Counter-Terrorism and Security Bill

Caroline Lucas Excerpts

Monday 15th December 2014 Commons Chamber

I hope that the Committee will consider my points about the Opposition’s amendments, and I hope for a positive response from the Minister.

[Caroline Lucas (Brighton, Pavilion) (Green)]

I would indeed like to say a few words about new clause 8, which I tabled. As we know, there will be situations in which it is necessary to prevent a person from leaving the country, but I would argue that the police already have a tried and tested way of preventing suspects from doing so—the power of arrest, combined with the ability to require passport surrender if a suspect is arrested and released without charge. However, passport surrender is not currently possible in the case of those arrested on suspicion of being a terrorist under section 41 of the Terrorism Act 2000, as conditional police bail cannot be granted following such arrests. That anomaly means that there is a currently a loophole in the ability of law enforcement to require passport surrender of terrorism suspects. It would be much simpler to remove that loophole than to proceed with the convoluted passport retention scheme set out in clause 1 and schedule 1.

The safest and fairest way to prevent suspects from leaving the country to participate in terrorist activity would be for police officers to use their powers of arrest. If an individual was considered to pose an immediate risk to the country, they could be detained rather than left to roam the UK for 30 days, as would happen under the Government’s proposal. If they did not pose an immediate risk, they could be detained and bailed, and their passport could be surrendered as part of the process.

Including that provision in the Bill and removing the bar on police bail would be much simpler and fairer than a convoluted passport surrender scheme. It would deliver the same practical result as the Government seemingly wish to achieve—preventing individuals from leaving the country—but would do so in a way that, crucially, protected against misuse and discrimination.

My new clause is intended to give the police the powers they need, and to enable them to exercise them consistent with upholding suspects’ human rights. That would act as a greater deterrent, by allowing for arrest rather than summary passport seizure, and would help to overcome some of the in-built discrimination that exists in relation to stop-and-search and would inevitably be part of a stop-and-seizure approach to passports.

[Mark Field]

I do not wish to cast judgment on the two proposed processes, but does the hon. Lady not recognise that the arrest and bail process would probably involve a higher threshold than mere passport seizure? Considerably fewer people would therefore be subject to it, so it might not make the rest of us much safer. The Government’s intention in using passport seizure is to stop those who wish to escape these shores—they will not necessarily be guilty of any offence before doing so.

[Caroline Lucas]

I thank the hon. Gentleman, but I do not think his point stands up. Under new clause 8, an individual considered to pose an immediate risk to the country could be detained rather than being left to the roam the UK, as would happen under the Government’s proposal. If they were not considered to pose an immediate risk, they could be bailed and their passport seized. Seizing a passport as part of the bail process would be more effective than what I believe he proposes.

[Mark Field]

The problem is not that there would be a risk of people roaming through the UK and being a direct and immediate risk to other UK citizens. It is that they might leave these shores to carry out terrorist activity abroad.

[Caroline Lucas]

I do not see that as being more of a risk under my new clause, the advantage of which would be that we would not be involved in a so-called stop-and-seizure approach, which we know is often not effective. Summary stop powers do not yield effective results—Her Majesty’s inspectorate of constabulary has found that in most years since 2001, more than 1 million people have been stopped and searched, but only 9% were subsequently arrested. If the summary sanction were the removal of a passport, that failure rate would be too high. In addition to risking injustice for the individuals concerned, such an approach would serve to perpetuate a climate of fear and suspicion rather than encourage good relations between different communities in British society.

The Home Secretary herself recently recognised the prejudicial nature of stop-and-search powers and sought to scale them back. She stated:

“Nobody wins when stop and search is misused. It can be an enormous waste of police time and damage the relationship between the public and police.”

It appears odd to legislate for a new stop-and-search-type power when the problems that such an approach causes have been clearly identified and when it is contrary to the Home Secretary’s policy on stop-and-search away from the borders.

I do not think that my suggestions in new clause 8 would reduce our ability to ensure that we are secure. On the contrary, they would make us better able to know where people are, and crucially, they would mean that we would not use so-called stop-and-seizure powers, which have been discredited and are not very effective.

[The Minister for Security and Immigration (James Brokenshire)]

I am grateful to the right hon. Member for Delyn (Mr Hanson) for the opportunity to debate a number of provisions relating to part 1 of the Bill, particularly the power of passport seizure and, most relevantly, schedule 1.

The right hon. Gentleman highlighted some of the real-life events that are taking place elsewhere. We will all have been shocked to see the pictures on the television screens during the past few hours. The incident in Sydney is profoundly shocking, and it is deeply distressing to hear of the fatalities that have arisen from the hostage situation. The facts are still emerging, but our thoughts are with the families of those caught up in the tragic events. We all stand with the Australian Government and the people of Australia in utterly condemning anyone who would seek to use violence to advance political ends. The incident reminds us again that we must all be vigilant.

I will turn shortly to the new clauses and amendments, including amendment 13, which is in the name of my right hon. Friend the Home Secretary. In the light of the debate, however, I think it will be helpful if I make some general points about the power of temporary passport seizure and its importance.

The increasing number of people travelling to engage in terrorism-related activities overseas, and returning to the UK with enhanced terrorist-related capabilities, means that we need an additional power to disrupt an individual’s ability to travel at short notice. The Government are clear: we will provide the police with the powers they need to stop people travelling to fight for terrorist organisations overseas. Clause 1 makes provision for schedule 1 to the Bill, which provides for the

“seizure and temporary retention of travel documents”

at port by the police. Under the schedule the police—and designated Border Force officers at the discretion of the police—can seize and retain a travel document when they have reasonable grounds to suspect that a person at a port in Great Britain intends to leave to engage in terrorism-related activity outside the UK. That power can also be exercised at a port in the border area in Northern Ireland.

Right hon. and hon. Members have highlighted different measures, and existing powers have different tests and focus on different things. The new measure is significant because it will give the police, or Border Force officers directed by the police, power to seize travel documents, including passports and travel tickets, at a port to disrupt immediate travel—I underline that point—based on “reasonable suspicion” that an individual is travelling for terrorist-related activity. The passport is not cancelled and the document can be held for up to 14 days or, as we have heard, 30 days if the retention period is extended by a court.

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[James Brokenshire]

Terrorism can take all sorts of different forms. The Bill is rightly not specific on what terrorist-related activity outside of the UK may be relevant, so I think the power is appropriately drafted.

The hon. Member for Foyle (Mark Durkan) raised a point about the one-mile limit and I am conscious that I have not addressed it. The Northern Ireland border area is defined in the same terms as in other legislation, such as schedule 7 of the Terrorism Act 2000. The Northern Ireland border is one mile from the Republic of Ireland as the crow flies. I hope that provides certainty.

Let me now turn to the amendments tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). As she has explained, they would remove the temporary passport seizure provision in its entirety. She also flagged up a point relating to the availability of police bail. I am sure the hon. Lady takes public safety extremely seriously, particularly in the current climate where we are facing the biggest challenge to our security since the horrific attacks of 9/11. The nature of terrorism-related arrests inherently means that the exact risk to the public from an individual, or their suspected involvement in a terrorist plot, may not be well understood at the early stages of an investigation. That is part of the reason why the police also have the power, 48 hours after the arrest of a terrorist suspect, to apply to the courts for a warrant of further detention to extend the initial detention up to a maximum of 14 days, subject to the seven-day review. To grant bail as the hon. Lady would want to, and at the stage she would want to when significant parts of an investigation are still ongoing, would increase the risk of potentially dangerous individuals being released before they have been sufficiently investigated. That is a risk the Government are not prepared to take.

In preparing for this debate, I noted that when the right hon. Member for Delyn was a Minister back in 2009 he made exactly the self-same point. There are certain issues we disagree on, but his statements on the record underline the issues relating to the use of police bail and other relevant factors. We continue to judge, responding to David Anderson on this very point, that the granting of bail is not appropriate.

[Caroline Lucas]

Plenty of experts who agree that our security is the ultimate goal also see that my amendment is more robust than the Government’s proposal. With bail, one can attach a wide range of conditions, including curfews, restrictions and so on, and it is simply an anomaly for our security forces not to have this tool in their toolbox should they need it for terrorism.

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[Mrs May]

In such circumstances, the passport will probably still be in the individual’s possession, although it will have been cancelled in the sense of its ability to be used to provide access to the United Kingdom, so I would expect them to have that document available to provide that proof.

On the points made about the individual being in another country, if an individual subject to an order attempts to travel to the UK, we will work closely with the host country and consider appropriate action. This may include detention pending deportation action, but only where appropriate under the laws of the other country, and, again, where appropriate, UK police officers will escort the individual back to the UK.

We are discussing this proposal with other Governments, in particular France and Turkey, in order to agree how it will work best in practice. The problem of foreign fighters travelling to Syria and Iraq and then seeking to return home is one we share with many of our international partners, and so far these discussions have been constructive.

Once in the UK, the police may interview the individual in order to explore their activities abroad. We may then subsequently require them to engage with a programme, potentially comprising reporting, notification of change of address and de-radicalisation activities.

I turn now to the amendments tabled by the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), and her colleagues. New clauses 9, 10 and 11 and new schedule 1 all require the Secretary of State to apply for permission from the courts before imposing a TEO. The mechanism provided for in these amendments is almost identical to that in the Terrorism Prevention and Investigation Measures Act 2011—indeed, it appears to have been copied so directly that the right hon. Lady may want to reconsider the title of new clause 9, which refers to the imposition of terrorism prevention and investigation measures, which I suspect might be an error.

As the Minister with responsibility for national security, it is right that I, as Home Secretary, and not the courts, impose an order of this kind. As I have said, this is a discretionary power that will be used only in a limited number of cases where it will have the greatest impact. With oversight of all other national security and counter- terrorism matters, I am best placed to make an informed judgment about whether a TEO is appropriate in each case, taking into consideration the wider context of the terrorist threat we face. For the same reasons, to vest the power to impose one of these orders in the Secretary of State without first requiring an application to the courts is in line with the comparable use of the royal prerogative to cancel the passport of a British citizen.

We must also consider in this context the level of interference with an individual’s rights as a result of the power. A TEO does not take away the right of an individual to return to the UK, and the in-country elements that might be imposed on an individual as part of it are much less restrictive than those available under TPIMs, and for this reason do not require the same level of review. There is therefore no need for a requirement to apply to the courts before imposing an order, and it will of course remain open to an individual to apply for judicial review of the decision to impose an order.

[Caroline Lucas]

The way the Home Secretary is describing how people can respond to a TEO suggests they would be able to access legal services. It does not take into account that they might be in a failed state, for example, or be being controlled by others or not have sufficient money. Does she not accept that in those circumstances, a TEO could actually mean a loss of intelligence about the suspect’s whereabouts and a loss of control?

[Mrs May]

But we are talking about an individual who, having had a TEO placed on them, attempts to travel to the UK, at which point they would have to apply for a permit to return and the arrangements for them to be accompanied by a police officer could be put in place. I recognise that there could be some circumstances in which a person might not have immediate access to the legal review, but they would be able to get it at the point at which they chose to return to the UK. This is about having the ability to ensure that certain people return to the UK on our terms, and that it is a managed return.

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[Mr Davis]

If my hon. Friend will permit me, I am coming to the end of my speech.

The level of secrecy, the low level of accountability and the power accruing to the Government, which is enormous when we think about our historic liberties in this country—this is in no way a criticism of the Home Secretary, as I would say the same of any Home Secretary, any Foreign Secretary or any Secretary of State—are why I am attracted by new clause 11. I do not know whether it will be pressed to a vote tonight, or whether it will come back on Report, but I ask the Government closely to consider the TPIM model. It is very sensible and those on the Opposition Front Bench have made a good case for it.

[Caroline Lucas]

I want to say a few words about the amendments tabled in my name. The tone of the debate has been useful and thoughtful and I have agreed with much of what others on both sides of the House have said. We are all trying to grasp our way towards something that provides robust security while guaranteeing human rights. My worry about the Government’s proposals on temporary exclusion orders is that they get that balance slightly wrong. There is a significant risk that, for many of the reasons that were outlined by the right hon. Member for Holborn and St Pancras (Frank Dobson), they will, rather perversely, be counter-productive. I therefore think that the alternative system of notification and managed return orders has a lot to commend it, although the comments of the right hon. and learned Member for Beaconsfield (Mr Grieve) caused me to think again about how it would work in practice. There is a lot to explore here.

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[Julian Smith]

I am trying to keep up with the hon. Lady. What are the circumstances that will make it impossible for people to apply to the consulate or somewhere else to come back to the UK? She is making a number of assertions that she is not backing up.

[Caroline Lucas]

I do not think that I am making assertions. I am asking questions about whether it will be possible for people in all circumstances to go through very formal processes at a time when they may well be living in a culture of fear and when, by definition, severe conflict is going on. Such people might already have been fingered as someone who is trying to leave and be at particular risk of attack from others. I am describing a rather more complex situation than someone simply using the postal system, knowing what they have to do next and then marching down to the consulate and doing it. The reality on the ground is likely to be far more complex than the hon. Gentleman suggests.

If someone does complete the process successfully, the Home Secretary will have what is defined as “reasonable time” to let them come home. I am concerned that, as far as I can see, there is no indication of what that time would be. The period of enforced temporary residence in another country could effectively trap British citizens in countries where jihadi groups have a strong presence, such as Sudan, Somalia, Turkey, Syria and Iraq. As the human rights group Liberty states:

“Those who are equivocal are more likely to be pushed towards terrorist factions by the imposition of executive led punishments and enforced periods in close proximity to such groups.”

If the primary purpose of counter-terrorism policy is to make us safer, why would we take steps to alienate individuals by condemning them to exile when some of them—I quite understand that this does not apply to all of them—may simply have made a terrible mistake? They may have been horrified by the bloodshed and barbarism that they have seen and want to find a way to come home.

[Mrs May]

The hon. Lady has referred a number of times to “exile” for the individuals concerned. We have to be absolutely clear that the provision will not exile an individual or prevent them from having the right to return to the United Kingdom. It will mean that when they return to the United Kingdom, it will be on a managed basis under terms that the Government set.

[Caroline Lucas]

I thank the Home Secretary, and I accept that she is technically correct, but I am describing a situation in which, because a person has not been able to follow the process that she described, they cannot find a way back and feel as though they were in exile.

If the primary purpose of counter-terrorism policy is to make us safer, it is surely sensible to ensure that individuals who definitely pose a threat are somewhere where it is easier to keep an eye on them, investigate them, arrest them, charge them and prosecute them, should the evidence warrant it. Surely we want suspected terrorists close at hand so that we can take targeted action against them rather than allow them to roam who knows where doing who knows what. As the old adage goes, “Keep your friends close and your enemies even closer”. Moreover, if someone is intent on carrying out a terrorist attack on British soil, does the Home Secretary really believe that having to apply for a permit and attend an interview will act as any kind of deterrent or obstacle?

The Government’s scheme does have one element to recommend it, which is the steps taken to ensure that agencies and the police know of an individual’s location should they need to place him or her under surveillance. That comes from the stipulation that someone return on a specific flight to a specific airport. However, I argue that the same outcomes could be secured by placing a simple notification requirement on carriers, as set out in new clauses 4 to 6. Crucially, as the right hon. Member for Holborn and St Pancras described, that approach would not automatically alert a terror suspect to the fact that they had come to the notice of the authorities and that their return was being monitored. I argue that it would instead facilitate a targeted and intelligence-led response, and that the ability to undertake close surveillance of suspects would be maximised, with a view to arrest and prosecution. The option under existing counter-terrorism powers of interviewing a suspect on their arrival back in the UK would also be retained, and there would be further options as appropriate.

I have some concerns about the human rights aspects of the proposals on TEOs, but I also believe that they could end up being counter-productive from a security perspective. They will not provide the robust level of security that people in Britain have a right to expect.

[Mr George Howarth (Knowsley) (Lab)]

The right hon. and learned Member for Beaconsfield (Mr Grieve), my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson), the right hon. Member for Haltemprice and Howden (Mr Davis) and now the hon. Member for Brighton, Pavilion (Caroline Lucas) have all argued, from slightly different standpoints, that the ideal situation is to have some sort of judicial process. I do not think anybody could argue against that from a democratic and human rights perspective. In cases in which there is the possibility of a prosecution or other judicial process to bring about the type of outcome that we desire, that is clearly the preferred option.

As I see it, the choice is between the measures in the Bill—temporary exclusion orders with a managed return—or a form of judicial process that might be even worse than that. Perhaps the Home Secretary will correct me if I am wrong, but in almost every case I can envisage that would be affected by this process, the information that will determine the trigger of a temporary exclusion order would be based on intelligence—she is not shaking her head in disagreement, so I will assume assent on that point. If that is the case, any form of judicial process to verify or authorise that process would inevitably involve wholly or partly closed proceedings. It would be impossible to give evidence from intelligence in open court for all the reasons that we have repeatedly debated. Although that is the ideal situation, given the presumption that in most, if not all, of these cases the evidence will be intelligence based, it will be difficult to rely solely on a court proceeding, no matter how it was constructed or held, other than on the basis that it would be either closed, or at very least semi-closed.