Baroness Hamwee
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Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 10 months ago)
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Baroness Hamwee
“( ) A constable or qualified officer must, in carrying out the duty in sub-paragraph (8), provide the person with a summary of the reasons for the suspicion.”
Baroness Hamwee (LD)
My Lords, Schedule 1 to the Bill provides for the seizure of passports from persons suspected of involvement in terrorism. Paragraph 2 deals with the seizure of passports at a port, and paragraph 2(8) sets out what the officer undertaking this exercise must tell the person. He must tell him that he is suspected of intending to leave Great Britain or the UK—there is a slightly different provision for Northern Ireland—
“for the purpose of involvement in terrorism-related activity”,
and that the officer is entitled to exercise the power to seize. Reciting those statutory grounds does not seem to be enough. There is no provision on the face of the Bill for the person to be informed of at least the gist of the reasons for the suspicion.
The draft code of practice, which has been out for consultation, includes some notification requirements but it does not include this one. As the Joint Committee on Human Rights pointed out, the draft code provides that,
“where a senior police officer authorises retention”—
this is at a different stage—
“the individual must be given a written notice which should … inform the person that they may … request reasons for the retention of their travel documents … Elsewhere, the draft Code provides that a police constable exercising the power … must issue the person with reasons for its exercise … ‘if requested’ and if travel documents are returned within the”,
first period which is provided by the schedule,
“they are to be accompanied by a notice reminding the individual that they may formally request reasons as to why their travel documents were seized and retained”.
None of that addresses the need to tell the person straightaway.
I should like to see in the Bill the JCHR recommendation,
“that the Code should provide that a person subject to the exercise of the power should be informed of the reasons for its exercise at the earliest opportunity in every case, and not merely where the individual makes a request”.
That is very fundamental, not only to the exercise of the power but as to how it is perceived. We rightly spent a good deal of time in Committee—and will, I am sure, spend more time—on the difficulties of perception and perceived discrimination against certain groups, which perhaps is a different issue from actual discrimination but is a very real issue.
In Committee, the noble Lord, Lord Pannick, supported my point. He said:
“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”.—[Official Report, 20/1/15; col. 1236.]
It was building on that phrase “the essence of the reasons” that I have provided in my amendment for a summary of the reasons and not for the detail. I am aware that there may be security issues around that.
In Committee, the Minister gave a very long response to the group of amendments of which this was one—I think that there were 24 amendments—so it was quite an achievement to cover the ground. I fear that I did not manage to extract from the response a reply to this specific point. At the end of his reply, I asked him whether some comments he was making applied to gisting, and he said that they did not. Therefore, it seemed to me appropriate to bring the matter back at this stage in the hope that I will hear that we could include something like this in the Bill but certainly in the hope of hearing a detailed defence of the Government’s position. I beg to move.
Baroness Buscombe (Con)
My Lords, I am a member of the Joint Committee on Human Rights and I should like to say strongly that I do not support this amendment. There was a very good reason why we said that reasons should be given “at the earliest opportunity”. We absolutely accepted that there will be occasions on which it simply is not reasonable, either on security grounds or because of the speed with which the information is travelling in relation to the possible perpetrators from whom the passport is being taken, to expect the police to have reasons to hand. The phrase “at the earliest opportunity” leaves it sensibly open for the police to be able to respond in good time with some information as to why this has taken place. The committee discussed at great length that to expect a summary there and then on the spot—which is what the noble Baroness is asking for—would probably be too difficult in certain circumstances.
We have to accept that some of the information will probably arrive without much notice to those who have the difficult task of removing the passport. Given that the person will already be at a port or an authority in order to leave the country, surely it is right that in such cases we give trust and time to the security services and the police to do what they have to do in an emergency—that is, to remove the passport—and then, at the earliest opportunity, state the reasons.
Baroness Hamwee
My Lords, the noble Baroness, Lady Buscombe, quite reasonably asked us to imagine a situation. I understand what she described. But perhaps we should also imagine the reaction of the individual—so the whole of the scene.
My noble friend the Minister talked about the return of documents as soon as possible, senior authorisation, the 72-hour limit, the role of the chief constable and the court, and so on. None of those is likely to satisfy the individual at the point at which they have been stopped. Let us say that you are an outraged, innocent traveller. Everything that has been described by way of safeguard is after the event. On the point about profiling and discrimination, perception is so important. The safeguards will not answer that point.
My noble friend said that the amendment was not necessary. It may not be necessary in terms of reasonable suspicion—that is not my argument—but something is necessary, even if it is difficult. On giving reasons at the earliest opportunity, I take the point made by the noble Baroness, Lady Buscombe, that the police may not know at this point. I can imagine that there might be an urgent phone call to the effect that so and so is likely to go through border control in 30 minutes’ time or on to such and such a flight, and the services will need time. However, that having been said, the code does not even provide for an explanation at the earliest opportunity. It talks about “requesting reasons”; it puts the onus back on the traveller. However, the officer may not know the reasons—so you can request them as much as you like but you will not be given them by somebody who has not been informed of them.
I take the point about security. I suspect that these situations might all be emergencies. To conclude, is there some way of encapsulating and dealing with this concern? If it is not in the Bill at Third Reading, could there be at the very least a change to the code to make the arrangement more human for the person affected? I would be very happy between now and next week to try and thrash out how this might be provided.
Lord Bates
On the latter point, of course the code is open to consultation. I certainly give an undertaking that my noble friend’s remarks will be fed into that consultation process.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendments 3 and 4 are also in this group. In Committee, I raised the issue not only of “arrangements”—the term used in the schedule—for persons unable to leave the United Kingdom after the retention of travel documents, but arrangements for their travelling companions. The Secretary of State can make arrangements for the person concerned, but often people do not travel by themselves, and those who are with them will be affected as well, as the noble Baroness just said. My noble friend Lord Ashton said that the debate had,
“highlighted a potential gap in the current provisions”,
and said that,
“the Government are committed to considering this issue in greater detail”.—[Official Report, 20/1/15; col. 1257.]
My question is, of course, whether the Government have now had a chance to consider the situation. If we do not refer to other people in the Bill, and if it is a fair point that arrangements for companions of the traveller in question should be considered, is there some other basis on which the arrangements could be made without the provision being ultra vires? I beg to move.
Lord Bates
My noble friend Lord Ashton indeed undertook to go back to consider whether the intention was that those travelling companions would be covered. The brief answer is that I can confirm that parliamentary counsel’s view is that that is indeed the case under the current wording. I hope that that will provide assurance, but for the purpose of the record, I can confirm that paragraph 14 of Schedule 1 already gives the Secretary of State sufficient scope in appropriate circumstances to make arrangements for travel companions of a person whose travel documents are retained. That is because such arrangements will relate to the person subject to the exercise of the power. An amendment to the Bill to apply that provision to travelling companions is therefore in our view, and that of counsel, unnecessary.
Amendment 3 would widen the ability of Paragraph 14 to include where a person is,
“unable to make the journey to which the travel relates”.
The additional wording is unnecessary, as it is captured in the current drafting of,
“unable to leave the United Kingdom”.
For that reason, we are unable to accept the amendment; but I hope, having had the opportunity to clarify that important provision, that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, that is good news. I had not thought that the words “in relation to” the person could extend to “in relation to relations”, as it were. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 6 and 7. In Committee I raised the issue of people who might be travelling for humanitarian reasons rather than simply—if that is the right term—because they are involved in terrorist-related activity. I recognised the difficulties in this, as an individual could assert that he is simply travelling to give humanitarian aid. It is hard to untangle what constitutes support, as envisaged by the Bill, which is more than humanitarian assistance. To put it another way, showing that humanitarian assistance is not so intractably bound up with the activity in whatever country it may be is very difficult.
I therefore chose to base my argument on the position of reputable organisations such as the Red Cross. I had not anticipated the contribution from the noble and learned Lord, Lord Hope of Craighead, which extended the matter very usefully to issues that had come to his attention in his chairmanship of the Joint Committee on the Draft Protection of Charities Bill. He drew the committee’s attention to examples where there had been deterrence to those organisations—I think it is fair to say organisations rather than individuals —that were seeking to go to the areas in question for all the right and good reasons, but feared that they might be prosecuted under the terrorism legislation.
I take the point made by the noble Lord, Lord Harris of Haringey, and I think I took it at the time, that this is actually quite difficult to find one’s way through as a matter of practice. Rather than adding it to the Bill, I have suggested—and I am grateful that the noble and learned Lord has added his name to Amendment 5—that the training to be provided and dealt with in the code of practice should include identifying people to whom this applies; that is, persons intending to leave for humanitarian purposes, not for the purpose of involvement in terrorism-related activity. In other words, those who had exercised the immediate power should be assisted in this.
The other two amendments in the group take me back to the issue of equalities, discrimination and the perception of discrimination. At col. 145, my notes tell me, I dealt specifically with the Equality Act, which was mentioned in debate, as well as recording when the powers are exercised. There is a provision in the code about monitoring. I think that monitoring requires recording, and we are all only too aware, as my noble friend Lady Hussein-Ece has referred to today, of the problems of profiling and inappropriately stereotyping—well, any stereotype is probably inappropriate—and inappropriately identifying individuals who may be the subject of suspicion. I beg to move.
Lord Ashton of Hyde
The Government’s position is that we do not want people to pay money to terrorists for any reason, so I think that what the noble and learned Lord said was correct.
Baroness Hamwee
My Lords, there were a few nuggets in that, for which I am grateful, so I shall not spend time on Amendments 6 and 7.
I absolutely take the point that there might be other entirely legitimate reasons for going to Syria or wherever, as the noble Baroness, Lady Smith, suggested. It made me realise how important gisting is, or an explanation of the reasons for many powers being exercised, because the reasons may come out in an exchange at that early point—the noble Baroness is right about photojournalists and many other completely proper reasons.
The Minister said that the Government do not want people to use humanitarian reasons as a pretext. I did not use that term, but that was exactly what I meant. I think I said that someone could assert that they were going out for that purpose. I agree with that. As to whether officers need training, let me just say that I put question marks against that rather than ticks.
Not being aware of prosecutions does not entirely answer the point. The noble and learned Lord, Lord Hope, talked in Committee about the chilling effect. I fear I have not followed up his references, but he also pointed us to legislation in Australia and New Zealand, which, as I understood it, he felt dealt rather better with that point. The noble and learned Lord nods at that.
I had hoped that we might have been able to take the matter a little further today. On some points we have, but I think that this may remain a real issue. Having said that, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 8 takes us back to the subject of gisting, but in the context of the imposition of a travel exclusion order. Clause 4 requires an explanation of the procedure for applying for a permit to return. I would extend that explanation to a summary, bearing in mind the security issue of the reasons for the imposition. I am not seeking a detailed explanation, but for reasons to be given that give an outline, so far as it can be given, for the individual to understand what is being imposed on him.
Amendment 9 would insert a reference to not having a reasonable excuse when failing to comply with a condition attached to the permit to return. In Committee, I referred to a “material failure to comply”. The Minister pointed to the provisions in Clause 10 dealing with the offence which would flow from breaching the condition—in particular, that an individual subject to a TEO would be guilty of an offence if he returned without reasonable excuse. I am seeking to align the provisions and to attach similar wording to the provision that deals with the invalidation of a permit. I beg to move.
Baroness Warsi (Con)
My Lords, I want to add words of support for the noble Baroness, Lady Hamwee. Providing the “gist”, as it was referred to by the Joint Committee, would certainly dispel some of the concerns that could arise about the potential random use of these powers, even if they were not so used. Providing that little bit more information, with individuals having direct experience of the reasoning, rather than the oversight process that would follow, would have a useful purpose.
Baroness Hamwee
My Lords, I thank the Minister for that. I certainly had not envisaged putting any ideas into an individual’s mind as to what might be effective to explain his position. On a more general point in response to the comments on gisting, an individual who is subject to these processes is likely not to be wholly open-minded as to the reasonableness of the Secretary of State. Issues of transparency are important here as well. The Government rightly talk about a balance and I do not disagree with that. However, having in mind the need for a balance, I am sorry that the Government have not been able to produce a provision dealing with gisting at the various points at which it might—or to my mind should—arise. My attempts are very amateur. It is a shame that the Bill does not reflect the Government’s approach, which of course, on the issue of balance, I fully share. Having said that, I beg leave to withdraw the amendment.
Lord Hylton
Gloucester is rather nearer to London than 200 miles, which is a possible distance. Having said that, I reaffirm my support for the amendment.
Baroness Hamwee
My Lords, at the last stage I supported the noble and learned Lord. I had not thought it would be appropriate to come in at this stage because I had to deal with something else while remaining in the Chamber, so I was not able completely to concentrate on what he said. However, as one of those who, I suppose, must be regarded as having danced the most during the earliest part of this afternoon, I reaffirm my support. I trust the courts to take a proper attitude to the issues which come before them, which is what this amendment is about.
Lord Woolf (CB)
Before the Minister rises, I will just say that, as I understand what is proposed by my noble and learned friend Lord Brown, he is not saying that the courts’ powers should be in any way unusual. This is really giving them an ordinary responsibility within the scope of judicial review as I have always understood it.