Counter-Terrorism and Security Bill

Debate between Lord Garnier and James Brokenshire

Tuesday 6th January 2015 Commons Chamber

[James Brokenshire]

I promise that I will come back to my hon. Friend’s points, but I would like to get to the Opposition Front-Bench amendments. These amendments would require the Secretary of State to apply for permission from the courts before imposing a temporary exclusion order. The mechanism provided for in these amendments is almost identical to that in the TPIMs Act. As the Home Secretary stated in Committee, as the Minister with responsibility for national security it is right that she, not the courts, imposes an order of this kind. This is a discretionary power which will be used only in a limited number of cases where it will have the greatest impact.

Several Members have shared their views on the matter of oversight of this measure. I think a distinction is being drawn, and I will come on to the other amendments tabled in the group. It must be clear that, with responsibility for all other national security and counter-terrorism matters, it is the Secretary of State who is best placed to make an informed judgment about whether a temporary exclusion order is appropriate in each case, taking into consideration the wider context of the terrorist threat that we face. Indeed, as my right hon. Friend the Home Secretary outlined in Committee,

“to vest the power to impose one of these orders in the Secretary of State without first requiring an application to the courts is in line with the comparable use of the royal prerogative to cancel the passport of a British citizen.”—[Official Report, 15 December 2014; Vol. 589, c. 1208.]

We must also consider in this context the level of interference with an individual’s rights as a result of the power, and I reiterate that a temporary exclusion order does not take away the right of an individual to return to the UK. The in-country elements that might be imposed on an individual as part of it are much less restrictive than those available under TPIMs, and for this reason do not require the same level of review. That is the approach we have taken.

[Sir Edward Garnier]

What the Minister has just said seems to support the suggestions made by me and others that this is not a temporary exclusion order. It is not an exclusion order at all; rather, it is a managed return order. If we get the semantics right, a lot of the other stuff fits better into place.

[James Brokenshire]

I hear the point my hon. and learned Friend makes, and the issue came up when we considered this in Committee, but I think it is right to describe it as a temporary exclusion order because although it clearly facilitates return—it manages return; it manages the control of an individual once they have returned to the UK and consent has been granted—it is exclusionary in its nature during the period prior to return. It seeks to prevent someone from returning without that permission being granted, because there is that other aspect: if someone does seek to return to the UK when they are subject to one of these temporary exclusion orders, it is potentially a criminal offence unless they can show due justification as set out in the Bill. I appreciate that my hon. and learned Friend would like to describe this in a particular fashion, but the focus is on the substance of it, and I hope he will understand the approach we are seeking to take, and how this is intended to operate in practice.

The Bill as currently framed would allow judicial review to be brought. That has been used by people to challenge decisions of the Secretary of State in other contexts from abroad. We frequently receive challenges of this nature from individuals abroad in relation to the use of other powers. It is important to recognise that.

Amendments 18 to 20, tabled by the hon. Member for Walsall North (Mr Winnick), go even further than the amendments tabled by the Opposition Front Bench, and would give the courts the power to impose a TEO following an application from the Secretary of State. The Government do not consider these amendments to be appropriate for the reasons I have outlined. I highlight to the House that requiring the Secretary of State to apply to the courts before a TEO can be made could create undue delay and decrease the operational value of the power. It is sometimes important that we are able to act quickly to obtain the maximum benefit from the operation of the powers, to meet the goal of keeping the British public safe from terrorism.

The Government are committed to the appropriate and proportionate use of the temporary exclusion power, but I note the views of David Anderson, the independent reviewer of counter-terrorism legislation. I have a great deal of respect for him and the contributions he has made on a range of matters, including the issue of judicial oversight of the process of granting a temporary exclusion order. Although this issue arises at a late stage in the Bill’s passage through this House, it is important, as has been reflected in many of the contributions. The House has not had the chance properly to consider the Opposition amendments. I hope they will be minded to withdraw them at this stage, and I can assure the House that the Government will look very carefully at the constructive suggestions from David Anderson and return to this issue in the other place.

On a point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), the Government have listened to the arguments made both in Committee and—with, I think, sincerity—in today’s debate, and also to the comments of David Anderson. I can give my hon. Friend the assurance that we will reflect on them and that the next stage when we would be able to respond to them is in the other place. No discourtesy is intended. Rather, we want to get this right and to reflect on the views that have been put forward. That is why I judge that this is the most appropriate way of addressing the issues highlighted today.