Counter-Terrorism and Security Bill

Julian Smith Excerpts

Monday 15th December 2014 Commons Chamber

[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.

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[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 give way?

[Mr Hanson]

I am trying to wind up my remarks, but I will give way.

[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?

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[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.

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[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?

[Mr Hanson]

We would be looking to do that in a number of circumstances anyway; data are already given to carriers about individuals. Under the Government’s model, information would also be provided to the carrier that the individual was of interest to the UK Government.

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The language used in new clauses 9, 10 and 11 and new schedule 1 mirrors precisely—almost too precisely—that used in the Government’s own TPIM legislation. I hope that the Government can accept—if not today, perhaps during the passage of the Bill—that the procedure to go through to award a temporary exclusion order under our clause would be sound, fair and efficient in the same way that TPIMs can be on the same legislative basis.

[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.

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[Mr David Davis (Haltemprice and Howden) (Con)]

I had not intended to speak today, but I have been sitting here getting rather more uncomfortable about some aspects of the proposal. I do not propose to go into the complex practical issues, which were well laid out by the right hon. Member for Holborn and St Pancras (Frank Dobson), who gave thoughtful input, as ever, and by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). They outlined the issues and complexities very well and I suspect that those complexities will best be addressed by negotiation between those on the two Front Benches, which is not something I often recommend.

What concerns me today is the issue of the Home Secretary herself exercising the power. I am concerned that it comes about without prior judicial approval or, indeed, without being a power of the court, which would be my preference. Over time, I have become progressively concerned about the accretion of fairly absolute power to the state in counter-terrorism policy. Absolute power is pretty important. My hon. Friend the Member for Skipton and Ripon (Julian Smith) suggested that these measures did not impinge on people’s liberties in the same way as TPIMs might, but I am afraid that the impingement is pretty sizeable. I do not necessarily disapprove of it at all, but it should be exercised with a degree of judicial care.

These accretions of power have come about since the late 1980s and the 1990s when we avowed the various security services that had up until then not been recognised in public policy, or that were at least not in the public domain. At the time, it seemed quite reasonable for the Crown prerogative to be used as a method of giving warrants and of enacting the state’s will to protect the public. I took the 1994 Bill on the Secret Intelligence Service through the House. We did not foresee the level of use—the number of warrants used and the level of power being exercised—that is now necessary to deal with the Islamist terrorist threat.

What is more, we did not give much thought to how such power might be abused—not that it is at the moment, but it might be in the future—or how many errors might occur, which does happen. We had at the back of our mind a model of accountability that, frankly, does not work. The Minister for Security and Immigration will be familiar with the number of times on which he and I have had exchanges that amount to my asking him a question and his writing back something like, “I never comment on security matters.” That is not a particularly good form of accountability for any mechanism.

My concern is that along with progressive secrecy, secret courts and all the other things we now have, the weak accountability—

[Julian Smith]

Will my right hon. Friend give way?

[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.

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If somebody does have the means to apply for a permit to allow them to return, they will have to attend an interview. Failure to do so, either because they are unable to do so or are prevented from doing so, could result in their being refused the right to return.

[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.

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[Julian Smith]

Does the right hon. Gentleman agree that as well as the intelligence issue, the British people want the state to act in a nimble and dynamic way, as long as measures are proportionate, against one of the biggest threats to our security in decades? I suspect he acknowledges that broader point given his role on the Intelligence and Security Committee.

[Mr Howarth]

I was coming on to talk about the sorts of cases that we might be confronted with. If my remarks answer the hon. Gentleman’s point, so be it. If not, I am sure he will intervene again.

Temporary exclusion orders and the managed return process, as the Home Secretary described it, is seen as the alternative to a judicial process that for various practical reasons would either be not very just, or at least closed or partly closed. It would therefore be impractical and difficult to judge whether proceedings were fair or otherwise for anyone who was not involved, and even for some of those who were. In principle the provisions in clause 2(1) are probably acceptable, but I have a couple of issues—this goes directly to the point made by the hon. Member for Skipton and Ripon (Julian Smith)—about how they will work in practice. Perhaps one way of looking at it would be to give examples of the kinds of cases that we are likely to see with people returning from Syria or Iraq. For convenience, I have bracketed them under three headings. They are not mutually exclusive and it is possible that in some cases all three will apply, and in others just one.