Counter-Terrorism and Security Bill

Dominic Grieve Excerpts

Tuesday 2nd December 2014 Commons Chamber

[Mrs May]

They are not de facto stateless. It is open to somebody to return, but the proposal is that they would be returning on our basis, under documents that would be issued by the Government, and therefore we would be aware of their return, be able to manage that return and, as I have indicated, take appropriate action when they return to the UK. So this is not rendering people stateless.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I understand the system that my right hon. Friend is putting in place of managed return, but what is not clear in the Bill is the system that will be present to enable that managed return requirement to be challenged. I wonder whether she can help the House on that point. It seems to me that there must be a mechanism by which a person who is told that they have to return in a particular way can challenge it on their return to this country, and do so expeditiously, if it is not to be an unwarranted interference with their rights.

[Mrs May]

There will be a form of challenge available to an individual under judicial review. We will also have to notify the individual that action is being taken against them, so that they are aware that the measure is being put in place.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

It is a pleasure to be able to participate in the debate. At the outset, I should say that I welcome my right hon. Friend the Home Secretary introducing the Bill. I entirely agree with her that the House needs continuously to address the challenge and threat that terrorism poses to us. Some people think that the threat is exaggerated, but from my time as Attorney-General—I had to see some of the background briefings, and sometimes to consider cases relating to individuals who had gone abroad, particularly to Syria and Iraq—I have no doubt that she is absolutely accurate in her description of the real threat they pose to us.

With that in mind, I do not intend to take up much of the House’s time on my broad welcome of the legislation. Although the House will want to look in detail at the proposals on TPIMs and data retention, which is undoubtedly important, and the measures on preventing people from being drawn into terrorism, there is no doubt in my mind that they make good sense.

However, I hope to take a little of the House’s time this evening to talk about chapter 2, on temporary exclusion from the United Kingdom; I have flagged up my concerns on how the House should best proceed on that in a question to my right hon. Friend the Prime Minister. It is a fundamental principle of the common law in this country that an individual, unconvicted—the presumption of innocence applies—should be free to reside in his own land. The principle of exile, as a judicial or even an administrative tool, has not been tolerated in this country since the late 17th century. It is certainly no part of our criminal justice panoply, and certainly not part of administrative provisions or powers given to the state.

[Chris Bryant]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

I shall make a bit of progress.

Therefore, when we consider the question of temporary exclusion from the United Kingdom, we must bear it in mind that what is proposed, even if exclusion is on a temporary basis, is a draconian and unusual power being taken by the state. The point has been made that the proposal could be in breach of our international legal obligations by rendering a person stateless.

That is a separate consideration, and I know the Home Secretary has had it in mind in introducing the legislation, but I come back to the more fundamental point about the common law right. The point is often well made that as Parliament is sovereign, it can exclude the common law whenever it likes, but the fact is that the more fundamental the common law principle, the more careful we should be before excluding it. I simply say to my right hon. Friend that this is one of those common law rights that I regard as being of a fundamental character.

If I move on from that to consider what is proposed, I am pleased to note that it seems to me that my right hon. Friend the Home Secretary has given careful consideration to the issue. The temporary exclusion orders, which she has put forward, appear to be of a character such that she accepts she must issue a permit within a reasonable time after a person makes the application. The process therefore is—in my view, correctly —one of managed return: a return that provides reassurance that the state, which has to protect citizens here, knows of the returnee coming back to this country and, furthermore, provides opportunities, if necessary for the state to impose conditions on that individual after they have come back.

I have to say to my right hon. Friend that what has intrigued me in reading the Bill is the relationship between that and the TPIMs the Bill seeks to enhance in a number of perfectly legitimate and sensible ways. As she will know, the TPIM is also a serious interference in the liberty of the subject, and is therefore provided with a number of safeguards and protections in how it operates. The principal one is that although the Home Secretary instigates the application for a TPIM, the process has to be initiated through the High Court. There are some circumstances, however, in which that can be bypassed in the event of an emergency, and permission sought retrospectively.

The obligations after return to the United Kingdom, in clause 8, appear—the Minister may be able to help us when he comes to sum up—to be in large measure identical to those one might expect a TPIM to include, although there may be some differences, in which case it would be useful to have some clarification. Of course, the principal difference, as far as I can make out, is that this process does not have to be instigated by an application to the High Court; it is simply done on the basis of the Home Secretary concluding that she has reasonable grounds for requiring this process to take place.

I have to say to my right hon. Friend that I will be interested, in the course of the debate during the passage of the Bill, to understand why we should introduce two separate regimes of this kind. We know that, in respect of TPIMs, she has been broadly satisfied with the way they have been operating, even though she wishes to expand some of their scope. That is, I think, supported on both sides of the House. After all, if an individual is located in Iraq or Syria, or has crossed the border into Turkey and has indicated a desire to return when my right hon. Friend has removed his or her passport, the one thing one probably has as a result of this legislation is a short period of leisure—the reasonable period where the application is being made—for, if necessary, the process of a TPIM, or a TPIM which applies to a returnee, to be instigated through the High Court. I am a little mystified as to why we should simply resort to a judicial review process, which, although I accept it may comply with our international legal obligations and also the principles of due process, is nevertheless by its nature likely to be more ponderous and cumbersome, and would not allow the High Court to be seized of this matter at an earlier opportunity.

I say to my right hon. Friend that this is a matter on which we need to spend a bit of time during the passage of the Bill, to see whether in fact the two ways of approaching this are justified. Beyond that, I want to emphasise that the principle of the managed return seems to me eminently sensible, and my right hon. Friend has my support on it. The House will of course also want to look at some of the other issues that may apply to the details in respect of this scheme.

On the seizure of passports, the point needs to be made that a passport is not actually a right to come into the United Kingdom. I say that because we have discussed it in the terms of the matter I have just been talking about. Ultimately, the issue of a passport is a prerogative power. It is, in some ways, vouching for the person concerned. There are many reasons why my right hon. Friend may rightly remove somebody’s passport, either before they leave the United Kingdom or when they are abroad. However, I raise the following issue. We are progressively giving more and more summary powers to seize passports. There is nothing wrong in that, if, for example, it is preventing people from leaving the country when there are good grounds for considering whether they are going to commit, or are likely to commit, an act of terrorism, but it increasingly raises the likelihood of travel documents and passports being seized when it might turn out subsequently on examination that there was no justification.

The memorandum, properly prepared and passed off—I am sure—by the Law Officers before being issued, makes the point that taking passports interferes with article 8 rights. It must therefore raise the possibility of individuals who can show that their passports were wrongly taken making a claim for compensation. As far as I am aware, no issues of compensation have hitherto arisen from passport seizure. I appreciate that it might be different were it done maliciously, but I am talking not about malice but about errors made at the time the passport was removed.

During the passage of the Bill, I hope that my right hon. Friend and other colleagues on the Front Bench will think about the likely consequences, which might often be financial, of increasing powers of passport removal. I do not think that where there are reasonable grounds to suspect involvement in terrorism an individual has a right to compensation, but unfortunately there might be instances of people being targeted when they have no involvement in terrorism.

Ultimately—I have said this previously in the House, but it is worth saying again—we are engaged in a values battle. We will not stop terrorism or prevent young people from going to participate in terrorism by whatever methods of law we pass in this House, however draconian they might be; we will stop this phenomenon when we can persuade people that the virtues of our society, which are many, despite some of its drawbacks, are very considerable and that its values should be respected. For that reason, when we enact such legislation, we must have it in mind that we do not, as an unintended consequence, create the very resentments that are likely to fuel terrorism in the future.

Listening to the shadow Home Secretary, I was reminded that I have said that previously—over 90-day and 42-day pre-charge detention, both of which, I might add, were far more draconian attempts at interfering with the liberty of the subject than anything my right hon. Friend is doing in this measure, which I know she has brought forward with a prudent eye to the issues I have raised. On that basis, I welcome the Bill, but I hope that the matters I have touched on will be given serious thought.

--- Later in debate ---

[Sir Menzies Campbell]

No, it certainly would not. I think that that points up the fact that perhaps the issue was to find a description that, as has been suggested, might easily fit a headline, rather than the substance of the proposal. I see heads shaking on the Treasury Bench, but it would not be the first time that a definition created for easy understanding by the public and the press did not accurately reflect the precise terms of the legislation.

One difficulty is that the Government, although they were no doubt informed by the advice of Law Officers, have none the less produced something that on any view innovates against the principle of the right of return. I respectfully say that if that principle is as inviolate as has been suggested, any such innovation must be contrary to law and contrary to practice. In that, I differ from my right hon. and learned Friend the Member for Beaconsfield but, as was pointed out to me on my first day as a law student, lawyers are well paid for being wrong 50% of the time. There are genuine differences of emphasis and understanding. The one thing we can be most certain about, however, is that this matter will be tested in the courts and, no doubt, in the Supreme Court in due course.

[Mr Grieve]

I should emphasise that I do not disagree with the right hon. and learned Gentleman’s characterisation of “contrary to law”, which is why we have to be so very cautious about this. However, Parliament is ultimately sovereign and despite the existence of great things such as Magna Carta and habeas corpus, Parliament has, on occasion, ignored some of the key terms of both. One has to remember that power ultimately resides here, but when one starts to interfere with what is seen as a fundamental common law right, one should look at it carefully, and the courts will look at it carefully if they come to have to scrutinise it.

[Sir Menzies Campbell]

A lot would depend on the interpretation of the strength of the right that a court was willing to place on the right of return. That is why I suspect that this will eventually be a matter for the Supreme Court, rather than for any intervening forum between the House of Commons and the Government.

I wish to draw attention to another element in this matter. My right hon. Friend the Home Secretary and her successors—I almost said heirs and successors, according to law—have a considerable discretion conferred upon them in this matter, first, about the imposition and, secondly, about the terms of a permit. It is said that judicial review is available for this, but let us consider the position of someone in a foreign country with a legal aid system less generous than ours—how could we even describe ours as generous these days? What is the possibility of their mounting a judicial review in advance of accepting that they can return only under certain conditions? David Anderson QC, who has already been referred to with some approval in this debate, has drawn particular attention to this matter. So the Government would be well advised to follow the suggestion that came at one stage in our debate—I do not recall from which side of the House—to ensure that there is some intervention from the court much earlier in the system. My right hon. Friend might be obliged to go to court to ask for such an order.

As my right hon. and learned Friend the Member for Beaconsfield and I can agree, even if we do not agree in the ultimate interpretation, these are matters of considerable seriousness involving the liberty of the individual. In those circumstances, not only would it be right and proper to have the intervention of the court, but that might avoid the Home Secretary and her successors being engaged in political controversy because of the pronouncement of a TEO in a particular case. So I retain my scepticism and there is certainly a requirement that if this provision is to pass into law, the discretion of the Secretary of State should not be as stated in the Bill. Instead, there should be a requirement to seek judicial authority before the pronouncement of such an order.