. Time and again, it has been put to Members of your Lordships’ House that the Muslim communities feel that they are viewed as the problem; namely, that if you are a Muslim, if you are not a terrorist you are a potential terrorist and you need to prove that you are not. Obviously, that is the most enormous slur or slander on the vast majority of Muslims, and it is very counterproductive in that it is polarising and alienating.
My amendment refers to the impact on communities, pupils, clients, patients and so on. As has been said to me, there are questions about workability, functionality and encroachment into the private sphere by the state. I mention the manner in which the duty is exercised because attitudes show in actions and words, and we all know that it is not only what we do but the way that we do it. I beg to move.
Baroness Hamwee
Before the Minister sits down, has he had any inspiration about the term “particular regard” which might help the House?
Lord Bates
The short answer is that that inspiration is perhaps on its way to me. Perhaps I may come back to that on a later group of amendments, if the noble Baroness would allow me.
Baroness Hamwee
My Lords, I thought that I gave notice to the Bill team, whose heads are no doubt spinning with the speed, but something may be on its way.
Lord Bates
I can tell the noble Baroness that the “particular regard” element is actually in relation to the Secretary of State’s duty. It is to say that she must have particular regard to the duties under freedoms of speech. The difference between due and particular in this context is that the latter, in all cases, elevates the freedom of speech consideration among all the considerations that must be borne in mind, whereas specifying that due regard must be had to a factor simply underscores the importance of that factor while leaving the degree to which it must be elevated by the specified authority to be determined by the circumstances of the case.
Lord Bates
I will leave that to the schoolmasters. However, in this regard, my noble friend should find this reassuring because we are saying that the Secretary of State should have a particular regard. That is a higher threshold to be aware of: the importance of academic freedom of speech within universities. It is a higher test and it is appropriate to say that before she offers direction, she ought to be able to satisfy whether that test has been met. I shall hand back to the noble Baroness.
Baroness Hamwee
My Lords, as I said, there is something of a hierarchy in this. “Having regard” implies proportionality, whether it is “due regard” or simply “regard”. I am grateful for the Minister’s explanation. However, I should like regard to be had to the impact of this part of the Bill and to the manner of the exercise of the duty. I am grateful to noble Lords who have commented and who have supported that proposition. The bottom-up approach is precisely what I am seeking to articulate.
The Minister and other noble Lords have referred to far-right extremism. I have acknowledged that in previous debates as well. In response to the noble Baroness, Lady Buscombe, it is the current context that has caused so many comments from members of Muslim communities. That is why so many of us have made such reference to it. I too am shocked—but not surprised—by her report of girls talking about going to Syria. She asked, “What does that say?”. To me, it says let us look for the best way of addressing this issue. All the comments I have made about a bottom-up approach are directed to doing that. The noble Baroness, Lady Afshar, said that, and she is nodding vigorously now.
I am sorry that the Minister has not been able to suggest further ways of acknowledging this approach and these concerns. However, the guidance is not complete. Although the consultation is closed, over the last few days responses have indicated that points made by Members of your Lordships’ House will be taken into account in finalising the guidance. I hope that this approach will have at least that status, as the noble Baroness, Lady Smith, suggested. That would give a degree of comfort. I beg leave to withdraw my pedantic amendment.
Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 3 months ago)
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Baroness Hamwee (LD)
My Lords, several groupings of amendments today and previously have called for quite a tour de force from my noble friend to respond. The House is very well aware of that and grateful to him for that, and for his openness to discussing the measures in the Bill. If I may say so, in the Modern Slavery Bill, too, he has set an extraordinarily high standard at the very end of the Parliament.
I follow the noble Lord, Lord Hannay, in my first point. My noble friend can take this as a comment or a question, as he feels most comfortable. My point is about further consultation. Such a strength of feeling has been shown in the debate on guidance that clearly the best outcome would be another round of consultation with the organisations concerned. The second best would be informal discussions between my noble friend and those who have expressed particular concern.
That takes me to my second point. I am well aware of the Government’s wish to move this along very quickly. My noble friend mentioned the commencement of Clause 28. I take that to mean that the guidance will follow shortly. People will be reading this debate in Hansard. They may have given up by this point, but some will have stuck it and will want to know when the guidance will be issued so that there will be a debate about it. If the Minister can say any more about the timing, that will be very useful to people outside the House.
Lord Phillips of Sudbury
My Lords, I have one more technical question to ask the Minister; I have given him notice of it. His Amendment 14E starts by saying:
“Guidance issued under subsection (1) takes effect on whatever day the Secretary of State appoints”—
so it appears to start by saying that this is solely about the timing of when the guidance should be brought into effect. But the second part of the amendment is technical, stating:
“A statutory instrument containing regulations … may not be made unless”,
it is approved by both Houses.
That seems a very odd way to put the fact that the guidance is to be approved as to content as well as the timing of its coming into effect. It would have been much happier if the provision had said at the start explicitly that not only is the guidance taking effect on the day set out in the regulations, but that the content will be laid before Parliament.
One can erect a technical, logical argument that the content must be included within the timing, so to speak, but as this is so important, I would be most grateful if the Minister can confirm that Amendment 14E as drafted is intended to mean that both Houses of Parliament must affirmatively approve the content as well as the timing of the guidance.
Baroness Hamwee
Baroness Hamwee
My Lords, I will also speak to Amendments 15G, 15H and 15J. I referred at the start of this afternoon to the infrastructure which goes along with the statutory duty created by this Bill—the bureaucracy, cost and so on. I do not underestimate or undervalue the negative impact to which I also referred earlier. I read then a part of the response to the consultation on the draft guidance from the London Borough of Sutton. It also referred to descriptions of working across borough boundaries. That made me realise that the legislation may not reflect the current realities of the way local government works.
Sutton talks about sharing,
“a great deal of information and planning with neighbouring boroughs around risk and consequent Channel planning ... This cross border risk identification and consequent planning is not considered in the guidance”.
It goes on to talk about training, and about,
“‘borrowing’ a Police Prevent Engagement Officer (PEO) from the Police in a neighbouring Borough. There is no PEO allocated to Sutton”.
It continues:
“It would clearly be impossible to provide the frontline training for staff in local authorities and education institutions and organisations suggested in the guidance without significant additional funding”.
I shall come to that on the next group of amendments, when I will talk about collaboration in training.
That is a response to the guidance, but should there be something in the Bill? Local authorities are increasingly sharing back office functions, and indeed some front office functions as well. Children’s services and adoption services may be shared, as may any number of services. So should a local authority have “a panel … in place”, as Clause 34(1) requires? I suggest that a panel should be “available” instead. An authority should have access to a panel. It would still have the duty; it would not be avoiding responsibility. But as the clause is worded, would each authority be required to have its own panel? I hope that the Minister will be able to reassure us that local authorities can share functions as I have described.
Clause 34 is about Channel, whereas the previous chapter dealt with Prevent. The point comes up here, so can the Minister confirm that guidance will allow for cross-border as well as multi-agency working? I suppose the bottom line is that the Bill should not actually make cross-border arrangements of this sort ultra vires. If that can be dealt with in guidance, fine. But as the Minister is going to be reflecting so much over the next two or three days, perhaps he could get somebody else to reflect on that point—because if we lose the opportunity to make it clear in the Bill, we shall be in trouble.
In relation to Amendment 15G, my noble friend Lord Carlile drew attention to the need to recognise that when we talk about housing providers, we do not usually mean local authorities. He mentioned the Peabody trust, I think, as probably having the most social housing in London. He mentioned a point that had not previously occurred to me, about recognising the knowledge that housing providers have of their tenants, and the important role that they can therefore play. Understandably, having heard those comments, the Minister answered in terms of the panel. But I am not so concerned about that, because Clause 35(4) provides for co-option. It does not use that term, but that is what it amounts to: there can be appointed,
“such … persons as the … local authority considers appropriate”.
It could therefore appoint a representative of the housing providers.
The amendment, which is the same as the one to which I spoke in Committee, is about the support to be provided to, or required by, an individual. Clause 34 deals with the support that the panel can provide or facilitate, and subsection (5) deals in general terms with the support plan. There is no mention of specific services in it, so housing could be read as being included in those arrangements. However, subsection (6) applies when,
“a panel determines that support should not be given”,
and is considering,
“whether the individual ought to be referred to a provider of any health or social care services”.
Why is that reference so narrow? There must be other relevant services, and I would have thought that housing was pretty obviously one of those. Stable accommodation plays an important role in stabilising someone who has a chaotic or difficult life. I have referred to “other” services because there seems to be no reason to limit the clause, as drafted. The clause does not require the provision of any services; what it requires is the consideration of whether an individual should be referred, and the arrangements to refer him. If there is no positive reason to limit the clause, I am bothered that the Government may be quite unnecessarily depriving the local authority of a tool that it could use.
I hope that, at the very least, the Minister can take this on board. Earlier today, somebody said, “I hope the Minister will go away”, and then there was a pause; let me put it as hoping that he will take away the possibility of guidance covering this issue. Similarly with my earlier point, the point here is that the Bill should contain an assurance that other referrals are within the powers of the panel. I do not read it that way, but I am happy to defer to those who are more skilled in interpreting what legislation actually means. This is another vires point, and I beg to move.
Lord Bates
My Lords, I am grateful to my noble friends for tabling these amendments and allowing us to return to the measures in Chapter 2 of Part 5, relating to programmes to support individuals at risk of being drawn into terrorism. Of course in England and Wales, these provisions relate to the existing Channel programme, which we are putting on a statutory basis. My noble friends’ contributions have benefited from great experience of local government and I will seek to address the issues raised by their amendments.
Amendment 15F relates to the duty requiring each local authority to ensure that a panel is “in place” for its area to provide support to people identified as being vulnerable to being drawn into terrorism. The amendment would substitute “available” for the current term “in place”, aiming to ensure that there is flexibility to allow for panels to be in place for combined local authority areas. I hope that I can reassure my noble friend that this amendment is, in reality, unnecessary because Clause 39(3) already provides for one panel in a local authority area to serve multiple local authorities. Local authorities have the flexibility to determine whether to run their own panel or conduct panels with one or more other local authorities.
Amendments 15H and 15J would add to the list of members of a panel any other local authority which was “served by the panel”. I assure my noble friend that the intention here is that some authorities may wish to co-operate by having one panel serving a number of areas and, in those circumstances, would want to ensure attendance by all the local authorities concerned. In certain areas this may be the most suitable approach, and the Government would support this. As I have said, Clause 39(3) already ensures that the panel must include a member from each local authority and each police force where a panel serves more than one area. In addition, the proposed legislation already anticipates other local authorities sitting on a panel by listing them in Schedule 7 as partners to the panel. This means that they are subject to the duty to co-operate with the panels under Clause 36. These additional local authorities would most certainly be invited to attend if a person from their area was under discussion.
Amendment 15G would add “housing” to the list of additional services to which a panel should consider making an onward referral if it was considered that support from the panel was inappropriate. This follows up on a point made by my noble friend Lord Carlile when we debated these clauses in Committee. There are of course many types of support which a panel could consider in these circumstances. I reassure noble Lords that the guidance which will be produced specifically mentions housing as one of these.
My noble friend asked, “Do housing providers attend Channel panels?”. The answer is yes. In Westminster local authority housing advisers have attended Channel panels where appropriate. This is particularly important where vulnerable individuals have already been allocated social housing. For matters concerning new allocations it is the responsibility of the local authority to take this forward. In relation to the Bill, it seems more appropriate to confine the list to those types of support most essential to safeguard health and immediate welfare.
I hope that my noble friend is satisfied with the explanation that has been put on the record and that I will not have to take the amendment away to think again. Perhaps she can reflect on this and withdraw her amendment.
Baroness Hamwee
Before my noble friend sits down, I should say that he referred to Clause 39, where the reference is to the “combined area”. I intended my questions to be rather broader than the combined area—where authorities collaborate to provide particular services and activities. As I understand the term—and I may be wrong in this—that does not amount to a combined area. More current experience in local government indicates that I may be right. I took my examples from the response of the London Borough of Sutton. I did not name it, but it was talking about working in collaboration with Croydon. I think both Croydon and Sutton would be pretty surprised if they were thought to be a combined area. I am prepared to reflect, but I am trying to give my noble friend an opportunity to respond, since he has not sat down yet—in the House of Lords parlance.
Lord Bates
Of course we will look again at any suggestions, particular one coming from the borough of Sutton. We are saying that, where the duty applies, and the Channel panel covers a number of local authority areas, they would be deemed combined for the purposes of the Channel programme. I am happy to look at that and perhaps it is something about which I can write to my noble friend, though I may not need to do so. Co-operation between local authority officers would be permissible, not just in combined areas. Local authorities could co-operate; “combined” is a specific term and it would cover those areas too.
Baroness Hamwee
“Costs of prevention and of local panels
As soon as practicable after the end of each financial year the Secretary of State shall report to Parliament the costs incurred by local authorities and other specified authorities attributable to compliance with the duties under sections 25 and 34, and what specific grant has been made by the Secretary of State to meet those costs.”
Baroness Hamwee
My Lords, I have referred previously to the cost of the statutory duties—in relation not just to the substance, but to the infrastructure built by the Bill. This amendment refers both to,
“local authorities and other specified authorities”,
but I particularly had in mind local authorities. I am not sure that I have yet done so, but I declare an interest in that I am joint president of London Councils.
I have previously mentioned the “new burdens” principle, which might be expected to apply to these activities, and I have previously referred to some of the costs which have been estimated by the Government. London Councils is unconvinced by these.
My noble friend Lord Scriven will speak to this amendment, so I shall simply explain that, as a way of drawing attention to the costs, the amendment proposes an annual report to Parliament by the Secretary of State. The matter could be included in a report dealing with other matters. Maybe there should be some prospective reporting of the costs anticipated to be incurred.
On the first day of Report, I think it was, the noble Lord, Lord Harris of Haringey, referred to the refusals to disclose money allocated to the Metropolitan Police for counterterrorism for security reasons, though, as he observed, some detail of that budget eventually comes into the public domain as it is scrutinised by the London Assembly. I used to chair the Assembly’s budget committee, so I remember all that.
There should be as much transparency in this area as possible. There is a lot of concern about the costs and, in any event, what money is spent on what is a matter of public interest. I beg to move.
Lord Scriven
My Lords, I thank my noble friend Lady Hamwee, and I thank the Minister for guiding the Bill so ably and patiently through the House. I am aware of the time, so I will try not to keep the House too long.
Until now, the debate has been about putting on to a statutory footing the powers that some specified organisations will have and some that they will not. The Minister, along with others who support this going on to a statutory footing, has indicated that this is to bring the rest up to the standard of the best. I know, as I am sure do many people who have had responsibility for public service and budgets, that bringing things up to the best does not necessarily mean being able to do it on the cheap; there is a cost associated with it.
Evidence has come from a number of organisations. In my former life as leader of a council, I was not one who participated in the Oliver Twist-type approach to budgeting by always asking for “more, please”; that is not the approach. However, when new burdens or new statutory responsibilities are being put on an organisation, it is only fair that it is adequately funded for those. As I say, evidence has come from a number of sources in the past couple of months about putting this on to a statutory footing—for example, from the Quilliam Foundation, the Local Government Association and a number of local authorities. More revealingly, the Audit Commission, when it did a report on Prevent in 2008-09, made it clear that resources were needed if this was going to be done effectively and efficiently. I assume that the Minister and the Government want to see this being done in that way.
It would be worth looking at the fact that historically something in the region of £140 million per year, or even more, was previously allocated to Prevent, and large cities were getting somewhere in the region of £600,000 per annum to deal with Prevent issues. I always go to impact assessments because they are very revealing, and I notice that in this one the Department for Communities and Local Government indicates that authorities will need somewhere between £4,000 and £40,000. Past evidence suggests that to do this to the best, large authorities need somewhere in the region of £600,000. It is telling that the impact assessment says that we do not have complete data on all the specified authorities that will be affected, and that is why there may be a discrepancy.
Manchester City Council, in a report that went to its cabinet only a few months ago, highlights specifically the financial burden that this is now having on a city such as Manchester, and says clearly that it cannot be sustained at its present level. So there is evidence historically; there are people who are not providers, or not public statutory bodies, such as the Quilliam Foundation, and existing providers of Prevent, who are saying that resources will be needed.
The London Borough of Sutton has done some work on the consultation and says that for such a borough, somewhere between £50,000 and £60,000 would be required for a Prevent co-ordinator—looking at local government, that is about the rate that such people are paid. Somewhere in the region of £250,000 would be required for new interventions, based on best practice from Wandsworth. Sutton also anticipates somewhere in the region of a £150,000 per annum increase in capacity for core safeguarding work, child protection and early work interventions.
This is not cheap. This is not work, if we are going to do it effectively, that can be done with existing resources; that is becoming very clear. The cost from Sutton does not include some of the extra work needed for administration and, as my noble friend Lady Hamwee suggested, some of the extra work needed for looking cross-border at a larger area.
Staff training is a full duty within the guidance. I quote from paragraph 37, which states:
“Local authorities will be expected to ensure that frontline staff have a good understanding of Prevent, are trained to recognise vulnerability to being drawn into terrorism and are aware of available programmes to deal with this issue”.
Staff training in itself will run into many hundreds of thousands of pounds for large authorities. Some of them have between 8,000 and 10,000 staff. The impact assessment states that it will cost £62 for 20 members of staff trained. For a local authority with between 8,000 and 10,000 front-line staff, as some of our large metropolitan authorities have, it will mean £31,000 to carry out just one section of the guidance. That is a significant cost.
I suggest that the duties placed on the public sector will be far more than the anticipated £10 million to £14 million per annum that the impact assessment suggests. I will give one example of why the figures are completely inadequate. Staff training is anticipated in the impact assessment to require an allocation by government of £300,000 per annum. There are 254,000 staff employed by the public sector in the north-east region. Assuming that only 50% of those are front-line staff, that is more than £300,000 per annum. Yet £300,000 per annum is being given for the whole country for staff training.
The amendment tries to get a commitment that, if we are going to go down the route of putting this onto a statutory footing and we want to make sure that local public bodies carry out best practice, adequate funding is provided. If not, the Government’s target of meeting best practice will not be achieved. Resources will not be available, particularly in the present climate in terms of public sector resources. So I ask the Minister the questions asked by my noble friend Lady Hamwee: will new burdens apply to the new duties that are to be put on the public sector, and will money be put forward annually, as the amendment says, before Parliament, so that local authorities and other public bodies locally will be compensated for the duties they will have under a statutory footing?
Lord Bates
I am happy to look at that. We are consulting on this. A little bit like the discussion we had on universities and higher education earlier on, it might be the case that there is some misunderstanding about the level of the duty which will be required as a result of this new law. That is the reason why the consultation will be very helpful. It is something that I will take away and reflect back on, and also feed back to colleagues in the Department for Communities and Local Government in relation to this, with whom we work closely. I will also perhaps write to the noble Lord with a little more information if I can. In the mean time, if the noble Baroness would be willing to withdraw her amendment, I would be grateful.
Baroness Hamwee
My Lords, I, too, am bemused about whether this is a new burden or whether the cost will be nil. I do not have the impact assessment with me, but looking back at the costs that I quoted in Committee on 28 January, I see that I referred to the impact assessment estimating that the total cost of the measures for England and Wales would be around £40 million, although within that, the cost of placing Channel panels on a statutory footing has been estimated at nil. Perhaps everybody is right. I am also bemused at the figure of £62 to train 10 staff. That seems remarkably little. I presume that it covers the trainer and the time of the staff being trained. My noble friend and I have both been quoting Sutton because we have had the material to help us. It is certainly right to say that in terms of London boroughs, Sutton is a small borough.
I am grateful to my noble friend for agreeing to make sure that at least the information that has been put out is correct and that there are no queries hanging over that, and particularly for his offer to consult with the umbrella organisation London Councils. I have no doubt that this topic is one which will be raised repeatedly in conversations between local authorities and DCLG, as well as with the Home Office, but I am glad to have had the opportunity to air this, and it is important that the points made by my noble friend have got out into the open. I am sorry, I am not suggesting that there has been any attempt not to reveal anything. I beg leave to withdraw the amendment.
Baroness Hamwee
“(e) Part 2 of the Justice and Security Act 2013;(f) any provision of immigration and nationality law to the extent it is used for counter-terrorism purposes”
Baroness Hamwee
I welcome the government amendments. In my clumsy way, I tried to deal with the issues raised by the independent reviewer about his remit and the new board at the last stage. The Minister referred to two of the five issues that the independent reviewer sought to cover, which I tried to cover at that last stage. I am flattered that he suggested that my Amendment 16A comes from my own interest and concerns about the Justice and Security Act and the disclosure of sensitive material, closed material proceedings, special advocates and all the rest of it, as well as my concerns about immigration and nationality law. I indeed have those concerns but I cannot say that this is a self-started amendment. I was asked to pursue the subject. The independent reviewer has made clear that he wants this. He does not seek to go beyond the counterterrorism area. I hope that the amendment is clear on that. His blog has already been quoted and I shall quote from it too. He wrote:
“It is however a shame that the Reviewer was not also given the opportunity to review the operation of other powers, including immigration powers, to the extent that they are used for counter-terrorism purposes. I have no evidence whatsoever that any of those powers is used in an improper manner. But in such a sensitive and secret area, it is as well to have the assurance that only independent review can provide”.
He continues by quoting from his report of last July, which said:
“More than one person of a suspicious cast of mind has suggested to me that the unreviewed powers (for example, the use of the Royal Prerogative to withdraw passport facilities) are likely to be used for the purposes of doing the Government’s ‘dirty work’”.
I suggest my amendment because the independent reviewer has a holistic approach to this whole area. Individual case oversight and different reviewers, to which my noble friend has referred, while reassuring, do not meet the points that the reviewer has in his mind. He clearly looks at how the whole of counterterrorism legislation is operating and has ranged beyond the relatively narrow legislative remit that he has had in the past. Previously, I have heard him say that he is not seeking a turf war with other reviewers but, equally, he does not see these things in silos, which is why this amendment has come forward. I beg to move.
Baroness O'Loan
My Lords, I support the noble Baroness, Lady Hamwee. This amendment derives from the work of the Joint Committee on Human Rights in scrutinising the Bill. We took evidence from a number of people, including the independent reviewer. It was his recommendation about the major gaps in his function which should be filled which led to the creation of this amendment. I did not put my name to it to lead it because, in my innocence, I thought that there was a possibility that we might get to it earlier in the evening when I would be engaged in a committee. I have much to learn about your Lordships’ House.
As the noble Lord, Lord Ashton, rightly says, the independent reviewer had identified these major gaps. The Government have also accepted and recognised those gaps. I think that the independent reviewer has been looking at the whole architecture of counterterrorist legislation and has tried to ensure that there is—I do not like to use the word holistic—a complete, effective and standard-based approach to the review, which I do not think is provided by individual case-by-case judicial proceedings.
The opportunity here is simple and it would not add a great deal to the work of the independent reviewer were the Government to consider again this amendment. As the Minister has said, the office of the Independent Reviewer of Terrorism Legislation is very highly respected in the country. I have worked very closely with some of the predecessors of David Anderson QC and I know how very significant that work is.
We are just asking for two issues to be moved into the remit of the independent reviewer under this amendment. As the noble Baroness, Lady Hamwee, has said, the first concerns Part 2 of the Justice and Security Act 2013, which deals with closed material procedures. Those procedures apply in litigation, which very often is litigation that is seeking compensation in claims against the Government and other authorities, and where there is a problem that there is material the disclosure of which will be damaging to the interests of national security.
Lord Ashton of Hyde
The review that the noble Baroness referred to was what Parliament laid down in the Act. That was what Parliament required as the oversight for that Act. We will have to stay with the extended remit as we have put it. At the moment, I am afraid that I cannot make any guarantees that we will extend it to the Acts that my noble friend Lady Hamwee asked for.
Finally, on the Privacy and Civil Liberties Board, whether or not it is what the independent reviewer wanted, he may be making the best of a bad job, but he has stated that,
“if skilled and practical people are appointed to the Board, content to work under the Reviewer’s direction, the capacity for independent review will be improved … the Government has listened to what I have been saying, and put forward changes which should significantly improve the ability of the Independent Reviewer to do an effective job”.
I am therefore confident that the changes we are proposing will further enhance his ability to provide robust oversight of the full range of counterterrorism legislation on the statute book, including this Bill, once enacted. I again ask my noble friend to withdraw her amendment.
Baroness Hamwee
My Lords, it is late, but it has been a worthwhile discussion and I am glad to have had support, although maybe slightly qualified support in some cases, for the principle of my amendment to Amendment 16. I say to the noble Baroness, Lady O’Loan, that if her name had been the lead name on the amendment, we would probably have reached it at about 5.15 pm, because that is the way it always goes.
The noble Baroness, Lady Smith of Basildon, used the terms “extent” and “impact”. I do not think that there is really anything between us on the substance, but she reminded me of the amendment that I tabled at a previous stage, referring to any other law relating to counterterrorism and national security legislation, and then adding something about considering whether such legislation contains appropriate safeguards, is proportionate and necessary.
I think that the Minister made my point for me, because in describing the changes to the timetable that the independent reviewer must observe, he said that now he would have more opportunity to make thematic reviews. That is precisely why I would like to see the provisions in the amendment included in the Bill. I can see that that is not going to happen, but this will not be the last time that the point is made. I beg leave to withdraw the amendment.
Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 3 months ago)
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Baroness Hamwee
“( ) A constable or qualified officer must, in carrying out the duty in sub-paragraph (8), provide the person with a summary of the reasons for the suspicion.”
Baroness Hamwee (LD)
My Lords, Schedule 1 to the Bill provides for the seizure of passports from persons suspected of involvement in terrorism. Paragraph 2 deals with the seizure of passports at a port, and paragraph 2(8) sets out what the officer undertaking this exercise must tell the person. He must tell him that he is suspected of intending to leave Great Britain or the UK—there is a slightly different provision for Northern Ireland—
“for the purpose of involvement in terrorism-related activity”,
and that the officer is entitled to exercise the power to seize. Reciting those statutory grounds does not seem to be enough. There is no provision on the face of the Bill for the person to be informed of at least the gist of the reasons for the suspicion.
The draft code of practice, which has been out for consultation, includes some notification requirements but it does not include this one. As the Joint Committee on Human Rights pointed out, the draft code provides that,
“where a senior police officer authorises retention”—
this is at a different stage—
“the individual must be given a written notice which should … inform the person that they may … request reasons for the retention of their travel documents … Elsewhere, the draft Code provides that a police constable exercising the power … must issue the person with reasons for its exercise … ‘if requested’ and if travel documents are returned within the”,
first period which is provided by the schedule,
“they are to be accompanied by a notice reminding the individual that they may formally request reasons as to why their travel documents were seized and retained”.
None of that addresses the need to tell the person straightaway.
I should like to see in the Bill the JCHR recommendation,
“that the Code should provide that a person subject to the exercise of the power should be informed of the reasons for its exercise at the earliest opportunity in every case, and not merely where the individual makes a request”.
That is very fundamental, not only to the exercise of the power but as to how it is perceived. We rightly spent a good deal of time in Committee—and will, I am sure, spend more time—on the difficulties of perception and perceived discrimination against certain groups, which perhaps is a different issue from actual discrimination but is a very real issue.
In Committee, the noble Lord, Lord Pannick, supported my point. He said:
“No one would suggest that all detailed reasons must be given, but if someone is told that their passport is being taken away they should be told the essence of the reasons why if this power is to be acceptable and not criticised as obviously unfair”.—[Official Report, 20/1/15; col. 1236.]
It was building on that phrase “the essence of the reasons” that I have provided in my amendment for a summary of the reasons and not for the detail. I am aware that there may be security issues around that.
In Committee, the Minister gave a very long response to the group of amendments of which this was one—I think that there were 24 amendments—so it was quite an achievement to cover the ground. I fear that I did not manage to extract from the response a reply to this specific point. At the end of his reply, I asked him whether some comments he was making applied to gisting, and he said that they did not. Therefore, it seemed to me appropriate to bring the matter back at this stage in the hope that I will hear that we could include something like this in the Bill but certainly in the hope of hearing a detailed defence of the Government’s position. I beg to move.
Baroness Buscombe (Con)
My Lords, I am a member of the Joint Committee on Human Rights and I should like to say strongly that I do not support this amendment. There was a very good reason why we said that reasons should be given “at the earliest opportunity”. We absolutely accepted that there will be occasions on which it simply is not reasonable, either on security grounds or because of the speed with which the information is travelling in relation to the possible perpetrators from whom the passport is being taken, to expect the police to have reasons to hand. The phrase “at the earliest opportunity” leaves it sensibly open for the police to be able to respond in good time with some information as to why this has taken place. The committee discussed at great length that to expect a summary there and then on the spot—which is what the noble Baroness is asking for—would probably be too difficult in certain circumstances.
We have to accept that some of the information will probably arrive without much notice to those who have the difficult task of removing the passport. Given that the person will already be at a port or an authority in order to leave the country, surely it is right that in such cases we give trust and time to the security services and the police to do what they have to do in an emergency—that is, to remove the passport—and then, at the earliest opportunity, state the reasons.
Baroness Hamwee
My Lords, the noble Baroness, Lady Buscombe, quite reasonably asked us to imagine a situation. I understand what she described. But perhaps we should also imagine the reaction of the individual—so the whole of the scene.
My noble friend the Minister talked about the return of documents as soon as possible, senior authorisation, the 72-hour limit, the role of the chief constable and the court, and so on. None of those is likely to satisfy the individual at the point at which they have been stopped. Let us say that you are an outraged, innocent traveller. Everything that has been described by way of safeguard is after the event. On the point about profiling and discrimination, perception is so important. The safeguards will not answer that point.
My noble friend said that the amendment was not necessary. It may not be necessary in terms of reasonable suspicion—that is not my argument—but something is necessary, even if it is difficult. On giving reasons at the earliest opportunity, I take the point made by the noble Baroness, Lady Buscombe, that the police may not know at this point. I can imagine that there might be an urgent phone call to the effect that so and so is likely to go through border control in 30 minutes’ time or on to such and such a flight, and the services will need time. However, that having been said, the code does not even provide for an explanation at the earliest opportunity. It talks about “requesting reasons”; it puts the onus back on the traveller. However, the officer may not know the reasons—so you can request them as much as you like but you will not be given them by somebody who has not been informed of them.
I take the point about security. I suspect that these situations might all be emergencies. To conclude, is there some way of encapsulating and dealing with this concern? If it is not in the Bill at Third Reading, could there be at the very least a change to the code to make the arrangement more human for the person affected? I would be very happy between now and next week to try and thrash out how this might be provided.
Lord Bates
On the latter point, of course the code is open to consultation. I certainly give an undertaking that my noble friend’s remarks will be fed into that consultation process.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendments 3 and 4 are also in this group. In Committee, I raised the issue not only of “arrangements”—the term used in the schedule—for persons unable to leave the United Kingdom after the retention of travel documents, but arrangements for their travelling companions. The Secretary of State can make arrangements for the person concerned, but often people do not travel by themselves, and those who are with them will be affected as well, as the noble Baroness just said. My noble friend Lord Ashton said that the debate had,
“highlighted a potential gap in the current provisions”,
and said that,
“the Government are committed to considering this issue in greater detail”.—[Official Report, 20/1/15; col. 1257.]
My question is, of course, whether the Government have now had a chance to consider the situation. If we do not refer to other people in the Bill, and if it is a fair point that arrangements for companions of the traveller in question should be considered, is there some other basis on which the arrangements could be made without the provision being ultra vires? I beg to move.
Lord Bates
My noble friend Lord Ashton indeed undertook to go back to consider whether the intention was that those travelling companions would be covered. The brief answer is that I can confirm that parliamentary counsel’s view is that that is indeed the case under the current wording. I hope that that will provide assurance, but for the purpose of the record, I can confirm that paragraph 14 of Schedule 1 already gives the Secretary of State sufficient scope in appropriate circumstances to make arrangements for travel companions of a person whose travel documents are retained. That is because such arrangements will relate to the person subject to the exercise of the power. An amendment to the Bill to apply that provision to travelling companions is therefore in our view, and that of counsel, unnecessary.
Amendment 3 would widen the ability of Paragraph 14 to include where a person is,
“unable to make the journey to which the travel relates”.
The additional wording is unnecessary, as it is captured in the current drafting of,
“unable to leave the United Kingdom”.
For that reason, we are unable to accept the amendment; but I hope, having had the opportunity to clarify that important provision, that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, that is good news. I had not thought that the words “in relation to” the person could extend to “in relation to relations”, as it were. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 6 and 7. In Committee I raised the issue of people who might be travelling for humanitarian reasons rather than simply—if that is the right term—because they are involved in terrorist-related activity. I recognised the difficulties in this, as an individual could assert that he is simply travelling to give humanitarian aid. It is hard to untangle what constitutes support, as envisaged by the Bill, which is more than humanitarian assistance. To put it another way, showing that humanitarian assistance is not so intractably bound up with the activity in whatever country it may be is very difficult.
I therefore chose to base my argument on the position of reputable organisations such as the Red Cross. I had not anticipated the contribution from the noble and learned Lord, Lord Hope of Craighead, which extended the matter very usefully to issues that had come to his attention in his chairmanship of the Joint Committee on the Draft Protection of Charities Bill. He drew the committee’s attention to examples where there had been deterrence to those organisations—I think it is fair to say organisations rather than individuals —that were seeking to go to the areas in question for all the right and good reasons, but feared that they might be prosecuted under the terrorism legislation.
I take the point made by the noble Lord, Lord Harris of Haringey, and I think I took it at the time, that this is actually quite difficult to find one’s way through as a matter of practice. Rather than adding it to the Bill, I have suggested—and I am grateful that the noble and learned Lord has added his name to Amendment 5—that the training to be provided and dealt with in the code of practice should include identifying people to whom this applies; that is, persons intending to leave for humanitarian purposes, not for the purpose of involvement in terrorism-related activity. In other words, those who had exercised the immediate power should be assisted in this.
The other two amendments in the group take me back to the issue of equalities, discrimination and the perception of discrimination. At col. 145, my notes tell me, I dealt specifically with the Equality Act, which was mentioned in debate, as well as recording when the powers are exercised. There is a provision in the code about monitoring. I think that monitoring requires recording, and we are all only too aware, as my noble friend Lady Hussein-Ece has referred to today, of the problems of profiling and inappropriately stereotyping—well, any stereotype is probably inappropriate—and inappropriately identifying individuals who may be the subject of suspicion. I beg to move.
Lord Ashton of Hyde
The Government’s position is that we do not want people to pay money to terrorists for any reason, so I think that what the noble and learned Lord said was correct.
Baroness Hamwee
My Lords, there were a few nuggets in that, for which I am grateful, so I shall not spend time on Amendments 6 and 7.
I absolutely take the point that there might be other entirely legitimate reasons for going to Syria or wherever, as the noble Baroness, Lady Smith, suggested. It made me realise how important gisting is, or an explanation of the reasons for many powers being exercised, because the reasons may come out in an exchange at that early point—the noble Baroness is right about photojournalists and many other completely proper reasons.
The Minister said that the Government do not want people to use humanitarian reasons as a pretext. I did not use that term, but that was exactly what I meant. I think I said that someone could assert that they were going out for that purpose. I agree with that. As to whether officers need training, let me just say that I put question marks against that rather than ticks.
Not being aware of prosecutions does not entirely answer the point. The noble and learned Lord, Lord Hope, talked in Committee about the chilling effect. I fear I have not followed up his references, but he also pointed us to legislation in Australia and New Zealand, which, as I understood it, he felt dealt rather better with that point. The noble and learned Lord nods at that.
I had hoped that we might have been able to take the matter a little further today. On some points we have, but I think that this may remain a real issue. Having said that, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 8 takes us back to the subject of gisting, but in the context of the imposition of a travel exclusion order. Clause 4 requires an explanation of the procedure for applying for a permit to return. I would extend that explanation to a summary, bearing in mind the security issue of the reasons for the imposition. I am not seeking a detailed explanation, but for reasons to be given that give an outline, so far as it can be given, for the individual to understand what is being imposed on him.
Amendment 9 would insert a reference to not having a reasonable excuse when failing to comply with a condition attached to the permit to return. In Committee, I referred to a “material failure to comply”. The Minister pointed to the provisions in Clause 10 dealing with the offence which would flow from breaching the condition—in particular, that an individual subject to a TEO would be guilty of an offence if he returned without reasonable excuse. I am seeking to align the provisions and to attach similar wording to the provision that deals with the invalidation of a permit. I beg to move.
Baroness Warsi (Con)
My Lords, I want to add words of support for the noble Baroness, Lady Hamwee. Providing the “gist”, as it was referred to by the Joint Committee, would certainly dispel some of the concerns that could arise about the potential random use of these powers, even if they were not so used. Providing that little bit more information, with individuals having direct experience of the reasoning, rather than the oversight process that would follow, would have a useful purpose.
Baroness Hamwee
My Lords, I thank the Minister for that. I certainly had not envisaged putting any ideas into an individual’s mind as to what might be effective to explain his position. On a more general point in response to the comments on gisting, an individual who is subject to these processes is likely not to be wholly open-minded as to the reasonableness of the Secretary of State. Issues of transparency are important here as well. The Government rightly talk about a balance and I do not disagree with that. However, having in mind the need for a balance, I am sorry that the Government have not been able to produce a provision dealing with gisting at the various points at which it might—or to my mind should—arise. My attempts are very amateur. It is a shame that the Bill does not reflect the Government’s approach, which of course, on the issue of balance, I fully share. Having said that, I beg leave to withdraw the amendment.
Lord Hylton
Gloucester is rather nearer to London than 200 miles, which is a possible distance. Having said that, I reaffirm my support for the amendment.
Baroness Hamwee
My Lords, at the last stage I supported the noble and learned Lord. I had not thought it would be appropriate to come in at this stage because I had to deal with something else while remaining in the Chamber, so I was not able completely to concentrate on what he said. However, as one of those who, I suppose, must be regarded as having danced the most during the earliest part of this afternoon, I reaffirm my support. I trust the courts to take a proper attitude to the issues which come before them, which is what this amendment is about.
Lord Woolf (CB)
Before the Minister rises, I will just say that, as I understand what is proposed by my noble and learned friend Lord Brown, he is not saying that the courts’ powers should be in any way unusual. This is really giving them an ordinary responsibility within the scope of judicial review as I have always understood it.
Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 3 months ago)
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Baroness Sharp of Guildford (LD)
Amendment 103A is the first in a series of amendments relating to Part 5 of the Bill, which relate also to the Prevent strategy and its partner, the Channel programme. Part 5 seeks to make statutory for participants in these two programmes actions and duties that have until now been voluntary. That switch from co-operation to co-option raises a whole range of issues for those involved. The universities in particular are very unhappy, about both the threat to their autonomy and the conflict that this creates with their duties under other legislation to promote debate and safeguard freedom of speech.
The provisions in the Bill and its accompanying guidance also pose problems for other educational institutions: schools, further education colleges and sixth-form colleges, which provide for the younger—and arguably more impressionable—adolescent age group. Generally, there is considerable concern that these provisions may backfire and, far from helping to improve the present position, may well serve to make matters worse. To date, all these educational institutions have co-operated voluntarily and willingly with the Prevent strategy, accepting and developing it to suit their specific circumstances within the framework of their safeguarding policies. They worry that making these duties obligatory and pushing through this legislation with relatively little consultation will not only leave teachers and administrators with a considerable bureaucratic burden, but will also alienate those on whom those burdens fall as well as those whose activities it seeks to monitor.
In this context, Amendment 103A is a probing amendment; I am not suggesting that this wording is in any way appropriate. Essentially, it seeks to draw attention to the lack of clarity in the terminology used in the Bill and, in particular, in the draft guidance, which was issued alongside the Bill. The Bill itself is very careful to use the term “terrorism” and the duty specified in Clause 21(1) is,
“to prevent people from being drawn into terrorism”.
Clause 33 states that,
“‘terrorism’ has the same meaning as in the Terrorism Act 2000”,
which is a definition that has been around for some 15 years, so presumably the courts are reasonably happy with it. The definition of “terrorism” in the Terrorism Act 2000 relates to the “threat of action”, which involves violence against people and property, endangers lives, constitutes a serious risk to health or safety, or seriously disrupts an electronic system. It is less clear, and more subjective, what “being drawn into terrorism” —the words used in the Bill—means. The difficulty arises from the draft guidance that was issued.
The guidance makes it clear that the purpose of the legislation is,
“to exclude those promoting extremist views that support or are conducive to terrorism”.
In turn, paragraph 5 of that guidance defines terrorism as,
“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.
Further, those caught by Clause 21(1) are required to assess how far their students or pupils are at risk of being drawn, not only into violent extremism, but,
“non-violent extremism, which can create an atmosphere conducive to terrorism”.
An article in Times Higher Education suggested that that could apply to those using non-violent techniques such as sitting in a road to block the passage of equipment to be used for exploring fracking. As the Joint Committee on Human Rights pointed out, the terminology is so vague as to leave much discretion in the hands of the police and other members of the local panels being set up under Chapter 2 of this part of the Bill, whose task it is to decide whether those reported as being drawn into terrorism, or vulnerable to being so drawn, should be put on a support programme. I have a great deal of sympathy with the Association of School and College Leaders, whose briefing to us pointed out that the lack of legal certainty over definitions of terms such as “extremism” will make it extremely difficult for schools and colleges to know whether they risk being in breach of this new duty. The association remarks:
“A number of members had received the Prevent training in their schools and colleges, and while some found it helpful, others found that it was so vague in respect of what to look for that they felt even less confident about the duty after going through the training”.
It seems very difficult for us to impose these duties on such a wide body of institutions if there is such uncertainty over what this duty involves. I beg to move.
Baroness Hamwee (LD)
My Lords, Amendment 103B in this group is in my name. Widespread concerns have been expressed about Prevent becoming a statutory duty, and it has been suggested that Clause 21 be left out of the Bill. My preference would be for it not to become statutory, but I recognise that the Government have thought about that carefully and come to a view. I declare an interest as one of three joint presidents of London Councils, the umbrella organisation for the London boroughs. Like others, it is concerned.
I have two main, and rather different, points to make about the amendment. It would mean that the duty would not apply to any of the specified authorities—those listed in Schedule 3, and any more that are added,
“unless the Secretary of State has laid before Parliament a report regarding the operation of the duty”.
I shall come back to the term “operation” in a moment.
My first point is to ask whether imposing the duty is appropriate to all specified authorities, and for all the functions of those authorities. My second point is about funding, particularly in the case of local authorities. As my noble friend has said, authorities will have a statutory duty, as set out in Clause 21, to “have due regard”—and in talking about activities leading to terrorism, she has identified an important issue. My amendment would require each authority to be considered separately. The authorities are different, and they operate differently. That is why I have used the term,
“the operation of the duty”.
The scheduled authorities range from local authorities through a great variety of educational institutions, the police, prisons, health services and health service providers. Even if the duty is appropriate for a higher education institution—we will be paying a good deal of attention to that aspect today—is it appropriate for a primary school or a nursery school?
Of course, preventing people being drawn into terrorist activities is immensely important. However, I wonder whether our great arts institutions, which get a lot of public funding—although not as much as most of them would like—have more opportunity than a nursery school does to deal with this issue. A nursery school may have a responsibility, but it is a responsibility to make kids aware of the difference between violence and talking about things. That is much more important than closing off the issues.
I do not think it is enough to say, as I suspect the Minister may suggest, that there will be a proportionate light touch, because having the duty creates work and bureaucracy, and requires record-keeping. The Secretary of State will have the power to issue directions and, in the case of educational institutions, Ofsted will apply them. As has been suggested to me by some of those concerned—especially by those from the Muslim community, although my concerns are not limited to that—the records may then show that there is disproportionate criticism of schools in areas with a large Muslim population. That will give the alienating message—I believe “alienating” was the term my noble friend used—that we are concerned about.
I suspect that others will talk about the principle of applying a statutory duty to local authorities, as distinct from a function and a power, as has been the case, and would be the case. I want to ask my noble friend about services that are contracted out by local authorities, as many services are. If an authority is in the middle of a contract, it cannot change it; it certainly cannot change it unilaterally. How should it deal with that? New and renewed contracts would have to tie organisations into the new duty. That is in part why I have used the term “operations”, because I am unclear how this will work in practice.
Lord Bates
My noble friend has great legal expertise in the terms being used here. We are saying that, clearly, if you put anything on a statutory footing—even to “have due regard to” the guidance—then there must be a consequence should you fail to have due regard or are found not to have due regard; and that that must be specified in the legislation. That is all we are doing here. I am sure we are all of the view that such a measure would be used only in extreme circumstances. We fully expect that all universities will do what the best universities are doing already, which is to have their systems and procedures in place for this. As I have said, I am very conscious that we will be returning to this in further groups; but in the mean time I would be grateful if my noble friend might consider withdrawing the amendment.
Baroness Hamwee
My Lords, before my noble friend responds, I had degrouped that amendment from my, rather than from anybody else’s, amendments. In replying, my noble friend the Minister has relied a great deal on Clause 24 on guidance. However, that does not seem to me to justify the ability of Parliament to consider, authority by authority and function by function, the application of this duty, which is a much more significant duty—on that I am very much with my noble friend Lord Phillips—than the words “due regard” in everyday speech might suggest. If I were to see Hansard by the time we reach Clause 24 today I might think that my noble friend had given me quite a lot of material to press my amendments to that clause, because he has said an awful lot that supports what I am arguing should go on to the statute book. We will come to that, but I wanted to make it clear that my point is about Parliament’s role in this; it is not about consultation on guidance.
Baroness Sharp of Guildford
I thank the Minister for his response to my amendment and other noble Lords who have participated in this very interesting debate. It was supposed to be a relatively minor probing amendment to clarify the definitions and to make the point, which I think still needs to be made, that where there is not clarity in definition, it leaves a great deal to the judgment of those expected to implement these duties. That in itself poses problems, both for those in the process of implementing them and those who, perhaps further down the line or on the panel, will have to make assessments about those seen to be vulnerable to terrorism. And what does “being drawn into terrorism” mean? There are problems here for those who need to interpret the legislation.
We have had a much wider debate than just about definitions. It has been a very interesting debate about, as I said in my introduction, whether the Prevent strategy should be statutory. I am very much of the view taken by my noble friends Lord Phillips and Lady Hamwee, that in fact the subsequent clauses—24, 28 and 30—make the whole business of being statutory fairly rigorous.
The effectiveness of the Prevent programme, whether we need to review it, whether it is sensible that the programme should be statutory, or whether we should not continue to rely on the voluntary participation of the institutions are all questions that we will undoubtedly come back to, both later today and on Report. For the moment, I beg leave to withdraw my amendment.
Baroness Hamwee
My Lords, the world of local government, in its kaleidoscopic way, is changing at the moment with new groupings of authorities, such as the Association of Greater Manchester Authorities. Although the duty is expressed as a duty on each individual authority, will the Government be open to authorities seeking to find ways for neighbours to provide services to fulfil the duty? This has only just occurred to me, but it seems that one should be open to practical ways of dealing with this sort of thing.
Separately, I ask whether my noble friend is able to address my points about the contracting-out of services, which I raised in the first group of amendments. I do not know whether he has any notes on that. It is mentioned in Amendment 106 in the Minister’s name, which caused me to go on a hunt for Schedule 36A to the Education Act. That is only about education and there are many other services which are contracted out. I asked London Councils whether I was barking up the wrong tree in worrying about this. Its answer was that I was not and that this is something worth pursuing.
Lord Harris of Haringey
My Lords, I suspect that my noble friend’s amendment highlights the fact that this is a list which has been cobbled together with some speed and that perhaps, in trying to ensure that all the bases were covered, the normal diligence of the Home Office has fallen apart. As to the specific point about unitary authorities, my noble friend Lord Rosser suggested that perhaps a county council could act on behalf of a unitary authority. The very point about unitary authorities is that you cannot do that. That would raise some very interesting and wide issues so I assume that that is a simple omission. Regarding the list on criminal justice, while I assume that the duty is placed on the individual institutions, there is nothing said more generally about the role of headquarters bodies or contracting bodies like the National Offender Management Service.
There are a couple of other possible anomalies that the Minister might want to address. I note that community health councils, which still exist in Wales although they have been long abolished in England, are listed, but that the successor of the successor of the successor bodies for community health councils in England, Healthwatch organisations, are not included. Will community health councils in Wales have a Prevent duty that does not apply to the bodies which now fulfil many of those functions in England? Finally, I do not see the Ministry of Defence Police in the list of police organisations.
Lord Scriven
If it is a function across health professionals and health services, the proportion of people who come into contact with an acute trust is significantly small. Why have the health service and GPs been excluded from the duty, yet consultants who see the minority of patients have been included? What is the significant difference in order for the Government to be making that delineation of clinicians?
Baroness Hamwee
My Lords, if the Minister is going to come back to us on various points, perhaps he can include something on patient confidentiality.
Lord Bates
As I sat down to take that intervention, further inspiration came to me on this matter. We are consulting GPs on their role in this, and we will have regard to the important points relating to patient confidentiality to which the noble Baroness referred.
Finally, Amendments 119 to 122 would allow the Government to make changes, through regulations, to Schedules 3 and 4 at any time after the Bill is granted Royal Assent, and before such time as the rest of this part commences. The amendments ensure that, in the event that there are additional bodies to which the Prevent duty should apply or which should be partners to Channel panels, then those bodies can be added to the appropriate schedule with as much notice as possible before the duties on them commence. This is clearly in the best interests of those bodies because it will give them time to prepare. This has particular relevance to the addition of Scottish bodies. The Government have made clear that it is our hope and intention that Scottish bodies will become subject to the Prevent duty, and we are currently discussing this with the Scottish Government.
We still wish to make the changes to the schedules as soon as possible after Royal Assent, and to have the duty commence for all specified authorities in England, Wales and Scotland at the same time. Therefore, I invite the Committee to agree these government amendments and trust that, in the light of my earlier clarification, the noble Lord will feel able to withdraw the amendment.
Baroness Hamwee
“( ) Guidance issued under this section shall in particular deal with equalities issues.”
Baroness Hamwee
My Lords, Amendment 112BA is grouped with a number of other amendments, most of which relate to Clause 24. The amendments in this group in my name and those of my noble friends have been tabled to enable me once again to raise issues about equalities and concerns about discrimination.
It has been put to me that Prevent is regarded as a security prism through which all Muslims are seen and that Muslims are suspect until proved otherwise. The term “siege mentality” has also been used. We have discussed the dangers of alienation arising from the very activities that should be part of the solution, not part of the problem, and of alienation feeding violence. I have said to the Muslim organisations that have contacted me, and I think I have said in the Chamber, that because the current context for this legislation is the war in Syria and since most Britons, not all, who are drawn into fighting there are Muslims—I am not saying that they come from the same ethnic background; that is, of course, quite different—it is inevitable that Muslims will make up the great majority of those who are the subject of, or some might say subjected to, the provisions of this Bill.
We have laws about equalities and they apply to this legislation as to every other piece of legislation. I doubt that much can be done in legislation to address the concerns I have just summarised but what can be done should be done: in legislation, in practice and in providing safeguards against discrimination. Transparency is a very important tool and it occurred to me today that, the more transparency there is about how these provisions are operated, the more ammunition—if that is not an indelicate word in the context—the Government can give themselves to counter those concerns.
I have mentioned the current context. The counter- terrorism strategy and policy of course are also directed to dealing with other extremism manifested in violence—for instance, right-wing extremism. I am told that freedom of information requests for basic statistics about Prevent are routinely denied on the basis of national security. It seems to me that we should be looking for ways of providing information that do not endanger security. For instance, I wondered how many individuals are in a programme because of anti-Semitic violence. Over the last day or two, I have been pondering what it would look like if one substituted “Jewish” for “Muslim” in the briefings and descriptions we have had. The issue is not just how I would see it as a Jew—not a very observant Jew but one who is aware of her background and heritage—but also whether other people, who might be resistant to some of the points I have been making, would see things differently if it were a different group interposed in that way. I think that if this were aimed at the Jewish community or communities, I might feel targeted rather than protected. I say all that by way of some introduction and can go through the specific amendments fairly quickly.
I said earlier this evening that I think—although I am going to have to read the debate to check—that the Minister in his answer on the first group implied more support, at least for the thoughts that lie behind these amendments, than I suspect he is going to articulate now and he also implied more consultation than the clause spells out. The clause deals with revised guidance as well as the first issue of guidance. If one accepts the Minister’s point about how well the Government have conducted the process so far for the purpose of the argument, nevertheless the issues I am raising will be important for the revision of guidance as well.
The first of my amendments, Amendment 112BA, states:
“Guidance … shall in particular deal with equalities issues”.
I think that that speaks for itself.
Amendment 112BB would insert that there must be consultation with,
“the specified authorities subject to the guidance”,
as well as with, as stated in the Bill, the Welsh and Scottish Governments. The clause then goes on to include the very wide catch-all—although it could be a very narrow “catch-few”—of,
“any person whom the Secretary of State considers appropriate”.
It must be right for those who are going to be the subject of this guidance to be consulted.
I then take that a stage further with Amendment 112BC by providing that, before responding to that consultation, a specified authority should,
“consult its local or other relevant communities”.
It comes pretty naturally to most local authorities to consult their own communities when they are proposing to do something, although not always. However, I do not just mean residents as a kind of amorphous bunch. There are communities within communities. We are all members of more than one community, and the specified authorities can identify their communities as they see fit under what I am proposing.
The next of my amendments, Amendment 112CB, relates to Clause 24(7), under which the Secretary of State can make minor revisions to the guidance without going to Welsh and Scottish Governments if the,
“Secretary of State considers that the proposed revisions … are insubstantial”.
I would like to see that as an objective test so that it could be challenged—in other words, I would like to change this subsection so that the consultation provisions have effect unless they are insubstantial.
Amendment 112DA is an amendment to Clause 25. It must be the case that authorities have the opportunity to make representations before directions under this clause are given—this being the clause which takes us to the sanction for failing to comply with the duty. I would hope that that would be automatic. It is perhaps a matter of general law but, again, I think that it should be spelled out.
Amendment 112F also relates to the directions clause provisions. It would insert that the Secretary of State should report to Parliament on any direction given. Giving a direction in this way is a pretty substantial action, and I think that it should be reported to Parliament with the reasons for it.
I hope that I have covered everything that is in my name. My noble friend tells me that I have, so I beg to move Amendment 112BA. As I do so, I realise that each of the amendments is on what might be thought to be a small point but, in my view, they amount to trying to find a way of addressing concerns which are clearly very real in the minds of those who have been looking at this legislation.
Baroness Brinton
My Lords, I should like to speak to Amendments 112C and 112E, which are in my name. I start by apologising to the Minister. I am sorry that I could not manage to get to his meeting last week. I know that my noble friend Lady Hamwee expressed my concerns and I am grateful for the Minister’s letter on some issues which has been referred to considerably since we started today’s session.
These two amendments are important and my noble friend Lady Hamwee ended on that point. After going to war, the right to curtail freedoms is one of the most important decisions that a Government have to take. The one thing that is missing at the moment on some of the key directions, particularly on guidance and on where the Secretary of State gives a direction to an authority, is any sense of accountability and transparency.
I shall take the amendments in order. Amendment 112C says that if guidance is issued,
“the Secretary of State must lay before Parliament … the proposed guidance or proposed revisions”,
and it should be done by an affirmative instrument of both Houses. As I have said on earlier amendments, guidance also needs to be combined into one document with any other parallel guidance that will ease matters for those having to use it. The duty in the Education Act 1986 is absolutely clear and I believe that the guidance has been brought forward in haste. The Commons has not managed to see the draft guidance and the consultation does not end until tomorrow. I am grateful to my noble friend for some of the changes that he has made but I see nothing in his letter that relates to this issue of transparency and accountability to Parliament. It is important on such a sensitive issue that goes to the heart of the freedom of people in this country that Parliament at the very least should have the right to examine any changes that the Secretary of State wishes to lay.
Amendment 112E asks for the same scrutiny for the Secretary of State should she or he direct under the terms of this provision. It is important that we as Parliament understand how and why an appropriate authority has failed, partly so that we can amass the evidence that my noble friend talked about earlier, but also because we as Parliament need to know exactly what is happening. Amendment 112E also provides that:
“A copy of any such report must be sent to—
(a) the Chair of the Joint Committee on Human Rights;
(b) the Independent Reviewer of Terrorism Legislation; and
(c) any other person whom the Secretary of State deems appropriate”.
It is also important that the relevant sector sees what is going on so as to understand the issues, a point made by the noble Baroness, Lady Hamwee. The three bodies mentioned also deal with some of the wider issues around terrorism, freedom and liberties. It would be inappropriate for them not to comment before such matters were discussed in Parliament.
Lord Harris of Haringey
Before the noble Baroness, Lady Hamwee, makes that decision, I revert to the question of what it is that is being required and one of the reasons why that might imply that it is better to have more consultation about it. One of the reasons why some of the previous Prevent programmes failed, and fell into disrepute with the communities concerned, was that they were not seen as about preventing people from going down the road to become dangerous, violent extremists. Rather, they were seen as being programmes that put a series of spies in the camp and were about reporting individuals to the authorities for action to be taken against them. Speaking personally, I am all for mechanisms that identify people who are a danger to the rest of us and make sure that appropriate steps are taken, but this was perceived as being the authorities intervening and getting the data. We are going to come to this subject in a minute, but when I questioned the Channel panels as to why the intelligence services were not specifically listed as an agency involved in that, the argument given at that stage was that it was because it would make it look as if the Channel panel process was part of a process of ratting on individuals to the authorities.
It is important to get this guidance in a form where the communities understand that it is not about pointing the finger at individuals in a way that might lead them into trouble with the authorities, but is a way of supporting individuals and preventing them going down that road. That is why this distinction of whether this is about “prevent” or “pursue” is so important, as is getting public and community buy-in to the way in which this is enforced.
Baroness Hamwee
My Lords, my noble friend might not be too pleased to know that I was scribbling quite a lot during his reply, but he will be pleased to know that I can hardly read what I have written. However, I am sure that this is something that we are going to want to come back to next week. It strikes me that a lot of this debate has been on the premise of what the situation is here and now. Even with the reassurance that my noble friend Lord Carlile is so heavily involved in this, I do not suppose that he is going to want that to be for ever and a day. There might come a time when he finds other things that he will apply his energy to.
Leaving that aside, I made the point earlier that what we are talking about here is not only the guidance that we will see fairly shortly. The noble Baroness said that we will not see it until after Committee; in fact we will not see it until after the end of the Bill or even, as far as I understand it, until after enactment. There is also the question of revisions to the guidance, which is surely going to have to be changed; it is very unlikely to be exactly what is required in its first incarnation. It is the sort of guidance that needs time for individual organisations to have their own internal discussions and for umbrella organisations to trickle down the consultation—
Lord Carlile of Berriew (LD)
I am grateful to my noble friend for allowing me to interrupt her. The Minister, during the course of his speech a few moments ago, mentioned the Prevent oversight board on a number of occasions and kindly referred to my involvement. Does he agree with me that, if the Prevent oversight board is to have a realistic oversight role, it should meet reasonably often; it should be able to choose what it reviews from time to time; and it should be heavily involved in the quality control of Prevent schemes around the country rather than, as at present, meeting very rarely and not really carrying out a great deal of detailed scrutiny?
Baroness Hamwee
I am not sure whether that was a question for me; I assume it was, although it seems to be beyond the amendments that we are dealing with here. In making that point, though, I think my noble friend is pointing to the breadth, depth and complexity of this issue and to the need to keep everything under review and to be open to making changes as it becomes apparent that they are needed. This sort of guidance needs time for those who are affected to trickle down consultations, sweep up the responses and reflect back—perhaps this goes to my noble friend’s point as well—experience on the ground.
Like the noble Baroness, I mentioned nurseries in the first group and said rather more about the bureaucracy involved, which would be inappropriate for small organisations such as the nurseries, pre-schools and primary schools that we are talking about. It is about the substance as well as the bureaucracy. I was reminded by her anecdote of the six year-old son of a friend who was being visited by a German family. The child came downstairs going—I do not know how Hansard can reproduce this—“Rat-a-tat-tat”. He was asked, “What are you doing?”, and replied, “I’m killing dirty Germans”. That is exactly the same sort of experience, but how should one react to that?
On the individual amendments rather than the generality, I am glad to hear that the Government will consider equalities issues. What the Minister was given to read was that the Government will, “consider any equalities issues that have arisen since we published the draft for consultation”. There will be issues, I think. I will not get into a discussion at this time of night on the philosophy of consulting the population of prisons, although I think there is quite an interesting debate to be had about that.
Under my Amendment 112CB, the Secretary of State would have to take the decision about whether or not proposed revisions to the guidance were substantial, but that should be by an objective test, not a subjective one.
In summary, I come back to two words: transparency and safeguards. I will of course consider the detail of what my noble friend said, but it is quite clear to me that, with perception being so important as well as reality, we have to reduce the opportunity for incorrect perceptions as well as everything else.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 115AA takes us back into Chapter 2 and the Channel programme. Clause 28 deals with local panels for assessment and support. The Bill provides that a chief officer of police can refer an individual to a panel. I was requested to raise the first of my amendments in this group by London Councils to allow local authorities as well as the police to make direct referrals in order to access specialist support for individuals who are identified as vulnerable to being drawn into terrorism. London Councils is concerned that the provisions might have the effect of limiting the access of public bodies other than the police to a key source of support. It gives as an example a teacher who may spot a pupil who has been accessing extremist materials and refer that pupil to the local authority under the school safeguarding policy. The local authority might conduct an assessment under safeguarding and child protection legislation, agree that the pupil is vulnerable to radicalisation and decide that the sensible next step would be for the case to be considered by the panel in order to access appropriate support.
London Councils is also concerned that, as drafted, an unbalanced relationship between the police and local authority would be created. The local authority of course would chair the panel. Another concern is that cases that come up before a panel are “deconflicted” by the police to ensure that the person concerned is not subject to an active investigation before a support plan can be put in place. I would be grateful if my noble friend could respond to that offer from local authorities to be even more active.
Amendment 115AB takes us to what the support plan would include. It returns to points that I have already made about discrimination, grassroots, bottom-up and perceptions. I suggest a reference to people,
“who will be consulted in keeping the plan under review”,
in order to ask about the role of the local community, religious leaders, the family and so forth and how they will be recognised.
Amendment 115AC is about the support that the panel may put into place. We are told that it must consider reference to a provider of health or social care services. Those are not the only services. I seek to add the words “or other”; for instance, housing. I know that Ministers have referred to Jobcentre Plus and so on. There are a number of other services which might be appropriate for an individual. I do not whether counselling would come within local care, but certainly that is also one which should be considered.
The last of my amendments in this group is Amendment 118ZA. It would amend Clause 32, which is about indemnification. We are told that the Secretary of State may agree to indemnify a support provider against reasonable expenses. I think that that should be “shall”. We have already more than touched on necessary expense and good investment but nevertheless there is concern about the expense of the sorts of programmes we have been discussing today. The authorities that will be required to undertake these various duties and activities will be very stretched to find the money for them and questions of prioritisation will arise. If I can be told that “may agree to indemnify” actually means “shall” in the odd way we sometimes seem to go about drafting legislation, that is fine, but I am certainly looking for some sort of reassurance. I beg to move.
Lord Ashton of Hyde
There is a reason why we want to put the local authorities’ duties on a statutory footing. If the Secretary of State is doing everything that the noble Lord wants her to do, I do not see any particular benefit in putting that on a statutory footing. However, rather than going backwards and forwards on this, I am prepared to take this matter back. If there is more information that I can provide to the noble Lord, I will do so.
All providers are bound by a service level agreement with the Home Office that sets out the terms and conditions of their appointment, including conduct. In addition, as part of their co-ordination role, the police regularly review progress made against any interventions commissioned. Any misconduct will be treated seriously, with the option of terminating an agreement with a provider. It would be unusual—and we think unnecessary—to provide for these matters in the Bill.
Finally, I would like to address my noble friend’s Amendment 118ZA, which seeks to ensure that the Secretary of State must indemnify a support provider against any costs and expenses incurred in carrying out functions as a provider. I would like to reassure noble Lords that the costs for each case would be considered and, where the case was deemed appropriate, those reasonable costs would be indemnified. However, there might be some cases where it would not be appropriate to indemnify costs. One of the key reasons for resisting making the indemnification clause a blanket duty, required in all cases, is that it is included in the Bill to plug a gap that might not arise in all cases. The gap is the absence of reasonably priced insurance in the open market for risks that might arise for intervention providers. Depending on the precise nature of the support the provider is giving, there may or may not be sufficient availability of cover in the market. The intention behind Clause 32 is to allow the Secretary of State, only where a provider cannot get adequate cover, to step in with an indemnity. We do not want the Secretary of State to have to indemnify if a product is available on the market. The Secretary of State should therefore have discretion to decide which costs or expenses would be indemnified, but, as I have said, it is the intention that reasonable costs would be indemnified.
I hope that my responses have addressed the concerns raised by these amendments during this debate, and on that basis, I invite noble Lords not to press the amendments.
Baroness Hamwee
My Lords, the reference to insurance leaves me—I have to confess—rather bemused. That was not at all what I thought this clause could be about. However, I will not take time expressing my bemusement. The Minister started his response by using the terms “practical” and “effective”. Those are criteria for me as well. Unfortunately, as it happens, I am not wholly convinced that we identified the same ways of arriving at that conclusion.
I am particularly grateful to my noble friend Lord Carlile for expanding the point about housing. Of course, he is absolutely right: local authority housing supply is minuscule, almost disappearing. However, the role of housing providers in this area can be very significant. I will think about the detail of the Minister’s response and perhaps come back to it. For now, I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) Guidance issued under this section shall in particular deal with equalities issues.”
Baroness Hamwee
I will try to move this amendment in under one minute, and not only because the Chief Whip is here. The amendments in this group more or less replicate, word for word, amendments made in respect of the Prevent programme. This part of the Bill is about the Channel programme. The Minister has been stressing the importance of guidance—which makes me think that my amendments are important. I simply invite him at this point to make any further or different comments or responses to those which he gave when I moved and spoke to similar amendments earlier this evening. I was just under a minute, I think. I beg to move.
Baroness Brinton
The noble Baroness has set a racing example, and I, too, will try to be extremely brief. My name is on Amendment 115B, which repeats the request found in two earlier clauses in the Bill through my amendments that when the Secretary of State issues or revises guidance she should make sure that Parliament has sight of an affirmative instrument in both Houses. I repeat, for the third time, I think, today, that where guidance is in parallel with other guidance, it should be issued as a single document.
The principal reason for this amendment is exactly the same as that for the other amendments: the Secretary of State has taken to herself and her successors a right to take decisions on guidance on sensitive issues. It is extremely difficult to assess which people are vulnerable to being drawn into terrorism. I am sure Parliament would want to have sight of this guidance and be able to review in future. As with my other comments, I hope that the Minister will be able to provide some reassurance that Parliament will be able to assess the guidance before it is given.
Lord Ashton of Hyde
My Lords, we have had a very brief debate on this part of the Bill. I am grateful to my noble friends for tabling this amendment. I fear that I may not be able to satisfy them. Amendment 115B seeks to make the guidance under the duty in Chapter 2 subject to approval under the affirmative procedure. Noble Lords should be aware that Channel is already an established programme across England and Wales and those who participate in the programme follow existing non-statutory guidance. The Channel programme has been in place since April 2012.
The current guidance for local authorities’ panels is being amended, in consultation with those involved in the programme, and will be reissued on a statutory basis. Guidance of this sort is not routinely made subject to parliamentary scrutiny, and the Delegated Powers and Regulatory Reform Committee has not recommended that it should be in this instance.
Amendment 115AF seeks to ensure that local authorities are consulted on any guidance issued for panels. Amendment 115E aims to ensure that partners of panels, or their representatives, are consulted before any guidance is issued. I can assure noble Lords that local authority panel chairs, panel members and police practitioners are being consulted about the revised guidance. Panel members invited to a meeting are likely to be those panel partners who have shared relevant information in relation to a referred individual and therefore will also be consulted at a local level. The consultation process will ensure that the views of all relevant stakeholders are taken account of and that the guidance is meaningful for those to whom it is issued. Their experience and expertise is invaluable in achieving this.
I hope that reassures my noble friend and that she will withdraw her amendment.
Baroness Hamwee
My Lords, I suspect that as with the equivalent group on the previous provisions, we may want to come back to these issues. I beg leave to withdraw the amendment.
Lord Pannick
I am very grateful to the noble Lord. That is extremely helpful. Of course I have no intention of pressing the amendment. I look forward to hearing what he says next week on Report. I ask him to reflect not only on the recommendation of the Joint Committee that the remit of the independent reviewer should be expanded but also, as the Minister mentioned, the other part of the Joint Committee recommendation—paragraph 7.8 of their report—that the Government should make available to the independent reviewer resources necessary to perform his task effectively. In particular, David Anderson has explained that it would help considerably if he were assisted by a security-cleared junior counsel. That seems a very good idea to me. I do not think that the provision of such assistance would need statutory authority, but I hope that the Minister can reflect on that. Other noble Lords may wish to intervene in relation to this debate.
Baroness Hamwee
My Lords, I am glad to hear what the Minister has said. Reference has been made to the Work Programme. My amendment extended beyond the remit to the question of the frequency of reporting, which is a point that the current independent reviewer raised. Less frequent reporting on some matters will free up time to focus on others, responding of course to the current situation. There is also the question of specific statutory powers for access to classified information and to gather information. He has said that he has not had a problem but that he feels that it would be appropriate for the matter to be dealt with in statute. I wanted to ask that those points be among those that the Government are considering and, like others, I look forward to seeing the amendment on Report.
Lord Carlile of Berriew
My Lords, I will add a few words of support for what has been said by the noble Lord, Lord Pannick, and my noble friend. I feel very grateful to my noble friend the Minister for taking the initiative in this group of amendments. David Anderson has set out very clearly and correctly the additional support that he needs and the programme of work that it would be in the public interest to have in his hands. The Minister seems to agree, provisionally at least, with David Anderson’s representations as articulated by the noble Lord, Lord Pannick, in particular, and I feel that we can now await next week with some confidence.
Baroness Hamwee
My Lords, I have Amendments 118G and 118K in this group but I want to say on Amendment 118J that I take the noble Baroness’s point about the impact on communities. The point has been raised with me as well and rightly so.
The first of my amendments in fact builds on the consultation paper. Under the section headed “What would the … Board do?”, it sets out in bullet-point form a number of core objectives. In most of the cases it uses the terminology that the subject of the consideration is,
“sufficient to meet the threat and adequately take account of privacy and civil liberties concerns”.
I think that I would prefer to see the word “properly” rather than “adequately” take account of privacy and civil liberties concerns. It is essential that that aspect is set out in the consultation paper, and I would hope to see it spelled out in the remit for the board in the statute as well. If it is not there, it is not there, and it will be difficult for the board to pursue that. My amendment is quite mild in that it seeks to provide advice to Ministers on that aspect of legislation. I have used the word “adequately” to reflect the consultation paper, although, as I said, I would prefer proper account to be taken of those concerns by that clear purpose being put on the face of the Bill.
My other amendment is about the chairmanship of the board, to which the noble Baroness referred. My amendment would give flexibility around whether the independent reviewer should chair the board. Mr Anderson has made his views clear about this being a possible diversion of his time and energy. I have a lot of sympathy with that, and the JCHR also took the point. The independent reviewer could still have an extremely central role in determining membership and the work programme without being the chair. I am not saying in this amendment that he—or, in future, she—should not chair the board; I am leaving it open for further consideration.
Lord Thomas of Gresford (LD)
I have an amendment in this group. It may be a miserable little amendment suitably to be looked at at 11.20 pm. It says simply that any regulations under the clause should be by way of affirmative resolution.
Perhaps I may say something a little more widely about the group. When I looked at Clause 36, the first question that came to my mind was: what is it for? You do not get very much out of the wording. It seeks to provide advice and assistance to the independent reviewer. Why and for what purpose? Then we look at what the regulations are to contain. They may include provision about,
“particular things that the board may or must do”.
This lack of clarification about the purpose of the clause is reflected in the amendments tabled by the noble Baroness, Lady Smith, and my noble friend Lady Hamwee.
I was quite interested in Amendment 118F because it contains provisions which I think would have shocked to the core the Home Secretary in the previous Government—the thought that these wide-sounding provisions should be given to a board. On the other hand, my noble friend stresses that this should be about privacy and civil liberty concerns. I think that if it were about privacy and civil liberty concerns, we would understand a little more about it. However, as it is, the lack of clarity about what it is for means that we are about to have the anvil dropped from a large height by the noble Lords, Lord Pannick and Lord Carlile. I trust that we will hear a little more in clarification from the noble Lord in reply.
Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 3 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, in moving Amendment 70, I shall speak also to Amendment 71—slightly less fast-tracked legislation than that which my noble friend the Chief Whip sought to take through the House just now.
Under the Terrorism Prevention and Investigation Measures Act 2011, the Secretary of State can impose restrictions on an individual leaving a specified area—the so-called “travel measures”. Clause 13 provides that the Secretary of State must publish factors to be taken into account when deciding whether to impose such restrictions on an individual. My amendment would add not only the restrictions but “and what restrictions to impose”. The area to which I have just referred is not defined, quite understandably, but it could be anything from a small postal district to a very large region. This is a probing amendment, seeking reassurance about the factors that will be applied to the decision as to what the area is, as well as whether to impose the travel measure. I appreciate that the Secretary of State’s decision will have to be a reasonable one, but I am looking to find a way not only to make the criteria objective, but as far as possible, transparent.
Amendment 71 would add to proposed new subsection (1A) of Section 23 of the 2011 Act the provision that, where there is a travel measure, an individual who breaches it is not guilty of an offence—because breaches of the TPIMs measures are offences—if he contravenes the measure,
“with reasonable excuse and in exceptional circumstances”.
I have in mind, again in probing, how an individual who leaves a fairly confined specified area will be dealt with if, for instance, there is a medical emergency involving either himself or a family member living with him, or if there is a sudden severe illness of a family member who is living at the family home and not at the place where the individual has been relocated. Quite understandably, he will want to get there as fast as possible and not have to take time seeking a permit allowing him to do so. It is a humanitarian and reasonable matter that one might well have in legislation. If my noble friend gives me assurances about how these things have been dealt with in the past—they are not new—and understanding has been shown so that a prosecuting offence has not been pursued, I will be happy with that. 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 tabling these amendments, which allow us to have a discussion on the travel measure that can be imposed on a TPIM subject.
Amendment 70 would amend the requirement for the Secretary of State to publish factors to take into account when deciding whether to impose restrictions under the travel measure. This would add an additional requirement to publish factors on “what restrictions to impose”. The purpose of the requirement in the Bill is to indicate the types of factors that the Secretary of State may consider when deciding whether to impose the travel measure. In each instance the location and size of any boundary will depend on the individual case. The factors that the Secretary of State may consider could include: national security considerations necessary to prevent or restrict involvement in terrorism-related activity; the original location of the TPIM subject, and by virtue of that, their family connections; the ability to access services and employment; the proximity to airports or ports; and the proximity to other TPIM subjects or prohibited associates. Any restrictions would have to be necessary and proportionate, as the noble Baroness rightly reminds us. The Secretary of State will publish these factors at Royal Assent and a copy will be placed in the Library.
Amendment 71 would allow a TPIM subject to use a “reasonable excuse” in exceptional circumstances to justify leaving the United Kingdom. In such circumstances, a prosecution for breaching the TPIM notice could not be brought. All other breaches of a travel measure—or any other measure—already allow for a reasonable excuse. The reality is that, if a TPIM subject leaves the UK without permission, they will be absconding from their TPIM notice. This is a very serious matter, as I am sure the noble Baroness would agree. It was the problem of absconsions which led to the creation of TPIMs as a successor to control orders. These individuals may very well pose a danger to the public in this country or overseas. We maintain that there is no reasonable excuse for leaving the UK without permission.
If a TPIM subject has a legitimate need to leave the UK, they can seek permission from the Secretary of State. There should be no circumstances where they leave the country without prior agreement. This morning, I discussed with officials the length of time that such measures might take. The experience is that these exchanges, permissions and interactions tend to take place on a very speedy basis. In the circumstances, we would not anticipate that there would be a problem in securing that permission.
I trust that, with that explanation and those reassurances, my noble friend may feel able to withdraw her amendment.
Baroness Hamwee
My Lords, that is very helpful. I wondered whether my noble friend might refer to the need to have a passport to travel outside the UK, which would probably have been dealt with as part of the arrangements for the individual. I will read through the list of considerations which my noble friend gave in response to my first amendment. I beg leave to withdraw Amendment 70.
Baroness Hamwee
“( ) The individual may request a person or persons to be specified in place of the person or persons previously specified.”
Baroness Hamwee
My Lords, in moving this amendment I will speak also to Amendment 74. The noble Baroness, Lady Smith, also has an amendment in this group.
Clause 15 deals with appointments which an individual can be required to keep. Following comment from the current Independent Reviewer of Terrorism Legislation, this takes advantage of the legislation in order to require individuals to attend appointments, for instance, in connection with deradicalisation. I really do not like that term: perhaps I might say appointments that would help the individual return to or lead a more comfortable and normal life. Amendment 72 would add that the individual could request somebody other than the specified person.
Different individuals respond in different ways to different counsellors, if I can use that term in a very wide sense. This work has to be dealt with case by case, and it would be a pity if it were to fail because of the individual and his counsellor simply not getting on and there not being a sensible opportunity to change the personnel. We all know of people who we simply cannot rub along with for reasons that sometimes we cannot even quite identify.
Amendment 74 would provide, in connection with such appointments, that the Secretary of State would be deemed to have given permissions for travel to enable the individual to attend appointments and, crucially, will not unreasonably withhold permissions to attend appointments relating to deterring other people from involvement in terrorist-related activity. We are all aware—it is a matter of common sense—that returning fighters may have a positive role in deterring other people. In the debate on Thursday on the latest proscription order that has been introduced, the noble Baroness gave an example of a woman trying to return to this country who was disillusioned with what she had found—I think—in Syria. That sort of disillusionment should be harnessed, and I would like to find every way of making this legislation positive as well as inevitably negative. I hope that my noble friend can assure the Committee in that connection.
I gave the Bill team notice of this matter this morning—if it has not yet reached the Minister, I will understand if he cannot answer—and will pick up an issue that the independent reviewer raised. This matter was also taken up by the JCHR: the question of privilege against self-incrimination. The Government’s response to the independent reviewer’s report was to say that this would not be appropriate. The Government referred to a “blanket approach”. Can the Minister unpack that a little today? I beg to move.
Lord Rosser (Lab)
My Lords, our Amendment 73 is in this group. As has been said, Clause 15, on appointments for people on terrorism prevention and investigation measures, allows the Secretary of State to require an individual to attend meetings with such persons as the Secretary of State may specify, at such locations and at such times as the Secretary of State may by notice require. The specified persons may choose the time and place of the meeting. The clause is expressed in general terms and the purpose of the amendment, which is a probing amendment, is to give the Government the opportunity to say more about what kind of meetings an individual would be required to attend, for what purposes or objectives and over what period of time. It would also be helpful if the Minister could say if assessments will be made of the outcome of these meetings and to whom the assessments, if they are made, will be given.
Our probing amendment provides for the Secretary of State to be able to instruct an individual on a TPIM to attend deradicalisation programmes, since we think it is important that the Secretary of State should be able to require people to attend Channel meetings and appointments and possibly those relating to other parts of the Prevent programme. However, I hope that in his response the Minister will not only address the specific point covered in this probing amendment but talk in more depth about how the Government envisage using powers under Clause 15.
Baroness Hamwee
My Lords, I am grateful for the response. On the last point which is not the subject of an amendment, I am glad to hear that questions of reassurances about evidence are and will be dealt with case by case. I had perhaps not understood the context of this, and that that might be the case. I am glad to hear it.
I hear what my noble friend said on my other amendments in the group and I do not think that it is necessary to detain the Committee, other than to comment that a change of counsellor/mentor/adviser will be within the provisions for review, which I think is how my noble friend explained how a change might be made. It is useful to understand that that might be the procedure. However, I am glad to see that it is appreciated that, for this to be successful, it must be a very personal matter. I beg leave to withdraw the amendment.
Lord Hope of Craighead (CB)
My Lords, I wish to add just a small point in support of what my noble and learned friend Lord Brown of Eaton-under-Heywood has said, and that is to stress the word “legitimacy” which he used in the course of his address. It is crucial that this particular system should not be open to challenges in the court to any extent; one must try to the maximum to minimise the risk of challenges. This is a very difficult area, as shown by these cases to which the noble Lord, Lord Carlile, just referred. It is the interaction between Article 3 of the Convention on Human Rights, which deals with detention, and Article 8, which deals with respect for the family life of everyone. Where you get these human rights in play, it opens up the possibility of arguments being raised by way of challenge to orders of this kind.
The strength of the amendment which is being suggested is that it cuts back the open door—if I might put it this way—to challenges, and limits them in the most sensitive of all areas, which is the kind of relocation to which the noble and learned Lord has drawn attention. It is right that this is not a probing amendment. It is actually a very important point to try to secure these TPIMs in a way that makes them robust enough to stand up against possible challenges which, if the amendment was not made, would be very likely to come.
Baroness Hamwee
My Lords, my support for the noble and learned Lord’s amendment is for real, to use his own term. I was reading a little—obviously I do not have the experience of other noble Lords, including my noble friend—about control orders at the time they were to be abolished and TPIMs introduced. One could not help but feel quite disturbed by some of the experiences undergone and the impact, as has been said, not only on the individuals subject to the orders but on members of their families so, as I say, I support this amendment.
I have just one question for the noble and learned Lord. It is about whether it is necessary—he must consider it is because he has included them—to have the words about the individual having “no connection”. As I read it, but I might have missed something, the amendment to Schedule 1 to the 2011 Act takes out the references to having a connection with a locality because the 200-mile limit is being introduced. If that is so, and we are losing references to there being a connection in the Schedule, is that reference necessary in the amendment?
Lord Macdonald of River Glaven (LD)
My Lords, I think noble Lords on all sides of the Committee have acknowledged that, because of the situation in which we presently find ourselves, powers of this sort are regrettably necessary. However, as noble Lords have said, their legitimacy is critical, and the rigour with which conditions are examined before they are imposed and the nature of that imposition itself are of the utmost importance. For all those reasons, I support the noble and learned Lord’s amendment.
Lord Rooker
I do not want to delay the Minister, but let us not beat about the bush. I do not speak for anybody other than myself, but I listened to every single speech, and those opposed to these amendments seem to be in favour of them being amended in line with the views of the committee that looked at the draft Bill. Will the Minister go back to the Home Secretary after this debate and make the request on behalf of this House for us to see, if not the draft Bill, the amendments to the amendments by Wednesday or Thursday this week, so that this House can make its mind up as to whether or not it wants to debate them and ask the other place? At the end of the day, Parliament has to decide but, as he knows, we are up against a time limit. Will he go back and say to the Home Secretary—these need not be his views, as he can just say he is the Minister with the message—that the House has asked whether it can see this information in time to do something with it?
Baroness Hamwee
My Lords, before my noble friend responds, and without making any comment about whether we should or should not be shown things, I do not think it is appropriate to characterise all the opposition to these amendments as solely being about the way in which they have been put. My noble friends have made points of principle which we should not ignore.
Lord Bates
I also acknowledge the noble Lord’s experience as a former Minister—I am surrounded by former Home Office Ministers and Security Ministers in this debate. The specific point is whether there could be further provisions. The noble Lord says we should not beat around the bush. The issue here is that we are contemplating measures at a fairly late stage in a Bill which contains a number of measures which we desperately want to make sure get on to the statute book. We do not want to risk this Bill and all the provisions in it at present, as we think they are vital. In fact, we consider that they are more vital than the simple addition of these amendments—as desirable as we may see them individually—to the Bill. We do not want to do anything which would jeopardise the process. There has to be a recognition that the other place—I am sure the noble Lord, as a distinguished former Member, would recognise this—would feel that it was being required to look at 21 amendments, running to some 19 pages in a 53-page Bill, on a fast track and with ping-pong between the two Houses on consideration of Lords amendments. It might feel, rightly from a constitutional point of view, that that would be a difficult thing for it to agree to. I am simply airing the issues.
The noble Lord asked specifically whether the draft Bill which has been shown to the noble Lords, Lord Blencathra and Lord Armstrong, can be shared more widely. I have undertaken to the noble Baroness that I will go back to the department and discuss that, and I will certainly come back with an answer as to whether that is possible. However, for the reasons which I have articulated—while recognising and appreciating the spirit in which these amendments have been put forward, which we absolutely share—I ask the noble Lord to consider withdrawing his amendment at this stage.
Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Rosser (Lab)
My Lords, as the Minister has said, the amendment provides for legal aid for proceedings before a district judge in the light of an application for an extension of the 14-day period. We fully support the Government’s change of heart on this point about legal aid. As the Minister mentioned, the amendment states that its provisions are subject to the exclusions in Parts 2 and 3 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So that we are clear on exactly what those exclusions mean, it would be helpful if the Minister could clarify what their impact would be in reality, in respect of legal aid being provided, or not, in applications for an extension of time for retention of travel documents, which is the issue covered by the amendment.
Baroness Hamwee (LD)
My Lords, I too am glad that the Government have addressed the matter of legal aid. There was clearly going to be a call for that. My question, which is a sort of prequel, is about whether advice would be available to a traveller at the point when travel documents are seized and retained. Legal aid is becoming confined to proceedings rather than advice, but this is an important point in the whole process.
Lord Rosser
As mentioned in the debate on the previous amendment, the group of amendments to which Amendment 3 belongs requires the Secretary of State to commission an annual report to be laid before both Houses by the Independent Reviewer of Terrorism Legislation on the exercise of the powers contained in Chapters 1 and 2 of Part 1 and in Part 2, which relate to the seizure of travel documents and temporary exclusion from this country. The amendments also require the Secretary of State to publish annual figures on the usage of these powers, and for an annual review of the arrangements made by the Secretary of State under the powers in paragraph 14 of Schedule 1 to be published and laid before both Houses.
I think I am right in saying that in its recent report the Joint Committee on Human Rights drew attention to the fact that neither of the new powers in Part 1 concerning the seizure of passports and managed return are made subject to independent review. It seems that the Minister told the JCHR that the Government had considered independent review, but apparently they were satisfied that any review of the extensive new powers in Part 1 should not extend beyond that carried out by parliamentary Select Committees. The Joint Committee on Human Rights referred in its report to the fact that the Independent Reviewer of Terrorism Legislation had commented on this issue, saying that if the powers we already have under the Terrorism Act need independent review, then surely the new powers in Part 1 also need independent review. It could be said that if that review took place it might help to inform a discussion on whether the powers needed reviewing if there was a sunset clause in the Bill. The Joint Committee on Human Rights said that, like the Independent Reviewer of Terrorism Legislation, it believed in principle that the operation in practice of the new powers to impose restrictions on the travel of terrorism suspects should be subject to independent review, and therefore it was recommending that the powers in Part 1 concerning passports and managed return should be subject to review by the independent reviewer.
In moving Amendment 3, I am also speaking to the other amendments in this group. I hope that the Minister will be able to give a positive response to them.
Baroness Hamwee
My noble friend Lord Carlile has already referred to the fact that the independent reviewer can, does and did look at far more than is spelled out in statute. My inclination would be to spell that out, but to spell out that the independent reviewer’s powers extend to all terrorism legislation. I have half a clause drafted to that effect for later in Committee stage. That does not mean to say, as these amendments suggest, that that should necessarily be annual. It may need to be done more than annually. Some legislation—I think it is the asset-freezing legislation—requires quarterly reports. As time goes on, subject to the eventual decision about a sunset clause, it may be not so necessary to report as frequently. Perhaps more importantly, I would prefer that a report was not subject to commissioning by the Home Secretary. A future Home Secretary might decide not to commission a report, and we can all see where that might go.
This is an important issue. I am glad that it has been raised, and it has been covered quite substantially already this afternoon. I am not convinced that this is quite the way to go about it. We need to look at the comments made by David Anderson on the scope of the role and the balance between its constituent parts, and not pick bits off in individual parts of the Bill.
Lord Pannick
My Lords, I agree with the noble Baroness, Lady Hamwee: these amendments raise a very important subject. For my part, I agree with paragraph 7.8 of the report from the Joint Committee on Human Rights that it is absolutely essential that the independent reviewer’s remit is extended to cover all terrorism legislation. I would be quite content to leave it to the independent reviewer to decide when it is appropriate to publish reports. It seems entirely unnecessary and inappropriate to require reports to be published annually.
Baroness Hamwee
Baroness Hamwee
This is a probing amendment, picking up a point which I raised at Second Reading. The passport which can be seized is either a United Kingdom passport or, according to paragraph 1(7) to the first schedule, one issued by another country,
“or by or on behalf of an international organisation”.
It is the passports of other countries and the international organisations’ documents that I would like to ask my noble friend about. UK passports are not the property of the passport holder and I believe it is the case in some other countries that the passport remains the property of the state. Perhaps my noble friend can confirm the position. Therefore, the first and obvious question is: what international discussions have there been and what agreement, if any, has been reached about this provision? Are other states happy, or at least relaxed, about the seizure of their property? Might there not be occasions when they would themselves ask to have the passport back?
Some international organisations issue laissez-passer documents, of which I think the UN is one. Is this provision compatible with our obligations to those international organisations? As I say, this is a probing amendment, as, I think, are all our amendments today. I hope that my noble friend can assist. I beg to move.
Lord Bates
That seems to be excellent legal advice and I am sure that it is absolutely correct. Certainly we will review it and, if that is not the case, we will write.
Baroness Hamwee
My Lords, the point about not passing through immigration control occurred to me as well as noble Lords were speaking. Then my mind turned to the question of what would happen if someone was travelling on one passport but carrying the passport of another country and switched half way through the journey. All this goes to the workability of these provisions, which is really the overarching question that noble Lords are asking. I do not think that I am alone in finding it a little difficult to imagine quite how the powers will operate in some circumstances.
It is not always easy to probe something without suggesting the opposite of what one intends. There is another example of that coming up shortly. So the noble Lord is right: I was not trying to take the words out but merely probing.
I am not sure—I may have missed it—whether the Minister referred to international organisations other than quoting what is in the schedule. Perhaps I may look at that after today and, if necessary, have another word with him. It looks as though I may not need to withdraw the amendment quite yet.
Lord Bates
I am just looking for help in order to answer my noble friend Lady Hamwee. The answer that I gave on diplomatic immunity was that, under international law and treaties, diplomats may enjoy certain immunities, and this power could not be used in breach of those. Therefore, that is clear. In relation to the point that the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick, raised on transit passengers, my briefing note says, reassuringly, “Yes, your answer was accurate”. That is helpful. There may be cases where it is appropriate to use this power against transit passengers and, in practice, these will mostly occur following prior information provided to the police about an individual’s intention to travel. The power can be exercised both air side and land side, including against passengers who do not present at immigration control. I hope that that is helpful to noble Lords.
Baroness Hamwee
My Lords, that depends on somebody knowing that the passengers are there if they remain air side. I may have this wrong and I accept that my amendment did not take out the reference to international organisations. They may have the equivalent of diplomatic immunity. I was not thinking of that; I was thinking of the large international organisations which issue a laissez-passer, as I understand it. Maybe that is something on which I could have a word with my noble friend. He nods; I am grateful for that. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall also speak to Amendment 7. Amendment 6 is one of those probing amendments which may seem a bit unexpected or counterintuitive coming from me. It seeks to inquire whether the reference to intention in paragraph 1(10) covers recklessness. The words I have used are, “recklessly as to the consequences”. Will my noble friend share with the Committee the Government’s thinking on restricting the term to intentionality?
My second amendment, already trailed by the noble and learned Lord, refers to humanitarian assistance. This is another probing amendment to ask how the Government plan to deal with workers travelling out who are associated with reputable organisations such as the Red Cross. I accept that this is a difficult area because there can be individuals who are not with such organisations but who, in their own minds, are going out to provide humanitarian aid. They might be so closely associated with those who are fighting that they would be seen by others as providing something which is closer to military support than the broader humanitarian assistance.
We need to find a way through this difficult area, but at this stage perhaps my noble friend can explain the Government’s thinking on this issue and what work they have done with the big, overstretched—I am sure they could do without a further consultation, but there you go—humanitarian organisations working in the Middle East. I beg to move.
Lord Hope of Craighead
My Lords, as I hinted earlier, I wish to add a little more detail in support of Amendment 7, in the name of the noble Baroness. The background to what I am going to say comes from my experience chairing the Joint Committee on the Draft Protection of Charities Bill, which has been considering a clause which would seek to add offences under the Terrorism Act 2000 to the list of offences a conviction for which will result in automatic disqualification from being a trustee of a charity. That may seem a little bit removed from what we are considering this afternoon, but we have heard evidence on that issue from various witnesses speaking about the chilling effect of the risk of prosecution under the terrorist legislation on the efforts of those who seek to provide humanitarian assistance in areas which are under the control of, for example, proscribed organisations.
Among our witnesses was the chairman of the Muslim Charities Forum, who said:
“I go to difficult areas like Afghanistan, South Sudan and Chechnya. Recently, two weeks ago, I was in Iraq, in Baghdad. I have been in Somalia, in Mogadishu and other countries. I think counter-terrorism legislation is preventing us from having access to the neediest people. There are proscribed groups in those areas, and we know them. They are the gatekeepers. How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world?”
That was the problem to which he drew our attention.
Among our other witnesses was the Independent Reviewer of Terrorist Legislation, David Anderson QC, to whom the noble Lord rightly paid tribute early this afternoon and I entirely endorse his remarks. He said that charities operating in these areas run the risk of falling foul of terrorism law—for example, by delivering relief to a general population which may include individuals or groups designated as terrorists. He suggested that increased risk could deter charities and their trustees from delivering humanitarian support. He was talking about the risk that would be created by extending the definition that disqualifies people from being trustees on conviction for these offences. As I mentioned earlier, we are talking about a rather softer mechanism, which is very important but depends on a decision taken by a constable at the point of entry.
One of the points to which David Anderson drew our attention was that there are examples in other countries where this issue has been addressed. The Minister might be interested to know that the kind of exception which the noble Baroness is suggesting can be found in connection with the broad definition of terrorism when one studies, for example, legislation in Australia or New Zealand. They have specific exceptions in terrorism law to meet that point, including that of association with proscribed organisations for the purpose of providing humanitarian aid. That is very important and it is rather odd that it is raised as a tiny, probing amendment in a debate on a temporary exclusion order. It runs right through the effect of the broad definition of terrorism, which Mr Anderson described as quite disturbing because of its breadth, and adds a great deal of force to the noble Baroness’s amendment.
I invite noble Lords to think carefully about that because the humanitarian effort is something all of us would wish to support. Given the amount of effort that the Government rightly put into providing aid overseas, it would be most unfortunate if it is being cut off because of this kind of measure. Of course, there are ways in which it can be done without embarking at all on this kind of risk area, but those who are right at the frontier in these very difficult areas should not be discouraged by legislation of this kind if it is possible to protect them against its effects. The humanitarian exception may be one of the more important issues that we are considering today. I would be very interested, and I am sure that the noble Baroness would be too, to hear how the Minister would wish to consider the point.
Lord Ashton of Hyde
I completely agree that there is a difference between those two words, but they are not mutually exclusive.
Baroness Hamwee
My Lords, of course there is a difference and it is not just about mutual exclusivity, but I do not wish to pursue that at this point.
On the second of the amendments in this group, one never knows where one’s probing is going to lead. Although the noble Lord, Lord Harris of Haringey, may disapprove of my drafting, I am glad that I raised it. I do not think that it will necessarily be palpably obvious to an immigration official why somebody is seeking to leave the country. I accept that the point is not confined just to this schedule and I think it is worth consideration. I would be grateful to have a conversation with the noble and learned Lord, Lord Hope, as to whether we can use the opportunity of this legislation to try to deal with the point more widely. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, with no such authority —neither mine nor anyone else’s—I wrote, against Amendment 8, “If it is reliable intelligence is it not already covered?”. Intelligence may be less than reasonable; evidence may be more than is reasonable. I am not clear what standard would be required by the provision as amended. The noble and learned Lord has made my point much more clearly and authoritatively.
I have a number of amendments in this group. Amendments 10, 12, 13 and 21 all provide for the giving of reasons for the suspicion and for allowing the person the opportunity to make representations at the different stages of the process. I hope that both those items are self-explanatory: there should be an explanation, at the very start and at each stage, and the person concerned should be able to make representations—make representations is about the right level; I am not quite saying make a case—and to state their position.
Amendments 17, 18 and 19—
Lord Harris of Haringey
Before the noble Baroness moves on, she said that she felt the arguments to be self-explanatory. Perhaps, for the assistance of the Committee, she could talk a little about what she means by the reasons. If you present an individual with the reasons, are you in fact asking that all the material that has led to that reasonable view being taken be presented? That could require the provision of intelligence material, which could have an implication for government. It would be helpful, therefore, to understand what the noble Baroness thinks would be sufficient to meet the requirement to provide reasons.
Baroness Hamwee
I do not think that the noble Lord was present when I said that all our amendments today, and no doubt on subsequent days, will be probing ones. I think he was here when I said that many of our amendments—not just the ones that I and my noble friends have tabled—are about the workability of these provisions. I am sure that the Committee would like to understand what will happen at each stage.
I do not of course expect an immigration officer to come out with the kind of address that might be made to the Bench at a later point, but there is a very great difference between that and seizing the document under the provisions in Schedule 1. I dare say that the code of practice—and any additional guidance—will deal with this. I hope that it does, because I think it ought to. I am going to talk later, under a different amendment, about perceived discrimination, which I am sure the noble Lord will be as concerned about as I am. That is, in part, addressed when those who are exercising powers are as clear as they reasonably can be at any given stage about why they are doing so.
One set of amendments would change the 14-day period to seven days. The Joint Committee on Human Rights raised this point and drew comparisons with other provisions, such as those relating to property rights under the Anti-terrorism, Crime and Security Act, where an application must be made to a court to retain cash after 48 hours; equally, where a person is arrested under Section 41 of the Terrorism Act 2000 on reasonable suspicion of being a terrorist, a judicial warrant of further detention must be applied for within 48 hours of arrest. The JCHR recommended that seven days should be substituted for 14 days. I would have hoped that the committee did not make this point, but that would be adequate time to assemble the material that needs to be presented—and indeed to assemble the presentation—to the court, which in any event can extend the time.
The last of my amendments in this group, Amendment 28, amends Schedule 1(8). Under paragraph 8(4),
“the judicial authority must grant an extension if satisfied that the relevant persons have been acting diligently and expeditiously”.
My amendment would add a reference to “reasonable grounds”. In other words, it seeks to ensure that the judicial authority would apply the same test as under paragraph 2.
Baroness Ludford
My Lords, in relation to this group, without I hope stretching anyone’s patience, I will just repeat two questions that I asked at Second Reading, to which I do not think I got an answer. The first question, which may be very daft, is why it is not possible to use powers under Schedule 7 to the Terrorism Act to retain passports for up to seven days. Why can those not be used for outward travel? The Minister may not be able to instantly answer that. Secondly, how do you stop a rolling renewal? I gave the analogy of declaring the whole of Greater London a terrorism exclusion zone. How do you stop that just being renewed on a repetitive basis?
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.
Baroness Hamwee
Baroness Hamwee
Amendments 22, 42 and 43 in this group are also in my name, and Amendment 11 is in the name of the noble Lord, Lord Rosser.
Amendment 9 has rather an automatic, almost knee-jerk—or perhaps wrist-jerk—wording that anyone who has dealt with contracts for more than five minutes is likely to produce; namely, if something is in someone’s possession, does that adequately cover the situation or do you need to refer to the item as being under that person’s control? Again, this issue is about workability. I raised it with the Bill team some two or three weeks ago, before Christmas, and asked what would happen if it were not the individual but a companion who was holding the travel documents, and what powers would be available to get at those documents. When people are travelling as a pair or in a group, an individual does not always carry his own documents at every point. I understand that the amendment’s wording is wide enough because I think that the documents must always come into the individual’s possession, but I thought that it was worth getting clarity on that in Committee.
Amendment 22 seeks to amend paragraph 6(4). That paragraph states that on reviewing the retention of travel documents:
“The relevant chief constable must consider those findings and take whatever action seems appropriate”.
That is a wide phrase and I do not think the Minister will be surprised that my point boils down to whether he can share with the Committee what is anticipated to be within the range of “appropriate” and how this will be dealt with. Will it be covered by guidance, a code of practice and so on?
My other amendments in the group, Amendments 42 and 43, concern the perception of discrimination in the exercise of these powers—an issue that I have already raised today. I accept that this is an immensely difficult area; I have referred in the amendments to training, including equalities training, and recording the performance of the exercising of the powers. The latter is certainly covered by the draft code, which I saw after I had tabled the amendment. However, I will probably not be the only Member of the Committee who is aware of concerns about discrimination or who has received from one organisation a copy of a briefing to its members to make representations to MPs. It says:
“The proposed legislation could bear serious consequences for British Muslims including”,
and lists a number of items. It then states:
“This is a deeply troubling piece of legislation for British Muslims and will change our lives forever it is passed in its current form”.
I have no easy answer on how to deal with this but the Government must, I am sure, have been considering the perception, particularly in the light of the fact that those against whom it is sought to exercise those powers are likely—that may be the wrong word—to come disproportionately from Muslim communities. I felt that the matter had to be aired for us to seek some reassurance, which I hope the Minister will be able to give. I beg to move.
Lord Rosser
I have Amendment 11 in this group, to which I wish to speak. Schedule 1 includes the procedure for the authorisation by a senior police officer for the retention of a travel document, and states in paragraph 4:
“The document may be retained while an application for authorisation is considered. Any such application must be considered as soon as possible”.
The effect of my amendment, which is more a probing amendment, is to provide a time limit within which the application for authorisation must be considered—namely, within 12 hours—rather than leaving it somewhat open-ended, as provided for in the Bill.
No doubt, the Minister will indicate in his reply why it was felt desirable not to lay down a specific maximum time limit but to leave the provision without any time limit at all by using the phrase “as soon as possible”. The length of time taken for the application for authorisation to be dealt with is presumably—although I should be grateful if it could be confirmed or otherwise—in addition to the period during which the travel document can be seized, as laid down in the Bill. If that is the case, it is important that such authorisations are not delayed but are dealt with expeditiously. How long do the Government believe it will take for applications for authorisation to be considered, and how long do they consider is reasonable in that context? Who will decide whether it has been dealt with as soon as possible? Who can take any action, and through which channels, if they consider that the application has not been dealt with as soon as possible? How will they obtain the evidence for that?
I was going to ask the Minister: in what circumstances do the Government envisage that it would not be possible to consider an application within 12 hours? It may be that he will say in reply that he considers that an application should be dealt with in considerably less time than that but, bearing in mind my amendment, which aims to find out more about the reasons for the government wording, it would be helpful if the Minister could say what kind of factors leading to a delay—for example, beyond the period laid down in my amendment —the Government would believe were still compatible with dealing with the application as soon as possible. I hope that he will respond to these points, either now or subsequently.
Baroness Hamwee
My Lords, I had intended to say a word about Amendment 11. Given that this is Committee, I may do so. I am sympathetic to the questions that the noble Lord has asked, although—as I suspect he may agree—12 hours is too long. However, the point that has been exercising me is whether it is a good idea to have a maximum period, or whether that might become the standard and efforts to deal with the matter as soon as possible will not be made. Perhaps the individuals will think, “I’ve got so long to deal with it and will therefore take that long”.
Lord Harris of Haringey
My Lords, I wish to comment on Amendments 42 and 43 in this group. I have to say that the grouping is slightly odd because it relates to a whole range of different issues. I assume that the purpose of the amendments of the noble Baroness, Lady Hamwee, is to ensure, first, that the way in which the action of removing someone’s passport is carried out is mindful of equalities issues and the background of the people concerned; and, secondly, that a proper record is kept of what is done, so that any subsequent look at how the powers had been applied can show that they had been applied proportionately. I have no objection to that; indeed, it goes to the essence of the point about this power and the subsequent powers—the extent to which they will be exercised in such a way as to achieve their purpose but avoid a situation in which they alienate a particular community by reinforcing the narrative that suggests that that community is being oppressed or whatever.
In that context, it would be helpful if the Minister could indicate how frequently it is anticipated that these powers will be used? Are we talking about six, 600, 6,000 or 60,000 times a year? It makes a significant difference because if every time people from a particular community try to leave the country they have to go through these procedures—and these documents are held for a period, whether for six, 12 or even two hours—that will produce resentment. If the powers are to be used in a much smaller number of cases, it may be that the proportionality will seem to be more reasonable. It would be useful if the Government, in asking for these necessary powers, were to confirm how frequently the powers would be used. I am sure they have considered that. Perhaps the Government can say, having thought through the information and intelligence that has been available for, say, the past six months, how many times they think they would have sought to use these powers.
Lord Ashton of Hyde
A lot depends, of course, on how many responses there are to the consultation. I am unable to make a firm commitment today but it will be as soon as possible and if I can get more and clearer information on the subject I will let the noble Lord know.
I hope noble Lords will feel some reassurance and I would be grateful if the noble Baroness will withdraw her amendment.
Baroness Hamwee
My Lords, I am grateful to noble Lords who made the points on equalities, discrimination, the perception of discrimination and so on far better than I did. There is, again, material to consider and perhaps I—and others—should be encouraging responses to the consultation on the draft code. The Government may not wholly welcome a shedload of comments but that is what consultation is about. I beg leave to withdraw the amendment.
Baroness Hamwee
“12A A judicial authority shall have the power to direct payment of compensation by the Secretary of State to any person whose travel document is seized (whether or not retained).”
Baroness Hamwee
Amendments 35 and 40 relate to practical and legal provisions. The first, probing, amendment allows a judicial authority the power to direct the payment of compensation to a person whose travel document has been seized. I would not suggest that such a power might be used in anything other than the exceptional circumstances, but there would be disruption and damage—I think that is the right term—to a person whose travel documents have been seized and whose travel has been massively disrupted. If you miss a flight, you miss a flight. You might be delayed by some hours or, depending on your destination, by some days. You might miss some important engagement or event, even if you are delayed by only a couple of hours, because you miss a connection, and so on. I do not think I need to labour the point. Have the Government considered whether there should be a power to direct payment of compensation? If not, why not?
Lord Ashton of Hyde
My Lords, we have had an interesting debate on this small group. I hope that I will be able to address most of the points raised by your Lordships.
Amendment 35 seeks to allow the court to direct that the Secretary of State should pay compensation to any person whose travel documents have been seized under Schedule 1. This is regardless of whether or not these travel documents have been retained. Protecting the public from terrorism is the central aim of this power. The power to seize and retain travel documents can play an important role in the detection and prevention of terrorism, and using the power fairly makes it more effective. The Government completely accept the dangers involved with minority groups, as referred to by the noble Lord, Lord Harris, and my noble friend Lady Warsi in another debate, and the effect if this power is not used fairly.
However, if the power—this is exactly what the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said—is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss. This principle is consistent with the exercise of other police powers: if a power was exercised lawfully, there is no requirement to compensate the individual. I take completely the point made by the noble Lord, Lord Harris, that this can have effects that have wider ramifications but, to use the noble Lord’s own words, that would open up a mare’s nest. Therefore, we do not agree that we should change precedent so that compensation is paid in these circumstances.
Complaints about the conduct of examining officers or the treatment of an individual during the seizure and retention of travel documents may be directed to either the police or the Border Force, depending on which officer seized and retained the travel documents. The draft code of practice explains how an individual may complain. If an individual wishes to challenge the police officer’s decision, she or he may seek redress—again, the noble Lord, Lord Pannick, referred to this—including compensation, from the courts. This is the appropriate avenue to challenge the police’s operation of this power and is in line with procedures in similar circumstances.
The noble Lord, Lord Hylton, asked about travel costs and whether the Government would compensate. As with the compensation principle generally that I outlined, if it is exercised in good faith, this would not lead to a requirement to pay compensation. However, at present, if someone’s flight is disrupted due to the use of Schedule 7 to the Terrorism Act and the police judge that no further action is required, they will often work with the individual and the airline to help them get on another flight, which happens reasonably often. They would do the same with this power where reasonably practicable. Under this Bill, we could also provide assistance to individuals who have had their documents seized, are not resident in the UK and do not have any means to provide for their continuing stay in the UK.
Amendment 40 seeks to illustrate the type of arrangements that may be made by the Secretary of State in relation to a person whose travel documents are retained under Schedule 1. The illustrative examples provided are to include payment for accommodation and making alternative travel arrangements. The power to seize and retain travel documents can play an important role and using the power fairly makes it more effective. The Government are clear: the power in Schedule 1 must be used fairly and proportionately, with respect for the person to whom the power has been applied, and must be exercised in accordance with the prescribed procedures and without discrimination. A failure to use the power in the proper manner will reduce its effectiveness. Amendment 40 is superfluous, as the power under paragraph 14 in Schedule 1 is deliberately broadly framed and could include the Secretary of State making arrangements which include payment for accommodation and alternative travel arrangements for those whose travel documents have been retained.
Protecting the public from terrorism is the central aim of this power, but it is right that we make such provisions to meet our obligations under the European Convention on Human Rights. Therefore, if necessary, an individual who has no means to provide for himself or herself would be provided with basic support for the period that his or her travel documents have been retained. This would involve basic temporary accommodation and subsistence if the individual has no other means to support themselves.
However, we assess that the use of this power against those who do not already reside in the UK will be infrequent. In other cases, where for instance a UK resident has had their travel disrupted, if the power is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss, which is consistent with the exercise of other police powers. For the reasons that I have set out, I hope that my noble friend will feel able to withdraw the amendment.
Baroness Hamwee
My Lords, the explanation given by the noble Lord, Lord Pannick, was exactly as I had understood the position to be. However, for the reasons covered by the noble Lord, Lord Harris of Haringey, I felt that it was important that we set out during our proceedings the reasons for compensation not being payable. I took care to use the phrase “very exceptional”. Perhaps that was not quite strong enough. As to the suggestion made by my noble friend Lord Thomas of Gresford about the possibility of an ex gratia payment, one would not presumably need statutory provision for that by definition. However, it is an interesting suggestion.
Lord Ashton of Hyde
My Lords, I apologise that I did not refer to that in my reply. There is no provision at the moment. We have not decided or made any provision to make ex gratia payments.
Baroness Hamwee
I was suggesting that it would not need provision by virtue of being ex gratia. After today, perhaps we can think about whether specific provision would be needed to allow an ex gratia payment to be made. The examples given in paragraph 14 are helpful and some of the examples given in response to Amendment 35 probably were at least equally applicable to that paragraph. However, we are at Committee stage and, as I keep saying—I hoped that I was being reassuring—all our amendments today are probing. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendments 37, 38 and 39 are also amendments to paragraph 14. They are probing amendments as to what arrangements the Government might have in mind for the companions of an individual whose travel documents are seized. The Minister may feel that he has covered the ground in his answer to the previous group of amendments but, to put it briefly, if there is anything more that he can say to flesh out the provision, I am sure that the Committee will be glad to hear it. I beg to move.
Lord Ashton of Hyde
My Lords, this will be a brief debate—in fact, hardly a debate.
The amendments in the names of my noble friends have allowed us to think about the implications of this power for the travelling companions of a person whose passport has been seized. Amendments 37 and 39 seek to extend the protections in paragraph 14 of Schedule 1 to any persons travelling with an individual whose travel documents have been retained. It would allow the Secretary of State to provide assistance to the accompanying persons during the retention period and would provide that his or her presence in the UK was not unlawful under the Immigration Act 1971 for the retention period.
As I previously set out, the police can exercise the power in Schedule 1 only based on reasonable suspicion. It is possible that the police may reasonably suspect the intentions of one person travelling in a family group but have no suspicions that the entire family is planning to travel overseas for the purpose of terrorism-related activity. In such a hypothetical circumstance, the accompanying family members may require means to lawfully remain in the UK with the stopped person while the police investigation was on-going and the person’s travel documents were retained. This may be particularly relevant if the power was exercised against a person who was under 18.
These amendments would also allow the Secretary of State to provide assistance to those accompanying an individual who had his or her documents seized, or were not resident in the UK and did not have any means to provide for their continued stay in the UK. I am grateful to my noble friends for shining a light on such a circumstance. However unlikely it may be to occur in reality, they have highlighted a potential gap in the current provisions and the Government are committed to considering this issue in greater detail.
Paragraph 14 provides protections to the individual that would apply during the period that his or her travel documents were retained and he or she was unable to leave the UK. Amendment 38 seeks to alter this to include where a person is “unable to make the journey to which the travel relates”. The additional wording is unnecessary, as being unable to make a journey to which the travel relates is captured in the current drafting, which is “unable to leave the United Kingdom”. However, as the amendment has raised some interesting points on how this provision could be applied, the Government are committed to considering this issue, too, in greater depth.
I hope that my brief reply has satisfied my noble friend and has done all that is required.
Baroness Hamwee
Yes, indeed. I wonder whether officials in the Home Office have been undertaking role-play as to all the different circumstances that might apply when these powers could be exercised, because, as I said, one of the concerns of the House is always about workability. I am grateful to my noble friend. I beg leave to withdraw the amendment.
Baroness Hamwee
My noble friend is aware of this point—at least I hope that he is, because I sent an e-mail on it. Schedule 1 provides for the usual 40-day period in paragraph 19 and I had intended to ask the Minister to confirm that that period is suspended during the Dissolution of Parliament. However, the question now has a second limb, because the Government have tabled Amendment 45, which refers to a similar 40-day period but actually spells that out. I wonder why there is a distinction between these two. I am not objecting to this. The Statutory Instruments Act 1946 covers the point, but dealing with it in detail in the new schedule raises a question that needs to be sat upon with regard to the first schedule.
Lord Bates
I am happy to respond to my noble friend and to thank her for giving advance notice that she intended to speak on this. She asked whether the 40-day period described in paragraph 19 is suspended during Dissolution. I can confirm that the period would be suspended. However, in reality, our intention is for the code of practice to come into force the day after Royal Assent, using the affirmative procedure, as these powers are urgently needed by law enforcement. My noble friend noted that the new schedule in Amendment 45 suspends the 40-day period. It may not be possible to timetable the debate on the court rules necessary to implement the temporary exclusion order provisions by Dissolution. However, we are confident that the House will debate the code of practice on the exercise of the passport seizure provision before Dissolution.
Baroness Hamwee
I am grateful for that answer, but I am not sure that I entirely understand the procedure that the Minister referred to at the start of it. I wonder if he might write to noble Lords about how this would operate.
Lord Ashton of Hyde
I think it would be better if I clarified that and came back to the noble Baroness. I do not want to say something that is incorrect on the precise details of this. I could make a guess, but I would rather not.
The noble Baroness’s amendment would mean that the Home Secretary would be required to have evidence that an individual has engaged in terrorism-related activity abroad rather than having a reasonable suspicion. The reasonable suspicion may well be based on intelligence, which is clearly not always the same as evidence. This change would greatly reduce the number of individuals against whom the Home Secretary could use this power. The result of this would be that the Government would not be able to control the return of individuals suspected of fighting alongside terrorist groups and would have fewer tools available to manage the threat these individuals posed to the British public.
Furthermore, where there is clear evidence that an individual is engaged in terrorism-related activity, it is likely that we would be in a position to seek their prosecution, which would be preferable to placing them under the conditions of a temporary exclusion order. Such a high test would also bring them within scope of the much stronger TPIM regime. Given the less stringent obligations of a TEO compared with the other measures, the Government’s view is that such a test would be disproportionate. On that basis, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I am glad that my noble friend made those concluding remarks, referring particularly to prosecution where it is possible.
Should we be comforted by the distinction between the words in Condition A, “reasonably suspects”, with an emphasis on “suspects”—the noble Lord referred to “reasonable grounds for suspicion”, which we covered earlier today—as against, in Conditions B and C,
“the Secretary of State reasonably considers”?
That seems to require more of the Secretary of State. Conditions A to D must all be met, so we can look at them together and see an escalation of the seriousness of the Secretary of State’s views, if I may put it like that. I could understand the concerns of the noble Baroness if we were to look only at Condition A, but I do not think that we can look at it in isolation.
Baroness Smith of Basildon
I am grateful to the noble Baroness for trying to help the Minister but the purpose of the amendment was merely to probe the issues around the evidence base for “suspects”. She was taking me very literally on that.
I am grateful to the Minister for his response and glad that he will write to me on the point that I raised with him. Could he also write to me on the second point, which he did not address? This was about somebody who might have dual nationality and was fighting against terrorism, for instance. I gave the example of a British Iraqi Kurd who was fighting against ISIS. It would be helpful if he could clarify that.
The purpose of this amendment and my next, Amendment 56, is to tease out how this will work. The Government need to answer some of these complex questions. It is a big and important power, but we need to understand how it will work. I am grateful for the Minister’s help and his offer to write to me, and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I wondered whether the noble Baroness was adopting this one.
Baroness Hamwee
I think we are all being as co-operative as we can be on this: we are aiming at the same thing.
Briefly, Amendment 56 amends Clause 3, which provides that notice of the imposition of an order must include an explanation of the procedure for making an application under Clause 5. My amendment would provide that it should also include,
“the Secretary of State’s reasons”.
This is simply for the reasons that we discussed earlier: an individual affected needs to have an understanding, not necessarily—almost inevitably not—of the fine detail, but of the gist of the reasons why. This might not be the right term in this context, but in normal terminology it covers what I mean. Having knowledge of the procedure is not a great deal of use unless one knows the reasons for the Secretary of State’s decision. I did not quite keep that to under a minute but I beg to move.
Lord Bates
My Lords, I appreciate that this is the last group of amendments before we seek the permission of the House to break. I am grateful to my noble friend for raising this point, which relates to the information provided to the subject of a temporary exclusion order.
It is, of course, important that the individual is informed that they are subject to a temporary exclusion order—after all, that is the point of it—and that they are given some indication of why this is the case. However, I trust your Lordships will understand that it is not appropriate for the individual to be provided with detailed reasoning behind the Secretary of State’s decision, which is likely to include sensitive information, the disclosure of which could damage national security and put lives at risk.
Any notice given to the individual would state that the Secretary of State has reasonable suspicion that they have been involved in terrorism-related activity abroad. We believe that this is sufficient disclosure, which informs the individual of the basis for the decision while protecting sensitive information.
My noble friend was brief in moving her amendment. I have been fairly brief in responding to it but I hope I have answered the point she was making. I therefore ask her to withdraw her amendment.
Baroness Hamwee
My Lords, I am conscious of the time. I think that was one of those answers that may raise further questions, which perhaps I will keep for another day. As there is another debate about to happen, I beg leave to withdraw the amendment.
Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 3 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I shall speak also to Amendments 62, 63 and 64. The Committee will be pleased to know that I am aiming to be extremely brief on all the amendments left in my name for today.
Amendment 57 is an amendment to Clause 3(6), which provides:
“If a temporary exclusion order is revoked, it ceases to be in force when notice of its revocation is given”.
I am intrigued to know why the effect of the order continues until notice is given. By definition, there is a delay between the decision to revoke and the notice of revocation. Although this is not the whole of the point I am making, I am not sure whether notice being given means a notice received or a notice, as it were, sent out. In any event, there is a time difference between the decision and the notice, and I should have thought that the revocation should take effect immediately.
Amendment 62 is an amendment to Clause 8, which provides for the obligations on an individual who returns under an order. Here, the notice imposes the obligations on an individual who is subject to the order and who has returned to the UK. Are there no obligations in a period before the return to the UK or is this something to do with the proceedings which have taken place in the UK? The status of somebody who is subject to an order but has not returned intrigues me. Are there no obligations which may apply to an individual before he returns to the UK? The obligations are backed up by Clause 9, which is about offences if restrictions are contravened. My question here is about status.
Amendment 63, also an amendment to Clause 8, is similar to Amendment 57. I note that the notice of the obligations comes into force when it is given and is in force until the order ends. Is there a point at which the notice is deemed to be given? My amendment will provide for it actually to be given. My noble friend will understand that I am seeking to understand when it comes into force.
Amendment 64, also to Clause 8, is similar to Amendment 57 in that the variation or revocation should come into effect immediately, not take effect when notice is given, and the same questions are raised as for the earlier amendment. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to my noble friend for bringing forward these amendments, which provide an opportunity to put further information on the record as to how temporary exclusion orders will work in practice. Amendment 57 seeks to provide that a temporary exclusion order ceases to be in force immediately when revoked, not when notice of revocation is given. We believe it is important that notice of revocation is given and that this is the point at which the order ceases to be in force. It is right that the individual concerned is made aware that the restrictions and obligations imposed on them will no longer be in place.
Similarly, Amendment 64 seeks to ensure that any variation or revocation of the in-country obligations placed on an individual come into effect immediately rather than once notice has been given to that individual. In the same way, we believe that it is right that notice of revocation is given and that this is the point at which the obligations cease to be in force. It is important that the individual concerned is made aware that the obligations imposed on them will no longer be in place. More importantly, it is vital that the individual is informed of any variation to the obligations before these variations take effect to avoid an unintentional breach, which could lead to prosecution.
Amendment 63 seeks to provide that notice of any in-country obligations comes into force when an individual is actually given the notice. As the individual will have returned to the UK under the terms of the temporary exclusion order, we will usually know the whereabouts of the individual and, in practice, should always be able to serve the notice on them in person. But it may be expedient for an individual as well as for the authorities for notice of a variation, for example, to be posted to the individual rather than served in person. In addition, there may be circumstances in which an individual absconds and is therefore no longer at the contact address. In all those circumstances, it is right that notice can be deemed to have been given, provided proper procedures are followed. Parliament will be able to review those procedures, but I can assure your Lordships that they will be based on well established practice in relation to immigration decisions.
Finally, Amendment 62 seeks to allow the Secretary of State to impose the in-country obligations of a temporary exclusion order on an individual who is about to return to the UK, as well as on those who have already returned to the UK. The in-country elements of a temporary exclusion order cannot be imposed until the individual has returned to the United Kingdom, a point on which my noble friend sought clarification. This will allow law enforcement partners to assess the most appropriate measures to manage the risk posed by the individual at that time, which may be a matter of years after the decision to impose the order was originally taken. It may even be appropriate to arrest and prosecute the individual, rather than impose any in-country measures on them. Therefore, it would not be appropriate to apply the in-country measures to someone who is about to return. It is better to wait until the individual is in the UK and form an assessment about the in-country measures at that stage.
In terms of the obligations and when they come into effect before return to the UK, the obligations made against the individual will apply only when the individual returns to the UK. Before that point, the individual will be subject to the temporary exclusion order in that their return will be disrupted and controlled, and they may be subject to conditions under the permit to return. But they will not be subject to in-country measures until they return for the reasons that I have outlined. I trust that that is a helpful reply to my noble friend and I invite her to withdraw her amendment.
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 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?
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.
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.
Higher Education: Overseas Students
Baroness Hamwee Excerpts(9 years, 3 months ago)
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Baroness Hamwee
To ask Her Majesty’s Government what assessment they have made of the impact on students, universities and international relations of requiring overseas students to leave the United Kingdom immediately upon graduating.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, our reforms have clamped down on the student migration abuse allowed under the last Government, while ensuring that our excellent universities continue to attract the brightest and best students. Ensuring that immigrants leave at the end of their visa is just as important as controlling who comes here to study in the first place.
Baroness Hamwee (LD)
My Lords, I am sorry that the Minister used the term “abuse” in this context. There has been much criticism, including by eminent businesspeople and economists, about,
“shutting the door on some of the very individuals who help the UK’s unique global service economy to thrive”,
to use the words of the British Chambers of Commerce. I tabled the Question in the Recess, when the proposal referred to appeared from the Home Office—I am glad that it seems not to be making progress—but can the Minister tell us what current Conservative thinking is on visas for new graduates?
Lord Bates
I can certainly inform my noble friend what government thinking is on the position. In the same spirit, I reflect that it seemed to be the position of her party that we ought to count people in and count them out. Last year we counted 121,000 students in and 51,000 out. That leaves 70,000 people who were here without an appropriate visa, and we think that that is wrong. If you are here on a study visa, you should be studying. You should not be working. If you want to come here to work, you are very welcome but you ought to apply for the right visa to uphold that.
Terrorist Attack in Paris
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Lord Bates
Taking the last point first, I certainly agree that information sharing needs to improve. That is why we signed up for the ECRIS security system data checks and the Schengen information sharing system and why dialogues are happening at this very time in the US—the Prime Minister departs soon for Washington to engage in conversations with our partners there—and elsewhere in Europe.
On the noble Lord’s first point about image, when people resort to violence and intimidation the result, as is so often the case, is exactly the opposite of what they try to do. They tried to divide and spread terror but instead they brought confidence onto the streets of Paris which was shared across Europe. That was a welcome sight and a very bold message to send to those who would challenge our liberties.
Baroness Hamwee (LD)
My Lords, the view was widely expressed in yesterday’s debate that Prevent, and the Channel programme within it, is the most difficult and most important strand of the counter- terrorism strategy. I welcome the reference in the Statement to the investment of time, resources and money in the counternarrative. Money, time and energy are not unlimited. Do the Government agree that it may be more productive to apply these to quiet, informal, non-traditional and imaginative support and advice and will they remain open to not using up those resources on putting Prevent on a statutory basis?
Lord Bates
Some 45,000 people have had contact through the Prevent programmes but their provision across England and Wales is, one might say, patchy. The idea behind putting it on a statutory footing—something which the Independent Reviewer of Terrorism Legislation, David Anderson, supported—was to try to raise standards to ensure that we get better value for money from it. In doing that, it is important to work with those in the Muslim community. They are our partners and they want to work with Government and the wider community to identify people who pose a potential risk and to challenge the notion that these acts of terror are anything other than brutality and have absolutely nothing to do with their faith.
Counter-Terrorism and Security Bill
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Baroness Hamwee (LD)
My Lords, it is apposite today to refer to the words attributed to Voltaire:
“I disapprove of what you say, but I will defend to the death your right to say it”,
because it is sadly topical and neatly expressed. I start with the importance of language in both general discussion of the issues and the Bill. Messages are taken from tone and emphasis as well as from the detail.
The term “temporary exclusion orders” immediately made me think of Shakespeare’s words in “Richard II”, when two of Richard’s court are exiled after allegations of treachery:
“England’s ground, farewell;
Where’er I wander, boast of this I can,
Though banish’d, yet a trueborn Englishman”.
TEOs are not banishment; they are about the converse—managing return to the UK. I am worried about misleading language being misunderstood and suggesting something more aggressive and alienating than is intended. I refer to the tone at the start of the Bill, because the application of money often follows tone and because the softer measures, to which the noble Baroness referred, must not be relegated. The most effective dissuasion of individuals from going out to fight may come from those who return disillusioned.
The Minister indicated, and I very much welcome, that the House will have the chance to consider changes to the scheme, particularly judicial oversight. I hope that any revised scheme will address where decisions are taken as well as what the decisions are. It will be very difficult for a court in this country to consider action taken overseas. I am also concerned that an individual who comes back to this country on a permit should not be taken to have incriminated himself. That point is made by the JCHR with regard to TPIMs.
I confess that I have not got my head around quite how the TEOs will operate on the ground. The possibility of being picked up at an airport in Turkey on the way back from Syria to the UK will obviously quickly become known, but what if the individual books to, say, Frankfurt with a view to travelling through Europe, where there is free movement? My question underlying that concerns what discussion the Government have had with our European partners.
The same question occurs to me—I am sorry that I have not managed to give my noble friend notice of this one—about the power in Schedule 1 to seize a passport that is not a UK passport. UK passports are not the property of the passport holder. I assume that the same is the case with other nationalities. Are UK authorities entitled to seize them? If the individual is travelling to somewhere close to the war, or simply buying a return ticket to Frankfurt, great care will be needed to avoid both discrimination and the perception of discrimination. The individual must be given reasons for the exercise of the power under Schedule 1, and be given them immediately. It is a separate matter from there being reasonable grounds for suspecting an intention to become involved in terrorism-related activity and the judicial oversight of that.
I believe these powers should be statutorily subject to review by the independent reviewer and we should consider all the points that Mr Anderson has made so cogently about his remit, his powers and his resources. My admiration for the current postholder—this is not a comment on any predecessor of his—knows almost no bounds but, like the JCHR, I have not quite made the link between this specific power of TPIM relocation and a change in the nature of the threat other than,
“wider powers are always useful to deal with the challenges a growing threat might throw up”.
The JCHR also referred to Mr Anderson’s heavy heart on the topic.
On TPIMs, the increase in the maximum penalty for breach of the provision condition to 10 years seems harsh, given that there has been no conviction for an offence. The independent reviewer’s points about requiring attendance at meetings with probation and others resonate more comfortably with me. As he said, do not waste opportunities—there is a positive strategy of engagement to be used.
I want to dwell on engagement because not everything is capable of being dealt with in legislation. I am pleased that a number of my noble friends are speaking today and I know that others wanted to. At least two of my noble friends will mention data retention but I will simply say that for the agencies it must be not just a matter of powers but of resources.
There is less formal, more imaginative work that warrants a lot of our attention. How should we counter peer pressure, usually on young men but also, to a lesser extent—although it is still a significant number—on women? What is the impact of social media and how can they be used to dissuade people from going to fight for what they may wrongly see as a humanitarian mission, and to encourage those who have gone to come home? These people are a source of intelligence. They can provide an excellent counternarrative, and if we drive them away we may never solve the problems.
I have heard some interesting discussion about the need not just to talk the counternarrative but also to do it. Rather than focusing on taking down content from the internet—which is probably impossible to deal with completely because of the volume involved—we should put up content to dissuade people. I have heard that this can be effective and it is thought to be effective because of the material ISIS itself is seeking to put up in response. A lot of the propaganda is about lifestyle, not ideology, so those who have had experience of conditions on the ground can counter that.
The Prevent strategy of Contest and the Channel programme are in some ways bound to be the hardest. Prevent has lost funding and, perhaps, focus. I have considerable reservations about putting it on a statutory basis. There is, I have heard, some resentment from those who have been doing the job about the implication that they have not been doing it well. Those who have not been doing it well may need assistance rather than direction.
I declare an interest as one of the joint presidents of London Councils, which says that the boroughs are “ready to play their part” but asks for the comfort of on-the-record confirmation that the “new burdens” principle—that is, that new burdens will be funded—will apply to costs not covered by the Home Office, including costs that it expects to be revised upwards following consultation on the statutory guidance. They also make points about who can refer individuals to the panels, which is the sort of detail we can come to in Committee.
We are all aware of concerns in the education sector—not just in higher education—about whether the duties proposed are appropriate or practicable. My noble friend Lady Sharp wanted to speak on that. I will simply say that as a result of a crossed wire her name is not on the list, but she will make her points in Committee.
A number of different approaches have been developed across Europe to prevent potential foreign fighters leaving, to minimise the threat when they return, and to strengthen the knowledge and capacity of families and communities to play a proactive role. To give support to these approaches is not fluffy but hard-nosed and self-interested. The Hayat programme in Germany works at an ideological, pragmatic and effective level. It includes giving support to families who remain in touch with their children while they are in Syria and Iraq. It is said that parents are, in effect, negotiating for their children’s lives. Returnees often need support, which in itself is a prevention measure, and programmes of deradicalisation and disengagement, provided by people trusted by the recipient and everybody else involved, are invaluable. There is also the Aarhus model in Denmark, which is very structured and centralised. All this is very nuanced; it needs attention and effort and, as I say, it is not secondary.
Finally, on the Privacy and Civil Liberties Board, the independent reviewer made what I thought were very modest and moderate points about resourcing and support, and his comments on the proposals have been masterly in their understatement. The independence that comes from the postholder being part-time is not to be undervalued, although I suspect that his and his predecessor’s “part-time” is the equivalent to the aggregate full-time of several other people. However, it seems that there is not yet complete agreement over the role of the board, and we need to consider its relationship to the independent reviewer; what work it undertakes; its role as a check and balance on—let me put it this way—a currently hypothetical future reviewer who might need to be balanced or checked; and its role as a voice that might challenge assumptions within the wider decision-making process regarding legislation where civil liberties issues are at stake.
It is frustrating not to have the time to refer to all the provisions of the Bill, but we will of course have Committee. The Bill has come to us at a moment of high tension, so the task of careful, calm scrutiny is all the more important. I do not dismiss being tough, but we should be tough where there is evidence, other than very exceptionally and without forgetting proper process. Effectiveness is not the inevitable outcome of talking tough. What is even tougher is protecting our freedoms and creating an effective narrative of our own.