Counter-Terrorism and Security Bill

William Cash Excerpts

Tuesday 6th January 2015 Commons Chamber

[Mr Hanson]

It is a pleasure to be here in this new year to deal with this important Bill. I mention the new year because, although we are now in 2015, this is effectively still 2014 for the Minister and me, as we are dealing with the matters that we dealt with just before Christmas in almost the same format, having had the Committee stage of the Bill on the Floor of the House and Report here now.

We have tabled a number of new clauses and amendments that have a reassuring similarity to the matters that we discussed before Christmas—[Interruption.] Indeed, they are almost identical, as the right hon. and learned Member for Beaconsfield (Mr Grieve) suggests. I am confident, given the concerns that have been expressed by right hon. and hon. Members on both sides of the House and the points that were fully debated before Christmas, that the Minister and his very able Whip, the hon. Member for East Hampshire (Damian Hinds), will have had an opportunity to reflect on these matters over the Christmas period and to understand that there is real concern not only among Labour and Conservative Members but among Liberal Democrat Members about some of these matters.

Let me start by repeating some of the givens for those of us on the Opposition Benches. It is a given for us that the terrorism threat remains high. It is also a given for us that the exclusion provisions are a valid and useful addition to the armoury of terrorism prevention, and that they have our support. I must place on record, however, the fact that there are those among the population at large who feel that the provisions go too far. For example, we have had representations from Liberty, the Immigration Law Practitioners Association and others expressing concern about the measures. I believe that the measures are proportionate, but today’s new clauses and amendments are aimed at strengthening that proportionality, providing judicial oversight and ensuring that we adopt a constructive approach to the difficult and challenging issues that the Government have to deal with.

We share the Government’s policy objective of supporting the prevention of terrorism, as the terrorism threat is high. The Government’s own assessment shows that some 500 individuals have travelled to Syria and the surrounding areas in recent months, and that 50% of them have sought to return to the United Kingdom. We do not know what status they want to return under. Some might have forsaken terrorist activity; others might be returning to engage in further recruitment exercises. We do not know their status, and there is a real need for the assessment that the Government propose. The Home Secretary’s report to Parliament on the joint terrorism analysis centre’s assessment of the threat level, produced independently of Ministers, acknowledges that the level is still severe and that a terrorist attack is highly likely, although there is no evidence to suggest that one is imminent. All Members need to be cognisant of the increased threat following the assessment by JTAC in August. The Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, has indicated that the assessment of the Metropolitan police, on behalf of the UK police, is that five terrorists a week are now travelling, and that up to 250 are returning. The Government need to address that issue.

New clauses 1, 2 and 3 and new schedule 1 aim to introduce balance to the Government’s proposals, to ensure judicial oversight of these key issues. New clause 1 has been tabled by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), my hon. Friends the Members for Kingston upon Hull North (Diana Johnson) and for Sedgefield (Phil Wilson) and me, and it seeks to ensure that the temporary exclusion orders can be introduced in the form that the Government want.

New clause 2 proposes conditions A to E. Condition A states that the Secretary of State must reasonably suspect that

“the individual is, or has been, involved in terrorism-related activity outside the United Kingdom”.

Condition B states that the Secretary of State should reasonably consider that the issue of the order

“is necessary, for purposes connected with protecting members of the public”.

Condition C is

“that the Secretary of State reasonably considers that the individual is outside the United Kingdom.”

Condition D is

“that the individual has the right of abode in the United Kingdom.”

Condition E relates to the Secretary of State believing that action should be taken.

New clauses 1 and 2 mirror what the Government have already said. We have tabled new clause 3 because we believe that a court needs to agree to the Secretary of State’s application for a temporary exclusion order. It would allow the Secretary of State to make an application to the court to ensure that the conditions in new clauses 1 and 2 had been met. Under new clause 3, the court would have to consider the Secretary of State’s application. It may do so

“in the absence of the individual”

about whom the application is being made. It may also do so

“without the individual having been notified of the application”

and

“without the individual having been given an opportunity…of making any representations to the court”.

This would provide judicial oversight of the Secretary of State’s application to put in place a temporary exclusion order.

[Sir William Cash (Stone) (Con)]

The right hon. Gentleman accepts that there is a substantial threat, although he says that we do not know exactly what it is or what the status is of the people who might wish to return. In respect of the right of abode, does he think it is appropriate that a person should be allowed to come back here if they have formally renounced their allegiance to the United Kingdom and purported to give allegiance to another state or territory and if they are known to have the intention of committing jihadist acts of violence?

[Mr Hanson]

I look forward to hearing the hon. Gentleman’s speech in support of his own amendments in due course. These are difficult questions, and we might be straying into the area of deprivation of citizenship, which we discussed when considering other legislation last year. The Bill and our proposals would provide judicial oversight of decisions to exclude made by the Secretary of State. The issues of right of abode and citizenship are difficult, because if an individual retains British citizenship but is undertaking the type of activity the hon. Gentleman is alluding to, mechanisms are in place in the Bill and other legislation to take effective action to ensure that that is addressed in a legal framework. It is difficult to say that an individual cannot have a right of abode, because that makes them, in effect, stateless, and therefore the problem remains one for the UK passport holder, but it is not a problem within the UK. We need to reflect on that extremely carefully.

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[Mr Hanson]

I am grateful to my hon. Friend for tabling his amendments, which have a similar hue to ours, in that we are trying to put in place judicial oversight. Given the concerns that have been raised since we discussed the Bill in Committee, I hope the Minister will again consider our new clauses. They would create a court process through which the Secretary of State would have to go to place an individual on a temporary exclusion order, as there is currently no judicial process before one can be awarded. The new clauses have not come out of the blue; they have arisen because of real concerns following the Prime Minister’s initial announcement in August that he would introduce this legislation. Those concerns have come from a number of authoritative sources. We discussed these matters prior to Christmas, but it is worth repeating the concerns.

David Anderson QC is tasked by the Government with being the independent reviewer of terrorism legislation, and both at the time of the Prime Minister’s announcement and in evidence given on 26 November to the Joint Committee on Human Rights he has raised big sceptical objections to the proposed TEOs against suspected jihadist fighters. He told the Joint Committee:

“The concern I have about this power—the central concern about it—is where the courts are in all of this…if the Home Secretary wants to impose a TPIM”—

the other legislative tool the Government currently have—

“she has to go to the court first, and if the court thinks she has got it wrong, it will say so...one will want to look very carefully to see whether this is a power that requires the intervention of the court at any stage, or whether it is simply envisaged as something that the Home Secretary imposes…if you are abroad when this order is served on you, it is a little difficult to see in practical terms how a right to judicial review could be exercised.”

Those are key issues, because what the independent reviewer of terrorism legislation has said is that under the TPIM legislation designed by this Government, the Home Secretary has to go to court to get a TPIM before one can be imposed on an individual. A TPIM restricts severely an individual’s movement in the UK and imposes a range of conditions on that individual. The TEO will have the same legislative impact, in that it will severely restrict an individual’s movement. As I said, that restriction might well be perfectly valid—it may well be in the interests of terrorism prevention and be a positive measure to protect British citizens—but it needs to have judicial oversight to ensure that an individual is able to challenge it without the right of judicial review. I agree with David Anderson QC and I want the Government to respond today to his concerns, as well as those of right hon. and hon. Members.

[Sir William Cash]

I have looked through the minutes of evidence taken before the Joint Committee on Human Rights on Wednesday 26 November and I can find no reference, either in the questions asked or the answers given by the reviewer, to the text of the 1961 convention on the reduction of statelessness and, in particular, article 8(3). That was not even raised, and I do not think it is possible to have a coherent discussion about the nature of either the right of abode or the implications of what we have just been discussing without making reference to the convention. No reference was made to it there whatsoever.

[Mr Hanson]

Let us look at those issues in due course. The hon. Gentleman will have an opportunity to make a contribution and the Minister will respond. I am trying to focus on our new clauses, which are about putting in place a reasonable level of judicial oversight. I have cited what the independent reviewer said because when the Prime Minister launched this policy those concerns were stated outside this House much more severely and harshly than they were when the independent reviewer appeared before the Joint Committee. The point he makes is that the Government’s defence at the moment is that there is an opportunity for judicial review, which is an expensive, long and time-consuming process and which may not be able to be exercised from outside the jurisdiction of UK shores. Under the TPIM legislation, Ministers have to go to a court, whereas under the TEO proposals, as currently put forward, they will not. Our main proposal in the new clauses is to put in place a regime that mirrors that of the existing TPIM legislation. This is not a new, fanciful procedure; it is one the Government have drawn up, as it mirrors their proposal, and I hope they will consider it seriously.

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[Sir William Cash]

My right hon. and learned Friend and I have crossed swords on this matter on a number of occasions over the past 15 or 20 years—since he made his maiden speech. With regard to his assertions about the common law, does he believe that the common law would be sustainable in the context of the charter of fundamental rights, because that would refer questions of family life and other matters to the European Court of Justice? How could the common law survive on that basis?

[Mr Grieve]

The biggest threat to the common law is the statutes we pass in the House that undermine it. The principles of the common law are crystal clear in respect of the right of a British-born citizen and the Queen’s subject to reside in their homeland. Parliament, if it so wished, could undermine that. That has always been the problem with the common law. It is one of the reasons why we have such things as Magna Carta and habeas corpus, because the common law was insufficient. Indeed, I must say to my hon. Friend that it is one of the reasons why we have the Human Rights Act and the European convention on human rights, and why in fact those are additions to the common law that I happen to think can be on their own, while by no means perfect—I do not wish to be drawn further down that route—very valuable. However, the common law principle is clearly there, and when there is a common law principle, the important point is that we should interfere with it only very cautiously, particularly when it is so clear.

I want to make some progress and not to be diverted. The point at issue for the national whose passport has been removed and who will be made subject to this process is that they could be left in a very vulnerable condition in the location in which they find themselves. That is why I think judicial oversight would be so valuable for the Government, were they to accept it, because it would allow the reassurance that, in taking an action that in my view is reasonable, necessary and proportionate, and on which I wholly support my right hon. Friend the Home Secretary and my hon. Friend the Minister, there will not be untoward consequences that would bring that action into disrepute.

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[Sir William Cash]

The hon. Gentleman talked about the exclusion of the courts, and the right hon. Member for Delyn (Mr Hanson) said much the same from the Front Bench, because it is implicit in what he is proposing that the courts would have to be involved, but clause 2 states:

“Condition A is that the Secretary of State reasonably suspects”,

“Condition B is that the Secretary of State reasonably considers”

and

“Condition C is that the Secretary of State reasonably considers”.

In each case, what evidence is there that the courts would be excluded? If there is a requirement to comply reasonably with certain conditions, it is open to the courts to have that challenged by judicial review. I am glad to see the Minister nodding. I do not understand the argument.

[Mr Winnick]

The hon. Gentleman and I are never likely to reach agreement on these issues. There are honest disagreements that arose in the previous Parliament, where we had sharp differences of opinion. I respect his point of view; I hope he respects mine. Judicial review is not the right way of trying to avoid the courts’ involvement. To cite David Anderson again in his evidence to the Joint Committee on Human Rights, what good is it to someone in Turkey to try to bring judicial review? It is a sorry argument.

I am not saying that the hon. Member for Stone (Sir William Cash) is putting forward a sorry argument, but rather that the Government are doing so when they say, “There’s no need for the courts to be involved. There’s always judicial review.” In practice, it would be extremely difficult for such a process to take place. If the amendments were defeated and the Government’s measure went through, and if I were asked whether it would be better for judicial review to stay in, of course I would say yes, but it is no substitute for what we are trying to achieve.

Earlier today there was a point of order about Magna Carta, and in June we will celebrate 800 years since its inception. I have some comments and some reservations which I hope to express when Magna Carta is debated. I remind the House of article 39, which states:

“No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land.”

That has some relevance, as does article 40, which states:

“To no one will we sell, to no one will we refuse or delay right or justice.”

Those are good points, despite my reservations about the barons at the time. I do not think my ancestors were around then.

There is not the slightest doubt that if the Liberal Democrats were in opposition, they would not only support, but would have proposed, the sort of amendments that we have tabled. When the Division is called, hundreds of Members will come in to vote without hearing the debate and, unfortunately, the inevitable will happen unless Liberal Democrats follow what, given his interventions, I take to be the position of the right hon. and learned Member for North East Fife (Sir Menzies Campbell). He knows that we have the utmost respect for him. I hope the right decision will be taken. If not, at least there is the other place.

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The issue might go to the unelected House of Lords and it might be up to them to resolve an issue that this House should take care of today, but whatever happens I hope we make progress and that at the end of this process there will be some form of judicial oversight of temporary exclusion orders.

[Sir William Cash]

I am concerned, and have been for a long time, about the apparent not indifference to but unawareness of the danger facing citizens of the United Kingdom if jihadists of the kind I will describe in a moment—my amendment 22 provides a definition—return to the UK and commit horrible and appalling atrocities similar to that which we witnessed in the case of Lee Rigby. I ask hon. Members to think about what they would say if one of their constituents were murdered in that unbelievably atrocious manner. I also ask them to consider whether there are people among the many hundreds—some suggest thousands—who have already gone abroad who may wish to return under cover of their jihadist activity and perpetrate and perpetuate their activities in our own homeland of the United Kingdom. If such murders and atrocities were committed, would our constituents and the British public as a whole think it right that those people had a right of abode here? I think that most of the British public would say that if the circumstances defined in my amendment were complied with, they would not want those people to return to the United Kingdom.

One then turns to the question of whether those people’s human rights and the issue of statelessness are such that they should override those considerations. I am profoundly concerned and disturbed to hear some colleagues suggest that a person’s right of abode, so-called human rights and the need not to be rendered stateless are so overriding that they should prevail even in the circumstances I have described and even following the atrocities that I fear could occur.

I am extremely grateful to my hon. Friend the Member for Gainsborough (Sir Edward Leigh) for his support, but I happen to know from discussions I have had that many other Members very much agree with the sentiments expressed in my amendments. I sincerely trust that, whatever happens—I have yet to decide whether I will press my amendment to a vote—the matter can be looked at again in the House of Lords.

I have heard on many occasions, both from Front Benchers and others, about the evidence that the Joint Committee on Human Rights received from Mr David Anderson, the independent reviewer of terrorism. I have looked at those proceedings, but nobody asked any questions about the 1961 convention on the reduction of statelessness, which lies at the heart of the issue. In September I heard Mr Anderson and others, some of whom are present, on the “Today” programme, strongly asserting the arguments that have now been made on the Floor of the House. I wonder whether they have reflected on the implications for the British public if we do not take proper measures to exclude the right people, by which I mean those who are pronounced jihadists and who, if they were to return, would by all accounts be likely to perpetrate the kinds of atrocities I have mentioned.

When the Prime Minister made his statement on 1 September 2014, I was concerned, having just heard so many contributions on the radio, about the importance attached to people not being made stateless and so forth, and about their human rights being of such overriding importance, irrespective of the impact they might have on the public or of individuals being murdered in atrocious circumstances. I asked the Prime Minister:

“On the matter of statelessness and preventing British terrorist jihadists from returning to the United Kingdom, has my right hon. Friend been briefed that, under article 8 of the United Nations convention on statelessness, domestic legislation in certain countries may render a person stateless where he has acted inconsistently with his duty of loyalty, has behaved in a way prejudicial to the interests of the state or has declared allegiance to another state and shown evidence of repudiation of allegiance? Does he not accept that that is exactly where we are now, and that it would be extremely important to get that right so that the Leader of the Opposition”—

who had made some derogatory remarks to the Prime Minister on that—

“understands that the matter can be made clear?”

The Prime Minister replied:

“My hon. Friend makes a good point, which shows exactly why we need to discuss and examine this issue further. The reason why everyone will want us to examine this is that it absolutely sticks in the craw that someone can go from this country to Syria, declare jihad, make all sorts of plans to start doing us damage and then contemplate returning to Britain having declared their allegiance to another state. That is the problem that we need to address, and my hon. Friend will be useful in doing so.”—[Official Report, 1 September 2014; Vol. 585, c. 34.]

Well, his hon. Friend will continue to be useful in that respect, because I think that it is very important that we properly examine in this debate not only potential atrocities but the legal basis on which arguments are presented both for and against such orders.

I have corresponded with the Minister for Security and Immigration. If he was good enough to listen, he might want to intervene because I am about to refer to our correspondence. I am failing in my attempt, so perhaps his Parliamentary Private Secretary, my hon. Friend the Member for Hexham (Guy Opperman), could give him a nudge. [Interruption.] That is very good of him. I just want to let the Minister know that I am about to refer to correspondence between me and the Department.

I wrote to the Minister, and had a reply. I will not go into every aspect of it, but I found that I had to write to him again on 15 December. His letter alleged that the convention on the reduction of statelessness did not really apply, but I made a point about article 8(3). The beginning of article 8(1) of the convention—bear in mind that the United Kingdom has signed it—clearly says:

“A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.”

However, article 8(3) goes on:

“Notwithstanding the provisions of paragraph 1…a Contracting State may retain the right to deprive a person of his nationality”.

Some states have and some have not gone along with the arrangements, but the article goes on to give the basis on which a state may retain the right to deprive a person of his nationality, and that is very much in line with the proposed new subsection (6A) in my amendment 22. It is clearly founded on the exclusions from the provisions of article 8(1).

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[Sir William Cash]

Yes, it certainly is, but it is also subject to the question of what is the appropriate rule of law. The law—for example, on the right of abode, and in relation to the question of section 2 of the Immigration Act 1971—is what Parliament has decided is appropriate for the circumstances at the time. However, times have moved on and the circumstances are different. I have heard lawyers—I am one myself, and a former shadow Attorney-General—talk over and over again about the rule of law without asking this question: what is the rule of law based on? What circumstances does it apply in, and is it still relevant? We amend Acts of Parliament the entire time. This Bill and temporary exclusion orders are a new step forward, and they are a change in light of current circumstances. Looking across the Chamber, legislation relating to Ireland as it was in the days of the troubles was part and parcel of changes made at that time, and changes have been made to that legislation since. The answer is: liberty, yes, 100%, but not in circumstances where those who are prepared to perpetrate atrocities are allowed to get away with it.

[Mr Winnick]

Surely the rule of law must imply and mean in practice that no one’s liberty should be taken away except by the courts.

[Sir William Cash]

There are very sound reasons why the Secretary of State should have the right to determine these questions, as she does in many other cases. I have already made the point that at every stage in conditions A to D the Secretary of State may take only such action that she “reasonably” considers appropriate under the circumstances. The Bill already takes account of the possibility of judicial review.

[Mark Durkan (Foyle) (SDLP)]

The hon. Gentleman refers to conditions A to D, which refer to the Secretary of State “reasonably” suspecting or considering something. Amendment 22 states that

“the Secretary of State has provided evidence, whether or not conditions A to D are met”.

Provided evidence to whom or to what?

[Sir William Cash]

Provided evidence to those who will be making decisions about terrorism-related activities. It is not just about providing evidence to the court, which I think is implicit in what the hon. Gentleman is suggesting; it is about providing evidence about the facts described in the amendment. It is not necessary for the case to go to court, and the amendment leaves out the word “reasonable” in this context for that reason. If the Home Secretary provides evidence that is based on the person in question having repudiated their allegiance to the United Kingdom, and if that person has provided evidence of their allegiance to the new state by virtue of their actions and statements, that is enough in itself. That individual has done those things, and that is the evidence in question.

The legislative framework of this measure has already been mentioned, and I say to the Minister and my colleagues—some of whom I thoroughly disagree with on these matters—that it will be extremely difficult to exclude the operation of the charter of fundamental rights in applications of the kind likely to arise under the Bill. That is a serious problem because it will mean that under sections 2 and 3 of the European Communities Act 1972, the charter of fundamental rights will apply. That has already been made applicable—the European Scrutiny Committee has established that without a shadow of doubt, over and against the continuing belief, which has now been abandoned, that that charter does not apply to the United Kingdom. The charter of fundamental rights will apply, as will the Human Rights Act 1998. In those circumstances, the question of whether decisions will be taken by the British courts is a matter of extremely grave doubt; in fact, I would go further and say it is an impossibility. On the basis that the charter of fundamental rights does apply, if a decision were to go to the courts as in the Opposition amendments, it would be decided by the European Court of Justice under matters covered by the charter. That is a fatal objection. If the measure were to be carried out notwithstanding the European Communities Act 1972 it would be another story, but that is not what the amendments would do.

In conclusion, these are grave issues with great sensitivities, beliefs, convictions and principles at stake. There is an honest disagreement, to say the least, between myself and other Conservative colleagues, and I think we should put the British subject first, by which I mean those liable to be affected by jihadist atrocities, and not put forward the generalised view that the human rights lobby would prefer. This matter is too serious and too dangerous. It is not just about allegiance in its own right, but about a physical danger to the British public.

[Mark Field]

Unlike many of my colleagues I am more sympathetic to the Government’s position than others, although I respect the deep concerns felt across the House about broad issues of civil liberties. I have less concern about the temporary exclusion order being down to Executive authority, and in many ways the accountability of any Minister to come to the House and justify their actions counts for quite a lot.

The right hon. and learned Member for North East Fife (Sir Menzies Campbell) referred to the protection only of judicial review. If it were still down to old-fashioned Wednesbury principles I could accept that, but judicial review is now a rather broader body of law than was perhaps the case in the 1940s. It is now pretty substantial, which provides enough comfort—at least to my mind—for us to go down that route, rather than requiring the oversight that would come through David Anderson QC.

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[Sir Edward Garnier]

I see. That is a different point from the one I was addressing, so I apologise to my hon. Friend. Either way, I want the Bill adjusted for greater judicial oversight.

My hon. Friend is not as anxious as I am about the temporary exclusion orders in clause 3. I would not be as anxious as I am if the expression “temporary” related to a period far shorter than two years. To me, a temporary exclusion order means a matter of months, at the most, and possibly only days and weeks. Once one moves from days, weeks or a few months, one moves into something other than temporary, which bolsters the arguments behind the need for judicial supervision. I do not like the word “permission” in new clause 2 tabled by the right hon. Member for Delyn (Mr Hanson), but I do not think we should be frightened of judicial supervision. By “judicial supervision”, I mean getting to grips with the substance of the case, not judicial review, irrespective of the fact, as my hon. Friend accepted, that judicial review is a bit meatier and has more teeth than when it started. I share the concerns of many hon. Members, therefore, that although the Home Secretary—particularly this one—will be entirely well motivated, we should not allow her or her Ministers to persuade us that their motives trump our concerns about the absence of judicial oversight.

[Sir William Cash]

Would my hon. and learned Friend be kind enough to give way?

[Sir Edward Garnier]

I give way to a fellow member of the former shadow Attorney-General’s club.

[Sir William Cash]

The old cabal.

I wonder if my hon. and learned Friend would be good enough to answer this simple question: does he believe that the charter of fundamental rights could not get involved in this process? If so, what would his answer be?

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[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.

[Sir William Cash]

Would the Minister be good enough to explain why there is no condition applied for a temporary exclusion order where the individual has clearly repudiated allegiance to the UK, has adopted jihad and has sworn allegiance to an organisation such as ISIL? In those circumstances, how could we possibly not want to exclude such a person?

[James Brokenshire]

I will come on to my hon. Friend’s amendments later, but the test is

“that the Secretary of State reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom”

and

“that it is necessary, for purposes connected with protecting members of the public in the United Kingdom”

to put the measure in place. I argue that the circumstances or scenario that my hon. Friend describes are potentially captured within the terms of the existing definition. However, I will return to his specific points in due course.

In the framework that we have adopted here, the individual’s passport would be revoked and they would be placed on a no-fly list, but their daily activities would not be disrupted in the same way as, for example, a TPIMs subject. This measure must be considered in that context. My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) highlighted the temporary nature of this; it is a two-year order that is capable of being renewed. As I have sought to describe, it is an issue of temporarily excluding during a period when someone may have made a request to return. The Bill clearly sets out the measures that would operate in those circumstances. Indeed, if deportation is envisaged the Secretary of State must, as clause 6 makes clear, issue a permit for return.

Turning to the amendments advanced by—

[Sir William Cash]

rose—

[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.

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[James Brokenshire]

I have clearly recognised the issues highlighted by David Anderson and by right hon. and hon. Members during this debate. The hon. Gentleman should take reassurance from my statements.

Amendments 21 and 23, which are in the names of my hon. Friends the Members for Stone (Sir William Cash) and for Gainsborough (Sir Edward Leigh), seek to create additional circumstances under which a temporary exclusion order may be imposed. I recognise the intention behind the amendments, and of course the Government agree that anyone who has pledged allegiance to another state or territory and repudiated their allegiance to the UK should be handled appropriately. However, the measure before the House has been carefully crafted with the specific conditions that I have highlighted. Indeed, the amendments appear to go significantly beyond the measure and would mean that an individual could be made subject to a temporary exclusion order without the Secretary of State reasonably suspecting that they have been involved in terrorism-related activity abroad; without the Secretary of State reasonably considering that the imposition of such an order is necessary to protect members of the public in the UK from the risk of terrorism; and, crucially, without the Secretary of State believing that the individual is located outside the UK, which goes against the heart of the temporary exclusion power.

My hon. Friend the Member for Stone is seeking to advance an argument that is perhaps more about addressing statelessness and citizenship, which strays beyond the ambit of the Bill and the temporary exclusion order. We have previously corresponded on the issue in the context of the scope of the 1961 convention on the reduction of statelessness. We perhaps differ on the interpretation of some of the detail, but the Bill has been appropriately framed and allows the Secretary of State to act clearly to ensure national security by taking action against those persons whom she reasonably suspects are involved in terrorism-related activity outside the UK, which goes to the heart of the measure.

[Sir William Cash]

The Minister frames his response in a reasonable manner but, in line with the international convention on the reduction of statelessness, which is relevant to this measure and to which David Anderson did not refer when he appeared before the Joint Committee on Human Rights, it is an act of treason when a person repudiates allegiance. Such repudiation is not just a theoretical, academic act under an ancient 1351 enactment; it is the repudiation of allegiance to the state. When someone repudiates that allegiance and adopts an allegiance to another state, it is treason. Surely, by their self-denial and repudiation, they have denied themselves the right to the liberties that have been referred to continually by all my colleagues who have said that we must insist on the common law and on the liberty of the subject. Such people repudiate it themselves.

[James Brokenshire]

I recognise the strength of feeling that my hon. Friend and other hon. Members have on the need to ensure that we are acting appropriately to address the threat of terrorism and the dangers and harm that may be caused by jihadists who have travelled abroad and who may wish to return to this country. This measure is about precisely that, which is why it is framed in this manner and why we have legislated for prosecutions to be brought where people return to the UK after committing acts abroad that would justify prosecution in this country. I recognise my hon. Friend’s points, but our judgment is that the Bill properly reflects that and gives the appropriate power.

With those comments, I hope right hon. and hon. Members will be minded not to press their amendments.