Counter-Terrorism and Security Bill
Lord Pannick Excerpts(9 years, 3 months ago)
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Lord Carlile of Berriew (LD)
My Lords, I do not understand the two-year period contained in these amendments. The issue which we are dealing with and which is covered in this clause is, unfortunately, going to last for more than two years. Does the Minister agree that having a two-year sunset clause—even if there were to be a sunset clause at all—would send out a completely incorrect message to those who are minded to go abroad and participate in jihad? We have to show some enduring determination over this issue.
My second concern is that these amendments are too prescriptive for the work of the Independent Reviewer of Terrorism Legislation. Can the Minister confirm that the independent reviewer is able to look at all provisions relating to counterterrorism legislation? Surely it is right that the independent reviewer should be able to focus on those issues which are revealed during the course of a given year as causing concern and report on those, rather than being required to report on too many specific issues? We heard at Second Reading that the current independent reviewer is doing something like 180 days per year. When I started as independent reviewer in 2001, just after 9/11, I was doing 40 days per year. By the time I finished, in early 2011, I was doing 140 days per year. Prioritising the independent reviewer’s work should surely be left to that person.
My final point is this. A great deal of respect has rightly been paid to the current independent reviewer. If the independent reviewer highlights a provision that is not working, surely that is at least as powerful as any sunset clause ever could be?
Lord Pannick (CB)
My Lords, I will not comment on the independent reviewer because, as I understand it, we are not dealing with Amendment 3. We will come to that. I support Amendment 2 and Amendment 55, which are in this group.
The noble Lord, Lord Rosser, will say if I am wrong, but my understanding of the reason for having a sunset clause with a particular period of time is that there are concerns, which I think are understandable, that the new powers for seizure of passports and for temporary exclusion may raise problems about the practicalities and consequences of these powers. It therefore seems entirely appropriate that, after a period of time, Parliament should take a hard look again at the impact of these powers and consider whether or not they are justifiable and having beneficial consequences. I am satisfied that it is right and appropriate to introduce these powers at this time. However, along with many others, I would be reassured about the diminution in civil liberties which is involved if we stated on the face of the Bill that Parliament will look again at this matter after a defined period. If two years is too short, then we can make it three or four years.
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.
Lord Bates
I agree and I shall seek clarification on that. It may also be the case that the power is triggered when someone on a no-fly list comes in, even though effectively they are not entering UK territory. However, when they arrive in the UK, they have to present their passport and travel documents—and, as I argued in my answer, at that point I would expect any action to be taken. Again, these are very important points and I will check with the authorities on how this will work in practice. It is probably covered in the draft code of practice on the seizure of passports, which is currently out for review. If so, I will certainly make sure that those views are noted as part of the consultation process.
Lord Pannick
The answer may be that the powers apply in the case of a person at a port in Great Britain. That is at paragraph 2 of Schedule 1, and “port” is defined in paragraph (1)(8) as including “an airport”. From that, my understanding is that if you are at the airport, whether on the land side or the air side, the power will exist. However, I should be very grateful if the noble Lord could write with the answer to all noble Lords who are interested in this matter.
Lord Bates
That seems to be excellent legal advice and I am sure that it is absolutely correct. Certainly we will review it and, if that is not the case, we will write.
Baroness 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?
Lord Pannick
My Lords, in relation to the amendment of the noble Baroness, Lady Hamwee, concerned with the giving of reasons, and in relation to the concern of the noble Lord, Lord Harris, I suggest that the answer is the one given by the Joint Committee on Human Rights, from paragraphs 230 to 233. The obligation in the Bill should surely be that there is a duty to give the gist of the reasons. 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. It may be necessary to write in an exception. There may be security reasons why not even the gist can be given. It is fundamental that if you exercise a power of this sort you give the gist of the reasons for doing so.
Lord Thomas of Gresford
I wonder if the Minister could consider a concrete and perhaps not too remote example. Let us suppose the authorities in the United States were to send an e-mail to the authorities in this country, saying that X should be stopped; he is passing in transit through the UK and going to Ukraine— for instance—for terrorism purposes. Would that be reasonable grounds for stopping him and removing his passport? I would like the Minister to consider that. There would be no evidence or intelligence in the hands of the British authorities. A reason given to the passenger could, I suppose, be that their country says that their passport must be taken away; but would that be reasonable grounds? Could that possibly be the basis of the decision by the policeman or immigration officer?
Lord Ashton of Hyde
We would obviously like to stop as many as we can from going, but I am reluctant to give the numbers, or even a broad indication of them, today. I will go back and find out how much we would be prepared to discuss numbers or even ranges but I would not like to commit myself now, if that is all right.
Lord Pannick
I am very grateful to the noble Lord, who has been very helpful. He referred, on several occasions, to the draft code of practice and to the consultation, which I understand will finish at the end of this month. The Bill comes back on Report only a week later. Are the Government going to be able to give the House their views on the consultation and what they are minded to do in relation to the code of practice at that stage? It is a very short period of time, but unless we know what the Government’s views are it is going to be very difficult to debate these issues.
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.
Lord Pannick
The reason why the law does not award damages for the good-faith exercise of administrative powers in circumstances that turn out to be erroneous is because, if you confer a right to damages in those circumstances, you inevitably deter the authorities from taking action in the first place. I think that in this context we would wish to avoid deterring the security services from taking action for which they have at the time reasonable grounds.
Baroness Warsi
I thank my noble friend for introducing these amendments and for the progress that has been made. I also thank him for the incredibly helpful briefing session he held last week. Perhaps he can help me with something that did not come out of that session, if this is the right moment to deal with it. What is the Government’s thinking on the extent of time these orders are intended to apply for? The Minister in the Commons, James Brokenshire, indicated that it was intended that these orders would be in operation potentially for only two or three days. I am not sure whether that is the case and I should like clarification on that point if the Minister here were able to give it today.
Lord Pannick
My Lords, I too welcome these amendments, which introduce judicial control. The Government have listened to the Constitution Committee and the independent reviewer. They have also listened to the observations made from all sides of the other place and indeed here at Second Reading.
The noble Baroness, Lady Ludford, raised a concern about paragraph 3(2) in the proposed new schedule set out in government Amendment 44 and the reference to whether the decision is “obviously flawed”. I draw her attention to the fact that its paragraph 5(1) states that:
“In determining a reference under paragraph 3, the court must apply the principles applicable on an application for judicial review”.
So my understanding—I would welcome the Minister’s confirmation—is that when the court asks whether the decision itself is obviously flawed, it will apply the principles of judicial review. It will ask whether the decision has been made on a lawful and proportionate basis, for a proper purpose and other matters of that sort, although of course the court will not look at the merits of whether a lawful decision has been made.
There is one other matter to which I draw attention in the schedule being introduced by government Amendment 45. Paragraph 5 of the proposed new schedule expressly confirms that:
“Nothing in paragraphs 2 to 4, or in rules of court … is to be read as requiring the relevant court to act in a manner inconsistent with Article 6 of the Human Rights Convention”.
That is very important indeed and I welcome the fact that the schedule expressly confirms that the court should comply with Article 6. I ask the Minister to tell me if I am wrong, but I am not aware of anything in the Bill which suggests that the courts, in exercising their judicial control powers, should be required to depart from our obligations under the human rights convention, and indeed the noble Lord, Lord Bates, has made a statement on the front page of the Bill under Section 19(1)(a) of the Human Rights Act 1998 that in his view the provisions of this Bill,
“are compatible with the Convention rights”.
I hope that that will give some further reassurance to those who are concerned about these powers.
Baroness Smith of Basildon
My Lords, I welcome the government amendments and I thank the Minister for his explanation of them. I also welcome the Government’s conversion to the principle of judicial oversight in regard to temporary exclusion orders. That is because it has to be said that any measure which seeks to restrict the movements of an individual and restrict their right to return to the country of which they are a citizen is a hugely significant power. I will not go into the other points that have been raised because we have yet to discuss the detail of how the exclusion orders will work, but the noble Baroness said that they would remain in force for two days. My information suggests that they can remain in force for two years from the date they are first imposed.
The Government previously insisted that this was a power for the Home Secretary alone, but that was not a view we could share. Both the Home Secretary and the noble Lord have referred in their comments to judicial review. That was already in place, but judicial oversight is, as we have heard, something that the Constitution Committee referred to and the Joint Committee on Human Rights said would be a necessity. Indeed, from the beginning we have been convinced of the need for parliamentary scrutiny of this aspect of the Bill. At Second Reading in the other place on 2 December, the shadow Home Secretary, my colleague the right honourable Yvette Cooper, rightly pointed out that there is such a judicial process for TPIMs and stated that we would be tabling amendments on judicial oversight. The Home Secretary responded in Committee on 15 December saying that such oversight was not necessary because it was the operation of a royal prerogative in terms of cancelling a passport, and that it was less restrictive than the conditions under TPIMs. The debate continued through to the Report stage, where again we tabled amendments which both the government parties voted against on the explanation from the Minister that there had not been,
“the chance properly to consider the Opposition amendments”.—[Official Report, Commons, 6/1/15; col. 208.]
Three weeks has been long enough for noble Lords to consider the Bill, but it was not long enough for Home Office Ministers to consider our amendments. That is why I am particularly grateful to the noble Lord. In the 10 days since it was voted down in the House of Commons, the Government have found time to consider the issues and table amendments. It is a minor point, but I received an e-mail about this last Friday evening, which was a little late. Also, it would have been nice to have had the amendments with that e-mail. Perhaps that could be considered for the future when letters about new amendments are sent out at a late stage.
However, those are minor matters as compared with the fact that the Government have come around, and we greatly welcome that. The case for judicial oversight of this has been clear from the beginning. We understand and appreciate that there are times when a swift application and decision have to be made, but the Government have rightly recognised in their amendments that that should be subject to judicial processes.
Perhaps I may raise a couple of points for clarification. There are some differences between the amendments we tabled at the start of the process and government Amendment 52. First, the new amendment does not require the Secretary of State to set out a draft of the proposed notice in the temporary exclusion order application, unlike subsection (2) of the proposed new clause in our Amendment 54. Why do the Government not think it necessary to set out the draft of the proposed TEO notice, as we propose? Secondly, proposed new subsection (2) provides that the court may, in addition to giving the Secretary of State permission to impose a TEO,
“give directions to the Secretary of State in relation to the measures to be imposed on the individual”,
who is subject to such an order. That is not in the government amendment. There may be good reasons for that, but it would be helpful to know from the noble Lord the reasons for those changes.
We are committed to judicial oversight along with the other measures we have proposed. We have not had total success, although the Minister has agreed to reconsider some of them. These measures should be subject to a sunset clause; that is, a renewal requirement for Parliament to look at them again. We also think that Parliament should be assisted in that consideration. There should be further scrutiny in the form of a report from the independent reviewer and a report on their use from the Home Secretary. All these measures are important, but we are pleased that the Government have accepted the need for judicial oversight. It will not threaten the ability of the Home Secretary to impose a TEO where there is intelligence and evidence to support that measure, as the noble Lord has clarified. However, what judicial oversight does provide is legitimacy and validity to the order. That, I think, will provide the public with greater reassurance when they see these orders being imposed.
We support these amendments, but it would be helpful if the noble Lord could give us an explanation of the differences between our proposals and those set out in the government amendments.
Immigration Bill
Lord Pannick Excerpts(9 years, 12 months ago)
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Lord Pannick (CB)
My Lords, I am grateful to the Minister, Lord Taylor, to the Immigration Minister, James Brokenshire, and to the Bill team, who have devoted an enormous amount of time to this difficult issue and have held meetings with noble Lords who are concerned about it. For reasons that I will seek to explain, I think that the Government have made a very substantial concession on this issue in Amendment 18A, following the success of the amendment that I moved on Report.
Before briefly explaining the reasons for taking that view, perhaps I may mention that the original unacceptable clause—it was unacceptable—has been improved only because of a coalition, if that is not now an unacceptable political term, of the Opposition, led by the noble Baroness, Lady Smith of Basildon, who has worked tirelessly and skilfully on this issue throughout the passage of the Bill through this House, with considerable support from the Cross Benches and a very substantial Liberal Democrat rebellion on Report. I would add that there was support from the noble and learned Lord, Lord Howe of Aberavon, who also voted for the amendment. As a result of that voting decision, the new paragraph added in the House of Commons very substantially reduces the risk of leaving an individual stateless, although I recognise that such an event is still possible if the Secretary of State’s assessment, although reasonable, turns out to be inaccurate for whatever reason.
I have written to the Minister giving him notice of a number of assurances that I seek and which I consider are important to the understanding of the protections which are contained in the new paragraph. The first is this. I understand that the reasonableness of the Secretary of State’s conclusion that another nationality is open to the individual will be open to challenge in the Special Immigration Appeals Commission, and that SIAC will have the power to determine whether the Secretary of State does have reasonable grounds for her belief that the individual is able to become a national of another country. I understand from the Minister’s opening remarks that he agrees with that.
The second assurance I seek is this. Does the Minister agree that the material which is relevant to the Secretary of State’s decision on this point—that is, the ability to acquire another nationality—would be very unlikely to be secret? The material would be provided to the applicant’s lawyers so that it could be fully debated in any appeal to SIAC. I would be grateful if he could confirm that.
Thirdly, am I correct in my understanding that the new provision means that the Secretary of State has no power to take away British citizenship if the matter depends on a discretionary judgment by the foreign state? I think that the words in the new paragraph, “able to become”, must mean that the matter is in the hands of the individual, who needs only to apply to the foreign state, pay the relevant fee, provide the relevant documents and show their entitlement. The paragraph does not say “able to apply”. There is good reason to interpret this provision narrowly: namely, to prevent deprivation of British citizenship where it would leave people in limbo, with the risk of statelessness if the foreign country decides not to exercise any discretion in favour of the applicant. I therefore think that this provision means that at the time of deprivation of British citizenship, the individual must have a right to citizenship under the law of the foreign country. Does the Minister agree?
I seek reassurance on a fourth point. I think that the word “able”, which is the word in the new paragraph, must mean that there is no practical impediment to obtaining the foreign citizenship. For example, if there is reason to think that the foreign state will not apply its own laws, or will not do so within a reasonable time, the Secretary of State simply could not remove British citizenship. Does the Minister agree?
Fifthly, the word “able”, as well as general principles of public law must mean that the Secretary of State could not exercise this new power to take away British citizenship where, although the person is entitled to acquire the foreign citizenship, there is good reason for their being unwilling to do so. An obvious example is where the individual is a member of a group that is persecuted in the country concerned. Does the Minister agree that it would be wholly wrong and unlawful for the Secretary of State, if she accepts that those are the facts, nevertheless to go ahead and deprive that person of British citizenship?
Sixthly and finally, I think that the word “able” and the general requirement that the Minister must exercise her power in a reasonable manner must mean that the courts would apply a “reasonable link” test. By that, I mean that the clause could not be applied by reference to an individual’s rights to acquire citizenship in a country with which he or she has no close link other than an entitlement to nationality. For example, surely the Secretary of State could not rely on the entitlement of a Jewish man or woman to citizenship of the state of Israel under the law of return if the individual has no other link with the state of Israel; or rely on a wife’s right to acquire the citizenship of her husband in a country that she has never visited. I have not thought up these examples. I take them from the judgment of Lord Wilson for the Supreme Court in the Al-Jedda case last October, at paragraph 23. Therefore, the sixth question is: does the Minister agree in principle that there must be a “reasonable link” test implicit in this paragraph, so that the clause could not be used in circumstances that would, in the absence of a reasonable link, be wholly unreasonable?
On the basis of my understanding of this clause, this is a substantial and welcome concession by the Government. I hope that the Minister can reassure the House that my views are consistent with the Government’s interpretation, because it is what the Minister says that the courts may look at in future.
Lord Lester of Herne Hill (LD)
My Lords, I am a member of the Joint Committee on Human Rights and I should declare an interest because, like the noble Lord, Lord Pannick, I am a member of Blackstone Chambers, the same chambers as Professor Goodwin-Gill. As the House will understand, barristers are not like solicitors: we are not in a firm and are perfectly capable of taking completely different views from some of our colleagues. I have of course read Guy Goodwin-Gill’s opinion and his supplementary opinions but I do not think that they focus on the particular issues, practical and otherwise, with which we are concerned in this debate.
As the noble Lord, Lord Pannick, indicated, the Joint Committee on Human Rights welcomes the concession that has been made. I was one of the rebels—in the words of the noble Lord, Lord Pannick—and am personally satisfied, for the reasons that the noble Lord gave, that the concessions obtained in the other House ought to be acceptable and are in accordance both with international law and with the principles of our own constitutional system of government and law. However, I also agree with the noble Lord, Lord Pannick, that the questions that he has raised are the right ones, and my support for the Government’s position is dependent on satisfactory assurances being given. It is very important that they are given, because one of the advantages of the Pepper v Hart doctrine is that what is said by the Minister in reply will give guidance about how this important provision is to be interpreted.
I very much welcome the shift that has occurred and the fact that it has occurred because of pressure from across the whole House and not simply from one party. I do not agree with the position now being taken by Her Majesty’s Opposition—unless it is a probing position. If they were to press their difference of opinion to a vote, I would support the Government.
Lord Pannick
If I understand him correctly, the Minister is saying that the application of this clause will depend upon the particular facts of the particular case. Can I ask him whether, among the relevant facts that the Secretary of State will take into account in deciding whether to apply this clause, and how it should apply, she will consider whether the individual has any link with the country concerned other than the ability to apply for nationality, and whether the relevant facts will also include whether the individual has a good reason for not wanting to apply for nationality in that country—for example, because of persecution?
Lord Taylor of Holbeach
I certainly can confirm to the noble Lord that one of the factors that has to be borne in mind by a Home Secretary considering these matters is the question of possible persecution. I assure the noble Lord on that in relation to the specific case that he mentioned and on the relevance of all factors that may impinge on a decision, which would include the ability of the person to acquire nationality in another country. They will be considered fully by the Home Secretary in all respects. The noble Lord asked about whether the person had an association and so on would be considered. I am sure that these are the sorts of things that the Home Secretary will have to consider in considering whether to exercise the powers in this clause. I am grateful to the noble Lord. He has been a great encouragement in the initial meetings that we had when we discussed these issues. Incidentally, the House should know that we are very much at the position that was suggested by a number of noble Lords right at the beginning; I am pleased that I have been able to satisfy some of the learned opinion that has been available to us here in the House.
Immigration Bill
Lord Pannick Excerpts(10 years, 1 month ago)
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Lord Pannick
“(1) A committee of members of both Houses of Parliament shall be established to consider and report on whether section 40 of the British Nationality Act 1981 (deprivation of citizenship) should be amended to enable the Secretary of State to deprive a person of their citizenship status if—
(a) the citizenship status results from the person’s naturalisation, and(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, even if to do so would have the effect of making a person stateless. (2) The committee shall consist of six members of the House of Lords nominated by the Chairman of Committees, and six members of the House of Commons nominated by the Speaker of the House of Commons, to be appointed on the passing of this Act to serve for the duration of the present Parliament.
(3) Any casual vacancy occurring by reason of the death, resignation or incapacity of a member of the committee shall be filled by the nomination of a member by the Chairman of Committees or the Speaker of the House of Commons, as the case may be.
(4) The quorum of the committee shall be two members of each House and the committee shall be entitled to sit and to transact business whether Parliament be sitting or not, and notwithstanding a vacancy in the membership of the committee.
(5) Subject to the above provisions, the committee may regulate its own procedure.”
Lord Pannick (CB)
My Lords, this amendment stands in my name and in the names of the noble Baroness, Lady Smith of Basildon, the noble Lord, Lord Macdonald of River Glaven, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The noble Lord, Lord Macdonald, has asked me to express his apologies to the House for his absence abroad today.
Clause 64 would give the Home Secretary power to decide that British citizenship obtained by naturalisation should be removed for reasons of the public good, even if the result would be to render the person stateless. Amendment 56 would establish a Joint Committee of both Houses of Parliament to consider all aspects of the Government’s proposal and report back. Parliament could then take an informed view on whether the benefits, if any, of the Government’s proposal outweighed any detriments. A Joint Committee is required because Clause 64 was added to the Bill very late in the passage of the Bill through the other place—that is, 24 hours before Report and Third Reading on 30 January, so there was no pre-legislative scrutiny of this proposal, no consultation and no opportunity for consideration by the Public Bill Committee of the other place. The absence of pre-legislative scrutiny and proper consultation is especially unfortunate in a context such as this. The Home Secretary said, in introducing this clause in the Commons on 30 January:
“Depriving people of their citizenship is a serious matter. It is one of the most serious sanctions a state can take against a person and it is therefore not an issue that I take lightly”.—[Official Report, Commons, 30/1/14; col. 1038.]
The need for proper scrutiny by a Joint Committee is not an abstract matter. The implications of Clause 64 raise matters of real concern on which there is very limited information, as the debates in Committee in your Lordships’ House demonstrated. Many questions were posed in Committee as to how this proposed power would work and what its consequences would be. A Joint Committee will need to consider the practical implications and the international implications of implementing this power. As discussed in Committee, there are real concerns that the proposed measure would do little to protect the national interest and may be counterproductive. It is difficult to understand what would be achieved by taking away the citizenship of a person resident here. It may be more difficult to remove them from this country as other countries would be less willing to accept them without a passport.
In his letter dated 4 April—which I and other Peers received and for which I thank the noble Lord—the Minister, the noble Lord, Lord Taylor of Holbeach, emphasised, rightly, that we are concerned in this clause with dangerous individuals, individuals who pose, as he said, a serious national security risk to the United Kingdom. There is no dispute about that. The question is how the exercise of a right to remove British citizenship would assist in protecting us against such individuals. The noble Lord said in his letter that the Home Secretary is concerned to prevent such people from travelling abroad using a British passport to participate in terrorist training activities. However, the Secretary of State already has power to withdraw a British passport from dangerous individuals for precisely such a reason without stripping them of their nationality and making them stateless. The noble Lord, Lord Taylor, made a Written Ministerial Statement on this very subject to the House on 25 April of last year.
In practice, it seems likely that a deprivation of citizenship would normally occur while the individual is out of this country. However, that raises a concern that other countries may well say that the individual was allowed in only by reason of the fact that they were travelling on a British passport, and now that that status has been removed and the person has no other nationality, we, the United Kingdom, can have them back. Your Lordships may have seen the advice of Professor Guy Goodwin-Gill, professor of international refugee law at Oxford University, that in those circumstances this country would have an international law obligation to the other state to readmit that individual, however objectionable their conduct.
The Joint Committee will also want to consider whether the benefits, if any, of the proposed new power justify the adverse international implications. This country played a leading international role in the drafting of the 1961 UN Convention on the Reduction of Statelessness. We have done much since then to encourage other nations to refrain from inflicting on their citizens what Lord Wilson, in the Al-Jedda case in the Supreme Court last year, described as “the evil of statelessness”. There are, regrettably, all too many dictators around the world who are willing to use the creation of statelessness as a weapon against opponents and we should do nothing to suggest that such conduct is acceptable.
The Government have now, very late in the passage of the Bill, brought forward their own amendment to provide for post-legislative scrutiny, and the Minister will speak to that. However, the noble Lord’s Amendment 56A does not say who will conduct this post-legislative scrutiny or indeed require that they are even independent of the Home Office. The noble Lord’s amendment allows for information in the scrutiny report not to be published. In any event—this is the crucial point—the Government’s Amendment 56A does not meet my concern because proper consideration of the implications of this proposed power to render people stateless is required before legislation is enacted and not afterwards.
Given the absence of pre-legislative scrutiny, the late stage at which Clause 64 was added to the Bill and the lack of clarity as to how this power will operate and with what consequences, we should refer it to a Joint Committee so that Parliament can be properly informed on these difficult and important issues. I beg to move.
The Deputy Speaker (Baroness Pitkeathley)
I must tell your Lordships that if Amendment 56 is agreed to, I cannot call Amendments 56ZA to 56ZD inclusive for reasons of pre-emption.
Lord Pannick
I thank all noble Lords who have spoken in this debate, particularly the Minister, whose door has been open throughout the passage of the Bill to all noble Lords concerned about particular clauses. He has given a characteristically full and helpful response to the amendments.
In his first intervention in this debate, the noble Lord, Lord Taylor, said that he recognises the importance of scrutiny at the earliest opportunity and that Amendment 56A therefore allows for a report one year after the passage of the Bill. The earliest opportunity for scrutiny is before we confer this power on the Secretary of State, not after we confer this power on the Secretary of State. The Minister then said that the place for proper scrutiny was in this House, not in a Joint Committee. But for this House to do its job properly depends on adequate pre-legislative scrutiny so that we have the information adequately to assess the implications of Clause 64. I am particularly grateful to the noble Baroness, Lady Hamwee, and to other noble Lords, for identifying a large number of questions that the Joint Committee no doubt will wish to consider.
The Minister also suggested that delay while we wait for a Joint Committee report might somehow be damaging. I find that very difficult to understand. Clause 64 would remove a restriction on creating statelessness, which has been part of our law since 2003. The Minister has not told us how many, if any, cases there are where the Secretary of State would wish to remove nationality on public good grounds but is currently prevented from doing so because it would cause statelessness. In any event, I do not understand—and it is plain from the debates that I am not the only the noble Lord who does not understand—how removing nationality to make a person stateless is going to assist national security by making it easier to control undesirable people or remove them from this country. That is one of the crucial questions that a Joint Committee will need to address.
In any event, a Joint Committee could report by, say, October, and if the Government see fit in the light of such a report, they can bring forward a short Bill in the next Session. The Minister cannot seriously suggest that the Queen’s Speech in June will be so full of material that the Home Secretary will be told in the autumn, in the light of a Joint Committee report, “We’re very sorry, but there’s simply no room to come back to this matter”. Let us be realistic about this issue.
Finally, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, Amendment 56 is a modest amendment. It does not ask this House to take a final view on whether the proposed new power should be conferred on the Home Secretary. What it does is to invite this House rather to ensure that Parliament is fully informed of the benefits, if any, and the detriments, before the law is changed. Given the importance of the subject matter and the difficult questions that continue to exist as to the practical and legal consequences of the conferral and exercise of this new power, I think that that is a step that we should take to require proper pre-legislative scrutiny.
This is a matter of fundamental principle and I wish to test the opinion of the House.
Immigration Bill
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Baroness Lister of Burtersett
My Lords, I support the amendment moved so ably by the noble Baroness, Lady Berridge, who is a colleague on the Joint Committee on Human Rights. I shall simply quote from what the committee said as I think it sums up the case now being made:
“we remain concerned, even after considering the Minister’s explanation of the purpose of the provision, about whether it is compatible with the right of access to court, the principle of equality of arms and the rule of law for the court’s power to consider a new matter to depend on the ‘consent’ of the Secretary of State. We are struck by the fact that the Government could not identify any other similar provisions in other statutory contexts”—
as the noble Baroness has already pointed out—
“which confirms our sense that this provision crosses a line which has not previously been crossed”—
I think that is a very good point—
“in relation to an aspect of a tribunal’s jurisdiction being dependent on the consent of the Minister who is the respondent to the appeal”.
There is a basic principle here about justice being seen to be done. If this provision goes through as it stands, I do not think that justice will be seen to be done. As the noble Baroness said, perhaps the answer is for the Minister to give a commitment to come back at Third Reading with an amendment that is better expressed. However, I hope that the Government are listening and will respond positively to the amendment.
Lord Pannick (CB)
My Lords, I, too, support this amendment, which raises a short but vital issue of principle, which is whether it is consistent with the rule of law for one party to the proceedings to have the power to determine the scope of the jurisdiction of the tribunal before which it appears. So far as I am aware there is no precedent for such provision, for the very good reason that it is objectionable in principle. It should be a matter for the tribunal to apply whatever criteria Parliament thinks appropriate to determine whether the tribunal can hear an appeal that raises new grounds. I simply cannot understand why the Secretary of State does not trust the tribunal to decide on the application of the criteria which Parliament sees fit to lay down. I, too, hope that the Minister will be able to tell the House that, in the light of the concerns expressed this afternoon, the Government will think again on this important matter before Third Reading.
Lord Mackay of Clashfern (Con)
My Lords, I have the disadvantage of not seeing this matter quite in the way that my colleagues have seen it. This tribunal is an appeal tribunal from a judgment of the decision of the Secretary of State. This clause deals with a situation in which it appears, in the course of the proceedings or perhaps before they start, that there is a new ground of decision that has not as yet been dealt with by the Secretary of State. It is the Secretary of State’s jurisdiction to decide that, and the appeal tribunal’s jurisdiction is to consider appeals that arise from the decision of the Secretary of State. Therefore the essence of this particular procedure appears to be that a new decision is called for from the Secretary of State on a matter which has not been before the Secretary of State previously.
I do not see how that is in any way a breach of principle, but I know from experience long past that the way in which immigration tribunals deal with these matters has been a cause of great difficulty. During my time there were great accumulations of arrears in the immigration tribunals, and all sorts of efforts were made to try to deal with that. One of my successes, which I cherish, was to get money from the Treasury to set up new immigration appeal tribunals in the hope that that would reduce the number of cases waiting. Like all such efforts, that does not seem to have worked, as the list of appeals still seems to be pretty long.
That seems to be the essence of this issue. I agree that there are problems when this sort of thing arises in the course of an appeal on an earlier decision, but the fact that that happens is something which has to be dealt with. One of the difficulties that my noble friend Lady Berridge referred to was that it is often very difficult, in the course of these proceedings, to get in touch with the Home Office representative before the case starts; the case goes ahead without anyone getting in touch with them. That is not a new difficulty, and I suppose that this amendment is intended to deal with it to some extent. There is an underlying difference in principle between the way in which my colleagues look at this and the way I think it is possible to look at it.
Lord Pannick
I wish to make a suggestion. The noble and learned Lord rightly emphasises that the Secretary of State is the primary decision-maker. However, a way forward might be to give the tribunal some power to overturn a decision of the Secretary of State on a matter of this sort if the Secretary of State is acting unreasonably. That would recognise the primary role of the Secretary of State. What is objectionable is that the Secretary of State must give his or her consent in this context.
Lord Pannick
My Lords, I have added my name to this amendment to remove Clause 15 from the Bill. A system of internal review is not a substitute for the right of appeal. The right to appeal confers a right to a decision by an independent adjudicator, but it is more than that. There is a public hearing with witnesses and with submissions on both sides. There is a public reasoned decision as a result of the process. I fear that, without independent appeals, the already poor standards of administration in relation to immigration decisions—the noble Baroness, Lady Smith of Basildon, has referred to the lamentable figures—will get even worse.
I do not think that another layer of internal decision-making through an administrative review can possibly be as effective a mechanism for improving standards and ensuring correct decisions as an independent and public appeal process. I welcome, of course, the Government’s decision to invite the Independent Chief Inspector of Borders and Immigration to review the new administrative review process. This will introduce some independent scrutiny of the process, but the chief inspector is not going to assess the substantive merits of individual cases in the way that the tribunal does.
The Government have emphasised that an individual dissatisfied with the internal review process—and there will be many of them—will have legal redress by way of judicial review. But of course a judicial review, unlike an appeal, is not an assessment of the merits of the case; it is a limited assessment of fair process and of legal errors. In any event, I simply cannot understand any more than the noble Baroness, Lady Smith, why the Government are seeking to push these cases—and there will be many of them—into judicial review when, at the same time, the Lord Chancellor is bringing forward legislative proposals to reduce the number of judicial reviews. Indeed, as the noble and learned Lord, Lord Woolf, explained in speaking to the previous amendment, the whole thrust of reform in recent years has, rightly, been to remove immigration cases from judicial review and to have them decided before tribunals.
The Minister, the noble Lord, Lord Taylor—like other noble Lords, I am very grateful to him for having meetings and correspondence on these issues—has previously emphasised that administrative review is cheap and quick. He is right, but there is nothing to stop the Home Office introducing a quick, cheap and effective process of administrative review. If it were to do so, no doubt it would find that a very large proportion of appeals would become unnecessary. My objection to the clause is the removal of the right to an independent appeal in cases which are not adequately addressed by a process of administrative review. That is why I oppose Clause 15.
The Earl of Clancarty (CB)
My Lords, I apologise to the House for not having spoken before on this Bill. I will be brief. I have put my name to this amendment and want to talk about fairness.
As the noble Baroness, Lady Smith, mentioned, we had an excellent debate on immigration last week in the name of the noble Lord, Lord Steel. Much of that debate was full of individual cases. Someone afterwards said that it was a sad debate because of the frustration felt on all sides of the House for those they knew or knew of who suffered difficulties or injustices as a result of the immigration system or regulations as they currently stand, or as likely from mistakes being made. The large proportion of appeals that succeed is testament to that.
Those who work in the area of our domestic legal process, which has developed over centuries, understand well that the system is not perfect, that it can be improved, that mistakes are made and, more than that, that significant safeguards need to be built in that are, crucially, an open aspect of the system. As a society, we are by and large grown-up and realistic enough to accept that. Surely those principles that currently exist in relation to immigration appeals and have now stood for more than four decades should in the same way be, at the very least, preserved and protected. The Government may baulk at the openness of the tribunal system when so many mistakes are clearly revealed to the public, but if the process is taken back in-house—as it were—as an administrative review, we will lose that openness, independence and accountability that we currently have, as my noble friend Lord Pannick said.
The Government wish to replace the current system with one that will be more complicated and inefficient. In addition to limiting the process, it will fragment it and be desperately unfair for the person concerned because that person would quite rightly—this should be a democratic right—want to hear the entirety of their case presented at a tribunal. I can understand the desire of the Government here. They are under considerable pressure to get immigration right, get a grip on it and put an authoritative stamp on it. However, if that is a spurious authority, which, through lack of independence, institutionalises mistakes—that is what will happen—it will be worthless. Whatever good intentions the Government may have, Clause 15 remains on Report a threat to our fundamental notions of fairness in this country. There is a world of difference between aiming for a perfect system, which is laudable, and attempting to construct in the here and now a system that assumes perfection. If we so significantly limit the right of appeal to tribunals, we will surely set off down the latter, dangerous and misguided, road.
Immigration Bill
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Lord Pannick (CB)
My Lords, I share the concerns expressed by the noble Baroness, Lady Hamwee, in relation to Clause 62. In particular, will the Minister give the Committee an assurance that there will be transparency as to what proportion of the fees will relate to,
“the costs of exercising the function”,
and what proportion will address other matters? It is very important that the public and both Houses of Parliament know the breakdown of the fees in that respect.
I am concerned also about Clause 66(3), which is the subject of the probing amendment in the name of the noble Baroness, Lady Smith of Basildon, and relates to “Transitional and consequential provision”. I agree with the comments of the Delegated Powers Committee that it would be highly desirable to make clear in the Bill that this power is intended to cover only existing legislation and not to give a power to amend, repeal or revoke future enactments. I am sure that that cannot have been the intention but it is highly desirable that this should be clarified.
I do not think that there is any risk, which the Delegated Powers Committee was concerned about, that Clause 66(3) could be interpreted to allow for amendment of this legislation. As I understand it, it is linked to Clause 66(2). It allows an amendment to repeal or revoke,
“in consequence of this Act”.
It seems to me that to amend this legislation could not be in consequence of this Act. But if it is the Government’s intention to confer a power by Clause 66(3) to amend this legislation, please will the Minister say so.
Lord Ramsbotham (CB)
My Lords, I beg the indulgence of the Committee if I raise a matter which may appear to be more relevant to an earlier part of the Immigration Bill that the House has already taken. I should like to ask the Minister at what stage either the Secretary of State or any other Minister in the Home Office became involved in the case of Alois Dvorzac, an 84 year-old Canadian who died in handcuffs at Harmondsworth detention centre? He was born in Slovenia and was on his way from Canada to Slovenia, in transit through Gatwick, when he was taken from Gatwick and put into Harmondsworth, where he died. He neither claimed United Kingdom nationality nor had it removed. Therefore, this seems to be something of which the United Kingdom should fairly be ashamed. At what stage did Home Office Ministers become involved in this tragic affair?
Lord Pannick
My Lords, I offer my support to the noble Lord, Lord Avebury, on Amendment 84A. As he said, the Committee will recognise the importance of the right to bail, particularly in relation to persons who have not been convicted of any criminal offence and who are often detained for lengthy periods.
I ask the Minister whether proposed new subsection (5A) is being brought forward to address a practical problem. How often are applications being made within the 28-day period, and with what result? I am concerned about proposed new subsection (5A) because it is not difficult to envisage cases where it may well be appropriate to bring a further bail application within the 28-day period, even if there is no “material change in circumstances”, the criterion in proposed new subsection (5A).
Suppose, for example, that a bail application has been dismissed because of the incompetence of the legal advisers—sadly, in this context, as in others, that is far from a hypothetical contingency. Suppose that the individual concerned lacks proper legal advice when the bail application is made. New solicitors may be appointed, a friend may be assisting the individual, they may be able to present a bail application differently or they may have discovered a binding Court of Appeal judgment which, hitherto, escaped attention. None of that would be a material change in circumstances, as I understand the concept, but it would surely be highly undesirable for the detainee to have to wait for 28 days before an application for bail could be heard and ordered, if it is appropriate on the facts of the detainee’s case.
I hope that the Minister will therefore be able to tell the Committee that he is prepared to think again on this important matter before Report.
Lord Taylor of Holbeach
My Lords, I welcome the opportunity to debate my noble friend’s amendment because it provides me with the opportunity to reassure noble Lords that the safeguards we highlighted when we debated Clause 3 in terms of the Home Office’s process and policy, common law and case law protections and, indeed, judicial oversight are in place when immigration bail applications are considered by SIAC. The power to detain under immigration powers flows from the Immigration Act 1971, and the consideration of whether detention remains lawful is governed by exactly the same legal principles. It is simply the venue that is different: SIAC, instead of the immigration tribunal. SIAC has its own procedure rules, separate from the tribunal procedure rules, and paragraph 2 of Schedule 9 requires SIAC’s rules to mirror those of the tribunal in how repeat bail applications made within 28 days should be handled in cases where there has not been a material change in circumstances. My noble friend’s Amendment 84A would remove the requirement for SIAC to dispose of repeat applications made on the same facts within 28 days without a hearing. That would create disparity between how different tribunals are required to handle the same matter.
As will be the case in the immigration tribunal, if a further bail application is made within 28 days of a previous unsuccessful bail application, SIAC can agree to an oral hearing, provided that there are genuine reasons to seek another hearing because there are materially different grounds to consider which may lead to a different outcome.
As I have said, safeguards are already in place. Clause 3 does not prevent an individual from applying for bail. Nor does it prevent an individual from challenging the legality of their detention, and legal aid will remain available for that. The Home Office will continue to conduct formal reviews of detention, and detainees will continue to have full access to legal advice.
I have been asked how many times the existing power has been used. The existing power has not been used for some time, so the Government have no statistics on its use. It is drafted so broadly that its meaning is, arguably, unclear. The government amendment is clear about the circumstances in which the power can be exercised and is proportionate. Therefore, it is more workable.
My noble friend Lord Avebury asked about judicial review and habeas corpus and their relationship with SIAC. He suggested that they were not adequate in SIAC. I hope that I can assure the noble Lord, Lord Pannick, that the position in SIAC differs from the position in the tribunal. SIAC is a superior court of record, whereas the tribunal, which considers most bail applications, is not. In SIAC bail applications, SIAC does consider the lawfulness of detention, and detainees do not have to apply for JR or habeas corpus, although those options remain open to them should they wish to do so.
I hope that I have covered the salient points made by my noble friend and the noble Lord, Lord Pannick. I understand that my noble friend’s amendment was probing. I therefore hope that my comments have reassured the noble Lords that there is no difference in the policy, procedural or judicial protections that those detained under immigration powers enjoy even if the case is under SIAC’s jurisdiction rather than that of the immigration tribunal. I therefore ask that my noble friend withdraw his amendment.
Immigration Bill
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Lord Pannick (CB)
My Lords, I have added my name to several of the amendments in this group and have also indicated my opposition to Clause 60 standing part of the Bill. I share the concerns eloquently expressed by the noble Baronesses, Lady Smith of Basildon and Lady Kennedy of The Shaws. It is a matter for considerable regret that the United Kingdom, which has played so significant a role in the battle to reduce statelessness, should now, if the Government have their way, condone the creation of statelessness, even for people who have damaged the public good. Such people should be put on trial, punished if there is evidence of criminal offences and deported if there is a safe country to which they can be sent. However, to deprive them of nationality and thereby render them international outcasts is simply indefensible.
I share the views of the noble Baroness, Lady Kennedy, about the international law implications of what is proposed, but wish to focus on the practical consequences of what the Government are suggesting. Does the Minister accept—this is the crucial question— that if British citizenship is removed from a person in this country on public-good grounds, with the result that they are rendered stateless, it will make it much more difficult to remove that person to another state? Other states are less likely to accept entry by a person who is stateless than one who enjoys British citizenship. Does the Minister therefore accept that, far from contributing to national security, the exercise of Clause 60 against persons in this country will positively damage national security by making it more difficult to remove people who are a danger to the public good?
For this reason, it seems highly likely that Clause 60 will in practice only ever be used against people who are living abroad. Does the Minister agree that, if we strip a person of British citizenship while they are abroad, thereby rendering them stateless, there is a real danger that the country that admitted them temporarily will take urgent steps to remove them back to this country, since it will not wish to be responsible for a stateless person? It is surely highly likely that the United Kingdom will be told by the country where such a person is living that it admitted that person temporarily only because the individual had a British passport. The foreign country will surely say that, now that the passport has been taken away, the United Kingdom can have that person back. There will then be a dispute with the foreign state—and some such states are our allies—about our duty to re-admit someone who was admitted to it only because they presented a British passport that has now been revoked.
The noble Baroness, Lady Smith, has already referred to the opinion of Professor Goodwin-Gill that the United Kingdom would have an obligation in international law then to re-admit such a person. Even if there is a dispute about international law, this Government are plainly going to face considerable pressure from foreign states to re-admit such people to this country. I would be grateful for the Minister’s views on this: does he agree that Clause 60, far from assisting us to deal effectively with people who threaten the public good, will handicap this country, whether the person is here or abroad when the revocation of citizenship takes place?
Although I have added my name to a number of the amendments in this group, which I see as probing amendments, the problem with all of them, whether to secure judicial control or introduce a test of proportionality, is that they will still allow for the removal of citizenship, even though statelessness will result. My current view is that Clause 60 is so fundamentally flawed, so in breach of international law and so damaging in its practical consequences for the security of this country that it should be removed from the Bill. I am happy—and I am sure that noble Lords who have spoken and will speak in this debate are too—to meet the Minister in the short period of time before we return to this subject, as inevitably we will on Report this month, to see whether there is a possibility of making real progress on this very troubling matter.
Baroness Lister of Burtersett
My Lords, Amendment 76A in my name is, like Amendments 75 to 78 to which I have added my name, designed to mitigate the worst effects of Clause 60. However, like the noble Lord, Lord Pannick, and my noble friend Lady Kennedy, my preference is for Clause 60 not to stand part of the Bill, and we have heard very powerful reasons for why it should not do so.
Amendments 75, 76, 77 and 78 were recommended by the Joint Committee on Human Rights; first, to ensure that Clause 60 is compatible with international law obligations. This has been questioned by the JCHR, drawing on the opinion of Professor Goodwin-Gill, which has already been referred to, that the deprivation of citizenship should be,
“a necessary and proportionate response to the conduct in question”.
The JCHR noted that, in their letter to the committee, the Government said that they did not want,
“to rule out the possibility that deprivation of citizenship leaving a person stateless is necessary in the interests of the economic well-being of the country”.
The JCHR said:
“It is hard to imagine the circumstances in which such a serious measure could ever be necessary and proportionate for such a purpose”.
Will the Minister help us out and give an example of the kind of situation envisaged that would not anyway be covered by terrorism? Economic well-being does not seem to be a reason for taking away someone’s citizenship and making them stateless.
The JCHR said that the best interests of the child should be taken into account and, once again, issued a plea for this to be written into the legislation to ensure that they are,
“treated as a primary consideration”.
The committee also said that the legislation should not be retrospective, which is,
“an exceptional step which requires weighty justification”.
We were not persuaded that such justification exists. I note from a Written Answer on 10 February:
“There will be no time limit, but the conduct being considered must have taken place after the individual became a British citizen”.—[Official Report, 10/2/14; col. WA 101.]
Amendment 76A complements the JCHR’s amendments and has two purposes. First, it would ensure that the power in Clause 60 could not be used against someone when they are outside the country. This would help ensure compliance with obligations under international law and, as has already been noted, the JCHR, drawing on the opinion of Professor Goodwin-Gill, has questioned whether the clause is compliant. The committee said:
“We would be very concerned if the Government’s main or sole purpose in taking this power is to exercise it in relation to naturalised British citizens while they are abroad, as it appears that this carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.
That point has already been made but it bears repetition. Will the Minister comment on this important legal point?
The JCHR also expressed surprise at,
“the Government’s refusal to inform Parliament of the number of cases in which the power to deprive of citizenship has been exercised while abroad”,
and made it clear that Parliament,
“is entitled to this information in order to assist it to reach a view as to how the new power is likely to be exercised in practice”.
I pay tribute to the tireless briefing that ILPA has provided to the committee throughout the passage of the Bill, although I fear we have not done it full justice. A freedom of information request submitted by ILPA elicited the information that, of five individuals stripped of British nationality in 2010, all were outside the UK. This has to raise alarm bells. Will the Minister give Parliament—and the committee—this information now?
At Second Reading, the Minister assured noble Lords:
“There is a safeguard of a full right of appeal”.—[Official Report, 10/2/14; col. 417.]
But how is someone who is forbidden to return to the country supposed to exercise that right of appeal? It will not be very easy. In practice that is probably a pretty empty assurance. What will be achieved apart from sullying the UK’s international reputation, as we have already been warned? Liberty suggests that the clause is based on a security fallacy, arguing that stripping someone of nationality abroad will in no way contribute to security at home. Those who threaten our security do not respect national borders; my noble friend Lady Smith has made a similar point.
Lord Taylor of Holbeach
I must say that nothing I have said implies that there may not be conditions. They are frequently imposed on people who may pose a threat to this country, and this case is no different. However, I have said that the right to protection against removal would be part of our obligation under the existing conventions, and we would not seek to do otherwise than honour those conventions.
On the challenge made by the noble Baroness, Lady Smith, about the question of deprivation action taking place only in the UK, that is the salience of Amendment 76A. The purpose of the new power is not to target naturalised people who are abroad, but to allow the Secretary of State to take timely action against individuals, whatever their location at the time the decision is made.
However, it is a fact that in some cases key information comes to light when a person is outside the UK. Indeed, often travel abroad to terrorist training camps or to countries with internal fighting is the tipping point—the crucial piece of the jigsaw—that instigates the need to act, given the potential danger that those individuals would present on their return to the UK. The Home Secretary therefore needs to be able to determine the most appropriate response and timings to deprive a person of citizenship, regardless of whether they are inside or outside the UK.
Lord Pannick
Can the Minister give the House an assurance that the Home Secretary will not deliberately wait until an individual is abroad before exercising Clause 60 powers?
Lord Pannick
Before the Minister sits down, perhaps I could ask a question. He gave a very comprehensive reply—a very helpful one, if I may say so—but, unless I missed it, I do not think that he responded to the concern that, far from promoting the security of this country, Clause 60 will damage security. This is because the clause will make it more difficult to remove dangerous people, and make it more likely that dangerous people who are temporarily abroad will be sent back to this country because they no longer have a British passport. I wonder whether the Minister wants to say anything about those concerns.
Lord Taylor of Holbeach
That was of course a consideration in the discussions that led to the tabling of this clause. I think that I did address this point, in the sense that an individual who poses a threat to this country can have restrictions placed on them other than the deprivation of citizenship. I am sure the noble Lord will understand this point. I wish to make the point that this is a balanced judgment. The Home Secretary, who after all has to exercise powers within the law on this matter, believes that the law is deficient in this respect. She seeks to change it, and is doing so through this Bill. Knowing her, I do not think that she would make that decision if she felt that it would in any way weaken the security of this country.
Lord Pannick
My Lords, I have added my name to Amendment 79A on the role of the independent reviewer and I agree with everything that has been said by the noble Baroness, Lady Hamwee. I have tabled two further amendments in this group. Amendment 79C has the support of the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, and the noble Lord, Lord Roberts of Llandudno. It would require the Secretary of State to set up a code giving guidance as to the practices to be followed in any case of deprivation of citizenship. Amendment 79D, which has the support of the noble Baroness, Lady Lister, and the noble Lord, Lord Roberts, would introduce a sunset clause, and I am hopeful that the noble Baroness, Lady Smith, may add her vocal support to the amendment.
There are real concerns about Clause 60, as we debated in the previous group of amendments. If we are to have Clause 60 at all, I think that we need all or some of these protective provisions—an annual review, a code of guidance and a sunset clause—to set out some criteria for the application of the clause and to ensure that Parliament can take an informed and periodic look at this matter in the light of the practical experience of the operation of the clause.
Baroness Lister of Burtersett
My Lords, I am pleased to support these amendments. I think that I have already said more than enough about Clause 60, but I could not help but notice that no one spoke in support of it other than the Minister, and so I see these amendments as a kind of absolute bottom line. If we are going to be saddled with Clause 60, I hope that the Government will see fit to accept these procedural process amendments as a kind of minimal response to the grave concerns that have been expressed across the Committee.
Anti-social Behaviour, Crime and Policing Bill
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Lord Pannick (CB)
I add my thanks to the Minister, the whole ministerial team and the Bill team for the remarkably constructive way in which they have addressed all the many issues that have arisen under this complex Bill. I ask the Minister one question. Will the welcome sense of harmony that has been displayed today extend to the amendment that the House carried last week on the definition of when compensation will be paid for a miscarriage of justice? Is the Minister able to tell the House whether the Government will commend that amendment to the other place?
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this gives me an unexpected opportunity to come to the Dispatch Box. On behalf of the Ministry of Justice, I would welcome a conversation with the noble Lord, but I can go no further than that.
Anti-social Behaviour, Crime and Policing Bill
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Lord Pannick (CB)
My Lords, Amendments 93A to 93D are in my name and the names of the noble Lord, Lord Lester of Herne Hill, the noble Baroness, Lady Kennedy of The Shaws, and the noble and learned Lord, Lord Hope of Craighead. They concern the power to detain people at ports and airports and the power to copy and retain their personal electronic data, and propose that these powers should be exercisable only if the officer reasonably suspects that the person concerned is involved or has been involved in acts of terrorism. Your Lordships will know that the application of the existing powers is currently the subject of litigation in the David Miranda case concerning the detention of the partner of a journalist on the Guardian newspaper, but I do not want to address the circumstances of that case. I want to focus on the principles.
I have no quarrel with the Bill recognising that the power to stop, question and search at a port or airport should be exercisable whether or not there is any reasonable suspicion. However, I believe that the more intrusive powers of detention of persons and retention of their electronic data must be subject to greater safeguards. The Joint Committee on Human Rights has so recommended in its very helpful reports, most recently in its ninth report, published on 6 January. The Terrorism Act 2000, which Schedule 8 to this Bill would amend, allows for detention without any need for the officer to have any suspicion, reasonable or otherwise. The Bill would allow for detention for questioning for up to six hours—a very substantial interference, on any view, with individual liberty.
The independent reviewer of terrorism legislation, Mr David Anderson QC, has stated that there should be greater protection for individuals before they are detained or their electronic data are copied. In his evidence to the Joint Committee, at paragraph 28 of the ninth report, Mr Anderson said:
“It is hard to think of any other circumstances in which such a strong power may be exercised on a no-suspicion basis”.
Indeed, the Joint Committee noted that the Government were unable to give any other examples of such intrusive powers being exercisable without a requirement of some kind for suspicion.
Mr Anderson concluded that the threshold should be subjective suspicion on the part of a senior officer. The Government have not brought forward an amendment to introduce even that limited test, but, in any event, I do not think that such a control would be adequate in the context of the detention of persons and the copying and retention of personal electronic data. As the Joint Committee concluded, a subjective suspicion threshold is no safeguard whatever. Simply to require that an officer in fact suspects provides no independent scrutiny of the officer’s reasoning. The development of administrative law over the past 40 years confirms that subjectively worded powers are simply incompatible with effective legal control.
It is true that Mr Anderson was not persuaded that an objective test of reasonable suspicion was appropriate in this context. Mr Anderson’s concern is that this would impose too great an interference with policing powers, especially having regard to the difficulty in identifying wrongdoers and the appalling devastation that terrorists can cause. Despite the genuine respect which I have for Mr Anderson, I think his conclusions on this subject are wrong. The concerns to which Mr Anderson rightly draws attention—the difficulties of detection and appalling consequences of failing to identify wrongdoers—are well understood by the courts. Such factors would inevitably and properly be given great weight by the courts when deciding whether there was reasonable suspicion to justify the detention.
The noble and learned Lord, Lord Hope of Craighead, spoke for the Appellate Committee of this House in addressing what a reasonable suspicion test means in the case of O’Hara v the Chief Constable of the RUC, 1997 Appeal Cases at 286. That was a case concerned with the police power to arrest a person who the officer has reasonable grounds for suspecting to be a terrorist. The noble and learned Lord, Lord Hope, emphasised that such a test required the court only to assess the information in the mind of the arresting officer at the time, whether based on his own observations or what he had been told by others, and whether or not the information he had in his mind at the time later turned out to be false.
If it is truly the case that the detention is not reasonable on the basis of what was known to the officer at the time of the detention, having regard to the difficulties in identifying terrorism and the appalling consequences of letting a terrorist go through, then detention should simply not occur.
When this matter was discussed in Committee, the noble Baroness, Lady Smith of Basildon, speaking from the Opposition Front Bench, referred to the difficulty in finding an appropriate balance in this context. I recognise the difficulty, but the House needs to confront it. Without a reasonable suspicion test the powers conferred by the Bill involve no balance at all. The powers provide inadequate protection for the citizen, inadequate encouragement to officers to maintain high standards and inadequate assurance to the public to promote the support on which effective policing depends, especially when we all know that these powers are used against black and ethnic minority individuals to a disproportionate extent compared with their numbers in the population.
Lord Lester of Herne Hill (LD)
My Lords, when I was young at the Bar, there was a High Court judge who used to make a habit when he was giving judgment of simply saying, “I agree”. Having heard the noble Lord, Lord Pannick, I am tempted just to say, “I agree”. However, I wish to add a few points which he has not made and which it may be appropriate for me to make at this stage.
First, perhaps I may record, as a member of the Joint Committee on Human Rights, our misfortune at having lost the noble Lord, Lord Faulks, as a recent powerful and distinguished member, and the good fortune of the Government in having him—now in a sedentary position, unfortunately—on the Front Bench.
Secondly, the Joint Committee on Human Rights recorded in its earlier report its welcome of the government amendments that the Minister has described. I simply echo our appreciation of the amendments that are before us now.
Thirdly, I do not wish to say anything about the pending Miranda case but I do not see that its outcome will in any way affect the Government’s decision on whether to accept this amendment as it is not the function of the court in that case to decide on a future scheme that better protects liberty.
Fourthly, there is another case pending in the European Court of Human Rights—the case of Malik—to which the Joint Committee referred in paragraph 108 of its fourth report. What we are now saying today will be read by the Strasbourg court in disposing of that case. One of the reasons I am adding to the speech of the noble Lord, Lord Pannick, is that I hope that the way in which the Government and the Official Opposition reply to this will be helpful to the Strasbourg court.
In the Malik case, there is a root and branch attack on the compatibility of the schedule with the European Convention on Human Rights. The Joint Committee on Human Rights has said that it has little doubt that that challenge will fail. There is nothing inherently incompatible between the schedule and the European Convention on Human Rights. However, as many lawyers will remember, there have been a whole series of cases in Strasbourg with names such as Klass against Germany and Malone against the United Kingdom where the Strasbourg court has said that it is necessary that there are adequate safeguards against the abuse of powers, including police powers. This amendment addresses the need for more adequate safeguards.
My view is the same as that of the noble Lord, Lord Pannick—indeed, I look forward to the speeches of the noble Baroness, Lady Kennedy, and the noble and learned Lord, Lord Hope of Craighead—and probably all of us agree that there is a need for more effective safeguards against the possibility of abuse. An objective, reasonable standard seems to be the minimum that is now required. The Joint Committee has considered this twice—once in its original report and once in its most recent report—and came to the firm view that these safeguards are necessary. If the Government were to reject that opinion today, all I can say is that if I were in Strasbourg arguing for the Crown I would find myself in some difficulty because I am convinced that the Strasbourg court will scrutinise the reasons the Minister will give in deciding whether there are adequate safeguards. In other words, I think Mr Malik will lose but it would be a pyrrhic victory for the Government unless they were able to convince that court that there were adequate safeguards. I would rather avoid that today by putting the adequate safeguards into the Bill instead of waiting for another defeat in Strasbourg, in effect, and having to do it on a further occasion.
Lord Pannick (CB)
I am grateful to all noble Lords who spoke in favour of Amendments 93A to 93D. I am disappointed that neither the Minister nor the noble Baroness, Lady Smith of Basildon, accepts that those intrusive powers should be controlled by a reasonable suspicion test. For my part, I see no good reason why other terrorism powers are so constrained but that there would be problems in dealing with the matter in this way for detention at a port or airport.
I should add that, as the noble Lord, Lord Lester of Herne Hill, suggested, for the law to continue to allow for detention without a requirement for reasonable justification will inevitably lead to condemnation in the Strasbourg court. The noble Lord, Lord Faulks, whose elevation to the Front Bench is welcomed on all sides of the House, will no doubt be able to give the Minister confidential legal advice on the matter.
However, as the Minister said, the House will inevitably be returning to these issues in the light of the Miranda judgment and Mr Anderson’s consequent report. I shall therefore, in due course, not move Amendment 93A.
Immigration: Detention
Lord Pannick Excerpts(10 years, 5 months ago)
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Lord Taylor of Holbeach
My Lords, Mr Muazu’s flight to Nigeria on Friday returned to the UK for operational reasons which were not connected to his health or conduct. I assure noble Lords that a member of the Nigerian high commission was on that flight.
Lord Pannick (CB)
My Lords, does the Minister believe that it was a sensible use of resources to charter an aircraft to remove a single individual from this country, as in the case of Mr Muazu?
Lord Taylor of Holbeach
The operational practices are not a matter that I want to discuss particularly but this case has great public interest. It is not the first time that an aircraft has been chartered for this purpose. It might help noble Lords to know that the number of enforced removals in 2008 was 17,200-odd and last year it was 14,600-odd. However, voluntary removals went up from 18,000 to 29,663 last year.
Electoral Registration and Administration Bill
Lord Pannick Excerpts(11 years, 3 months ago)
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Lord Pannick
“Voting procedure
(1) Schedule 1 to the Representation of the People Act 1983 (parliamentary elections rules) is amended as follows.
(2) In paragraph 37 (voting procedure) after sub-paragraph (6) insert—
“(7) A voter who is in the polling station or in a queue outside the polling station for the purpose of voting at the time specified for the close of the poll shall be entitled to apply for a ballot paper under sub-paragraph 1 above and a ballot paper shall be delivered and the voter entitled to vote in accordance with this paragraph.””
Lord Pannick
My Lords, this amendment is tabled in the name of the chairman of your Lordships’ Constitution Committee, the noble Baroness, Lady Jay of Paddington, and three members of that committee: the noble Lords, Lord Lexden and Lord Lang of Monkton, and myself. The amendment addresses a mischief that occurred at the previous general election and which may recur at future elections, however careful the preparations.
The mischief is that eligible voters who present themselves at the polling station before the close of the poll at 10 pm are unable to vote if the relevant officials do not issue them with the ballot paper to which they are entitled by 10 pm. At the previous general election in 2010, some 1,200 voters queuing at 27 polling stations in 16 different constituencies were adversely affected in this manner.
Your Lordships’ Constitution Committee considered the matter. We concluded that eligible voters who present themselves at the polling station before it closes at 10 pm should not be denied a vote because they are not given a ballot paper by 10 pm, perhaps because many other voters arrive at or around the same time, or perhaps because the administration of the polling station is less than efficient. The right to vote is precisely that—a fundamental right. It should not be defeated by circumstances outside the control of the voter. Indeed, when we are rightly concerned to do everything possible to encourage people to vote, we should not be putting obstacles in the way of eligible voters who do make the effort to attend at a polling station and who are then frustrated by their inability to cast a vote.
The Electoral Commission has expressed its strong support for this amendment for very similar reasons. The amendment commands, I think, widespread support across the House. The arguments which have so far been presented by the Government in answer to the amendment are, your Lordships may think, very weak indeed. First, it is said by the Government that the voter need not wait until just before 10 pm. He or she could or should vote earlier. However, for many people, voting early is not an option because of work or family commitments. In any event, close of poll is 10 pm. Voters should not be required to guess how far in advance of 10 pm they need to attend at the polling station in order to be sure of being allowed to vote.
The second argument presented by the Government is that such a change in the law would cause practical problems. That is very unconvincing. All that needs to happen is that at 10 pm the polling officer closes the door of the polling station, or if, unhappily, there is a queue outside, stands at the back of the queue to ensure that anyone arriving after 10 pm cannot join the queue. The Electoral Commission has pointed out that the Scottish Government introduced such a reform in 2011. At the Scottish council elections last year, the change in the law enabled voting by three people who arrived by 10 pm but would otherwise have been denied a ballot paper. There were no practical difficulties. The Electoral Commission issued sensible and practical guidance to presiding officers.
The third argument advanced in opposition to this change in the law is that it is unnecessary, as the lessons have been learnt from the experience of the 2010 general election. The answer is that, however good the preparation may be, there is always a risk of a queue building up which prevents one or more eligible voters from voting because they have not received a ballot paper by 10 pm. Issuing a ballot paper may take a minute or two and, if several people arrive in the period just before 10 pm, a queue can easily build up. The risk of a queue is all the greater if ballot papers are being handed out for local as well as general elections. The Electoral Commission has rightly said that,
“no degree of planning alone can entirely mitigate the potential risk of queues at the close of poll”.
The final argument which the Government advance is that not many voters will be adversely affected. However, even one eligible voter denied a vote in these circumstances is one too many. The Government cannot have it both ways. They cannot say both that very few voters will be affected and that the amendment will cause practical problems. This amendment is correct in principle, it is workable in practice and it is much needed. I beg to move.
Baroness Jay of Paddington
My Lords, as always, the noble Lord, Lord Pannick, has presented the amendment with enormous clarity and great conviction. As chair of the Constitution Committee, I can say that we have been working on this question for some time. We held a stand-alone inquiry on it in the autumn of 2011 and published our first report in January 2012. The most interesting thing about the difference between the report that we issued then and our subsequent scrutiny report on the Bill that is before your Lordships’ Committee this evening is that the Electoral Commission changed its mind between the two reports. That is significant. It looked at the evidence that we had taken and engaged in extensive correspondence and “offline” discussion with us and came back in October with the report from which the noble Lord, Lord Pannick, has quoted extensively. I think that it was convinced by the arguments that we made—I am sure that it was by others, too, and took other evidence—and, at the same time, the Government, as the noble Lord, Lord Pannick, has said, have continued to advance the same arguments. We heard those arguments last Wednesday when Chloe Smith represented the Government at a meeting of the Constitution Committee and put forward precisely the arguments which the noble Lord, Lord Pannick, has described.
It seems obvious that the fundamental right to vote is the question on which we should focus, and that the law in relation to this matter focuses almost exclusively on the rights and responsibilities of the statutory role of a returning officer and not on the right to vote. If one looks at it from the perspective of the voter, as the noble Lord, Lord Pannick, again has said, we can be talking about small numbers, but it is worth remembering that the Electoral Commission reckons that around 1,200 people were affected in 2010 by the law as it stands and the individual is very important in this respect. I would just add—not that it is significant in terms of statistical comparisons, but it is still relevant—that, in 47 constituencies in the 2010 election, fewer than 1,200 votes formed the majority, and in 28 constituencies, fewer than 600 votes formed the majority. In a sense, this can be significant, and if one puts value on the individual vote, as I certainly do, then the human right to vote is clearly very important.
The argument which was very current before our discussions with the Electoral Commission last year was that the law as it stood was secure. The Constitution Committee challenged this because when we looked at the two cases that were being relied on at that stage—one from 1901 and one from 2001, almost exactly 100 years later—it was very clear that these depended on the impact and role of the returning officers and not on the individual voter. We think that the time has come to achieve clarity about the rights and responsibilities of the individual voter, which could be done by this simple amendment. The noble Lord, Lord Pannick, has already referred to the example of Scotland. I would refer also to the example of the United States, where in the presidential elections last November there were certain polling areas where queues were in place two hours after the official closing of the poll and yet the votes were still counted. This is something that we need to look at very swiftly and in time for the 2015 election.
Lord Taylor of Holbeach
There is no experience there to suggest that there is any problem; the numbers involved are very small indeed. The noble Baroness—or possibly the noble Lord, Lord Pannick—talked about three voters. The note I have here says that possibly 10 voters may have been issued with a ballot paper after 10 pm under the more liberal regimes. This is nowhere near the scale of the 2010 general election situation here. I should say that in the United States, the majority of queues that form there are the result of mechanical voting and the breakdown of the technology used for voting. That is not the same sort of problem that we are talking about here.
I hope I have given noble Lords a run-down of the difficulties that Parliament would face if it chose to be more flexible in this area. I hope the noble Lord will feel free to withdraw his amendment.
Lord Pannick
I am very grateful to all noble Lords who have spoken in this interesting debate, not least to the Minister, despite his surprising failure to fulfil the expectation of the noble Baroness, Lady Hayter, and simply say yes to this amendment. The noble Lord recognised that at first sight, everyone would see the force of this amendment. I would hope that any reasonable observer would retain that opinion after considering the matter at length.
I cannot for my part see that the amendment would introduce any lack of clarity into this area of the law or that any minimal reduction in clarity should outweigh the fundamental right to vote. Concern about exit polls, deliberate queue forming and problems about what is a queue, all of which are factors to which the Minister referred, certainly demonstrate the noble Lord’s considerable debating skills. But whether these are realistic problems are matters on which I would take a different view. For my part, I would be very doubtful that a queue needs to be defined. I would be satisfied that a polling officer would be able to address any problem, not least with the assistance of any relevant guidance from the Electoral Commission and would know a queue when he or she saw one.
I will withdraw the amendment, not least because it would be inappropriate to vote on a 10 pm rule as the hour approaches 10 pm. There certainly would be no need for the doorkeepers to stand at the back of any queue were we to vote tonight. However, I say to the Minister that we will return to this matter on Report. I will carefully consider of course what he has said when I have read the debate. But at the moment I am wholly unconvinced by the arguments that he has put forward. I beg leave to withdraw the amendment.