Counter-Terrorism and Security Bill

Dominic Grieve Excerpts

Monday 15th December 2014 Commons Chamber

[Mr Hanson]

This is a very strong and effective power, which the Opposition support as it will ensure that measures are taken against individuals who might go abroad for terrorist purposes, but I hope that the hon. Gentleman accepts that one of the balances of strong powers is the right to strong redress. It might only be for 14 days, as he says, or it might be for only 30 in due course, but that could mean losing a £5,000 or £6,000 holiday with no compensation, missing a family wedding or a person’s own wedding or losing a job opportunity for what could be a case of mistaken identity.

[Mr Dominic Grieve (Beaconsfield) (Con)]

rose—

[Mr Hanson]

I will let the right hon. and learned Gentleman intervene, because I know that he has expressed concerns about the power. In a very helpful article in The Guardian on 3 September, he said:

“Allowing police to confiscate passports at the UK border to prevent an aspiring young jihadi from leaving for Syria via Istanbul may be justifiable on good intelligence…But unless there is some rapid means of review there must be the likelihood that mistakes will occur as the use of this administrative power increases and perfectly innocent…people will find their travel plans wrecked.”

I agree with him and that is why, even given the 14-day period, I think that we should consider the proposal in amendment 17. I hope that the Minister will do so.

[Mr Grieve]

I expressed that concern and it remains a concern, but the interesting point about amendment 17 is that if we were to allow an appeal, as the right hon. Gentleman describes it, how quickly could such an appeal be heard and would it have a significant impact on the shortness of time in which a passport might be capable of being returned, given that we now know that there will be two weeks, or 14 days, for that return to take place? I listened carefully to what he has to say and it seems to me that he is making a good point, but I would also be interested to hear from my hon. Friend the Minister and from the right hon. Gentleman how such a system could be made to work in reality.

[The Temporary Chair (Mr Gary Streeter)]

Order. Before I call the shadow Minister, let me say that interventions should be slightly briefer than that.

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[Mr Grieve]

I am grateful to the right hon. Gentleman for giving way and I apologise, Mr Streeter, for taking up too much time. I shall be brief and make more frequent interventions, if I am allowed them. It seemed to me when I made that point back in September that a particular concern was somebody who might be prevented from going away for a wedding or for employment reasons and who wanted a rapid review, but I am also realistic about whether such a rapid review can be made available in practice. That was why I raised at a subsequent date the other question of whether we should consider compensation if somebody were disadvantaged.

[Mr Hanson]

I am grateful to the right hon. and learned Gentleman for that point and we probably agree on the principle. The purpose of amendment 17 is to give the Minister the opportunity to tease out the practicalities of deliverability for any form of appeal. I take the view—it may be old-fashioned, but that is not for me to say—that if someone is effectively charged with involvement in terrorism, which is why a passport will be removed, that is a serious initial action by the state against an individual. The individual might be the subject of mistaken identity or factually wrong information might have been given, whether maliciously or not. They might be travelling for perfectly legitimate purposes, as I have said. In each of those cases, they should ultimately have the right to say to a third party, “I appreciate that these facts have been put before the passport remover, but they are fundamentally wrong and I demand my passport back.” That must be possible in a more speedy and effective way than is the case under the Bill.

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[Mrs May]

I appreciate the eagerness with which the hon. Lady rises to refer to that case, but I have to say to her that I am not going to comment on a particular case. As the Minister indicated earlier, however, the Bill is not, of course, restricted in the type of terrorism it refers to, and it does refer to those who have taken part in terrorist-related activity outside the UK, but I emphasise that situations would be looked at case by case, so this is not a power that will automatically be applied to any individual who satisfies those criteria. It is a matter of looking on a case-by-case basis to determine where it is appropriate to apply this power.

[Mr Grieve]

I have listened carefully to what my right hon. Friend has said, particularly about our compliance with our own national and international legal obligations. One anxiety that has been expressed about this measure is that a person could be particularly vulnerable during the period before they might return, if they are located in a country whose human rights record is inadequate. I wonder whether my right hon. Friend might focus on that issue, because my understanding has been that consular protection would remain for such an individual in exactly the same way as for somebody whose passport was still working.

[Mrs May]

I am very happy to respond to that point. We as a country take the issue of human rights responsibilities very seriously in dealing with other countries and their treatment of individuals, but the individual would remain a British citizen and, notwithstanding that their passport had been cancelled and they had to apply for the permit to return, as a British citizen consular facilities would be available to them in those circumstances.

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[Mr Hanson]

I should like to speak to the amendments and new clauses standing in my name and those of my right hon. and hon. Friends. I am grateful to the Home Secretary for her explanation of the measures in the Bill, which are worthy of discussion today. We have tabled new clauses 4 and 5 to provide a supportive narrative to the one that the Home Secretary has put forward. The new clauses and amendments taken together form some of the options that could support the control of terror suspects who are at our border in the UK rather than at a foreign port. They provide a mechanism for the issuing of a notification and managed return order, which would be similar to the measure proposed by the Home Secretary but with a slightly different emphasis.

It is important that we recognise the threat posed by British citizens travelling abroad to participate in terror camps or to join the fight with ISIS in the middle east. The threat from ISIS is serious, and the Government need to do more to prevent young people from being groomed and radicalised to go and fight, and, using the measure in clause 1, to deal with such people when they try to return, having left the country to take part in such activity.

That threat is still live. On 21 October, the Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, was quoted as saying that five Britons were travelling to Iraq and Syria to join ISIS every week. The Government’s own information states that more than 500 Britons have travelled to Syria and that as many as 250 are now seeking to return. Self-evidently, we need a mechanism to protect the British citizen and to deal with those who wish to return. It is also vital that we are able to deal with people we know to be involved in these activities but who are unaware that we know about them. There is a synergy between what we are trying to achieve and what the Government are proposing. We particularly think there may be practical difficulties with the Bill in relation to individuals at foreign ports returning to the UK, and I would welcome the Home Secretary’s view.

The blanket exile proposal—I know the Home Secretary has not used that phrase—was referred to by the independent reviewer of terrorism legislation, David Anderson QC, as an

“announcement waiting for a policy”

when it was made. He was worried, and still has some worries, about whether it is legally and practically workable. We now have plans before us that, at first sight, appear closer to managed return than exile, but I wonder how they work in practice. If the aim of the policy is to keep dangerous individuals out of the country and then, ultimately, to manage their return, we need to explore real issues about that, not least what happens when individuals do not choose to apply for consent to come back—or indeed when they do choose to do that. The Home Secretary has touched on this, but what happens to individuals in particular countries? Would Turkey be happy to detain, potentially for months on end, a Briton suspected of illegally fighting for a terrorist organisation if he or she turned up at Ankara airport but was banned from departing to the UK? What options are in place for that? It is not clear whether the British Government have negotiated agreements with particular countries and whether they intend to do that on a case-by-case basis. What provision is in place—if it is not detention—to stop an individual who finds themselves faced with an order at the airport taking an alternative course of action, either returning to the host country in a different way, or returning and leaving for another country, not the UK? There is a practical argument as to what happens under the Bill to individuals in whom the Government have an interest.

Our new clause 4 seeks to examine an alternative model, which could work in parallel with the Government’s proposals but gives an opportunity for a managed return. We have tabled new clauses 4, 5 and 6, and the consequential amendments, which we are happy to look at and to reflect on, given what the Home Secretary has said about them. There is an argument to be made that the Government’s measure is too blunt a tool, in that it either prevents people from coming back or allows them to return. A more graduated response would give the security services and the Government much greater choice in how they want to approach each individual. Our notification and managed return orders proposal provides an alternative that gives security to the Government and takes effective action against individuals in whom the Government have an interest, but does so by allowing them to return to the UK and be managed in the UK, as opposed to leaving us facing some practical difficulties elsewhere.

Our approach would require carriers to provide advance notice of travel bookings for certain named individuals in whom the Government have an interest, and that is well and good. It would allow the British authorities to have advance knowledge and notice of suspects’ travel plans so that arrangements could be made for police interview or arrest at the port or border immediately on their return to the UK. If that model were used as well, it would in part transfer the procedure that the Government are trying to achieve in a foreign port to a UK port. At that point, interviews could be undertaken and action could be taken against an individual, and we could also ensure that we had dealt with an individual of interest to the UK Government in the UK That could be an alternative model.

[Mr Grieve]

Is not one potential problem with the right hon. Gentleman’s proposal, which is in many ways perfectly reasonable in structure, that it does not prevent the individual from continuing to travel abroad between third countries? If the UK Government reasonably suspect that somebody is involved in terrorism, ensuring that person’s managed return—an act of a responsible Government—to this country is perhaps a priority. Is there not a danger that the right hon. Gentleman’s proposal would enable such a person to continue using their passport abroad, because the carrier would have no responsibility to give notification of travel between different countries?

[Mr Hanson]

I am grateful to the right hon. and learned Gentleman for his intervention, which touches on one reason why we are presenting alternative, parallel models. I am not saying that the provisions in new clause 4 would be appropriate in every circumstance, but I do not believe—if the Home Secretary can convince me otherwise, we will look at that—that provision is in place for a formal managed return, as under our proposals; we simply have the Home Secretary’s proposals for a request to come back or for detention at a foreign port of entry to prevent someone from returning. We are seeking to give her a menu of options, and our approach could be a better way of managing individuals. Judgments will be made by Ministers and the security services as to how this could be managed, but the concerns expressed by David Anderson QC and by Liberty, which I thank for its assistance in helping us to table these provisions, give rise to a potential alternative that could be examined.

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[Mr Hanson]

It is still a big deal to refuse a British passport holder access to the United Kingdom. It is a very big step to take. I am not saying that it is the wrong step to take, but it is a big step. The powers under current TPIMs and, potentially, under the revised TPIMs, involve restrictions on movement and contact. The Bill as proposed could involve detention in a foreign country, pending return to the United Kingdom under a managed process. Charges may not have been made. A person could be held simply on the basis of evidence that has been gathered by the security services. Although those measures are not the same, an element of judicial oversight is something to which we should aspire. As a fair man, I am tabling these issues so that the Home Secretary can reflect on them because I am aware of the concerns that exist outside and inside this House. Undoubtedly, there will be heavy scrutiny of these sections of the Bill and their implications when the Bill reaches the House of Lords. It is important that we flag them up here to say that we should have in place a mechanism whereby the Home Secretary has to make her case to a relatively small cohort of individuals in order to progress the matter. I do not want to have the Home Secretary tied into a long-winded or unresponsive channel for application. I do not want the Home Secretary to have a slower processing ability that means she cannot enable counter-terrorism activity to take place in a speedy and effective manner.

However, if the Government believe that the TPIM regime is not unduly cumbersome when trying to control terror suspects in this country, there seems little reason why it should not be appropriate for use on individuals in other countries, particularly as the Home Secretary will often know who they are and have a close interest in them. The current stipulation is that the Home Secretary simply has to reasonably consider whether someone is involved in terror-related activity. That is a very low bar, and one that I think should be subject to judicial oversight.

In conclusion, I think that the Government should at least look at the alternative model set out in new clause 4, which has widespread support. I would also genuinely like to hear from the Home Secretary why she feels—she has already indicated as much—that the arrangements for TPIMs are not appropriate for what is still a severe restriction on liberty, which might be the right thing to do, under the proposed TEO notice. I look forward to hearing other Members’ contributions.

[Mr Grieve]

It is a pleasure to participate in this debate and to follow the right hon. Member for Delyn (Mr Hanson), who has put forward some alternative proposals, by way of probing amendments, on how this matter might be approached. Having listened to the comments from both sides of the Committee, it seems to me that there is actually a substantial measure of agreement that it is proper for the Government to take action to deal with the question of the managed return of individuals who have gone abroad from this country and whom the Home Secretary reasonably considered might be involved in terrorism.

It is slightly unfortunate that we have become mired in the title of temporary exclusion orders, because it seems to me, having read the Bill, that what we are really talking about is managed returns and how that process is properly to be done. In that context, the approach adopted by my right hon. Friend the Home Secretary seems perfectly logical. As I pointed out in my intervention on the right hon. Member for Delyn, one of the problems with his proposals is that as the passport remains with the individual whom the Home Secretary reasonably considers to have committed an offence, that individual could use the passport to travel between third countries at will. If the United Kingdom wishes to act responsibly, particularly as we currently have a system whereby we remove passports from individuals trying to travel abroad in some circumstances, it seems rather odd that we should preserve that mechanism.

On the other hand, there is an issue that I think the Committee has to consider. A point was made earlier about how notification of the removal or revocation of a passport might take place. In some cases it might prove impossible in practice to communicate the revocation to the individual concerned and to indicate that a managed return must take place, because the temporary exclusion order is now in place, through the person contacting the consulate. That raises the prospect of an individual turning up at an airport, having purchased a ticket, only to be turned away at security. I might be wrong about that, in which case it would be useful to know how the Home Office envisages that working in practice. That in itself might not matter at all. If we are dealing with a country that is a trusted partner—my right hon. Friend indicated that there were discussions with France and Turkey—that might not be a problem. The individual’s return might simply be delayed until they have gone to see the British consulate and been interviewed.

However, the proportionality test that has to be applied to these cases means that my right hon. Friend will have to assess whether an individual—notwithstanding the fact that she might reasonably consider them to have been involved in terrorism—might be put at serious risk of having their human rights infringed, for example by being detained or tortured, if revocation of their passport would lead to their being exposed as a person who could be viewed as a terrorist in circumstances in which the Government would feel unable to share that information with the Government of that country because they were concerned about the risks that would be attendant on their arrest.

There is an issue of practice and practicality that needs to be thought through, and I hope that as a result of this debate my right hon. Friend and the Home Office may be in a position to provide reassurance as the Bill goes through the House that they have that subject very much in mind. Having listened to my right hon. Friend talk about proportionality, I am reassured that this is a matter of which she is well aware, as I know from the experience of working with her as a colleague; she knows it can sometimes be an issue. Subject to that, the process that she has adopted, which requires the individual to go to the consulate and get, in essence, a one-way ticket back to this country so that we know when the individual is returning, seems perfectly proper as long as the delay period is not too long, and as long as there is not some subtext intention of causing that individual problems in the country in which they happen to be located—a point that I made earlier.

That brings me to a further point raised by the right hon. Member for Delyn, which is about judicial process. I raised on Second Reading and again subsequently my question why it is so difficult to have a system in which there is not a judicial process to initiate it. I appreciate that there is a difference between a TPIM and the temporary exclusion order proposed—a difference in terms of the restrictions that may be placed on the individual when they return, which are capable of being challenged by judicial review anyway, and because the revocation of a passport is an exercise of the royal prerogative, which is different in nature and quality from a TPIM. It is nevertheless a draconian sanction.

As my right hon. Friend will confirm, removing passports from individuals in this fashion is not a process that has previously been carried out, certainly not in circumstances where the individual when they are abroad does not have the possibility of accessing a different nationality, for example. I continue to wonder whether a judicial process might be valuable. My right hon. Friend may have powerful arguments to make against that, but I have not yet had explained to me in quite the detail I would wish the Government’s reasoning on this point. The point has been made that a temporary exclusion order may have to be issued as an emergency or rather quickly. The current TPIM system allows for a TPIM to be issued without a judge’s sanction—an imprimatur—if necessary, so that could be included in this process.

However, it strikes me—perhaps I am wrong, and I am always prepared to be persuaded that I am wrong—that in this process there is likely to be a slightly more leisurely approach anyway, because the Government will know that an individual is abroad and likely to come back to the United Kingdom, and unless that return is likely to happen very quickly, I would have thought it might normally be possible to apply ex parte to a court for the order to be sanctioned and for some scrutiny to be carried out as to the reasons why it is to take place. If that were to happen, it would also allow for a measure of judicial scrutiny as to whether the issue of the temporary exclusion order might endanger a person’s fundamental rights because it would expose them to risk in their present location.

Those are my thoughts on this matter. I should make it clear that I put them forward in an entirely probing spirit because the principle of what my right hon. Friend is doing seems to me, as I indicated earlier, to be utterly unexceptionable, even though it is an unusual power. However, in the context of the risk and threat that the United Kingdom faces which, as I have said on several occasions, I believe to be a real threat, this is reasonable, necessary and proportionate to a legitimate goal that the Government are trying to achieve. I hope that as the Bill goes through the House we will have an opportunity to examine the proposal, which will enable us to get the right outcome on the provision. If we get the right outcome, history has shown that it will cause my right hon. Friend the Home Secretary far less trouble with court challenges thereafter.

[Frank Dobson]

As the Member for Holborn and St Pancras, whose constituency and constituents experienced the bombs on the tube at Russell square and on the bus at Tavistock square, I am second to no one in my desire to prevent terrorism from taking place in this country. It behoves all of us to do whatever we can to protect people in this country from terrorism and not to have terrorists on the loose, whether they are home-grown and have not been abroad, foreigners who come here, or British citizens returning to Britain. Those British citizens have rights and duties. One of their most important rights is the right of abode in this country as a citizen, but they also have a duty not to break our law or, as I understand it, international law.