Counter-Terrorism and Security Bill

Debate between Lord Garnier and Lord Campbell of Pittenweem

Tuesday 6th January 2015 Commons Chamber

[Sir Edward Garnier]

For all sorts of reasons, “managed return” is a more accurate description of what we are about, and I do not see there is any harm in being accurate. I do not know whether the Government will change the Bill to the extent of removing the expression “temporary exclusion”, except in the sense the right hon. Gentleman means, but I will not go to the cross over the matter; I just happen to think that “managed return” is a better description.

[Sir Menzies Campbell]

The hon. and learned Gentleman might recall that when the Home Secretary introduced the Bill she referred several times to “managed return” rather than “temporary exclusion order”, so perhaps he is pushing at a door that is more open than he expected.

[Sir Edward Garnier]

One never knows if the draught is going one way or the other, but let us hope that there is some meeting of minds. As I said, it is not a matter of fundamental principle; I just think it would be neater and more accurate to use the expression “managed return”.

I have no objection to the Home Secretary, in an emergency, making an order that governs the return of British citizens to this country, but within a short space of time—by that I mean hours and, at the most, a fortnight, three weeks or four weeks—the order should be supervised by the courts. Most obviously, it could be supervised by the Special Immigration Appeals Commission, which is now used to hearing matters in private. I know there are objections, but it is used to hearing from special advocates who can present information to the court on behalf of the respondent to the application, who, although the client, cannot hear all that is being said about him. SIAC would be the most obvious court to deal with these cases. The sooner they get to a court experienced in dealing with issues of national security and evidence that cannot be revealed to the wider world, the better. I have a little difficulty, however, with the Secretary of State being given the power to manage someone’s return and exclude them for as long as two years. We need to think about that, and I hope that the Minister, when he responds, will give me some comfort.

I am attracted by the thrust of new clause 2 tabled by the right hon. Member for Delyn, but I am not yet sufficiently persuaded that it will not be bettered by something the Minister, who is a man of great acuity, could come up with, if not this afternoon, then soon. I ask the right hon. Gentleman, therefore, to keep his new clause on hold and let the Minister, either here or in another place, deal with the problem in a way that is acceptable to the Government, the Opposition and those of us on the Government Benches—their loyal supporters—who would like to see the Bill adjusted. That way, before long, we could have a Bill that satisfies us all and deals with the problem of what to do about people who want to do disobliging things to us and our allies, either here or abroad.

Counter-Terrorism and Security Bill

Debate between Lord Garnier and Lord Campbell of Pittenweem

Tuesday 2nd December 2014 Commons Chamber

[Sir Menzies Campbell (North East Fife) (LD)]

My right hon. Friend the Home Secretary opened the debate by referring to the nature of the threat, as did my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) in his contribution. The truth is that in some quarters there is a continual effort to suggest that the characterisation of the threat is in some way designed for political purposes. Both my right hon. Friend the Home Secretary and my right hon. and learned Friend have been closer to the centre of the ring of secrecy than I ever have, although we on the Intelligence and Security Committee do acquire a degree of information that is not public. It is important that people understand that what we are facing is unprecedented, and that in such conditions, in deciding where the balance rests between security and privacy, it may be felt necessary to tilt the balance in a direction other than that in which one would normally wish to tilt it.

May I make one preliminary point? I happened to be at St Andrews university yesterday conferring degrees on grateful students, and in the course of that it became clear to me that there is some anxiety among the university authorities about how they would properly implement the obligations that may be placed upon them. I therefore agree with the shadow Home Secretary that my right hon. Friend the Home Secretary’s guidance in this matter is going to be of enormous importance. I am sure it will be as well drawn as possible, but the sooner that guidance is available, perhaps even for consultation, the better.

In my intervention on my right hon. Friend the Home Secretary, I made it clear that I am still not yet persuaded about the legality of the temporary exclusion order. It is helpful to look briefly at the conditions that would apply to someone against whom such an order was pronounced. They would be required not to return to the United Kingdom unless one of two conditions was satisfied: either the Secretary of State has issued a permit, or the individual has been deported to the United Kingdom. Some concern has been expressed about the fact that it is entirely within the power of my right hon. Friend the Home Secretary, or indeed her successors, to apply the terms of such a permit. We are entitled to assume that they will be reasonable, but they may not be reasonable in the mind of the person against whom they are directed.

So far, it has been perfectly clear from the contributions that have been made that everyone accepts that the exclusion of a British-born national from the United Kingdom is contrary to both law and practice. The right hon. and learned Member for Beaconsfield was eloquent in his description of what the common law amounted to. Is it not the case that the effect of exclusion is to remove the right of statehood to return, even if only temporarily, if the individual accepts the terms of a permit? If an individual does not accept the terms of a permit—subject to the fact that the orders have to be renewed at two-yearly intervals—the individual may, in effect, be unable to return in perpetuity to the United Kingdom, of which he or she is a national.

The Prime Minister’s original statement on 1 September suggested that some kind of blanket ban on return could be effected, and my right hon. and learned Friend the Member for Beaconsfield and I were both at pains to say that we doubted the legality of that. I understand that the temporary exclusion order is designed to bring within the sphere of legality the provision that the Government consider to be appropriate. However, I maintain my reservations for this reason: if the right to return is a matter of such principle, it can be neither capable of modification nor subject to conditionality. We are told that we are dealing with managed return. If it is managed return, why is it described in the Bill as a temporary exclusion order? The sense is turned right around by the description in the Bill, notwithstanding the explanation that my right hon. Friend the Home Secretary has given.

[Sir Edward Garnier]

I may have misunderstood the point that the right hon. and learned Gentleman is making, and I hope that he will forgive me if I have done so. If the orders were to be called managed return orders, but the same procedures applied, would that make any difference? I am not sure that it would.

[Sir Menzies Campbell]

No, it certainly would not. I think that that points up the fact that perhaps the issue was to find a description that, as has been suggested, might easily fit a headline, rather than the substance of the proposal. I see heads shaking on the Treasury Bench, but it would not be the first time that a definition created for easy understanding by the public and the press did not accurately reflect the precise terms of the legislation.

One difficulty is that the Government, although they were no doubt informed by the advice of Law Officers, have none the less produced something that on any view innovates against the principle of the right of return. I respectfully say that if that principle is as inviolate as has been suggested, any such innovation must be contrary to law and contrary to practice. In that, I differ from my right hon. and learned Friend the Member for Beaconsfield but, as was pointed out to me on my first day as a law student, lawyers are well paid for being wrong 50% of the time. There are genuine differences of emphasis and understanding. The one thing we can be most certain about, however, is that this matter will be tested in the courts and, no doubt, in the Supreme Court in due course.