Counter-Terrorism and Security Bill

Baroness Kennedy of Shaws Excerpts

Monday 2nd February 2015 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

1A: Schedule 1, page 37, line 16, at end insert “(“a warrant of further retention”)”

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I return in this set of amendments to matters that I raised in Committee. I do so as a member of the Joint Committee on Human Rights, which is concerned about the inadequacy of providing for the right to a fair hearing on these matters under Article 6 of the European Convention on Human Rights. I say immediately that we recognise the availability of judicial review but the availability of JR alone is not sufficient to satisfy the requirement of the right to a fair hearing under Article 6.

I remind the House that this Bill gives a significant power to the authorities to remove a passport and prevent someone travelling. It provides for a judicial consideration only after 14 days, so you do not go immediately to a court unless you seek judicial review. However, after 14 days the judge is under a duty to extend the period of retention of the passport for a further 30 days so long as he or she is satisfied that the investigation into the person is being conducted “diligently and expeditiously”. That is the only test for the judge at that point. We can well imagine someone turning up to say, “We need to keep this passport longer because we are still making our inquiries and working as fast as we can”. All of us who know how the courts work know that it is very hard for a judge to go behind the simple statements presented to the court.

The Bill provides for a closed material procedure at that hearing but makes no provision for the interests of the excluded party to be represented by a special advocate. You can ask for an extension, and for the person whose passport has been removed and the counsel representing them to remove themselves from the court. While in other circumstances that would immediately give rise to the special advocate procedure, here it does not.

It was the view of the Joint Committee that the best way to ensure compatibility with Article 6 was to amend Schedule 1 to the Bill so that it provides a genuinely judicial system of what we called “warrants of further retention”, directly analogous to the system of warrants of further detention of terrorism suspects in Schedule 8 to the Terrorism Act 2000. In fact, that has been used as the model in these circumstances, except for this set of provisions. I know that in Committee the Minister said that detention warrants were of greater seriousness than removing someone’s passport, but we would remind the House that interfering with family and private life by seizing someone’s passport is rather important and a significant intrusion into one’s liberties. However, the standards that we would expect seem to be absent.

The amendments put forward in my name fall under a number of different headings. The length of the period of retention concerns us; it should be seven days, not 14. The grounds that must be satisfied for a judicial warrant of further retention should be gisted and a summary of the withheld information, at least, should be provided to the court. That is different from the position proposed in the previous amendment because although lawyers would be involved at that point, a constable at the scene, say, could not be expected somehow at short notice to provide a statement that did not in any way risk disclosure of sensitive information. In this case, lawyers would have already been involved and gisting would have been perfectly possible.

Therefore, my set of amendments deals with these matters and reflects the amendments proposed in Committee. They provide for proper judicial oversight, which should happen speedily—not within 14 days but seven. We would expect, as in any other procedures whereby liberty and citizens’ rights were seriously being interfered with, there to be opportunities for knowing, at that point and in gisted form, the reasons for retention. If there are going to be closed procedures, the special advocate procedure should be invoked. That is what this set of amendments seeks to do. Given the seriousness of this matter—because it is a great intrusion—I hope that, having had some time to reflect, this House, the Minister and the Government will decide that that is the proper way in which to deal with such a significant interference with citizens’ rights. I beg to move.

[Lord Bates]

My Lords, I am grateful to the noble Baroness for again moving the amendment. At the outset, I should say that I recognise absolutely that we are talking about a serious matter here and that there should be safeguards. The issue between us—and the Joint Committee, for that matter—is on whether we believe that the safeguards are indeed adequate.

The noble Baroness is suggesting that taking a passport for up to 30 days is an infringement of liberty, and we accept that. However, for reasons that she pre-empted, we do not accept that that is equivalent to the pre-charge detention arrangements under Schedule 8 to the 2000 Act. This is very much a disruption technique. Of course we recognise that this is an infringement and it needs to be carefully monitored. Her amendment would name an extension of the seizure period a “warrant of further retention”, and seeks to draw an analogy with the Act to which I have just referred. I hope that noble Lords will agree that this is not an appropriate analogy, for the following reasons.

Individuals subject to this power will remain at liberty. Their passport privileges are not removed permanently. During the period that the police hold that person’s passport, the police and others need to work diligently and expeditiously to investigate further the nature of the information. Due to the nature of the hearing envisaged in a number of the amendments in this group, the court would need to provide for closed material proceedings with the appointment of special advocates. As the House will know, closed material proceedings are resource intensive; it would be challenging, if not impossible, for such a hearing to take place within that initial seizure period. Indeed, by the time that it is heard, the travel documents might already have been returned, or alternative disruption action might have been taken. This power is already subject to considerable safeguards, which are proportionate to the level of interference.

Let me briefly reiterate the measures in place to ensure that this power will be used in a fair, reasonable and lawful manner. First, the reasonable suspicion test must be met. I will summarise the points because they also relate to the previous group. This is a clear threshold that is well understood by the police to justify the exercise of the power. At the point of seizure, the individual will be informed that his or her travel documents are to be seized because there are reasonable grounds to suspect that he or she is intending to travel overseas for the purpose of involvement in terrorism-related activity outside the UK. The disclosure of any further information would require careful consideration on a case-by-case basis.

--- Later in debate ---

The Government are absolutely committed to the appropriate and proportionate use of the power to seize travel documents, but these amendments would reduce the effectiveness of the power and the speed at which it could be used. In the light of this, and the extensive and robust safeguards already in place to govern the exercise of this power, the Government believe that the changes proposed in these amendments are not necessary and would inhibit the power. Accordingly, I hope that having provided this additional layer of reassurance to your Lordships, the noble Baroness may feel able to withdraw her amendment at this stage.

[Baroness Kennedy of The Shaws]

My Lords, I cannot pretend that the resistance to the argument that there should be proper judicial oversight is not disappointing. I know that the Joint Committee on Human Rights feels strongly that powers like these are very serious powers to take to the state. They also send out a message that is going to be received very negatively, because there will almost undoubtedly be occasions when people fail to travel to important family occasions and where the reasons for preventing that travel are based on information that is not satisfactory. There will be a real backlash, and we will find the communities affected feeling very alienated as a result. That is why having proper judicial oversight is so important. I am disappointed, but at this stage I beg leave to withdraw my amendment.

Amendment 1A withdrawn.