Counter-Terrorism Bill

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Schedule 5

Foreign Travel Restriction Orders
Mr. McNulty: I beg to move amendment No. 158, in page 77, line 30, after ‘order’, insert ‘in respect of a person’.
The Chairman: With this it will be convenient to discuss the following: Government amendment No. 159.
Amendment No. 211, in page 77, line 33, leave out sub-paragraph (3) and insert—
‘(3) The second condition is that the court making the order is satisfied to the criminal standard that, since being dealt with for the offence by virtue of which those requirements apply, the person has acted in a way that gives reasonable cause to believe it is necessary to make a foreign travel restriction order to prevent the person from taking part in terrorism activity outside the United Kingdom.’.
Government amendment No. 160.
Amendment No. 212, in page 77, line 37, at end insert—
‘(3A) The third condition is that the making of a foreign travel restriction order will not breach any right of free movement within the Treaty on European Union or Directive 2004/38/EC of the European Union or subsequent instrument.’.
Government amendments Nos. 161 to 163
Mr. McNulty: We will return to some important non-Government amendments in this group. The Government amendments are, again, essentially technical and tidy things up.
Government amendments Nos. 158, 159, 161 and 162 remove references to “defendant” and instead refer to “person”. That is to improve the drafting style, apparently, and bring paragraph 2 in line with the rest of the schedule, which refers to “person” rather than “defendant”.
Government amendment No. 163 removes sub-paragraph (6) from the schedule as it is no longer necessary if references to the “defendant” are removed through the other amendments.
Government amendment No. 160 removes the “reasonable cause to believe” test from the conditions for making a foreign travel order, bringing the provisions into line with the tests for making foreign travel orders under the Sexual Offences Act 2003 and other similar civil orders.
Amendment No. 211 would include in the Bill the requirement that the court applies the criminal standard—beyond reasonable doubt—when considering the reprehensible behaviour. We do not accept the amendment. There is no such express provision in the foreign travel order measures in the Sexual Offences Act, or in relation to the successful football banning orders or other civil orders, such as—notwithstanding the recent interest from their lordships—violent offender orders in the Criminal Justice and Immigration Act 2008. It states “Act” in my notes rather presumptively—I do not think it is an Act yet, is it?
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The Parliamentary Under-Secretary of State for the Home Department (Mr. Vernon Coaker): Yes. It happened last week.
Mr. McNulty: Okay. It is therefore unnecessary to set the standard to be applied by the court in the Bill. I ask that the amendment be withdrawn or resisted.
Mr. Grieve: I have not moved it.
Mr. McNulty: Whenever it is moved, however eloquently it is done, I shall ask for it to be resisted or withdrawn. Amendment No. 212, which we will come on to, would ensure that foreign travel restrictions do not breach any right of free movement within the EU as provided for in the directive. Article 27(1) of the directive provides that member states may restrict the freedom of movement of Union citizens and their family members on the grounds of public policy or public security. Article 27(2) provides that such a measure must be proportionately based exclusively on the personal conduct of the individual concerned, which clearly, these matters are. As and when that is moved, I shall ask again for withdrawal or resistance. Wrapped around those amendments and at the core of this are the Government amendments, which, as I have suggested, are merely tidying up or technical amendments. I commend them, but not amendment Nos. 211 or 212—however eloquently they are about to be moved—to the House.
Mr. Grieve: I shall not comment further on the Government amendments. I accept that they are of a fairly minor nature. Amendment Nos. 211 and 212, which the Minister has dismissed before I have had chance to speak to them, were intended to be probing amendments. It is quite important to go back to basics. We have now become quite ready to prohibit people from travelling abroad. We have been doing so for some time and the Minister has rightly highlighted football banning orders and sexual offender orders. Such a measure is, of course, a very serious restriction on the liberty of the subject because historically it was essentially prohibited in the clauses of Magna Carta.
I would not want the clause to go through on the nod because in terms of restrictions on the liberty of the subject it is—I think we sometimes abuse this word—a draconian sanction. Generally speaking, we have no business prohibiting people from travelling to a foreign country just because the state takes the view that they are dodgy. That is really what we are dealing with here. I simply say to the Minister that the two amendments were designed to probe this issue and to make sure that we do not create a power that could be abused.
The issue that particularly interests me is that it is clear in paragraph 1 that specified countries can be named as being places on which a prohibition may be attached. The Minister will be perfectly aware that the difficulty with that is if one prohibits someone from travelling to Pakistan, there is nothing to stop them travelling to France and hopping on the first plane to Pakistan, if that is what they are minded to do. We will not be able to do much if they do not come back to this country, unless we are able to prove on their return, which may be extremely difficult, that that is where they went. Blanket prohibitions on leaving the country could, I envisage, turn out to be a fertile field for judicial activism and there could be a lot of litigation. I simply wanted to flag up to the Minister that I am not against the principle behind the measure, but I hope that it is applied sparingly. If it is not, we could end up with problems.
The Chairman: Order. May I clarify at this point that the Minister and the hon. and learned Gentleman have been speaking to amendments to amendment No. 212. They have not been moved and may not be moved in the light of this debate.
Mr. Heath: I am grateful, Mr. O’Hara—that may well be the case.
I simply wanted to ask, using the context of the amendment, but perhaps pre-empting the need for a stand part debate, how and on what basis the provisions will apply to the bearer of a passport that is not a British passport? On what basis would a person who is no longer subject to detention or custody in this country be restricted from travelling to their country of origin using the passport of their country of origin? On what basis are the British Government to be able, as they apparently will be under the schedule, to confiscate all passports, which implies passports issued by a foreign Government, which are not the property either of the individual or the British Government?
Mr. McNulty: I am sorry for my pre-emptive behaviour earlier—
The Chairman: Order. My clarification was to indicate that it was not pre-emptive.
Mr. Blunt: It was provocative.
Mr. McNulty: I do not apologise for provoking a Conservative, for God’s sake—that is what I was put on the Earth for.
I agree with the broad sweep of the comments made by the hon. and learned Member for Beaconsfield: the power is a strong one and should be used sparingly. For that reason, there are strong appeal and variation provisions in the schedule, unlike some of the other measures that we have discussed, such as those on notification and other matters. The measure, however sparingly it is used, will be a useful device.
The point about not going to a designated country as outlined in schedule 1 is picked up in paragraph 6(1)(b) of schedule 5, which talks about going to another country via a third country.
On the broad point made by the hon. Member for Somerton and Frome, the Government can confiscate a foreign passport, but there is nothing to stop a person going to the embassy to get another. However, one would hope, notwithstanding the collective wit of the authorities, that that person would go on to a watch list and, the next time they present their passport when they come back into the country, they will not be permitted to do so.
I would not say that the power is draconian, but it is strong, and notwithstanding recent experience, it should be relatively sparingly used. None the less, we believe that it will add to the greater arsenal, for want of a better phrase, of provisions available to us in the fight against terrorism. As I have said on a range of matters, I do not afford panacea status to any of the provisions of themselves but, taken as a whole, they will be useful. I do not deny, as both the hon. and learned Gentleman and the hon. Gentleman said, that it is worth exploring the substantial provisions in the schedule because they are important and serious. However, as the hon. Gentleman generously said, the measure could be of some help in our struggle, if it is used only sparingly. However, if one reads the whole schedule, including the technical amendments that I hope to make, one will find the appropriate checks and balances for what is, after all, a serious power that will be, if used sparingly, used seriously. It will have a serious impact, which is the whole purpose of the measure.
Amendment agreed to.
Amendments made: No. 159, in schedule 5, page 77, line 31, leave out from ‘that’ to the end of line 32 and insert
‘the notification requirements apply to the person’.
No. 160, in schedule 5, page 77, line 33, leave out from ‘that’ to ‘necessary’ in line 35 and insert
‘the person’s behaviour since the person was dealt with for the offence by virtue of which those requirements apply makes it’.
No. 161, in schedule 5, page 77, line 38, leave out ‘defendant’ and insert ‘person’.
No. 162, in schedule 5, page 77, line 39, leave out ‘defendant’ and insert ‘person’.
No. 163, in schedule 5, page 78, line 4, leave out sub-paragraph (6).—[Mr. McNulty.]
Schedule 5, as amended, agreed to.
Clause 56 ordered to stand part of the Bill.

Clause 57

General provisions about rules of court
Mr. Hogg: I beg to move amendment No. 213, in clause 57, page 40, line 26, at end insert—
‘(c) the need to ensure that the manner in which the proceedings are conducted is fair to every party to the proceedings.’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 207, in clause 57, page 40, line 29, leave out paragraph (b).
No. 214, in clause 57, page 40, line 32, leave out subsection (4).
No. 208, in clause 57, page 40, line 33, leave out paragraph (a).
No. 216, in clause 58, page 41, line 23, after ‘interest’, insert
‘and that the withholding of the material would not cause injustice to a party to the proceeding,’.
No. 225, in clause 58, page 41, line 25, leave out ‘consider requiring’ and insert ‘require’.
No. 217, in clause 58, page 41, line 30, after ‘interest’, insert
‘and is sufficient to ensure that the conduct of the proceedings will be fair to all parties to those proceedings.’.
No. 226, in clause 58, page 41, line 30, at end insert—
‘(f) material which supports the case of a party to the proceedings may not be withheld from a party to the proceedings or from that party’s legal representative and material which adversely affects the Treasury’s case may not be with held from any party to the proceedings or their legal representative.’.
Mr. Hogg: This is rather an important clause and rather an important set of amendments. We are dealing here with the powers given in the Bill for the making of rules relating to the asset-freezing procedures. Those procedures, which are set out in clause 56, are fairly far reaching.
My reading of clause 57 makes me extremely depressed. All the provisions are designed to benefit the Treasury, and none is designed to benefit the person whose assets may well be frozen. In the various amendments that I have tabled, I have tried to ensure that the maker of the rules is obliged to consider a number of criteria that are designed to benefit the individual, not the state.
For example, the lead amendment, No. 213, requires the maker of the rules to have regard to the need
“to ensure that that manner in which the proceedings are conducted is fair to every party to the proceedings.”
One would have thought that one would not have to say that, but the way in which the law is being construed and implemented means that one does.
Nothing in the Bill requires the maker of the rules to have any regard to the person whose property is about to be taken. The Minister might say that that is all inherent in the convention on human rights, and some parts may be, but I want us as parliamentarians to enact legislation in such a way that people cannot criticise us for not addressing such matters. It is quite plain that we should require the maker of the rules to have regard to fairness.
I am also concerned by subsection (4), with which amendment No. 214 deals. As the Committee will appreciate, subsection (4) enables the maker of the rules to make provision for proceedings to be heard in the absence of the person concerned or their legal representative. It also enables the rules to provide for the proceedings to take place without full particulars of the relevant reasons being given to the parties, and it enables the court to proceed on the basis of a summary of evidence rather than full evidence. That is extraordinarily one-sided, and I have tabled the amendments to try to ensure that the maker of the rules is obliged to consider issues of fairness.
12.45 pm
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): The right hon. and learned Gentleman will recall that during our last sitting, we discussed a possible challenge by an innocent third party whose property had been confiscated. Subsection (4)(b), to which he referred, states that proceedings can be conducted
“in the absence of any person, including a party to the proceedings”.
Where does that leave the innocent third party if that property belongs to him?
Mr. Hogg: That is a fair point which I have not yet addressed. Although the debate last week related to forfeiture, whereas this debate relates to freezing, it is perfectly true that the same issue could arise. I take the hon. Gentleman’s point entirely. I can conceive of circumstances in which the imaginary Mr. McNulty will not know that his property, which is in the hands of the person who is the subject of the freezing order, is likely to be frozen. I do not have an answer. The hon. Gentleman is right to identify and flag up the issue—it must be addressed.
Mr. Llwyd: I was not quizzing the right hon. and learned Gentleman, I was bouncing a question in the hope that we will have a response later in the debate.
Mr. Hogg: I am glad about that, but it is a serious point and I am glad that the hon. Gentleman has raised it. It needs to be addressed, at least, that is my immediate feeling about it.
Amendments Nos. 216, 225 and 226 are about disclosure rather than the general provisions. I can understand the grouping because clause 58 deals with rules about disclosure. My concern is that there is no provision in the Bill that causes the maker of the rules to consider the impact on the person whose property might be frozen of withholding classes or pieces of information. The maker of the rules should have to consider those matters, so that a court is not in a position to make orders that prohibit the disclosure of information where the prohibition on the disclosure would be unfair.
That is the same category of argument that I have been raising. Parliament has a duty to take account of the interests of those people—however unworthy they may be—and ensure that no unfairness is done on the face of the Bill. I hope that the Minister will give serious consideration to what further language should be used to ensure, as best one can, that the interests of the individual whose property may be the subject of the freezing order are properly safeguarded, both as to the hearing and the disclosure of the material.
Mr. Grieve: I join my right hon. and learned Friend in having the gravest reservations about the wording of clause 57, in terms of setting down general provisions about rules of court. I also share his anxiety about disclosure, although on my reading, the rules on disclosure closely follow those on the existing system for control orders in providing protection for the use of intercept and other intelligence evidence. That raises anxieties, but they do not seem to justify the extraordinary nature of the rules in clause 57.
The Committee will see that I have tabled two amendments to clause 57. The first would remove subsection (3)(b), which says that rules of court may make provision—
“enabling or requiring the proceedings to be determined without a hearing”.
The second one would leave out subsection (4)(a), which allows the rules of court to make provision—
“enabling the proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a party to the proceedings (or to any legal representative of that party);”
Those provisions cause me considerable concern about how the proceedings can be fair. If the matter of amendment No. 208 can be construed as being in the context of intelligence evidence, enabling or requiring proceedings to be determined without a hearing is something that I find totally inexplicable. On the face of it, I cannot see how any rules of court which make such a provision could pass the first and most basic test of fairness that one may require. I would be particularly interested, therefore, in the Government’s justification of it.
What is needed now is a general debate in which I expect the Minister to set out in considerable detail how he expects this system to work in practice. I also going to require him to justify each and every one of the provisions which depart from the normal standards that one would expect to find in civil proceedings of this type.
I want to make it clear that I am not unsupportive of the need to have a special procedure. It has been recognised that we want to try to use intercept evidence, and that in itself is a novelty that is going to present considerable details to the Minister and to the Government. But the process has to be fair—all the more so because we are not dealing with controlling individuals, which might be argued to be an absolute necessity in the context of terrorism; we are arguing about property, and I am going to need a lot of persuasion that each and every one of these provisions is necessary. However, I would say to the Minister that I am open to persuasion.
Mr. Llwyd: I rise briefly to support the arguments made in support of the amendments, and in particular to speak to amendment No. 213, which stands in the name of the right hon. and learned Member for Sleaford and North Hykeham. It is obviously a prerequisite that there should be fairness in the system. Otherwise, the whole system will break down, whether as the result of legal challenge or in another way.
We must read clause 57 alongside clause 56. The Treasury is to determine whether an application will be made or not. Under clause 57(3)(a), rules of court may make provision
“about the mode of proof and about evidence in the proceedings”.
That fills me with great concern. I hope the Minister will tell us more about that provision, whether it is about the standard of proof or its precise meaning. I do not quite understand the wording. Looking at subsection (3)(b), to echo what the hon. and learned Member for Beaconsfield has said, there is something Kafkaesque about making rules of court to enable no hearing to take place. In fact, it borders on the ridiculous that this could be an administrative decision, by the Treasury, to freeze these assets without notice to anyone, without inviting anybody’s opinion and without allowing for the possibility of an innocent third party who might or might not be the owner of the assets that are being frozen.
Subsection (4)(b) refers to,
“enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings”
I stress that, like other hon. Members, I have no desire to prevent a proper system from being introduced. Clearly, that is an important tool in the armoury, as the Minister said earlier. However, we must ensure fair play; otherwise, this part of the Bill will soon unravel.
I am very concerned about the idea that proceedings will take place in the absence of a party and the legal representative of that party. Let us imagine that the party is a trustee of some fund or that moneys have been entrusted to him or her in an innocent way. It seems that those moneys could be taken away without any challenge from a third party. To be fair to the Government, in another clause, regarding confiscation, there is provision for a party legitimately claiming to be the owner of property to be heard. The Bill may contain a similar provision covering asset-freezing proceedings, but I cannot find it. In the circumstances that I have described, is there any way in which a person with a legitimate claim to the moneys could be heard in the process, or will that voice be shut out completely, just as, unfortunately, under subsection (4)(b) will be the person who is the subject of the proceedings? Those are important points and I am sure that the Minister will have answers for every one of them. The position is not obvious from the Bill and we need answers.
Mr. Heath: I do not want to extend my observations into this afternoon’s sitting, so I shall be exceedingly brief. One does not have to be against the principle of this aspect of the Bill to raise pertinent questions about how it will withstand any challenge, which we are familiar with in the context of control orders and which we know lies further down the road. If the provision is not sufficient to meet the terms of any challenge under human rights or any other legislation, it will not do the job that the Government want it to do.
We need to be a little more circumspect than usual, not only because of the experience of the past few years and the difficulties thrown up by court proceedings in respect of control orders, but because we are talking about what is essentially an executive action on the part of the Treasury. I understand why the Treasury is involved. Of course it is: it is the Government Department in this country that deals with financial matters; it is Her Majesty’s Treasury. However, the Treasury is not the Ministry of Justice, or even the Home Office, so it is important that anything done by the Treasury in this respect is clearly seen as being in accordance with the principles of justice and fair play to the individual as well as to the state. That is why some of the concerns expressed have been put before the Committee and why the Minister must take exceptional care to ensure that the clause is in good order before the Bill proceeds to later stages.
Mr. McNulty: I have heard what all the speakers have said and I understand the import of their remarks. As the hon. and learned Member for Beaconsfield said, the provision is not new. It reflects as closely as we can the special advocate system that prevails in the Special Immigration Appeals Commission. For a lot of people, that system is not entirely satisfactory, and I have met special advocates to discuss at some length both SIAC and other matters. In the Proscribed Organisations Appeal Commission, we have the same system. It is not Kafkaesque. If we are considering how to, at least in part, afford people a degree of fairness from what starts as a simple Order in Council and we can go thus far and no further, given some of the material before the court, it is perfectly appropriate to put rules of court around those hearings, because they do not exist otherwise. As with SIAC and POAC, it is more than appropriate for cases to be dealt with in this fashion.
It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four o’clock.
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