Lord Hanson of Flint
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Counter-Terrorism and Security Bill
Lord Hanson of Flint Excerpts(9 years, 11 months ago)
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Mr David Hanson (Delyn) (Lab)
I beg to move amendment 29, page 1, line 8, at end insert—
‘(2) This section shall be repealed on 31 December 2016 unless both Houses of Parliament have passed a resolution that it should continue in force until a future date.
(3) The date specified in a resolution of both Houses of Parliament under subsection (2) may be modified by subsequent resolutions of both Houses of Parliament.”
The Temporary Chair (Mr Gary Streeter)
With this it will be convenient to discuss the following:
Clause 1 stand part.
Amendment 17, in schedule 1, page 30, line 14, at end insert—
“(c) the individual subject whose travel document has been removed may appeal against this decision in the courts over the evidence on which conditions in paragraph 2(1)(a) and (b) of this schedule were met.”
Government amendment 13.
Schedule 1 stand part.
New clause 8—Police bail for terrorism suspects—
‘(1) Section 34 of the Police and Criminal Evidence Act 1984 is amended as follows.
(2) In subsection (1) after “offence” insert “or on suspicion of being a terrorist under section 41 of the Terrorism Act 2000”.
(3) In subsection (2)(b) after “Act” insert “or section 41 of the Terrorism Act 2000".
(4) After subsection (5) insert—
“(5A) A grant of bail under this section shall last no longer than six months from the date of release.”
As an alternative to the ad hoc passport seizure and retention scheme set out at Clause 1 and Schedule 1 of the Bill this new clause would make police bail, with conditions, available for those suspected of terrorism.
Mr Hanson
Mr Streeter, I welcome you to the Chair of the Committee. I rise on behalf of my hon. Friends to speak to amendments 29 and 17.
I hope you will allow me a little leeway, Mr Streeter, before we begin the debate. Although this Bill has nothing to do with what has happened in Sydney, Australia, I think it would be appropriate for the Committee to recognise that there has been a serious incident there and for us to express our condolences in relation to those who have died as a result. It reminds us that terrorism and terrorist activity are never far from our shores and from individuals in our communities as well. That is why it is important that we look at the new clauses and amendments before us in what will be, I hope, a positive discussion and debate.
The Government believe there is a need to legislate on counter-terrorism. There is a terrorism threat in the United Kingdom: on 29 August the independent joint terrorism analysis centre raised the UK national terrorist threat level from substantial to severe. [Interruption.]
The Temporary Chair (Mr Gary Streeter)
Order. I am reluctant to interrupt the right hon. Gentleman, but a lot of background conversations are going on in the Chamber and we can hardly hear the most important speech that is being made. Will colleagues please keep the noise down?
Mr Hanson
I am grateful to you, Mr Streeter.
It is important that we recognise that terrorist attacks are, sadly, highly likely. According to the Government’s own analysis in the explanatory notes:
“Approximately 500 individuals of interest to the police and security services have travelled from the UK to Syria and the region since the start of the conflict. It is estimated half of these have returned. In the context of this heightened threat to our national security, the provisions of the Bill”
are designed to address those matters.
My hon. Friends the Members for Kingston upon Hull North (Diana Johnson) and for Sedgefield (Phil Wilson) and I have tabled amendments 29 and 17 because there needs to be a debate about two particular issues. If the Bill’s measures are agreed by both Houses they will become law, but there will be no end date or review date for the powers. Amendment 29 seeks to ensure that clause 1
“shall be repealed on 31 December 2016 unless both Houses of Parliament have passed a resolution that it should continue in force until a future date.”
It goes on:
“The date specified in a resolution of both Houses of Parliament under subsection (2) may be modified by subsequent resolutions of both Houses of Parliament.”
The amendment is therefore designed to create, in effect, a sunset clause to review the legislation, which is not unusual for terrorism legislation. It would not demand that we revisit the whole clause by seeking to enact new legislation; it would simply require a resolution to allow the provisions to continue. The amendment has merit and I will willingly discuss it with the Minister.
Mark Field (Cities of London and Westminster) (Con)
Although I agree with the shadow Minister that that amendment does, in principle, have some merit and that it focuses the mind on the fact that we need consolidating legislation to deal with a whole range of different terrorism-related issues, does he not recognise that the raw logic of his proposal is that if such a sunset clause is agreed, the provisions could end up entirely unprotected if the Government did not introduce any new legislation at that point? That would not be a desirable state of affairs.
Mr Hanson
I am sure that the hon. Gentleman has looked carefully at amendment 29, which states:
“This section shall be repealed on 31 December 2016 unless both Houses of Parliament have passed a resolution that it should continue in force”.
Therefore, it does not require new legislation; it simply requires a resolution of this House, which could be agreed in an hour-and-a-half debate, as has happened in the past. Indeed, clause 17(5) states:
“Subsections (1) to (4) are repealed on 31 December 2016”,
so there is already a remit for a resolution to review the provisions. Amendment 29 has a similar purpose.
Amendment 17 is slightly different. It states that, if an individual has had their travel document removed under the provisions of clause 1 and schedule 1, they
“may appeal against this decision in the courts over the evidence on which conditions…of this schedule were met.”
At the moment there is no appeal procedure for an individual who has lost their passport, and that needs to be considered.
On amendment 29, clause 1 introduces schedule 1, which defines a number of areas and sets out a course of action relating to the seizure of a passport from a person suspected of involvement in terrorism offences. Under the heading “Interpretation”, the schedule states that immigration officers, customs officials, qualified officers and senior police officers can remove a passport from an individual. By “passport”, it means either a United Kingdom passport or one issued by another nation. The schedule defines involvement in terrorism-related activity as the commission, preparation or instigation of acts of terrorism; conduct that facilitates the commission of terrorism; conduct that gives encouragement to terrorism; and conduct that gives support or assistance to terrorism. The schedule also includes powers to search for, inspect and retain travel documents. Authorisation for that will not just be sought from a senior police officer; the schedule also includes conditions for how that authorisation will be agreed.
I refer to those points because they are definitive statements. They may or may not be appropriate or work in practice, but whatever the Minister tells us today he will accept that the Prime Minister indicated in his announcement at the end of August that the measures would be introduced. It is now December, which means that the Bill has been drafted speedily. I make no general criticism of that, but even the Bill’s explanatory notes state that there has been limited consultation on a range of aspects, even though the matters covered in schedule 1 involve serious powers.
The schedule allows for the period in which the document can be removed and retained by the judicial authority to be extended from the initial 14-day period to 30 days. Paragraph 14 states:
“This paragraph applies where a person’s travel documents are retained”.
Paragraph 14(2) gives the Secretary of State a great power:
“The Secretary of State may make whatever arrangements he or she thinks appropriate in relation to the person… during the relevant period”
and
“on the relevant period coming to an end.”
The Secretary of State is also bound by schedule 1 to produce a code of practice covering training, the exercise of functions by constables, the information to be given, and how and when that information is to be given. The code of practice will be published in draft and laid before this House. All those matters are covered by schedule 1.
I have gone through the schedule in detail because it covers an awful lot of potential activity that may or may not work as the Government intend it to. The purpose of our proposed sunset clause is not to say that Her Majesty’s Opposition oppose clause 1 or schedule 1, because, although some Members might, we do not. Our amendment addresses the fact that the schedule proposes creating a complex new code of practice relating to the criteria covering individual officers and others who can exercise the powers, including removing the passports of not only British citizens but citizens of foreign countries.
If we enact that in the next few weeks, it will be a serious piece of legislation. In view of the reasons the Minister has given for introducing the provisions, it would do no harm for him to consider—this is the purpose of amendment 29—a date for us formally to allow the legislation to fall, unless the House is satisfied with the original proposal. By December 2016, there will have been a general election and the House of Commons will be composed of whoever has been elected, and whoever is the Minister will be able to review the legislation to see whether it works. They would then be able to table a motion to pass a resolution allowing the legislation to continue unamended.
Mark Field
The shadow Minister is making some fair points and I think the whole House would broadly support the idea that we need to consider how the Bill will be applied in practice. We all recognise that the new powers raise some legitimate concerns relating to civil liberties. Rather than having a sunset clause, has the right hon. Gentleman given some thought to the idea of imposing on the Home Office an obligation, within a year of the Bill being enacted, to produce a full report on the workings of this novel change in procedure?
Mr Hanson
We did consider those matters and I originally drafted an amendment that sought to do that. I could have tabled it last Thursday but I decided to focus our debate on whether the legislation is fit for purpose. I am not saying that it is not; I am simply saying that there are severe changes in the Bill that restrict individuals, give powers to police officers and others, set out a new code of practice and give a range of powers to the Secretary of State to do what they wish with detained individuals. If the Opposition are to support the clause this evening, as we will, it must be reviewed at some point in the future. The mechanism we suggest means that a Minister, whoever that might be, must review the situation and either table a motion or, if the legislation ultimately falls, table a replacement piece of legislation in time for 31 December 2016.
I am not seeking to cause difficulties for the Minister with amendment 29. I simply want him to consider in detail his proposals in clause 1 and schedule 1 and whether we should have a sunset clause. We want such a clause because one of the gaps in the legislation means that there is no mechanism for appeal in the event of the powers in schedule 1 or clause 1 being exercised against an individual. An individual's travel documents will be removed for 14 days, and potentially for 30 days, but in the meantime there is no mechanism through which they can appeal effectively against that decision. Amendment 17 allows for an appeal in the courts on the subject of
“the evidence on which conditions in paragraph 2(1)(a) and (b) of this schedule were met”.
The Committee will agree that the right of British citizens to travel freely, unrestricted by state interference, is crucial and historical.
Mark Reckless (Rochester and Strood) (UKIP)
Given the right hon. Gentleman’s concern, would not the right approach be to accept his amendment 17 and the judicial right of appeal rather than having a sunset clause? Does he plan to press that amendment to a vote?
Mr Hanson
I welcome the hon. Gentleman back to this place, as this is the first opportunity I have had to do so. I shall wait to see what the Minister says, but I am minded to say that it is important that the right of appeal is paramount. The Minister might or might not accept the amendment and I will have to listen carefully to his argument, but if he does not accept it there will be an opportunity to test the will of the Committee should we so wish.
Julian Smith (Skipton and Ripon) (Con)
The shadow Minister has already said that schedule 1 is detailed and that there is a lot to contemplate in it. Would not adding the right to appeal further complicate it? People will already get their passport back after two weeks, so why this additional complication?
Mr Hanson
I was coming on to those points, but I am grateful to the hon. Gentleman for his question. It might help if I outlined some of the circumstances. If an individual’s passport is removed, it will be because there is reasonable suspicion that he is involved in some activities that mean he should not travel abroad. That suspicion might be well founded—I am trying to be fair, and I doubt that the power would be exercised if it were not well founded—but there still might be occasions when an individual was travelling to a difficult, challenging country for a family wedding, a holiday, an employment interview, or for other perfectly legitimate reasons. The security services might wrongly identify an individual; that can occasionally happen. The individuals responsible might have challenges for a range of reasons. The information supplied to the security services—for example, by a parent whose adult child is travelling—may be wrong.
The simple point is that if that power is exercised, the individual loses their passport and their ability to travel and so might well miss a job interview, a family wedding or a holiday and might be wrongly marked out in their social circles. That could happen. I am not saying that it will, but it could. Amendment 17 is meant to ensure that if that individual feels that they have been wrongly treated, they have a right to ask for a review by a court. It is reasonable to do that under UK law.
Julian Smith
After two weeks, the individual will get their passport back anyway. This is a really wishy-washy way of carrying on, and we should either be confident that this is a good measure or not. They will get their passport back within two weeks.
Mr Hanson
This is a very strong and effective power, which the Opposition support as it will ensure that measures are taken against individuals who might go abroad for terrorist purposes, but I hope that the hon. Gentleman accepts that one of the balances of strong powers is the right to strong redress. It might only be for 14 days, as he says, or it might be for only 30 in due course, but that could mean losing a £5,000 or £6,000 holiday with no compensation, missing a family wedding or a person’s own wedding or losing a job opportunity for what could be a case of mistaken identity.
Mr Hanson
I will let the right hon. and learned Gentleman intervene, because I know that he has expressed concerns about the power. In a very helpful article in The Guardian on 3 September, he said:
“Allowing police to confiscate passports at the UK border to prevent an aspiring young jihadi from leaving for Syria via Istanbul may be justifiable on good intelligence…But unless there is some rapid means of review there must be the likelihood that mistakes will occur as the use of this administrative power increases and perfectly innocent…people will find their travel plans wrecked.”
I agree with him and that is why, even given the 14-day period, I think that we should consider the proposal in amendment 17. I hope that the Minister will do so.
Mr Grieve
I expressed that concern and it remains a concern, but the interesting point about amendment 17 is that if we were to allow an appeal, as the right hon. Gentleman describes it, how quickly could such an appeal be heard and would it have a significant impact on the shortness of time in which a passport might be capable of being returned, given that we now know that there will be two weeks, or 14 days, for that return to take place? I listened carefully to what he has to say and it seems to me that he is making a good point, but I would also be interested to hear from my hon. Friend the Minister and from the right hon. Gentleman how such a system could be made to work in reality.
The Temporary Chair (Mr Gary Streeter)
Order. Before I call the shadow Minister, let me say that interventions should be slightly briefer than that.
Mr Hanson
Thank you, Mr Streeter. I take the point made by the right hon. and learned Member for Beaconsfield (Mr Grieve), but we are in opposition, which is a difficult and cold place. We do not have the officials that the Minister has. The principle is that we believe there should be an examination of the right of appeal on any decision that has been taken. The purpose of amendment 17 is to place that argument before the Government so that they can say whether they believe there should be any right of appeal or whether they believe that 14 days or 30 days is sufficient, for the reasons given by the hon. Member for Skipton and Ripon (Julian Smith) and by the right hon. and learned Member for Beaconsfield, and that there is no need for an appeal as it would not resolve the issue. It is inherent in any decision of this seriousness that an individual should be able to challenge a decision on the grounds of mistaken identity or the grounds of loss of service in a court.
Mr Grieve
I am grateful to the right hon. Gentleman for giving way and I apologise, Mr Streeter, for taking up too much time. I shall be brief and make more frequent interventions, if I am allowed them. It seemed to me when I made that point back in September that a particular concern was somebody who might be prevented from going away for a wedding or for employment reasons and who wanted a rapid review, but I am also realistic about whether such a rapid review can be made available in practice. That was why I raised at a subsequent date the other question of whether we should consider compensation if somebody were disadvantaged.
Mr Hanson
I am grateful to the right hon. and learned Gentleman for that point and we probably agree on the principle. The purpose of amendment 17 is to give the Minister the opportunity to tease out the practicalities of deliverability for any form of appeal. I take the view—it may be old-fashioned, but that is not for me to say—that if someone is effectively charged with involvement in terrorism, which is why a passport will be removed, that is a serious initial action by the state against an individual. The individual might be the subject of mistaken identity or factually wrong information might have been given, whether maliciously or not. They might be travelling for perfectly legitimate purposes, as I have said. In each of those cases, they should ultimately have the right to say to a third party, “I appreciate that these facts have been put before the passport remover, but they are fundamentally wrong and I demand my passport back.” That must be possible in a more speedy and effective way than is the case under the Bill.
Mr David Winnick (Walsall North) (Lab)
Is it not the case, if we believe in fairness and the rule of law, that the stronger the action taken against an individual by the state, the more powerful the argument is that the individual should have the right of appeal? Without the right of appeal, the Bill gives the state excessive powers.
Mr Hanson
That is an important point.
As the Committee will know, under schedule 7 to the Terrorism Act 2000, there is the power to stop and question individuals who are suspected of involvement in terrorism. The annual report on the Terrorism Acts by the independent reviewer of terrorism legislation, David Anderson QC, that was published in July this year gave facts and figures about that power. It included the number and ethnicities of the people who have been examined under schedule 7 in recent years. Although he noted that there was not overwhelming evidence that the power was exercised in a “racially discriminatory manner”, he noted:
“It remains imperative that police should exercise their considerable powers in a sensitive, well-informed and unbiased manner”.
Jeremy Corbyn (Islington North) (Lab)
Would the proposal in amendment 17 not be stronger if there was a time limit within which the Home Office had to reply to the application to remove a passport, so that the court would have to consider the matter in a timely manner? There is a parallel in the people who are denied entry to this country or are deported from this country and who have to appeal from a third country. The fact that there is no time limit means that the injustices that such cases often involve can go on for a very long time.
Mr Hanson
That suggestion is worthy of consideration.
The official Opposition tabled an amendment to say that there should be a right of appeal for the reasons that the right hon. and learned Member for Beaconsfield set out. That concern is shared by Members across the House. It is a basic right of appeal. We can look at how it could be exercised, as ever. We might be able to improve the amendment technically. However, if we had not tabled amendment 17, we would not be having a debate about the right to appeal against this measure. The purpose of the debate is to say to the Minister that we think there should be a right of appeal. If the Minister is sympathetic to that idea, he can take it away.
Mark Field
Perhaps I do not share the great faith in the bureaucratic competence of the Home Office that was expressed by the hon. Member for Islington North (Jeremy Corbyn)—
Mark Field
I guessed that that was the case. I was being slightly ironic. One issue with the notion that we could have appeals is that if there was a great emergency and the passports of many dozens or even many hundreds of people were seized, the appeals process would become unwieldy. One hopes that such a situation will not come about. If there was a small number of individuals at any one time, it would be quite manageable, but if there was a large number, that would make it more difficult.
Mr Hanson
We do not yet know on how many occasions the power will be exercised. I suspect that a vast number of passports will not be seized, but we cannot anticipate that. According to the Government’s explanatory notes,
“500 individuals of interest to the police…have travelled from the UK to Syria…since the start of the conflict.”
That has happened over the past 18 months to three years. The number of individuals travelling out of the UK who may be of interest might be small, but that does not mean that they should not have the right of appeal because, as I have said, mistakes can be made.
I give way to my hon. Friend the Member for North Down (Lady Hermon).
Lady Hermon
I am grateful to the shadow Minister for referring to me as his hon. Friend. I remind my right hon. Friend that, as he would have been well aware when he was in the Northern Ireland Office, under the Belfast agreement, which was signed on Good Friday, people who are born in Northern Ireland are entitled to citizenship of the Irish Republic and the United Kingdom, and to hold the passport of the United Kingdom, the passport of the Irish Republic or both. If those travel documents were confiscated, would it be the Irish passport and the British passport for those who have both? There has to be some form of appeals mechanism if they are confiscated, because the issue is even more complicated if people are leaving or entering Northern Ireland.
Mr Hanson
I am grateful to my hon. Friend for that comment. She will see that under paragraph 1(7) of schedule 1, passport means “a United Kingdom passport” or
“a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom, or by or on behalf of an international organisation”.
It is imperative that we consider the issue of appeals because foreign citizens or citizens of the UK might have two passports.
If information is provided about an individual, this measure will allow the serious act of removing their passport and stopping them travelling. Although it will no doubt be very well researched, very well executed and very well managed by the security services, the police, immigration officers and others who are allowed to undertake these matters under schedule 1, the possibility of wrong or disputable facts will always be there. Those wrong or disputable facts will mean that a UK citizen loses their liberty, their passport and their ability to travel. We need to be cognisant of that issue.
Mark Durkan (Foyle) (SDLP)
Further to the point that was made by the hon. Member for North Down (Lady Hermon), if a passport that was issued by a state other than the UK was seized, does my right hon. Friend envisage that that state would seek to join the appeal against the seizure? Does he believe that Ministers have fully taken account of the diplomatic implications of that?
Mr Hanson
Again, that demonstrates why the issue of appeals is important. Paragraph 1(7) of schedule 1 refers to
“a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom”.
I can envisage a situation in which an individual who is the citizen of and holds the passport of not, dare I say it, the Irish Republic, but another country in the European Union or even a country outside the European Union, but who is resident in or travelling from the UK, is suspected for a range of reasons of involvement in terrorism-related activity under paragraph 1(10) of schedule 1. Again, the UK would be in the difficult situation of depriving an individual from another country of their passport on the basis of a range of suspicions that may or may not prove to be factual. I am in danger of repeating myself and am being careful not to do so, but we need to examine such facts carefully. The purpose of amendment 17 is to stimulate a debate about that.
Julian Smith
Will the right hon. Gentleman clarify what is his mechanism for appeal? Surely the measure allows border control officers to take a passport without giving too many reasons and, after two weeks, for a judicial review to take place. How would his appeal process work? How would we avoid giving away intelligence during the appeal that could jeopardise the United Kingdom’s security?
Mr Hanson
That is a valid point, but judicial review is not what I would call a cheap and easy process. It could not be accessed quickly and easily by an individual who had lost their passport in the circumstances set out in schedule 1. The hon. Gentleman will see that we have included in amendment 17 a reference to appeal “in the courts”. That is intended to stimulate debate—it could be a magistrates court, a court sitting in private or a Crown court. We simply say that the appeal should be in a court. The schedule allows the Secretary of State to produce a code of practice, which could indicate which court should deal with such matters and whether it could sit in private. It would be reasonable for the code of practice to do that.
James Brokenshire
For the relevant document to need to be retained, the provisions in paragraph 5 of schedule 1 must remain outstanding: there must be consideration of whether the Secretary of State would use the royal prerogative, whether there are charges to be brought against that person, or whether there are other measures that may be relevant. The requirement still needs to be satisfied, which is why we have brought in the 14-day provision to ensure direct oversight and checks and balances through the mechanisms in the schedule.
On cost, following further discussions with the Home Office and the Ministry of Justice, it may be helpful to clarify and expand on the evidence I gave to the Joint Committee on Human Rights on 3 December, on the availability of legal aid for those subject to the proposed temporary passport seizure powers and to provide clarity on the potential scope of legal aid in this context. I have written to the Chair of the Joint Committee today on this issue.
Legal aid would potentially be available for the magistrates court proceedings provided for in the Bill, but at present that would be a discretionary decision for the director of legal aid casework. The Government are considering whether it would be proportionate to bring those proceedings within the scope of the general legal aid scheme to put individuals’ access to legal aid, subject to the statutory means and merits tests, beyond doubt. Legal aid is available under the general civil legal aid scheme for judicial review challenges by those subject to the temporary passport seizure power and the temporary exclusion order power, subject to the statutory means and merits tests.
Returning to the provisions, a code of practice will provide clear guidance on how police and Border Force officers will exercise the powers. The Government will carefully review all responses received to the consultation that we propose to undertake in respect of the code, to ensure it contains effective guidance and provides clarity to officers on how the new powers should operate. The power is a proportionate and prudent response to the threat we face. It will allow the police to disrupt travel at short notice when there is reasonable suspicion that someone is travelling for terrorism-related purposes.
Let me now turn to the amendments before us. I shall deal first with those from the Opposition. Amendment 17 seeks to provide a process for individuals to appeal to the courts against the decision to remove their travel documents at port. As I have described, the Bill already provides a specific court procedure. In addition, the individual can decide, at any time, to seek a judicial review of the initial passport seizure in the High Court, where closed material proceedings may be available to allow consideration of any sensitive material. I do not believe, therefore, that the amendment adds a significant additional safeguard to the use of this power.
Amendment 29 seeks to introduce a sunset clause to the temporary passport provisions. Doing so may send an inadvertent message to would-be jihadist travellers of our lack of intent to deal with the threat they pose if they believed that the powers would end in two years’ time. Terrorism-related travel is a serious and ongoing issue. Our law enforcement agencies need to have a range of tools at their disposal to deal with it in a necessary and proportionate way. I wish we could be confident that the conflicts that attract these individuals will be resolved in two years, but it would be imprudent to plan on that basis.
James Brokenshire
I am glad the right hon. Gentleman raises that point. The parallel I think he seeks to draw is not relevant in this context. As he well knows, the Data Retention and Investigatory Powers Act 2014, to which this provision relates, contains a sunset clause because of the need to have further and wider debate on communications data. What we are talking about here is a specific and focused power to deal with the immediate operational needs of our police and law enforcement agencies at the border to disrupt terrorist travel. Therefore, the parallels he seeks to adduce between the two clauses do not actually stack up.
James Brokenshire
The hon. Lady has made that point several times, and she has been consistent in advancing her case, but there is a balance of risk, and we judge that bail in these circumstances would not be appropriate because of our fundamental focus on protecting national security. Furthermore, the Bill provides appropriate safeguards in several different ways to ensure that it is proportionate and meets the issues of necessity.
Finally, the Government are making a technical amendment in relation to the code of practice. Amendment 13 would
“make it clear that the Secretary of State can comply with the obligations”
in paragraph 19
“to publish a draft of the code…to consider representations, to make any appropriate modifications”
in the light of those representations
“and to lay the draft before Parliament by doing so before the Bill receives Royal Assent.”
Without the amendment, it could be argued that such things would only be valid if done after the Bill becomes an Act. The amendment removes any doubt about that.
With the assurances I have given, I hope that the right hon. Member for Delyn and the hon. Member for Brighton, Pavilion will be minded not to press their amendments.
Mr Hanson
I am grateful to the Minister for his explanations and for reminding me that I have form on police bail as a Minister in the last Government. He will be pleased to know that although I gave the hon. Member for Brighton, Pavilion (Caroline Lucas) the opportunity to make her case, we do not support it, having listened to it. We might have form on this issue, but that form is consistent with our approach to the matter.
Our amendment 29, on a sunset clause, and amendment 17, on the right of appeal, still bear merit. The Minister has not convinced me that a sunset clause would be damaging in the long term to the Bill. Neither, given the concerns of Members such as the right hon. and learned Member for Beaconsfield (Mr Grieve) and others about appeals, am I persuaded not to press amendment 17.
Julian Smith
I urge the right hon. Gentleman to think carefully about pressing his amendment. What sort of message will it send to terrorists and people who threaten our country if he goes down this wishy-washy path of supporting the Bill but saying we should review it in 18 months’ time?
Mr Hanson
Having been counter-terrorism and policing Minister in the last Government, I know the extent of the threats we face, perhaps even more so than the hon. Gentleman, and I do not think that anybody has ever accused me of being wishy-washy on these matters—in fact, I have often been accused of being a little too harsh. However, it is right and proper, when we give powers to remove passports from individuals, that the House of Commons at least commits to reviewing those powers in two years—possibly to see whether we need to make them stronger; it might not mean we want to make them weaker. If he had his passport taken off him at Heathrow or Dover on spurious grounds, he would wish to have an appeal process in place. It is one of the basic tenets of this House of Commons.
So, not being wishy-washy, but being committed to tackling terrorism at its core and taking firm and effective action to reduce the threat to this country, I still believe we need to review the Bill in two years’ time and give people the right to argue their case, should they so wish, and question the grounds on which their passport has been taken from them. On that basis, I would like to press amendment 29 to a vote.
Question put, That the amendment be made.
Mrs May
The hon. Lady makes an important point, given our relationship with the Republic of Ireland and the operation of the common travel area. I can assure her that we work very closely with the Irish Government on the necessary information exchange between us, to ensure that the common travel area could not be—and, in general, is not—a means by which people can access the UK when we do not wish them to do so.
As I was saying, this is a necessary and proportionate power and, given the circumstances in which we find ourselves, it is entirely appropriate to introduce a power that will enable us to disrupt and mange the return of a number of individuals who have been involved in terrorist-related activity outside the UK.
Mr Hanson
I should like to speak to the amendments and new clauses standing in my name and those of my right hon. and hon. Friends. I am grateful to the Home Secretary for her explanation of the measures in the Bill, which are worthy of discussion today. We have tabled new clauses 4 and 5 to provide a supportive narrative to the one that the Home Secretary has put forward. The new clauses and amendments taken together form some of the options that could support the control of terror suspects who are at our border in the UK rather than at a foreign port. They provide a mechanism for the issuing of a notification and managed return order, which would be similar to the measure proposed by the Home Secretary but with a slightly different emphasis.
It is important that we recognise the threat posed by British citizens travelling abroad to participate in terror camps or to join the fight with ISIS in the middle east. The threat from ISIS is serious, and the Government need to do more to prevent young people from being groomed and radicalised to go and fight, and, using the measure in clause 1, to deal with such people when they try to return, having left the country to take part in such activity.
That threat is still live. On 21 October, the Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, was quoted as saying that five Britons were travelling to Iraq and Syria to join ISIS every week. The Government’s own information states that more than 500 Britons have travelled to Syria and that as many as 250 are now seeking to return. Self-evidently, we need a mechanism to protect the British citizen and to deal with those who wish to return. It is also vital that we are able to deal with people we know to be involved in these activities but who are unaware that we know about them. There is a synergy between what we are trying to achieve and what the Government are proposing. We particularly think there may be practical difficulties with the Bill in relation to individuals at foreign ports returning to the UK, and I would welcome the Home Secretary’s view.
The blanket exile proposal—I know the Home Secretary has not used that phrase—was referred to by the independent reviewer of terrorism legislation, David Anderson QC, as an
“announcement waiting for a policy”
when it was made. He was worried, and still has some worries, about whether it is legally and practically workable. We now have plans before us that, at first sight, appear closer to managed return than exile, but I wonder how they work in practice. If the aim of the policy is to keep dangerous individuals out of the country and then, ultimately, to manage their return, we need to explore real issues about that, not least what happens when individuals do not choose to apply for consent to come back—or indeed when they do choose to do that. The Home Secretary has touched on this, but what happens to individuals in particular countries? Would Turkey be happy to detain, potentially for months on end, a Briton suspected of illegally fighting for a terrorist organisation if he or she turned up at Ankara airport but was banned from departing to the UK? What options are in place for that? It is not clear whether the British Government have negotiated agreements with particular countries and whether they intend to do that on a case-by-case basis. What provision is in place—if it is not detention—to stop an individual who finds themselves faced with an order at the airport taking an alternative course of action, either returning to the host country in a different way, or returning and leaving for another country, not the UK? There is a practical argument as to what happens under the Bill to individuals in whom the Government have an interest.
Our new clause 4 seeks to examine an alternative model, which could work in parallel with the Government’s proposals but gives an opportunity for a managed return. We have tabled new clauses 4, 5 and 6, and the consequential amendments, which we are happy to look at and to reflect on, given what the Home Secretary has said about them. There is an argument to be made that the Government’s measure is too blunt a tool, in that it either prevents people from coming back or allows them to return. A more graduated response would give the security services and the Government much greater choice in how they want to approach each individual. Our notification and managed return orders proposal provides an alternative that gives security to the Government and takes effective action against individuals in whom the Government have an interest, but does so by allowing them to return to the UK and be managed in the UK, as opposed to leaving us facing some practical difficulties elsewhere.
Our approach would require carriers to provide advance notice of travel bookings for certain named individuals in whom the Government have an interest, and that is well and good. It would allow the British authorities to have advance knowledge and notice of suspects’ travel plans so that arrangements could be made for police interview or arrest at the port or border immediately on their return to the UK. If that model were used as well, it would in part transfer the procedure that the Government are trying to achieve in a foreign port to a UK port. At that point, interviews could be undertaken and action could be taken against an individual, and we could also ensure that we had dealt with an individual of interest to the UK Government in the UK That could be an alternative model.
Mr Grieve
Is not one potential problem with the right hon. Gentleman’s proposal, which is in many ways perfectly reasonable in structure, that it does not prevent the individual from continuing to travel abroad between third countries? If the UK Government reasonably suspect that somebody is involved in terrorism, ensuring that person’s managed return—an act of a responsible Government—to this country is perhaps a priority. Is there not a danger that the right hon. Gentleman’s proposal would enable such a person to continue using their passport abroad, because the carrier would have no responsibility to give notification of travel between different countries?
Mr Hanson
I am grateful to the right hon. and learned Gentleman for his intervention, which touches on one reason why we are presenting alternative, parallel models. I am not saying that the provisions in new clause 4 would be appropriate in every circumstance, but I do not believe—if the Home Secretary can convince me otherwise, we will look at that—that provision is in place for a formal managed return, as under our proposals; we simply have the Home Secretary’s proposals for a request to come back or for detention at a foreign port of entry to prevent someone from returning. We are seeking to give her a menu of options, and our approach could be a better way of managing individuals. Judgments will be made by Ministers and the security services as to how this could be managed, but the concerns expressed by David Anderson QC and by Liberty, which I thank for its assistance in helping us to table these provisions, give rise to a potential alternative that could be examined.
Julian Smith
How would the right hon. Gentleman get around the Home Secretary’s comments about the security implications of his model—giving out data to carriers that could compromise British national security?
Mrs May
On the face of it, this may not look like a significant point, but it is. There is a very real difference between giving a list of a large number of people to a carrier and saying, “If any of these people travel, please tell us” and looking at the carrier’s information and saying, “This individual shall not be allowed to travel.” The amount of information about individuals that the carrier holds is very different under the Government’s proposal; much more information about individuals would be held by the carriers under the Opposition’s proposal, and that provides less protection for the individuals.
Mr Hanson
Again, these are matters of genuine debate and interest. The point I make to the Home Secretary is that this is entirely in her gift. Under the model we are proposing, her model is not being deleted from the Bill. It is still there to provide the ability to say to carriers, “If Mr X or Miss X turns up at Schiphol airport, we wish you to take action against them and exercise the powers in the Bill.” I could have turned the television on at any time in the past month and seen the names of individuals that we know have travelled abroad—individuals that are publicly travelling abroad and that relatives have said have travelled abroad. It is quite possible for the Home Secretary not to make these two possibilities mutually exclusive. The issue is simply—[Interruption.] If the Minister for Security and Immigration wants to back up his boss and intervene, I am happy to allow him to do so. The debate is about the practical difficulties of the Home Secretary’s proposals, which are to have people sign to say that they will come back under managed return, to have detention or to stop carriers at ports. Are they the sole way to deal with every case that is brought before the Home Secretary’s notice? We are trying to provide at least one alternative for consideration.
Julian Smith
The rights being removed under the exclusion orders are nowhere near the same as those being removed under TPIMs, so the need for executive dynamism and an ability to move quickly should trump the point that the right hon. Gentleman is making.
Mr Hanson
It is still a big deal to refuse a British passport holder access to the United Kingdom. It is a very big step to take. I am not saying that it is the wrong step to take, but it is a big step. The powers under current TPIMs and, potentially, under the revised TPIMs, involve restrictions on movement and contact. The Bill as proposed could involve detention in a foreign country, pending return to the United Kingdom under a managed process. Charges may not have been made. A person could be held simply on the basis of evidence that has been gathered by the security services. Although those measures are not the same, an element of judicial oversight is something to which we should aspire. As a fair man, I am tabling these issues so that the Home Secretary can reflect on them because I am aware of the concerns that exist outside and inside this House. Undoubtedly, there will be heavy scrutiny of these sections of the Bill and their implications when the Bill reaches the House of Lords. It is important that we flag them up here to say that we should have in place a mechanism whereby the Home Secretary has to make her case to a relatively small cohort of individuals in order to progress the matter. I do not want to have the Home Secretary tied into a long-winded or unresponsive channel for application. I do not want the Home Secretary to have a slower processing ability that means she cannot enable counter-terrorism activity to take place in a speedy and effective manner.
However, if the Government believe that the TPIM regime is not unduly cumbersome when trying to control terror suspects in this country, there seems little reason why it should not be appropriate for use on individuals in other countries, particularly as the Home Secretary will often know who they are and have a close interest in them. The current stipulation is that the Home Secretary simply has to reasonably consider whether someone is involved in terror-related activity. That is a very low bar, and one that I think should be subject to judicial oversight.
In conclusion, I think that the Government should at least look at the alternative model set out in new clause 4, which has widespread support. I would also genuinely like to hear from the Home Secretary why she feels—she has already indicated as much—that the arrangements for TPIMs are not appropriate for what is still a severe restriction on liberty, which might be the right thing to do, under the proposed TEO notice. I look forward to hearing other Members’ contributions.
Mr Grieve
It is a pleasure to participate in this debate and to follow the right hon. Member for Delyn (Mr Hanson), who has put forward some alternative proposals, by way of probing amendments, on how this matter might be approached. Having listened to the comments from both sides of the Committee, it seems to me that there is actually a substantial measure of agreement that it is proper for the Government to take action to deal with the question of the managed return of individuals who have gone abroad from this country and whom the Home Secretary reasonably considered might be involved in terrorism.
It is slightly unfortunate that we have become mired in the title of temporary exclusion orders, because it seems to me, having read the Bill, that what we are really talking about is managed returns and how that process is properly to be done. In that context, the approach adopted by my right hon. Friend the Home Secretary seems perfectly logical. As I pointed out in my intervention on the right hon. Member for Delyn, one of the problems with his proposals is that as the passport remains with the individual whom the Home Secretary reasonably considers to have committed an offence, that individual could use the passport to travel between third countries at will. If the United Kingdom wishes to act responsibly, particularly as we currently have a system whereby we remove passports from individuals trying to travel abroad in some circumstances, it seems rather odd that we should preserve that mechanism.
On the other hand, there is an issue that I think the Committee has to consider. A point was made earlier about how notification of the removal or revocation of a passport might take place. In some cases it might prove impossible in practice to communicate the revocation to the individual concerned and to indicate that a managed return must take place, because the temporary exclusion order is now in place, through the person contacting the consulate. That raises the prospect of an individual turning up at an airport, having purchased a ticket, only to be turned away at security. I might be wrong about that, in which case it would be useful to know how the Home Office envisages that working in practice. That in itself might not matter at all. If we are dealing with a country that is a trusted partner—my right hon. Friend indicated that there were discussions with France and Turkey—that might not be a problem. The individual’s return might simply be delayed until they have gone to see the British consulate and been interviewed.
However, the proportionality test that has to be applied to these cases means that my right hon. Friend will have to assess whether an individual—notwithstanding the fact that she might reasonably consider them to have been involved in terrorism—might be put at serious risk of having their human rights infringed, for example by being detained or tortured, if revocation of their passport would lead to their being exposed as a person who could be viewed as a terrorist in circumstances in which the Government would feel unable to share that information with the Government of that country because they were concerned about the risks that would be attendant on their arrest.
There is an issue of practice and practicality that needs to be thought through, and I hope that as a result of this debate my right hon. Friend and the Home Office may be in a position to provide reassurance as the Bill goes through the House that they have that subject very much in mind. Having listened to my right hon. Friend talk about proportionality, I am reassured that this is a matter of which she is well aware, as I know from the experience of working with her as a colleague; she knows it can sometimes be an issue. Subject to that, the process that she has adopted, which requires the individual to go to the consulate and get, in essence, a one-way ticket back to this country so that we know when the individual is returning, seems perfectly proper as long as the delay period is not too long, and as long as there is not some subtext intention of causing that individual problems in the country in which they happen to be located—a point that I made earlier.
That brings me to a further point raised by the right hon. Member for Delyn, which is about judicial process. I raised on Second Reading and again subsequently my question why it is so difficult to have a system in which there is not a judicial process to initiate it. I appreciate that there is a difference between a TPIM and the temporary exclusion order proposed—a difference in terms of the restrictions that may be placed on the individual when they return, which are capable of being challenged by judicial review anyway, and because the revocation of a passport is an exercise of the royal prerogative, which is different in nature and quality from a TPIM. It is nevertheless a draconian sanction.
As my right hon. Friend will confirm, removing passports from individuals in this fashion is not a process that has previously been carried out, certainly not in circumstances where the individual when they are abroad does not have the possibility of accessing a different nationality, for example. I continue to wonder whether a judicial process might be valuable. My right hon. Friend may have powerful arguments to make against that, but I have not yet had explained to me in quite the detail I would wish the Government’s reasoning on this point. The point has been made that a temporary exclusion order may have to be issued as an emergency or rather quickly. The current TPIM system allows for a TPIM to be issued without a judge’s sanction—an imprimatur—if necessary, so that could be included in this process.
However, it strikes me—perhaps I am wrong, and I am always prepared to be persuaded that I am wrong—that in this process there is likely to be a slightly more leisurely approach anyway, because the Government will know that an individual is abroad and likely to come back to the United Kingdom, and unless that return is likely to happen very quickly, I would have thought it might normally be possible to apply ex parte to a court for the order to be sanctioned and for some scrutiny to be carried out as to the reasons why it is to take place. If that were to happen, it would also allow for a measure of judicial scrutiny as to whether the issue of the temporary exclusion order might endanger a person’s fundamental rights because it would expose them to risk in their present location.
Those are my thoughts on this matter. I should make it clear that I put them forward in an entirely probing spirit because the principle of what my right hon. Friend is doing seems to me, as I indicated earlier, to be utterly unexceptionable, even though it is an unusual power. However, in the context of the risk and threat that the United Kingdom faces which, as I have said on several occasions, I believe to be a real threat, this is reasonable, necessary and proportionate to a legitimate goal that the Government are trying to achieve. I hope that as the Bill goes through the House we will have an opportunity to examine the proposal, which will enable us to get the right outcome on the provision. If we get the right outcome, history has shown that it will cause my right hon. Friend the Home Secretary far less trouble with court challenges thereafter.