Counter-Terrorism and Security Bill
Debate between Lord Ashton of Hyde and Baroness Hamwee(9 years, 9 months ago)
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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
Debate between Lord Ashton of Hyde and Baroness Hamwee(9 years, 9 months ago)
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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.
Counter-Terrorism and Security Bill
Debate between Lord Ashton of Hyde and Baroness Hamwee(9 years, 10 months ago)
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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.
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.
Counter-Terrorism and Security Bill
Debate between Lord Ashton of Hyde and Baroness Hamwee
Lord Ashton of Hyde (Con)
My Lords, I am grateful for the opportunity to address the points raised in relation to Part 4 of the Bill, including the amendments in the names of my noble friends and that tabled by Her Majesty’s Opposition. Perhaps I may start with the questions asked by the noble Lord, Lord Rosser.
The noble Lord asked what new power this provision has that the current legislation does not. The Bill will make provision for a new authority-to-carry scheme or schemes for passengers arriving or expected to arrive in the UK or departing or expected to depart from the UK. The current statutory arrangements apply inbound to the UK only. The Bill will also extend the operation of authority-to-carry schemes to a broader range of individuals, including British nationals, who pose a terrorist or terrorism-related threat to the UK.
The noble Lord also asked how many people will be affected by this. We do not comment on specific numbers. However, since the introduction of the security and travel bans authority-to-carry scheme 2012, we have stopped the travel of a small number of people whom we have judged may pose a terrorist or terrorism-related threat to the UK.
I take the point made by the noble Lord, Lord Ahmed, about perception and the fact that these authority-to-carry schemes have to be used sensitively. I hope that it helps that so far they have been used only in relation to a small number of people, but I take his point. I hope that my answer later will go some way to reassure him.
The noble Lords, Lord Rosser and Lord Ahmed, asked about the classes of individuals whom carriers are liable to be refused authority to carry. I will take individuals travelling to the UK under the new scheme. They include individuals who are assessed by the Secretary of State as posing a direct threat to the security of aircraft; individuals who are subject to a temporary exclusion order, which we have talked about previously in our debates on the Bill; EEA nationals and accompanying/joining third-country national family members of EEA nationals who are the subject of an exclusion or deportation order under the immigration regulations; third-country nationals who have been, or are in the process of being, excluded from the UK under the Immigration Rules; nationals who are the subject of a deportation order; nationals who have been or would be refused a visa; and individuals otherwise inadmissible to the UK, including those seeking to travel using invalid travel documents. I hope that that goes some way to show that the powers are targeted specifically and that they are not intended to cover huge swathes of people.
Amendment 100 tabled by the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, and Amendment 101 tabled by my noble friends both seek to achieve the same effect: more direct parliamentary scrutiny of an authority-to-carry scheme made under Clause 18. Amendment 100 would require a scheme to be set out in regulations and approved by Parliament subject to a negative resolution but would make the scheme and the regulations to enforce it subject to a separate and different parliamentary process. Amendment 101 would require that draft affirmative regulations, laid before Parliament to impose penalties for breaching a scheme made under Clause 18, should include the requirements of that scheme.
The approach taken in the Bill mirrors that in Section 124 of the Nationality, Immigration and Asylum Act 2002 under which the current scheme and its regulations were made in 2012. The Government’s policy intention is that any new authority-to-carry scheme, or any amendment to an existing scheme, will be laid in Parliament with draft affirmative regulations which refer to the new or amended scheme. I recognise the concern noble Lords might have that, as drafted, there is only indirect scrutiny of an authority-to-carry scheme itself. The Delegated Powers and Regulatory Reform Committee expressed a similar concern in its report, as the noble Lord, Lord Rosser, mentioned. The Government are at present considering the report of the committee and we would like to reflect on the concerns of noble Lords so that we can return to this issue at Report. On that basis, I hope that the noble Lord will feel able to withdraw Amendment 100 and that my noble friend will not press Amendment 101.
Amendment 102, tabled by my noble friends, would require that regulations imposing penalties for breaching an authority-to-carry scheme must provide for a carrier to be able to appeal a penalty. The legislation already provides that the regulations may allow for an appeal, but the amendment would leave out the provision that the regulations must provide for a carrier first to be given an opportunity to object to the penalty. The approach we are proposing in the Bill mirrors that taken in the Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012, under which any breach of the current authority-to-carry scheme would be penalised. Where a penalty is imposed, the carrier must have the opportunity to appeal. If the penalty is reduced, remains unaltered or is increased, the carrier has the right to proceed to appeal. However, our intention is that the carrier must object before they can appeal. There is no question that a carrier that objects to a proposed penalty for breaching an authority-to-carry scheme will have the right to a judicial appeal. That will be set out in the regulations, subject to affirmative resolution. In the light of those assurances, I invite my noble friend not to press the amendment.
Finally, government Amendments 120 and 121 amend Clause 42 of the Bill so as to bring the aviation security powers in Part 2 of Schedule 2 into force on Royal Assent rather than at a later date by commencement order. Those powers in paragraphs 9 to 11 of Schedule 2 strengthen and enhance the ability of the Secretary of State to issue security directions to airlines flying into the UK and to create, through regulations, a related civil penalty regime for airlines that fail to comply. In doing so, this amendment brings the implementation of these powers into line with those in Part 1 of Schedule 2, covering passenger, crew and service information, which would already come into force on Royal Assent. The threat to aviation from certain terrorist groups is well documented and continues to evolve. We already work closely with foreign Governments and airlines, as well as UK operators, to make sure that the necessary security measures are in place and are being effectively implemented, but these measures will enhance our ability to do that.
I hope your Lordships will therefore agree that it is right and sensible to have these strengthened and clarified powers available at the earliest opportunity. Accordingly, I invite your Lordships to support these amendments.
Baroness Hamwee (LD)
I am left a little puzzled as to why there should be an opportunity to object before an appeal. I can see that that would be to the benefit of the Secretary of State—the benefit of the authority implementing the scheme—but the way in which it is worded suggests that it is intended as some sort of benefit for the carrier. My noble friend may not have the information to explain that further at this stage, but he will understand why I went down that route. The presentation of the provision fits with the explanation, but it seems as though it is for the benefit of the carrier, yet the carrier has the right to appeal. I would be glad to have that confirmed.
Lord Ashton of Hyde
I may be able to help. It is right that Clause 19(4) says that procedures for imposing a penalty,
“must provide for a carrier to be given an opportunity to object”.
We are keen that the carrier should be able to object first and, if necessary, move on to an appeal later. It is in the Bill because, I am told, this is the way that it is normally provided for. It may, in particular, make provision for allowing an appeal. We prefer that they object first and then are able to appeal. As I said, I can give an assurance that the method for appealing will be in the regulations.
Counter-Terrorism and Security Bill
Debate between Lord Ashton of Hyde and Baroness Hamwee(9 years, 10 months ago)
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Lord Ashton of Hyde
I completely agree that there is a difference between those two words, but they are not mutually exclusive.
Baroness Hamwee
My Lords, of course there is a difference and it is not just about mutual exclusivity, but I do not wish to pursue that at this point.
On the second of the amendments in this group, one never knows where one’s probing is going to lead. Although the noble Lord, Lord Harris of Haringey, may disapprove of my drafting, I am glad that I raised it. I do not think that it will necessarily be palpably obvious to an immigration official why somebody is seeking to leave the country. I accept that the point is not confined just to this schedule and I think it is worth consideration. I would be grateful to have a conversation with the noble and learned Lord, Lord Hope, as to whether we can use the opportunity of this legislation to try to deal with the point more widely. I beg leave to withdraw the amendment.
Lord 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.
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
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.
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.
Counter-Terrorism and Security Bill
Debate between Lord Ashton of Hyde and Baroness Hamwee(9 years, 10 months ago)
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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.