Counter-Terrorism and Security Bill

Debate between James Brokenshire and David Heath

Tuesday 6th January 2015 Commons Chamber

[Mr Heath]

Just to clarify matters for myself—this may be obvious—the decision to exclude is not in any way a suspension of British citizenship. Therefore, that individual will still have any other rights of citizenship, including consular protection, if that were required.

[James Brokenshire]

I absolutely endorse what my hon. Friend has said. This is not about citizenship. This is a temporary exclusion order. I have said in the House on many occasions, and indeed in evidence to Select Committees, that individuals will not be rendered stateless. They will not be left unable to return to the UK for an indefinite period—they must be issued with a permit to return within a reasonable period of time if they apply for one and attend an interview if required to do so. Quite simply, the power ensures that the Secretary of State is able to control the return of certain individuals suspected of terrorism-related activity abroad and appropriately manage the threat that they pose once they have arrived back in the UK. Obviously, they will be excluded for a time during which the permission may be granted—indeed, they may choose not to return during that time—but the power is framed in that manner and does not link into the broader issues of statelessness that are of concern to some Members and have been addressed more recently in the Justice and Security Act 2013, for example.

--- Later in debate ---

[James Brokenshire]

I recognise that the right hon. Member for Delyn (Mr Hanson) advances a number of themes that we touched on in Committee. Equally, I recognise his ability to challenge and scrutinise the level of oversight provided in respect of this particular power. I respect that and the fact that the Opposition have given their broad support and recognition of the need for this provision, but the Government believe that the power strikes the right balance in the drafting between our freedoms and our right to safety and security.

A rigorous authorisation process is in place, which establishes a number of safeguards to ensure that the power will be used in a fair, reasonable and lawful manner. Under paragraph 4 of schedule 1, senior police officer authorisation must be obtained to retain the seized documents. The senior officer, who must be at least the rank of superintendent, must determine whether the test for exercise of the power is met in order to authorise. If not granted, the documents must be returned as soon as possible.

In addition, within 72 hours of the document seizure, a senior police officer of at least the rank of chief superintendent and of a rank not lower than that of the authorising officer in the case must review whether the decision to authorise the retention of the travel documents was flawed and communicate his findings to the relevant chief constable. The chief constable must consider those findings and take appropriate action.

Unless a court agrees to extend the retention period, the police may retain the travel documents only for a maximum of 14 days from the day after the documents were seized. If the police need to retain the documents beyond this period, they must apply to a court for an extension of time. This is provided for in paragraphs 8 to 12 of the schedule. The court will grant the extension only if satisfied that those involved in considering whether further disruption action should be taken in relation to the person had been acting diligently and expeditiously. The court can choose for how long to extend the retention period based on the circumstances of the case up to a maximum of 30 days from the day after the passport was seized.

Paragraph 13 provides that if the power is used two or more times against the same individual in a six-month period, the police would be allowed to hold the documents a third time for any five days before they need to apply to a court for an extension of time. The court is required to refuse to extend the duration of the travel documents’ retention unless exceptional circumstances apply.

Amendments 10 and 11 provide for a process for an individual to appeal to the courts against the decision to remove his or her travel documents at the port. Let me reiterate my earlier reassurance to right hon. and hon. Members that the current level of oversight of the exercise of this power is proportionate to the level of interference, and stringent safeguards already in place should ensure that the power will be used in a fair, reasonable and lawful manner. The advantage of the power is that it can be used immediately and to a threshold of reasonable suspicion. At the point of seizure, the individual will be informed that his or her travel documents were seized because there were reasonable grounds to suspect that he or she was intending to travel overseas for the purposes of involvement in terrorism-related activity outside the UK. The police are not detaining the individual or removing their passport privileges permanently.

To safeguard the use of the power, however, the legislation places a statutory duty on the police to return the travel documents as soon as possible if their investigations reveal that there are no reasonable grounds to suspect that the individual was seeking to travel outside the UK in connection with terrorism-related activity. The Bill already provides for a specific court procedure whereby the court may only grant an extension of the period for which the police can retain the travel documents if it is satisfied that investigations are being conducted diligently and expeditiously. If it is not, the documents must be returned.

After 14 days, the investigation should have progressed to the extent that a court can meaningfully consider whether the investigation is being conducted diligently and expeditiously, and the evidence that is heard should be tailored to the case that is being considered. As well as providing for a court hearing, the Bill allows an individual to seek, at any time, a judicial review of the initial passport seizure in the High Court, where closed material procedures will be available to allow full consideration of any sensitive material that led to the passport seizure. I do not believe that the amendment adds a significant extra safeguard in relation to the use of this power.

The amendments provide for a court to hear an appeal against the police officer’s original decision to form a reasonable suspicion that a person was travelling outside the United Kingdom for terrorism-related reasons. Amendment 10 provides for regulations to set

“a time limit by which the appeal must have been heard”,

while amendment 11 provides that the appeal must have been heard within seven days.

In view of the nature of the appeal, the amended provision would need to provide for closed material procedures with the appointment of special advocates. As the House will know, closed material procedures are resource-intensive and potentially time-consuming. Preparation for such a procedure—which amendment 11 requires to take place in under seven days—would divert resources at what is likely to be a significant time for the investigation, and I think that such a short period for a closed material procedure would pose serious problems of practicability. The new power would therefore be unlikely to be used as intended, to disrupt immediate travel on the basis of “reasonable suspicion” of terrorism-related activity.

[Mr Heath]

Is there any process allowing the senior officer reviewing the initial decision by the constable or other lower-ranking officer to receive representations from the person from whom the travel documents are removed, or from a representative of that person?

[James Brokenshire]

The review process does not provide for that, but the consultation on the code of practice that governs the arrangements is open until 30 January, so there will be an opportunity for further representations to be made on the details of how the power would be used in the context of the code. That includes the details of the initial, immediate review by the senior officer and the 72-hour review by a further senior officer, followed by the submission of a report to the chief constable.