Counter-Terrorism and Security Bill

Lord Hylton Excerpts

Tuesday 20th January 2015 Lords Chamber

[The Marquess of Lothian (Con)]

My Lords, I wonder whether my noble friend could help me because I have missed this somewhere else. When looking at the time factor here, what is the legal and international status of someone who has been subjected to a temporary exclusion order? Are they in fact stateless during that period?

[Lord Hylton (CB)]

My Lords, I would like to support the words of my two noble friends who have recently spoken. We will otherwise be faced with a situation where each new outbreak of terrorism somewhere or other will lead to a cutting back and diminution of traditional, well known and respected civil liberties.

[Baroness Warsi (Con)]

My Lords, perhaps I may start by seeking the leave of the Committee to speak. I did not speak at Second Reading because I was suffering from a kidney infection and therefore was not able to be in the Chamber for the whole day. I have given notice to my noble friend the Minister and he is content for me to speak in Committee. I hope that noble Lords will allow me the same leave.

I rise to support both Amendments 2 and 55 and the comments of the noble Lords, Lord Pannick and Lord Hannay. I do not intend to make a Second Reading speech at this stage. The issues in relation to the concerns about this legislation are well known. I accept that we are in incredibly difficult times at the moment, and the more so in the light of what has happened over the past few weeks. We have seen the situation change again in relation to ISIL this morning. These are indeed difficult and troubled times, and I therefore understand the need for the Government to respond in order to protect our citizens.

However, I would dispute the comments made earlier that we need to send out a strong message to terrorists that we are serious about this. The message to send out to terrorists is that we hold our civil and individual liberties incredibly strongly, we value them hugely and we will not put forward legislation that permanently takes away the very liberties that terrorists would like to take from us. Putting a sunset clause into the Bill sends out a clear message that these are difficult times and we are responding to them, but that we are not going to change the way we do things in the United Kingdom permanently by giving away those liberties which terrorists would like us to give away. I therefore support the need for a sunset clause.

Amendment 55 gives comfort to those of us who are concerned about how this legislation will play out. We can all accept that there will be many individual cases where these powers will be used in subsequent years but it will turn out to be the case that they have been used incorrectly. The fact is that we as a Parliament should be able to say that at a certain time, whatever colour of Government we have at that point, we will reconsider these matters in light of how the powers have been applied and in the light of how we find the world at that time. An indication that this is not a permanent change would give some comfort to those of us who are concerned about these powers.

--- Later in debate ---

[Lord Pannick]

My Lords, I am not surprised that the Bill does not include any power for the judicial authority to order payment of compensation. As a matter of administrative law, the lawful exercise of an administrative power, provided it is carried out in good faith, will not normally lead to a right for the claimant to claim damages. One hopes it never happens, in this context or others, but if these powers were to be exercised in bad faith, or if there were some other form of misfeasance in public office, the individual concerned—the victim—would already have a right to claim compensation from the state. Amendment 35 is not necessary to cover cases of bad faith or misfeasance in public office. If it is intended to extend to other cases, I would not support it.

[Lord Hylton]

My Lords, when the noble Lord replies, will he deal with the specific issue of abortive travel costs—flights that have been booked and paid for—and accommodation, which probably means hotel rooms, because the journey cannot be continued?

[Lord Harris of Haringey]

My Lords, this comes back to the earlier point about whether the various powers in the Bill are proportionate and effective. What is being done to minimise the risk that they are going to exacerbate problems with particular communities? It is not simply a question of whether the powers have been issued improperly. In that case, I hope that compensation would be paid. It is more about when the powers may have been exercised entirely properly but are wrong in the sense that there was a reasonable suspicion, a passport was seized, investigation over a few hours demonstrated that this was completely wrong and the journey was permitted.

Under those circumstances, the person concerned, who had absolutely no malign intent, will have a real sense of grievance which will be reflected among all their friends, relatives and entire community, and which might be disproportionate to what was achieved. That is not the wrong use of the power: it is just the use of the power under circumstances in which it turned out that the intelligence or suspicion was wrong. That would then have a consequence. I appreciate that this could open up a whole mare’s nest of other circumstances in which this issue might arise. However, I hope that the Government have given this some thought because it is the sort of issue which could provoke a sizeable backlash in terms of people’s consideration of how these powers are being used—powers which otherwise people in that community might feel are reasonable.

--- Later in debate ---

[Baroness Warsi]

I hesitate to rise but the discussion that took place was about the purpose of the temporary exclusion order. The clear sense that I got from the briefing and subsequent discussion with the Minister was that the whole purpose was to facilitate a controlled entry back into the United Kingdom, and a controlled entry back into a programme of potential deradicalisation and whatever that would involve, a move by the Government which I hugely support and welcome. I felt that if the whole purpose of this temporary exclusion order was not to keep people out of the country—as has been suggested in the press—but was about managing somebody’s return, to make sure that we protected the security of our citizens, then we are talking about an incredibly short period for which the person would find themselves outside the United Kingdom but a much longer period subject to conditions within the United Kingdom. If that is the case, I would be grateful if it was clarified at the Dispatch Box.

[Lord Hylton]

Before the Minister replies to that, can he include in his reply whether the Government have studied the experience of countries such as Denmark and Germany, which have working knowledge of how returns of such people can be satisfactorily dealt with?

[Lord Bates]

On the point just raised by the noble Lord, Lord Hylton, we have been very mindful of the fact that we need to work, not in isolation but in partnership with other countries. The level of co-operation and working across Europe in particular with our European colleagues, not least because of the events in Paris, has increased dramatically. We want to learn what works best. To answer my noble friend’s point, these orders will not exclude somebody from the UK per se. Through them we are saying that if you have been abroad and we believe that there is evidence that you have been engaged in terrorist activities we are not simply going to allow you to drift in and out of this country with impunity. That would need to be managed and supervised. We want that to happen—it is the purpose of the temporary exclusion orders.

My noble friend Lady Ludford—it now seems like a little while ago—was the first to speak about this. She raised a point about the tests and the phrase “obviously flawed”. Here, we are seeking to introduce a permission-stage model and a statutory judicial review mechanism similar to those already in place for the TPIM and asset-freezing regimes, which will consider both the decision to impose the TEO in general terms and for the in-country elements. Having considered these suggestions, we tabled these amendments in line with the recommendation. It is, as was said, simply consistent with those other elements to which we are referring. I hope that that has been helpful.