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?
12.30
pm
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.
There should be no right to
prevent an individual who is in this country and who is not otherwise
subject to detention to be brought to trial going to a foreign
country. That said, I will not quibble about there being circumstances
in which one should be entitled to do so. We started doing so in the
case of football banning orders where there was a clear correlation
between the intention of the visit and causing mayhem at a foreign
football match. We then moved it on towards sex offenders, again,
because of the point about propensity and the clear existence of sexual
tourism. In this case, it is clear that the Government will have to be
careful about how they exercise this particular power. Will it prevent
people from travelling outside the United Kingdom generally or will it
prohibit people from travelling outside the United Kingdom to a
specified destination because of reasonable grounds that they will
engage in terrorism when they get
there? 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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