Counter-Terrorism and Security Bill

Debate between Lord Ashton of Hyde and Baroness Smith of Basildon

Wednesday 4th February 2015 Lords Chamber

[Baroness Smith of Basildon]

I think that there is probably an element of face-saving in calling it a board. The amendment makes clear that it would act under the,

“direction and control of the Independent Reviewer”.

So he can make of the board—or whatever you want to call it—what he will. That is an opportunity for him, and I am sure that he will not be slow to take it.

[Lord Ashton of Hyde]

My Lords, I thank all noble Lords who have spoken. They were broadly in support—although I fear that we may not be able to persuade the noble Lord, Lord Butler, that this is a good idea. However, I will come to what the independent reviewer thinks of it later.

One thing that is important to say right at the beginning will answer, to a certain extent, the points made by my noble friend Lord Thomas, the noble Lord, Lord Butler, and some other noble Lords as well, about the information that the board itself will be able to see. We think that it is important that any individuals appointed to the board are provided with an appropriate level of security clearance; so the independent reviewer is cleared to see classified information—and, if necessary, the same will apply to members of the board. Of course, the independent reviewer has a great deal of influence on who is appointed to the board. The Home Secretary will work on his recommendation, although of course it is ultimately the Home Secretary’s decision. I think that covers most of the points made by my noble friend Lord Thomas. I am grateful for his support on that.

The noble Baroness, Lady Smith, mentioned what she said at Third Reading about communities—sorry, I meant what she said in Committee. Third Reading is on Monday; we go from week to week in no time at all. The present reviewer sees that issue. On the point about the board working under his direction and control, I do not see any reason why that should change. He will be able to use the benefits of the members of the board to continue with those areas that he wants to focus on. One reason we have removed the annual necessity for reviews, with the exception of the Terrorism Act, is that the independent reviewer will now be able to conduct thematic reviews instead of just purely linking them to individual bits of legislation. Again, I take the point about the relationships that he has built up over the years—including with foreign countries. As to him being chairman of the board and using board members as support, I do not see any reason why that should change, either.

There was talk about whether the secretariat would supply support and whether the members of the board will be there to provide advice or work for him. I think that both are the case. They will work under his direction and control, and he will also be able to appoint people who have particular skills in different areas that he can draw on. For example, he might be able to appoint someone who is—this was nearer to his original idea—a junior barrister who is appropriately security cleared. However, I take the point that one might not describe that in common parlance as a board, but the name is what we have. Several noble Lords talked about the label on the tin representing what is inside. On that subject, privacy and civil liberties are obviously important in connection with terrorism legislation. If you open the tin which is so labelled and see inside, “Chaired by and under the direction and control of the Independent Reviewer of Terrorism Legislation”, you would get a pretty good idea of what the board is about.

Moving on to my noble friends Lady Hamwee and Lady Ludford, I fear we will not be able to go as far as they want. We extended the remit of the independent reviewer and think that it is right to draw limits on that. I agree that a one-off review is not the same as a review by the Independent Reviewer of Terrorism Legislation. Equally, judicial oversight is not the same, but it is oversight and reassurance for each individual case on those closed material proceedings. It has value. At the moment, we have drawn the line where we have, for the reasons I said: mainly because of overlap and duplication. We think that the way we have done it at the moment concentrates on those—

Counter-Terrorism and Security Bill

Debate between Lord Ashton of Hyde and Baroness Smith of Basildon

Tuesday 20th January 2015 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I think what has come out of the last debate is that we are all trying to find our way through how the temporary exclusion order is going to work. I come back to the point I made at Second Reading about whether they should ever have been called temporary exclusion orders. I suspect they were named as such because of the Prime Minister’s statement that he was going to exclude people who had fought abroad as terrorists and prevent them from coming back to the UK, which of course is not what is being proposed. “Managed return” is a better description, but we need to understand exactly how that managed return will work in practice—a point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Warsi. This is a probing amendment, as is Amendment 59, which we will come on to later, to try to tease out some of the detail of how this will work in practice.

Amendment 49 leaves out the requirement that the Secretary of State “reasonably suspects” that the individual has been involved in “terrorism-related activity” outside the UK and inserts “has evidence”. In this amendment, we are trying to seek some further information on how the process of issuing the temporary exclusion order will be managed. It would be helpful if the Minister could give some information on the evidence threshold. What evidence would be required for the Home Secretary to reasonably suspect that condition A has been met and that someone is, or has recently been, involved in terrorism-related activity? As previously discussed, the imposition of such an order will have a similar legislative impact to a TPIM, and will restrict an individual’s movements over a period of time. There may be other obligations, either through TPIMs or, for example, to engage in perhaps the Prevent programme or Channel.

The Government’s fact sheet is very interesting. It states that MI5 would have to make an application to the Secretary of State for her to consider. Is that the only route to a TEO—for MI5 to apply to the Secretary of State with information and to ask her to consider it? The Bill states only that certain conditions have to be met; it is the fact sheet that refers to MI5. The fact sheet also refers to the threshold, where it merely repeats the “reasonably suspects” wording. I am seeking some clarity on the threshold and on the process. Will a TEO always, and in all circumstances, be considered only on evidence from MI5 or the wider security services? Are there any circumstances where a Home Secretary, or any other Minister including the Prime Minister, could initiate the process? Are there any circumstances in which a Home Secretary could issue a temporary exclusion order without, or against, the advice of MI5? That is what the fact sheet says but, again, it is woolly on the legislation.

I think the noble Baroness, Lady Hamwee, mentioned humanitarian support earlier. What if someone has left the country—for example, to go to Syria—to be involved in humanitarian support, and although it is quite likely that is what they have been doing there, there is not hard evidence to prove it but, equally, there is not hard evidence to say that they are engaged in terrorism? What, then, would fulfil the definition of reasonable suspicion? When the legislation is in place—and if the Government get their way and do not agree to a sunset clause—it will not just apply to current threats but this will be law for ever and in any circumstances in the future.

We have to ask whether there is a value judgment to be made as to how the UK views the cause on the side of which somebody goes to fight. I want to just explore this with the Minister. I wonder whether he can help me, as I genuinely do not know the answer and am trying to find a way through this. Let us take the case of somebody with dual nationality who travels abroad to fight on the side of a cause in their second country that the UK would support. It has not been unknown in history for us to change sides, but let us say they have gone to another country, we support the cause they are fighting for, and they have dual citizenship of that country and this one. What about the British-Iraqi Kurd who, on his own evidence, leaves to fight against ISIL and against extremism? Could they find themselves subject to a temporary exclusion order? I know that the noble Lord cannot comment on intelligence matters, but just for this amendment it would be helpful to have some clearer explanation of what the Government mean by “reasonably suspects”, and what the evidence threshold will be for imposing a TEO. I beg to move.

[Lord Ashton of Hyde]

My Lords, this allows us to consider the legal threshold for issuing a temporary exclusion order. Before I get on to what our position is, I shall answer a couple of the noble Baroness’s questions.

She asked about the basis on which reasonable suspicion is used in the power to seize and retain travel documents at a port. The test uses the evidential standard of reasonable suspicion that is used in relation to many other police powers. What constitutes reasonable grounds for suspicion will depend on the circumstances in each individual case. There must be an objective basis for the constable’s state of mind, based on facts. Such information must be specific to the conduct of the person. It can include observation of the person’s behaviour, information obtained from any other source or a combination of these. Reasonable suspicion cannot be formed on the basis of assumptions about the attitudes, beliefs or behaviour of persons who belong to particular groups or categories of people. To do that under Schedule 1 on this basis would be discriminatory.

The noble Baroness also asked whether the Home Secretary will make a TEO application only on the basis of an application from MI5. It will be for the Secretary of State to decide whether the tests are met. In practice, she would base her judgment on advice from the security services. The final decision will of course be hers, even though, in practice, she will generally require input from the security services to establish reasonable suspicion.

[Baroness Smith of Basildon]

Perhaps I might press the noble Lord further on that point. The other purpose of my question was to ask whether the Secretary of State or any other Minister, including the Prime Minister, would be able to initiate the process. Would they ever be able to act against or without the advice of the security services in imposing a TEO?

[Lord Ashton of Hyde]

I think it would be better if I clarified that and came back to the noble Baroness. I do not want to say something that is incorrect on the precise details of this. I could make a guess, but I would rather not.

The noble Baroness’s amendment would mean that the Home Secretary would be required to have evidence that an individual has engaged in terrorism-related activity abroad rather than having a reasonable suspicion. The reasonable suspicion may well be based on intelligence, which is clearly not always the same as evidence. This change would greatly reduce the number of individuals against whom the Home Secretary could use this power. The result of this would be that the Government would not be able to control the return of individuals suspected of fighting alongside terrorist groups and would have fewer tools available to manage the threat these individuals posed to the British public.

Furthermore, where there is clear evidence that an individual is engaged in terrorism-related activity, it is likely that we would be in a position to seek their prosecution, which would be preferable to placing them under the conditions of a temporary exclusion order. Such a high test would also bring them within scope of the much stronger TPIM regime. Given the less stringent obligations of a TEO compared with the other measures, the Government’s view is that such a test would be disproportionate. On that basis, I invite the noble Baroness to withdraw her amendment.