Counter-Terrorism and Security Bill

Baroness Butler-Sloss Excerpts

Tuesday 20th January 2015 Lords Chamber

[Lord Thomas of Gresford]

Accepting the view of the noble Lord, Lord Pannick, that we should not give a course of action to someone who has had their passport removed, if the Minister were to give an assurance that the state will be open to ex gratia payments in appropriate cases, the fears expressed by the noble Lord, Lord Harris of Haringey, would be met. Ex gratia payments are frequently made in circumstances where there has been a degree of injustice. One cannot imagine any greater sense of injustice than to have one’s flight removed and the cost of a hotel imposed without any possibility whatever of being recompensed.

[Baroness Butler-Sloss (CB)]

Sympathetic though one may be to how individual people may feel, perhaps I may respectfully say that my noble friend Lord Pannick is absolutely right.

[Lord Ashton of Hyde]

My Lords, we have had an interesting debate on this small group. I hope that I will be able to address most of the points raised by your Lordships.

Amendment 35 seeks to allow the court to direct that the Secretary of State should pay compensation to any person whose travel documents have been seized under Schedule 1. This is regardless of whether or not these travel documents have been retained. Protecting the public from terrorism is the central aim of this power. The power to seize and retain travel documents can play an important role in the detection and prevention of terrorism, and using the power fairly makes it more effective. The Government completely accept the dangers involved with minority groups, as referred to by the noble Lord, Lord Harris, and my noble friend Lady Warsi in another debate, and the effect if this power is not used fairly.

However, if the power—this is exactly what the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said—is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss. This principle is consistent with the exercise of other police powers: if a power was exercised lawfully, there is no requirement to compensate the individual. I take completely the point made by the noble Lord, Lord Harris, that this can have effects that have wider ramifications but, to use the noble Lord’s own words, that would open up a mare’s nest. Therefore, we do not agree that we should change precedent so that compensation is paid in these circumstances.

Complaints about the conduct of examining officers or the treatment of an individual during the seizure and retention of travel documents may be directed to either the police or the Border Force, depending on which officer seized and retained the travel documents. The draft code of practice explains how an individual may complain. If an individual wishes to challenge the police officer’s decision, she or he may seek redress—again, the noble Lord, Lord Pannick, referred to this—including compensation, from the courts. This is the appropriate avenue to challenge the police’s operation of this power and is in line with procedures in similar circumstances.

The noble Lord, Lord Hylton, asked about travel costs and whether the Government would compensate. As with the compensation principle generally that I outlined, if it is exercised in good faith, this would not lead to a requirement to pay compensation. However, at present, if someone’s flight is disrupted due to the use of Schedule 7 to the Terrorism Act and the police judge that no further action is required, they will often work with the individual and the airline to help them get on another flight, which happens reasonably often. They would do the same with this power where reasonably practicable. Under this Bill, we could also provide assistance to individuals who have had their documents seized, are not resident in the UK and do not have any means to provide for their continuing stay in the UK.

Amendment 40 seeks to illustrate the type of arrangements that may be made by the Secretary of State in relation to a person whose travel documents are retained under Schedule 1. The illustrative examples provided are to include payment for accommodation and making alternative travel arrangements. The power to seize and retain travel documents can play an important role and using the power fairly makes it more effective. The Government are clear: the power in Schedule 1 must be used fairly and proportionately, with respect for the person to whom the power has been applied, and must be exercised in accordance with the prescribed procedures and without discrimination. A failure to use the power in the proper manner will reduce its effectiveness. Amendment 40 is superfluous, as the power under paragraph 14 in Schedule 1 is deliberately broadly framed and could include the Secretary of State making arrangements which include payment for accommodation and alternative travel arrangements for those whose travel documents have been retained.

Protecting the public from terrorism is the central aim of this power, but it is right that we make such provisions to meet our obligations under the European Convention on Human Rights. Therefore, if necessary, an individual who has no means to provide for himself or herself would be provided with basic support for the period that his or her travel documents have been retained. This would involve basic temporary accommodation and subsistence if the individual has no other means to support themselves.

However, we assess that the use of this power against those who do not already reside in the UK will be infrequent. In other cases, where for instance a UK resident has had their travel disrupted, if the power is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss, which is consistent with the exercise of other police powers. For the reasons that I have set out, I hope that my noble friend will feel able to withdraw the amendment.

--- Later in debate ---

[Baroness Ludford]

My Lords, I thank the Minister for explaining these welcome amendments. Something is puzzling me and it may simply be my lack of understanding of the field. The test which the court has to determine in the case of prior permission, under Amendment 52, or in the review of urgent TEOs, under Amendment 44, is whether the decisions are “obviously flawed”. I am challenged to understand the position with an in-country statutory judicial review in Amendment 65, which I understand would follow the normal principles of judicial review, including necessity and proportionality. I know that the independent reviewer referred to a test of “obviously flawed” in a commentary that he made, but I do not understand the justification for the difference in the test in Amendments 44 and 52 compared to the statutory judicial review in Amendment 65. The phrase “obviously flawed” seems both a high and a somewhat problematic threshold: obvious to whom? I would have thought that the application of that test would create some difficulties. However, I may be on entirely the wrong track.

[Baroness Butler-Sloss]

My Lords, I want to ask a rather practical question. The whole of Clause 2, together with the amendments, appears to deal with someone over whom the Government assume there will be some degree of control. I take the example of someone who has gone to Syria and comes back through Syria to the airport in Istanbul. He then seeks to fly back to England and is made the subject of a temporary exclusion order. What is to happen to that person in Istanbul? What are the Government of Turkey to do with this person? If you stop them at an airport outside the United Kingdom, is there not a very real danger that they will just go back into Syria or into Iraq? What I have not understood about this temporary exclusion order is what will happen to these people who are not able to come back to this country.

[Lord Lang of Monkton (Con)]

My Lords, your Lordships’ Constitution Committee managed to produce, at fairly short notice because this was a semi-fast tracked Bill, a report in which we drew attention to the absence of judicial oversight and expressed considerable concern about it. Therefore, I welcome the development that my noble friend the Minister has announced today. I do not, for one moment, suggest that we were the only organisation which drew attention to this gap and called for change. The Independent Reviewer of Terrorism Legislation, David Anderson, was considerably more robust in his wording than we thought it appropriate to be. He pointed out that,

“in peacetime we have never accepted the power of the Home Secretary simply to place someone under Executive constraint for two years without providing for some relatively speedy process of appeal”.

It seems that the principle of what we, and others, have called for has now been met and I welcome what my noble friend has said.