Counter-Terrorism and Security Bill

Mark Field Excerpts

Monday 15th December 2014 Commons Chamber

[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“shall be repealed on 31 December 2016 unless both Houses of Parliament have passed a resolution that it should continue in force until a future date.”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“This section shall be repealed on 31 December 2016 unless both Houses of Parliament have passed a resolution that it should continue in force”.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.

--- Later in debate ---

[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]

rose—

[Lady Hermon (North Down) (Ind)]

rose—

[Mr Hanson]

I give way first to the hon. Gentleman.

[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)—

[Jeremy Corbyn]

It was the opposite.

[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).

--- Later in debate ---

[Caroline Lucas (Brighton, Pavilion) (Green)]

I would indeed like to say a few words about new clause 8, which I tabled. As we know, there will be situations in which it is necessary to prevent a person from leaving the country, but I would argue that the police already have a tried and tested way of preventing suspects from doing so—the power of arrest, combined with the ability to require passport surrender if a suspect is arrested and released without charge. However, passport surrender is not currently possible in the case of those arrested on suspicion of being a terrorist under section 41 of the Terrorism Act 2000, as conditional police bail cannot be granted following such arrests. That anomaly means that there is a currently a loophole in the ability of law enforcement to require passport surrender of terrorism suspects. It would be much simpler to remove that loophole than to proceed with the convoluted passport retention scheme set out in clause 1 and schedule 1.

The safest and fairest way to prevent suspects from leaving the country to participate in terrorist activity would be for police officers to use their powers of arrest. If an individual was considered to pose an immediate risk to the country, they could be detained rather than left to roam the UK for 30 days, as would happen under the Government’s proposal. If they did not pose an immediate risk, they could be detained and bailed, and their passport could be surrendered as part of the process.

Including that provision in the Bill and removing the bar on police bail would be much simpler and fairer than a convoluted passport surrender scheme. It would deliver the same practical result as the Government seemingly wish to achieve—preventing individuals from leaving the country—but would do so in a way that, crucially, protected against misuse and discrimination.

My new clause is intended to give the police the powers they need, and to enable them to exercise them consistent with upholding suspects’ human rights. That would act as a greater deterrent, by allowing for arrest rather than summary passport seizure, and would help to overcome some of the in-built discrimination that exists in relation to stop-and-search and would inevitably be part of a stop-and-seizure approach to passports.

[Mark Field]

I do not wish to cast judgment on the two proposed processes, but does the hon. Lady not recognise that the arrest and bail process would probably involve a higher threshold than mere passport seizure? Considerably fewer people would therefore be subject to it, so it might not make the rest of us much safer. The Government’s intention in using passport seizure is to stop those who wish to escape these shores—they will not necessarily be guilty of any offence before doing so.

[Caroline Lucas]

I thank the hon. Gentleman, but I do not think his point stands up. Under new clause 8, an individual considered to pose an immediate risk to the country could be detained rather than being left to the roam the UK, as would happen under the Government’s proposal. If they were not considered to pose an immediate risk, they could be bailed and their passport seized. Seizing a passport as part of the bail process would be more effective than what I believe he proposes.

[Mark Field]

The problem is not that there would be a risk of people roaming through the UK and being a direct and immediate risk to other UK citizens. It is that they might leave these shores to carry out terrorist activity abroad.

[Caroline Lucas]

I do not see that as being more of a risk under my new clause, the advantage of which would be that we would not be involved in a so-called stop-and-seizure approach, which we know is often not effective. Summary stop powers do not yield effective results—Her Majesty’s inspectorate of constabulary has found that in most years since 2001, more than 1 million people have been stopped and searched, but only 9% were subsequently arrested. If the summary sanction were the removal of a passport, that failure rate would be too high. In addition to risking injustice for the individuals concerned, such an approach would serve to perpetuate a climate of fear and suspicion rather than encourage good relations between different communities in British society.

The Home Secretary herself recently recognised the prejudicial nature of stop-and-search powers and sought to scale them back. She stated:

“Nobody wins when stop and search is misused. It can be an enormous waste of police time and damage the relationship between the public and police.”

It appears odd to legislate for a new stop-and-search-type power when the problems that such an approach causes have been clearly identified and when it is contrary to the Home Secretary’s policy on stop-and-search away from the borders.

I do not think that my suggestions in new clause 8 would reduce our ability to ensure that we are secure. On the contrary, they would make us better able to know where people are, and crucially, they would mean that we would not use so-called stop-and-seizure powers, which have been discredited and are not very effective.