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House of Lords

Tuesday, 20 January 2015.

2.30 pm

Prayers—read by the Lord Bishop of Coventry.

Schools: Arts Subjects


2.36 pm

Asked by Baroness Kidron

To ask Her Majesty’s Government what steps they will take to ensure that arts subjects have equal weighting in the new Progress 8 measure.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, a rich cultural and creative learning experience is an essential part of a good education, and Progress 8 will provide schools with more incentive to enter pupils for arts subjects than the existing performance table measures. The current indicator captures only five subjects, including English and maths. Progress 8 will capture eight subjects, leaving more space for arts subjects.

Baroness Kidron (CB): I thank the Minister for his vocal recognition of the importance of arts subjects. However, the question relates to the formal place of arts subjects in schools and the widespread concern that they have been downgraded as a result of the reorganisation of performance measures. Since arts subjects fuel our economy and enrich our cultural life, does the Minister not agree that they should be entitled to the same prioritisation and levers through Ofsted and Progress 8 as the subjects associated with the EBacc?

Lord Nash: I entirely agree with the noble Baroness on the importance of arts subjects, but we are starting from a very low base. Under the last Government, the number of pupils taking a core academic suite of subjects collapsed from 50% to 22%. Under this Government, the figure is back up to nearly 40%. We hope that with Progress 8 building on our EBacc we will now see an increase in arts subjects—and we have seen an increase in arts GCSEs in 2013 and 2014.

Lord Geddes (Con): Does my noble friend agree that dance and music, in particular, form part of an all-round education?

Lord Nash: I agree entirely with my noble friend; they are essential subjects. We hope that as a result of our reforms there will be an increased focus on them.

The Lord Bishop of Peterborough: My Lords, does the Minister agree that the encouragement of arts or liberal humanities subjects is for the benefit of human flourishing and is also essential for preventing the

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development of extremism in religion and politics, and is therefore to be positively encouraged by government?

Lord Nash: I agree entirely with the right reverend Prelate. A rich cultural education, a knowledge of history and an understanding of British values are all part of a good education and should help combat any temptation to radical ways of life.

Baroness McIntosh of Hudnall (Lab):My Lords, I think that everybody in this House would accept that the Government’s focus on STEM subjects has its merits, but does the Minister agree that the crude distinction made recently by his right honourable friend the Secretary of State between the value of STEM subjects and the value of arts-based subjects is unhelpful and that whatever he says about schools being encouraged to offer the arts, it is almost inevitable that subjects that are not promoted will be marginalised and that pupils will lose out?

Lord Nash: On average, pupils take over 11 key stage 4 subjects, so there is plenty of scope for the arts. The Secretary of State does not underestimate their importance, but we need to encourage more young people—particularly young women—to consider widening their options to STEM subjects.

Baroness Williams of Crosby (LD): Does the Minister agree that much of the advance of this country’s influence on the world in the last few years has lain in the field of film, literature, theatre, drama and television? In area after area we have received remarkable awards from international bodies and a widespread recognition of the extraordinary contribution that the arts and theatre in this country have made to our standing in the world.

Lord Nash: I agree entirely with my noble friend. We have invested £340 million in arts and cultural programmes over the last three years, including £3 million for the British Film Institute’s new Film Academy.

Baroness Coussins (CB): My Lords, is the Minister aware that the Progress 8 measure could be the kiss of death for languages, as it does not stipulate which EBacc subjects need to be taken? The recent increase in take-up because of the EBacc is likely to be reversed, and some head teachers are already saying that languages will be downgraded in light of the Progress 8 measure. What will Her Majesty’s Government do to counter that?

Lord Nash: We have brought back languages into primary schools, which I think all parties have acknowledged was a good move. Languages are up 25% as regards entries under this Government, and we do not believe that the outcomes will be as the noble Baroness says.

Baroness Whitaker (Lab): My Lords, to follow the point made by the noble Baroness, Lady Williams, another area where the UK has an international lead

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is in design and technology. The Government recently announced that they are postponing the structure of the new design and technology course. When will they announce it?

Lord Nash: I am not entirely sure. I believe that it is next year, but I will come back to the noble Baroness on that.

Baroness Perry of Southwark (Con): Does my noble friend agree that the introduction of the new Progress 8 measure will enable every child to have a broad and balanced curriculum—much more so than in the past?

Lord Nash: I agree entirely. We want every child to engage in a broad and balanced curriculum; Ofsted will inspect against that, and, as I have already said, many more options are now available through Progress 8. Previously we had what the shadow Secretary of State described as the “great crime” of the C/D borderline; we will now value many more subjects widely and will rate Bs to As and Es to Ds much more highly than we have in the past.

Baroness King of Bow (Lab): Does the Minister agree that none the less, if the current weighting formally undervalues elements of arts and culture within the curriculum such as art, music and sport and the other areas we have heard about in this interesting exchange, should that not be reviewed? This is about whether we have a broad and balanced curriculum, as the Minister acknowledged, which in turn requires schools to be inspected on a broad and balanced basis. Surely it becomes more important to us every day that our education policy shapes our young people to have a broad and balanced outlook.

Lord Nash: Ofsted does inspect on a broad and balanced curriculum; it looks in part at how pupils will participate in and respond to artistic, sporting and cultural opportunities. However, I refer to my earlier point, which the Benches opposite did not like: we started from a very low base. I should think that all Members of the House should be very pleased with the increase in and substantial enhancement of cultural and academic courses that we have produced.

Baroness Janke (LD): My Lords, will the Minister say what plans the Government have to address teacher shortages in arts and languages subjects, and will he say if he has a plan to evaluate Progress 8 in the medium term?

Lord Nash: We have our bursaries for arts. In music, for instance, there is £9,000 for music graduates with a first. We now have nearly 500 teaching schools and have designated 145 schools as specialist leaders of education in arts subjects. However, of course we will evaluate the performance of the Progress 8 measures as we go along.

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House of Lords: Governance


2.44 pm

Asked by Lord Hunt of Kings Heath

To ask the Leader of the House what discussions she plans to hold on reviewing the governance of the House of Lords in the light of the report of the House of Commons Governance Committee.

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, I discuss governance of the House in my meetings with the leaders of the other party groups, the Convenor, the Lord Speaker, the Chairman of Committees, the Clerk of the Parliaments and others, including the noble Lord himself, and will continue to do so. The report to which he refers will help to inform conversations on this subject in future.

Lord Hunt of Kings Heath (Lab): My Lords, the noble Baroness will know that, among other recommendations of the Select Committee which have yet to be accepted by the Commons, it recommended that there should be a review of shared services between the two Houses and that there should be a drawing up of a medium-term programme towards a single bicameral services department. Does she accept that there is merit in providing joint services between the two Houses, provided that the House of Lords is an equal partner? Does this position of equality extend to discussions in future about the refurbishment of the estate?

Baroness Stowell of Beeston: The noble Lord is right to highlight in the report from the Commons committee a recommendation for us to explore the prospect of more shared services. I certainly support reviewing the scope for extending shared services between the two Houses when they would deliver greater value for money and lead to more effectiveness.

It would be premature for me to express a view on having a single department. Let us focus on what is possible and what would make sense in terms of us working together on those shared services. As the noble Lord rightly says, in any such arrangement, as exists already on shared services, the House of Lords must be an equal partner with the House of Commons.

Lord Forsyth of Drumlean (Con): Does my noble friend recall the report from Sir Roy Griffiths in the 1980s on the health service, when he said that if Florence Nightingale were wandering the corridors of the National Health Service with her lamp, she would almost certainly be looking for who was in charge? Would that not also apply if she were wandering the corridors of the Palace of Westminster?

Baroness Stowell of Beeston: I think that my noble friend is referring to this House specifically. We are a self-regulating House, and we are all responsible for ensuring that we do what we exist to do, fulfil our

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purpose and serve the public correctly. As for accountability, that is quite clearly shared between me, the Lord Speaker and the Chairman of Committees.

Lord Tyler (LD): My Lords, is it not obvious that we are in one sense not a self-regulating House, in that so much of our business is in fact decided between the two Front Benches, through the usual channels? Would now not be a good time, bearing in mind what has been undertaken at the other end of the building, to revisit the recommendations of the group led by the noble Lord, Lord Goodlad, and, in particular, to look at the role of our Lord Speaker, who, after all, we elect to make sure that we are a self-regulating House—and, in particular, to look at her role, speechless, during Questions?

Baroness Stowell of Beeston: I do not know whether the noble Lord was present during our recent debate on procedures in this House, but I certainly made the point when responding to similar points raised during that debate that we are all accountable for ensuring that Question Time works efficiently. As for the responsibilities of the Lord Speaker, it was considered very carefully during this Parliament; there was a Division on the matter in this House, and the House decided that it would retain the role of Lord Speaker as it currently exists.

Lord Foulkes of Cumnock (Lab): My Lords, the noble Baroness in replying to that debate, which I initiated, did not answer any of the questions. What is the point of having a Speaker if we do not give her any responsibilities whatever? Surely, now that we have had two Speakers over the past few years, it is the time to review the position, look at it again and let this House decide again in the light of experience.

Baroness Stowell of Beeston: I am sorry the noble Lord feels that I did not respond to the questions that were put to me during that debate, as I felt that I gave a very comprehensive response to the points that were raised. It is not that long ago since we considered the role of the Lord Speaker. As I have just said, we debated it, there was a Division and the House made clear its view on the matter.

Lord Cormack (Con): My Lords, fundamental to the Question of the noble Lord, Lord Hunt, is the relationship between the two Houses. While it is crucial that we continue to recognise the constitutional supremacy of the other place, we do not have to recognise its geographical or territorial supremacy. Therefore, it is very important indeed that this House is equal with the other when we are talking about joint services.

Baroness Stowell of Beeston: My noble friend is absolutely right. To be absolutely clear, some joint services are already operating between this House and the other place. The joint procurement service is the most recent example of this—through that joint procurement service we have already achieved some

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significant savings and ensured that the service provided remains effective and operates well. However, my noble friend is right: when we look at other possibilities of services being shared, we have to ensure that we do not end up being in any way subordinate to the House of Commons.

Baroness Farrington of Ribbleton (Lab): My Lords, would the Minister care to comment on the final point made by my noble friend Lord Hunt on equality in decisions taken about the refurbishment of the Palace of Westminster? Surely we do not want a situation where this House is excluded from the Palace of Westminster for too long.

Baroness Stowell of Beeston: The noble Baroness is right to remind me that I did not address that important point. We have already agreed that a Joint Committee of both Houses will take decisions relating to the Restoration and Renewal Programme. One House will not take a decision in the absence of the other: it will be a joint decision.

NHS: Clinical Negligence


2.52 pm

Asked by Lord Sharkey

To ask Her Majesty’s Government what are the causes of the £3.1 billion increase in the National Health Service’s potential liabilities for clinical negligence to £25.7 billion between 31 March 2013 and 31 March 2014.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, there are several factors behind this increase. These include the rise in numbers of patients cared for and the complexity of their care. In addition, there has been a general rise in litigation across a number of sectors, including the NHS, which is driven in part by no-win no-fee agreements. High costs incurred by claimants in bringing civil litigation have also played a role in the increasing clinical negligence cost and associated provisions.

Lord Sharkey (LD): In the last five years, NHS spending has grown by 12%. In the same period, liabilities for negligence have actually doubled. With the current rate of growth, they will take only six years to reach around £50 billion. The Medical Defence Union thinks that is unsustainable and has suggested reducing liabilities by changing the law. It suggests allowing courts to take account of the fact that the NHS and local authorities can provide some of the treatments required by successful claimants. Does the Minister agree that this is part of the way forward?

Earl Howe: My Lords, moneys paid in settlement of clinical negligence claims cannot be reclaimed or recycled in the way that my noble friend appears to suggest because, in the nature of NHS care, it is free from the patient’s perspective. We are, however, concentrating

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on various ways to reduce the number of clinical negligence incidents and, indeed, to improve patient safety, which is of course part of the way in which we can reduce the number of claims in the first place.

Lord Hunt of Kings Heath (Lab): My Lords, what view have the Government taken of the Medical Defence Union recommendation for repeal of the Law Reform (Personal Injuries) Act 1948? In essence, that would mean defendants could buy NHS healthcare packages as opposed to the more expensive private care packages, and, presumably, would reduce some of the cost of the claims that are currently going through.

Earl Howe: My Lords, we are looking at that proposal, but there are currently no plans to repeal that particular piece of legislation.

Lord Willis of Knaresborough (LD): My Lords, following the passage of the Health and Social Care Act, there are now some 350 other qualified providers. Will my noble friend confirm that they all get support through the Department of Health for any clinical negligence claims? If that is so, how much was paid out in 2013? Further to the point made by the noble Lord, Lord Hunt, if a claim is made within the private sector or third sector, will such providers be prevented from providing that claim within their organisations if negligence was proven?

Earl Howe: My Lords, potentially, independent sector providers may elect to be members of the negligence scheme, although only in respect of their NHS services. Therefore, only NHS-related liabilities would be covered in those circumstances. It is a pay-as-you-go pooled scheme, and I do not therefore have the figure that my noble friend requested. If I can get the figure disaggregated for him, I would be happy to write. In answer to his last question, I take it that he is asking whether the provider would be allowed to continue treatment, having been found to be negligent or having admitted negligence. That decision would be clinically led, with the patient exercising choice in each individual case.

Lord McFall of Alcluith (Lab): My Lords, may I suggest an examination of the area of clinical governance? I and my family are not alone in having a negative experience of a disjointed, rather than an integrated, clinical governance network, where communication between departments and individuals was virtually non-existent. The admirable Reith lecturer, Dr Atul Gawande, examined the concept regarding why doctors fail, and one of the main reasons he came up with was that policies that fragment a unified system rather than cohere the system were in the interests of neither patients nor the NHS, as can be seen with these claims.

Earl Howe: The noble Lord makes a series of good points. He may be interested to know that part of the series of pledges that form the Sign up to Safety campaign, which hospitals can apply for, can include the principles of being transparent with people—including about any mistakes that have been made and what is

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being done to tackle safety issues—and collaboration, by taking a leading role in supporting local collaborative learning, so that the system genuinely can work together and learn together.

Lord Phillips of Sudbury (LD): My Lords, is my noble friend satisfied—I am thinking, for example, of the scandal of whiplash claims—that the legal resources available to the NHS are sufficient for the task?

Earl Howe: Yes, my Lords, we are satisfied that the NHSLA does a very good job. Indeed, about half the claims it receives are rejected and it contests robustly any claims that are ill founded.

Baroness Finlay of Llandaff (CB): My Lords, does the Minister agree that complaints need to be dealt with rapidly, preferably by a phone call or home visit, rather than in the current slow systems that often compound the anger of those who feel that they have been wronged by the NHS and which therefore make the procedure of litigation more likely? There should, rather, be rapid settlement, a very sincere apology and lessons learnt with follow-up.

Earl Howe: I agree with the noble Baroness. We view it as important that NHS organisations manage complaints in a positive manner and use the information obtained to improve service delivery. Saying sorry is important. People who complain often want an apology, an explanation and an assurance that the same thing will not happen to someone else.

Lord Roberts of Llandudno (LD): My Lords, do the figures we have been given today include Wales, Scotland and Northern Ireland? Are those claims included in the total figure?

Earl Howe: My advice is that the figure includes England only, but if I am incorrect in any respect, I will write to my noble friend.

Raif Badawi


2.59 pm

Asked by Baroness Falkner of Margravine

To ask Her Majesty’s Government what discussions they have had with the government of Saudi Arabia regarding freedom of speech in the light of the sentence passed on Raif Badawi.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, we are seriously concerned by Raif Badawi’s case. The UK condemns the use of cruel, inhuman or degrading punishment in all circumstances. We have recently raised Mr Badawi’s case at a senior level with the Saudi authorities. The UK is a strong supporter of freedom of expression around the world. We have raised a range of human rights issues with the Saudi authorities, including the right to freedom of expression.

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Baroness Falkner of Margravine (LD): My Lords, I thank my noble friend for that reply. Before I ask my supplementary question, I need to declare that as vice-president of Liberal International I have worked with the Saudi Liberal Forum, although not Mr Badawi himself. Mr Badawi was imprisoned for such innocuous sentiments as saying that secularism is,

“the most important refuge for citizens of a country”.

His lawyer, Waleed Abu al-Khair, has been sentenced for breaking allegiance to the ruler. As a Muslim I do not recognise either of these so-called offences as being against Islam. Does the Minister agree that the Saudi tweeter who said:

“It’s religious extremism that deserves punishment because it’s what brought us the Islamic State and not liberalism which fights extremism”,

has captured the essence of the argument rather better than the Saudi authorities? Can she tell the House whether the United Kingdom Government have offered political asylum to either Mr Badawi or his lawyer, Waleed Abu al-Khair?

Baroness Anelay of St Johns: May I deal with the question about asylum, raised by my noble friend at the end? Clearly, as the House will appreciate, all applications for asylum are considered on an individual basis when they are made. As far as I am aware, no such process has been initiated in this case.

My noble friend goes to the heart of the question about our position in this country on freedom of expression. I have made it clear that we condemn the physical punishment which has been applied to Mr Badawi. My noble friend asked more widely for an overview of our position on what has caused terrorism. In Oral Questions, where necessarily I have to be rather succinct, I can say that our view is that Islam itself is not the cause of terrorism. The Saudi authorities are aware of that. We agree with them that it is not Islam that caused it. It is a perversion of the form of Islam outside Saudi Arabia within Syria and Iraq. The Saudis have tried to assist us in the coalition. Clearly, we have different views about how freedom of expression can carry on in different societies. The Deputy Prime Minister and the Prime Minister have made that clear. We continue to make representations about the treatment of human rights defenders and others within Saudi Arabia itself.

Lord Bach (Lab): My Lords, the world has been deeply shocked by reports of the treatment received by Mr Badawi. We welcome what the Minister has said this afternoon and we welcome, as we understand it, the Government’s intention to raise the issue with the Saudi Arabian Deputy Foreign Minister in London later this week. Surely, the Government have already made representations to the Saudi Arabian Government, pointing out that the treatment is a breach of international human rights law, arguably constituting torture. Do the Government agree with that? Will the Minister please keep the House informed as to the Saudi response?

Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Bach, goes to the heart of the problem and I am grateful to him. Saudi Arabia has signed up to the convention against torture and is therefore in breach

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of that. We have made our own representations on that very clear. My right honourable friend the Foreign Secretary made it clear today in the House of Commons that we deplore this kind of corporal punishment being applied and we will continue to make representations at the highest levels. Later this week, my right honourable friend the Foreign Secretary will make representations to the Saudi Government when their representatives are in London to discuss other matters relating to ISIL. I undertake to keep the House informed as and when any progress is made. Certainly, discussions continue and we have co-operated within the EU on matters of démarche on this issue too.

Lord Alton of Liverpool (CB): My Lords, on freedom of speech, does the Minister agree that this is not just about freedom of expression but, under Article 18 of the 1948 Universal Declaration of Human Rights, about the freedom to believe or not to believe, as in the case of Raif Badawi? In addition to torture, does she not agree that the reported 90 beheadings last year— 10 in this past month alone—in Saudi Arabia are one reason why groups such as Daesh have been able to take the law into their own hands in places such as Syria, emulating what has been done routinely in Saudi Arabia?

Baroness Anelay of St Johns: My Lords, one of the priorities of the Foreign Office is that the death penalty should be abolished throughout the world. However, it is clear that Saudi Arabia is not yet in a position where it will consider that. Sharia law is part of the very nature of its operations in the judiciary, and therefore we are not going to move to abolition. However, that does not stop us making strong representations about it. The House can be assured that at every opportunity I make the point that the death penalty does not work—quite simply, it is wrong in itself. The more we can explain that to countries around the world, the more we can improve the kind of result that we had in the United Nations vote before Christmas and the more we can persuade other countries to follow the right route, which is to abolish the death penalty.

Lord Lea of Crondall (Lab): My Lords, do the Saudi Government claim that the autonomy of their penal code is unqualified? If so, they will not accept the Universal Declaration of Human Rights. However, if it is qualified, is there not a procedure whereby they can be taken through a process in the international community?

Baroness Anelay of St Johns: My Lords, in this respect, as the noble Lord, Lord Bach, hinted, the Saudi Arabian Government have signed up to the convention against torture but they are in breach of that. The United Nations can consider that and take it into account in any action it feels it wishes to take, if any.

Lords Spiritual (Women) Bill

First Reading

3.06 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

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Government of Wales Act 2006 (Amendment) Order 2015

Motion to Approve

3.07 pm

Moved by Baroness Randerson

That the draft order laid before the House on 5 November 2014 be approved.

Relevant document: 13th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 13 January.

Motion agreed.

Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015

Motion to Approve

3.07 pm

Moved by Lord Wallace of Tankerness

That the draft order laid before the House on 18 November 2014 be approved.

Relevant document: 14th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 13 January.

Motion agreed.

Counter-Terrorism and Security Bill

Committee (1st Day)

3.07 pm

Relevant documents: 5th Report from the Joint Committee on Human Rights, 8th Report from the Constitution Committee, 14th Report from the Delegated Powers Committee

Clause 1: Seizure of passports etc from persons suspected of involvement in terrorism

Amendment 1

Moved by Lord Bates

1: Clause 1, page 1, line 8, at end insert—

“( ) In Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services)—

(a) in Part 1 (services), after paragraph 45 insert—

“Extension of time for retention of travel documents

45A (1) Civil legal services provided in relation to proceedings under paragraph 8 of Schedule 1 to the Counter-Terrorism and Security Act 2015.


(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.”;

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(b) in Part 3 (advocacy: exclusion and exceptions), after paragraph 22 insert—

“22A Advocacy in proceedings before a District Judge (Magistrates’ Courts) under paragraph 8 of Schedule 1 to the Counter-Terrorism and Security Act 2015.””

The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): My Lords, the Government have tabled this amendment to provide that civil legal aid may be made available at hearings of applications to extend the 14-day time period in which an individual’s travel documents may be retained in England and Wales. This issue was raised by my right honourable friend Dominic Grieve in Committee on 15 December and it is a matter in which the Joint Committee on Human Rights has expressed an interest.

Legal aid for judicial review is already available in England and Wales, subject to the statutory means and merits test, including for legal challenge by those subject to the temporary passport seizure power. However, this amendment is necessary to ensure that, subject to the means and merits test, civil legal aid may be made available in relation to applications to extend a temporary passport seizure to a district judge—magistrates’ courts— in England and Wales, as set out in paragraph 8 of Schedule 1 to the Bill.

The Scottish Government have confirmed that civil legal aid is already available in Scotland under the Legal Aid (Scotland) Act 1986. The secondary legislation which sits under that may require some amendment and that will, of course, be taken forward through the Scottish Parliament. We are speaking to the devolved Administration in Northern Ireland about whether civil legal aid is already available there, subject to the statutory means and merits test, for individuals subject to the power in that jurisdiction. If an amendment is necessary to cover the availability of legal aid in Northern Ireland, we will bring one forward in due course.

Amendment 1 will amend Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO for short. It will add the provision of legal aid in the proceedings set out in paragraph 8 of Schedule 1 to the Bill as a form of civil legal services for which legal aid may be made available in England and Wales. The matters covered are subject to all the exclusions set out in part 2 of Schedule 1 to LASPO. The amendment also ensures that advocacy before a district judge—magistrates’ courts—may be included in the civil legal aid that may be made available for these proceedings by amending Part 3 of Schedule 1 to LASPO.

The amendment does not alter the statutory means and merits test, nor does it make civil legal aid available for any other civil legal services in England and Wales. The Government consider that an amendment to the scope of the civil legal aid scheme in England and Wales is appropriate in these circumstances due to the important nature of the proceedings set out in paragraph 8 of Schedule 1 to the Bill, the limitations on an individual’s ability to present their own case in these circumstances and the absence of an alternative route to resolution. I beg to move.

Lord Rosser (Lab): My Lords, as the Minister has said, the amendment provides for legal aid for proceedings before a district judge in the light of an application for

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an extension of the 14-day period. We fully support the Government’s change of heart on this point about legal aid. As the Minister mentioned, the amendment states that its provisions are subject to the exclusions in Parts 2 and 3 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So that we are clear on exactly what those exclusions mean, it would be helpful if the Minister could clarify what their impact would be in reality, in respect of legal aid being provided, or not, in applications for an extension of time for retention of travel documents, which is the issue covered by the amendment.

Baroness Hamwee (LD): My Lords, I too am glad that the Government have addressed the matter of legal aid. There was clearly going to be a call for that. My question, which is a sort of prequel, is about whether advice would be available to a traveller at the point when travel documents are seized and retained. Legal aid is becoming confined to proceedings rather than advice, but this is an important point in the whole process.

3.15 pm

Lord Bates: My Lords, I shall try to deal with the point raised by the noble Lord, Lord Rosser, although I acknowledge that I do not have a specific heading relating to it and I may have to write to him to expand on it. Currently, the availability of legal aid depends mainly on where the proceedings or legal processes are taking place, which is related to the point made by my noble friend Lady Hamwee. In general, if the proceedings or processes are taking place in England and Wales, the individuals involved can apply for civil legal aid so long as the matter is within the scope of the LASPO merits and means tests. The noble Lord asked about that precise issue and how that will be applied. If notes are not able to reach me by the time I sit down, I will put that in writing.

We will come to the other point made by my noble friend Lady Hamwee in more detail in later groupings. What we are talking about here is the first period where the issue of the temporary seizure of a passport comes before the courts, what representation is made, how it is funded and how it is made available. There is not a legal process before that, which is a matter that can be debated later on and we will have responses to it later on. We are talking here about the 14-day point at which it comes before the court for approval to extend the period of seizure up to 30 days. With those explanations and the assurance that I will come back to this matter, I hope that the amendment will be agreed.

Amendment 1 agreed.

Amendment 2

Moved by Lord Rosser

2: Clause 1, page 1, line 8, at end insert—

“( ) This section shall be in force for two years from the date of the passing of this Act and shall operate thereafter subject to an affirmative resolution in each House of Parliament.”

Lord Rosser: My Lords, Amendments 2 and 55 provide for the new powers in the Bill to seize travel documents, including passports, from individuals thought

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to be leaving the country for purposes related to terrorism and the power to place an individual on a temporary exclusion order in order to provide for what the Government have described as a managed return to cease two years from the date that this Bill becomes an Act unless both Houses have passed affirmative resolutions providing for the powers to continue in force until a later date.

The powers in question in the Bill would enable immigration officers, customs officials, qualified officers and senior police officers to take a passport away from an individual and leave them in a situation where they were no longer a passport holder for a period of 14 days or, following a court review, 30 days. The powers in the Bill also provide for the Home Secretary to make whatever arrangements he or she thinks appropriate in relation to the individual concerned during the period when they have no passport or on that period coming to an end.

The temporary exclusion order requires an individual not to return to this country unless that return is in accordance with a permit issued by the Secretary of State prior to the commencement of the journey back or, alternatively, the return is the result of the individual’s deportation to this country. As the Bill says, the effect of the temporary exclusion order while it is in force is that the issue of a British passport to the excluded individual while he or she is outside the United Kingdom is not valid. These two measures in the Bill as it stands will be as permanent as any other legislation passed in this House which likewise does not contain a clause providing that it ceases to have effect on a certain date unless both Houses have passed resolutions before then providing for it to continue.

The reason for these new powers being sought is that the security situation has deteriorated, particularly as a result of some hundreds of people leaving this country, often at very short notice or unbeknown until a very late stage by family or friends, to join up with, or otherwise become involved with, terrorist organisations, not least in Syria and Iraq. The power to take away the passport and other travel documents is to give the authorities an opportunity to make inquiries about an individual in question and their intentions, and within 14 days or 30 days decide whether to return the passport or travel documents or take another course of action. The power to invalidate an individual’s British passport while a temporary exclusion order is in force is to enable that individual’s return to this country to be made subject to complying with terms determined by the Secretary of State.

It may be that it is the Government’s view that the worsening in the security situation as a result of individuals leaving the country to engage in terrorist activity, or subsequently seeking to return, is effectively a permanent development. If that is the case, it would be helpful if the Government said so. If it is not their view, there is a real danger that this measure, which, presumably, most if not all would prefer it had not become necessary to enact, will remain on the statute book long after it is really needed. Governments of all political colours and relevant authorities do not always willingly give up powers—in this case significant powers in relation to retention or invalidation of passports—which

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they might feel, even after the immediate need has passed, could still come in useful at some time in the future.

The purpose of our amendments is to ensure that there is a proper debate on the need for these powers to continue, in this case, beyond a period of two years from this Bill becoming an Act. The knowledge that Parliament has to agree will help concentrate minds on whether the case still exists, which it may well might, and will at least ensure that the measures which are being introduced in the light of a particular security development in respect of people from this country travelling to engage in terrorist activity or subsequently returning from such activity or involvement does not continue on our statute book longer than the national security situation demands. I beg to move.

Lord Phillips of Sudbury (LD): My Lords, I strongly support Amendments 2, 3 and 4. The measures contained in the Bill are of fundamental importance, but they are extremely difficult to construct in a way which holds an appropriate balance between state security and individual liberty. The notion in the amendments that the outcome of what we are doing should be reviewed by the independent reviewer within two years and put to Parliament is eminently sound. My only query is whether or not the role of the independent reviewer in looking over the consequence of this part of the Bill might not be better addressed to the whole of it. There are other parts of the Bill whose outcomes are no less difficult and problematic to anticipate. I hope the Government will give a positive response to these amendments.

Baroness Ludford (LD): My Lords, on Amendment 2, can the noble Lord opposite explain whether there is any particular reason for choosing two years for the sunset clause, after which time, subject to an affirmative resolution, there would be a permanent continuation? What is the logic behind that two-year split? Why is there not, in a sense, a rolling sunset clause every two years? If there is a rationale to it, perhaps the noble Lord can explain the reason for that two-year review and then no more, as it were, apart from the normal rules that apply to primary legislation.

Baroness Buscombe (Con): My Lords, I, too, would like to understand from the shadow Minister opposite why a period of two years has been chosen. What is the logic? In seeking to explain Amendment 2, he appears to have concluded that there is a strong chance that this measure may not be necessary at the end of a two-year period. I wish that he was right on that—even if he had a hunch that it could be right—but all the commentators that one has been listening to, some more expert than others, have explained to us, as have the Government, that we will probably face great difficulty in the area of counterterrorism for a number of years. In that case, I suggest that a two-year period is far too short, indeed unreasonable, given that an affirmative resolution of both Houses takes time and energy away from the job in hand.

On Amendment 3, I made clear at Second Reading that I support the independent reviewer having the opportunity to review this legislation in the fullness of

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time. However, I think that producing an annual report is far too onerous and unnecessary. I do not support these amendments.

Lord Carlile of Berriew (LD): My Lords, I do not understand the two-year period contained in these amendments. The issue which we are dealing with and which is covered in this clause is, unfortunately, going to last for more than two years. Does the Minister agree that having a two-year sunset clause—even if there were to be a sunset clause at all—would send out a completely incorrect message to those who are minded to go abroad and participate in jihad? We have to show some enduring determination over this issue.

My second concern is that these amendments are too prescriptive for the work of the Independent Reviewer of Terrorism Legislation. Can the Minister confirm that the independent reviewer is able to look at all provisions relating to counterterrorism legislation? Surely it is right that the independent reviewer should be able to focus on those issues which are revealed during the course of a given year as causing concern and report on those, rather than being required to report on too many specific issues? We heard at Second Reading that the current independent reviewer is doing something like 180 days per year. When I started as independent reviewer in 2001, just after 9/11, I was doing 40 days per year. By the time I finished, in early 2011, I was doing 140 days per year. Prioritising the independent reviewer’s work should surely be left to that person.

My final point is this. A great deal of respect has rightly been paid to the current independent reviewer. If the independent reviewer highlights a provision that is not working, surely that is at least as powerful as any sunset clause ever could be?

Lord Pannick (CB): My Lords, I will not comment on the independent reviewer because, as I understand it, we are not dealing with Amendment 3. We will come to that. I support Amendment 2 and Amendment 55, which are in this group.

The noble Lord, Lord Rosser, will say if I am wrong, but my understanding of the reason for having a sunset clause with a particular period of time is that there are concerns, which I think are understandable, that the new powers for seizure of passports and for temporary exclusion may raise problems about the practicalities and consequences of these powers. It therefore seems entirely appropriate that, after a period of time, Parliament should take a hard look again at the impact of these powers and consider whether or not they are justifiable and having beneficial consequences. I am satisfied that it is right and appropriate to introduce these powers at this time. However, along with many others, I would be reassured about the diminution in civil liberties which is involved if we stated on the face of the Bill that Parliament will look again at this matter after a defined period. If two years is too short, then we can make it three or four years.

3.30 pm

Lord Hannay of Chiswick (CB): My Lords, at Second Reading of this Bill I asked the Minister whether the Government had given any consideration to sunset

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clauses in the two provisions that are being discussed in this amendment. He did not reply in winding up the debate and so I look forward with great interest to his response now. Perhaps I may say that the principle of having a sunset clause on these two provisions is rather compelling because it is important to show that we do not believe that this state of affairs, to which we are now responding quite properly and proportionately, is there for ever. The signal that it is not a permanent part of our law is a good one to send, but I would certainly not attach any importance at all to the short period of two years that is suggested. That really is rather unrealistic in the circumstances we face. For me, it is the principle of having a sunset clause, not its duration, that matters. I would be grateful if the Minister, when he comes to reply to the amendment, could address this matter now.

The Marquess of Lothian (Con): My Lords, I wonder whether my noble friend could help me because I have missed this somewhere else. When looking at the time factor here, what is the legal and international status of someone who has been subjected to a temporary exclusion order? Are they in fact stateless during that period?

Lord Hylton (CB): My Lords, I would like to support the words of my two noble friends who have recently spoken. We will otherwise be faced with a situation where each new outbreak of terrorism somewhere or other will lead to a cutting back and diminution of traditional, well known and respected civil liberties.

Baroness Warsi (Con): My Lords, perhaps I may start by seeking the leave of the Committee to speak. I did not speak at Second Reading because I was suffering from a kidney infection and therefore was not able to be in the Chamber for the whole day. I have given notice to my noble friend the Minister and he is content for me to speak in Committee. I hope that noble Lords will allow me the same leave.

I rise to support both Amendments 2 and 55 and the comments of the noble Lords, Lord Pannick and Lord Hannay. I do not intend to make a Second Reading speech at this stage. The issues in relation to the concerns about this legislation are well known. I accept that we are in incredibly difficult times at the moment, and the more so in the light of what has happened over the past few weeks. We have seen the situation change again in relation to ISIL this morning. These are indeed difficult and troubled times, and I therefore understand the need for the Government to respond in order to protect our citizens.

However, I would dispute the comments made earlier that we need to send out a strong message to terrorists that we are serious about this. The message to send out to terrorists is that we hold our civil and individual liberties incredibly strongly, we value them hugely and we will not put forward legislation that permanently takes away the very liberties that terrorists would like to take from us. Putting a sunset clause into the Bill sends out a clear message that these are difficult times and we are responding to them, but that we are not going to change the way we do things in the United

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Kingdom permanently by giving away those liberties which terrorists would like us to give away. I therefore support the need for a sunset clause.

Amendment 55 gives comfort to those of us who are concerned about how this legislation will play out. We can all accept that there will be many individual cases where these powers will be used in subsequent years but it will turn out to be the case that they have been used incorrectly. The fact is that we as a Parliament should be able to say that at a certain time, whatever colour of Government we have at that point, we will reconsider these matters in light of how the powers have been applied and in the light of how we find the world at that time. An indication that this is not a permanent change would give some comfort to those of us who are concerned about these powers.

Lord Macdonald of River Glaven (LD): My Lords, I agree that we should not give away our freedoms in response to terrorism. However, I am satisfied that, properly crafted, this legislation need not do so. It would be a good idea if part of that crafting were to include a sunset clause, primarily for the reasons set out by the noble Lord, Lord Pannick. It is the practicalities of this measure—how it will work in practice—that are most in doubt. Those practicalities will significantly impact on the rights of people on whom the orders are imposed. So a sunset clause is a good idea. It is also a good idea for the reason set out by my noble friend a moment ago.

Two years is too short. The threat will be with us for much longer than two years, so that will be too short a time to assess the workings of this legislation. However, I support the idea of a sunset clause so that the House can thoroughly review how the legislation is working in practice.

Lord Hope of Craighead (CB): My Lords, I will add briefly to the point made by the noble Lord, Lord Pannick. It relates to Amendment 7, to which I hope to return later, and concerns the problem of humanitarian assistance.

I do not want to elaborate just now, but there are concerns about people who offer humanitarian assistance in difficult areas such as Somalia, Syria and possibly Gaza. The way in which terrorism is defined in the Terrorism Act 2000 has a chilling effect on their activities, because of the risk that they might be caught up in what is thought to be a terrorist offence when they are actually trying to co-operate with the bodies there to provide humanitarian assistance. Of course, a prosecution—or a conviction—is a very different matter. However, the way that this measure is proposing to adopt in the fight against terrorism is a decision taken by a constable. It is a much easier thing to take at that stage.

The chilling effect of the threat of that kind of measure being taken against people who seek to provide humanitarian assistance may be quite considerable; it is difficult to assess at the moment. There is, however, considerable force in the point that the House should be able to look again at the way the measure is operating once we know what the effect is on those trying to carry out humanitarian efforts in these difficult areas.

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The Lord Bishop of Durham: My Lords, it is worth reminding ourselves of the speed of change in the world that has led to this legislation. If these proposals had been before us even 18 months ago, I suspect that we would not even have entertained them. Therefore, the speed of change that has brought them about demands that we say that we do not wish to forgo our existing liberties, some of which would be restricted by this Act, without having recourse, in two or three years’ time, to a serious look at whether the measures are working. So I fully support the idea of a sunset clause. I am prepared to accept that two years may be rather too brief, given all the circumstances and the likelihood that we are going to live with this for some time. I would, however, encourage the House to support these amendments in some form, since I believe that the removal of our liberties that is encompassed in these clauses is so serious that we should not put them into permanent place.

Lord West of Spithead (Lab): My Lords, I strongly support the inclusion of a sunset clause, for the very good reasons that have been given. The only debate is, really, how long. Two years is possibly too short. We need to think about how quickly we will be able to gain information about how it is working, what the full implications are and so on. Equally, however, we do not want it to be too long. So how long is a piece of string? I would think perhaps three or four years. However, I believe absolutely that we should have a sunset clause.

Lord Butler of Brockwell (CB): My Lords, while I agree with noble Lords who have argued that two years would otherwise be too long, one merit of the proposal is that the Data Retention and Investigatory Powers Act 2014 has to be renewed, and there might be something to be said for considering these powers in the context of that, so that we get a comprehensive anti-terrorism Act at the same time. That might argue for a shorter sunset period.

Lord West of Spithead: I think that has to be done by the end of this year—which I believe is too short.

Baroness Buscombe: Can the Minister also tell us now, or at a later stage, whether sunset clauses were imposed by the then Labour Government in the anti-terrorism Acts of 2000 and 2001 and, if so, what the terms were?

Lord Bates: My Lords, we have had a very good, short debate on this, with a lot of contributions that in many ways highlight the difficulties that there are in this area when it comes to reaching any common ground as to what the position should be. I am grateful for the two amendments which have been introduced calling for a sunset clause on Chapters 1 and 2, and will outline the Government’s position on this. As was touched on before, it cannot of course be about whether this is a matter of principle, because clearly it is something that the Government have looked at in respect of other chapters of the Bill.

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I will give the Committee the reasons why we have come to the position that we have on these particular amendments. The problem that we are seeking to address with these powers is not of a short-term nature—a point very well made by the noble Lord, Lord Carlile. We do not know how long it is going to be there for or how the threat that we are facing might mutate into different fields and theatres. From that point of view, we felt that having a set date and time on which those powers fall would send the wrong signal. I will come back to the reasons for that. Terrorism-related travel is a serious and ongoing issue, and we can expect the threat posed by British citizens returning from fighting alongside terrorist groups abroad to be present for many years to come. It is important that our law enforcement agencies are equipped to protect the British public from individuals who pose a risk.

Amendment 2 seeks to introduce a sunset clause to the temporary passport provisions. It would ensure that the power would be repealed in two years’ time, unless both Houses pass a resolution that it should continue. The precautions we have established should ensure that the temporary passport seizure power will be used in a fair, reasonable and lawful manner. They are aimed at striking the right balance between our civil liberties—which the right reverend Prelate was absolutely right to focus on—and our right to safety and security, which a number of noble Lords, including my noble friend Lady Buscombe, referred to. The House of Commons considered these factors very carefully, as your Lordships have, and it came to an overwhelming view that it did not feel that a sunset clause was necessary in relation to Chapter 1.

Amendment 55 would introduce a sunset provision to the temporary exclusion power in Chapter 2 of Part 1. Your Lordships will be aware that the Government have tabled amendments to introduce strong judicial oversight of the use of this power. The courts will have a number of opportunities to review whether each temporary exclusion order is imposed appropriately and to ensure that the power is used proportionately against individuals suspected of terrorism. In the light of these strong safeguards on the use of both the temporary passport seizure power and the temporary exclusion power, the Government do not think that it is necessary to bring the power to an end after two years. Indeed, introducing sunset clauses to these powers in two years might, as my noble friend Lord Carlile said, inadvertently send the wrong message to would-be jihadist travellers by suggesting that we lack the intent to deal with the threat that they pose to us.

There are two points here. I reflect on the views and the great experience that my noble friend Lady Warsi has in this area through her excellent work in office. She led for the Government on this, and therefore I listened very carefully to what she said about civil liberties, but there are two sides to this. There is of course the side that deals with the ability of people to travel, and the disruption of travel, which effectively is what we are talking about here. Measures are available under the royal prerogative, under which a passport is not seized but can actually be cancelled, and there is no sunset clause and no basis of appeal for these measures. Under the

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Terrorism Act 2000, too, there are powers to disrupt and deal with passports. Again, they are not subject to a sunset clause.

3.45 pm

I am trying to say to your Lordships that it is not entirely clear what the consistent position is. It is looked at across a range of matters on a case-by-case basis. Your Lordships will be aware of the Constitution Committee, by which Ministers are often brought to book in your Lordships’ House for their work—as I know from its work on European matters, to which I have had to respond. Your Lordships should also be aware that the Constitution Committee, which always takes considerable interest in such matters, did not recommend the inclusion of a sunset clause following its consideration of the Bill. I am, as ever, grateful to my noble friend Lord Lang and his committee for their scrutiny of the Bill and their recent report.

For the reasons I have given, I therefore hope that noble Lords feel reassured that this is not something on which we are saying, “No, never”. As has been said, we have an independent reviewer of all terrorist legislation, and that includes this Bill and the provisions of temporary passport seizure and the temporary exclusion orders about which we are talking. They can be reviewed, not on an annual or biennial basis, but whenever the independent reviewer chooses to focus upon them—and obviously the Government will listen very carefully to his advice.

The situation at present is too fluid for us to put in an arbitrary time limit. People have genuinely focused on that. Between now and Report I am certainly prepared to reflect on the arguments that have been put forward in the debate. If we return to them, I will perhaps be able to offer to the House further views, having reflected carefully on what has been said this afternoon. In the mean time, I hope that the noble Lord might feel able to withdraw his amendment.

Lord Phillips of Sudbury (LD): Does the Minister not accept that there is a difference between the judicial oversight, on which he laid some emphasis, and the political oversight that comes from having a sunset clause? Her Majesty’s justices can take only certain legal considerations into their protection of legislation. They cannot consider the wider political considerations that bear upon the matter in hand. Does he see the distinction?

Lord Bates: I see the distinction between the issues—as did the other place and the Constitution Committee. But in this area, we believe that a sunset clause is not necessary in relation to this chapter of the Bill. In other parts, such as Part 2, when we will come to TPIMs, the sunset clause is there. It is not a general principle written through the Bill; we are looking at this area by area, and we remain open to advice from your Lordships’ House, Parliament and the independent reviewer as to what their thoughts are on the necessity of that.

People have not happened upon the sunset clause up to now because they have found it too difficult to arrive at a precise point for where the amendment

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should be. Should it be at two, three or four years? We have heard a range of different discussions. It remains there, open to review, and the procedures will be subject to regulations, which will give rise to further debate and scrutiny, but it is not appropriate to offer a fixed and arbitrary time limit for this chapter of the Bill.

Lord Rosser: I thank all noble Lords who have taken part in this debate. I have not been sitting here counting up the numbers but I have a feeling that there was rather more support for the general thrust of my amendment than opposition to it. Obviously, I am grateful to the Minister for saying that he will take away what has been said today and reflect further on it—without, I accept, making any commitment to come back with a change—and I am grateful to him for saying that he will look at the matter in the light of the comments that have been made today.

I have to say that I find a little odd the Minister’s comment at the end that the problem was—at least this is how it came over to me—how long should it be before the powers cease unless they are continued by affirmative resolution of both Houses? I have been asked the question; I am not wedded to two years. If it is possible to have discussions and come to an agreement on another period that might gain wider support, the issue at stake is that there should be, after a certain period, a look at whether we still need these powers in force, in view of the fact that they are quite significant new powers. If the issue that the Government have is determining the appropriate length of time—because, after all, not to put anything in the Bill in a sense determines a period of time; that is, there is no review at all—I hope that the Minister will be willing to have discussions on that point.

We have already had different views expressed about the message that the powers ceasing to continue after a certain period, unless renewed, sends. I am afraid I rather subscribe to the view that the message that it sends if you do not have it in is that these powers could continue, metaphorically speaking, for ever and a day, although I appreciate that another view has been expressed that they might be seen as a sign of weakness on our part. As I say, that is not a view to which I subscribe. I do not think that reviewing the need for the continuation of these powers is a sign of weakness at all because obviously there is a distinct possibility that in looking at the situation one might decide that the powers should be renewed.

We have also had a discussion about the role of the independent reviewer, which presumably will be discussed in the next group of amendments. Of course, the issue of the sunset clause covers the question of the current worsening of the security situation, with people from this country going abroad, apparently to engage in acts of terrorism, and subsequently returning. That involves the two issues we are talking about: passports and temporary exclusion orders. I say only to the Minister that within not too long a period of time—although I am flexible about what that should be—the problem arising from people going from this country to engage in terrorism and seeking to return may be a lesser problem than it is now, as opposed to other issues related to terrorism still being fairly high up the list.

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That is what the proposed sunset clause deals with: specifically, people going from this country to engage in terrorism and subsequently coming back. It is because we consider it a problem at present that we are talking about and supporting the powers in the Bill. But it is conceivable that, over not too long a period, that specific point may not be the problem it is at the moment, and we ought to have some powers in the Bill to be able to reflect on whether the case is still there for continuing the powers that we are talking about today.

As I say, I am grateful to the Minister for agreeing to reflect further and to all noble Lords who have taken part in the discussion. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3

Moved by Lord Rosser

3: Clause 1, page 1, line 8, at end insert—

“( ) The Secretary of State shall commission an annual report to be laid before each House of Parliament by the Independent Reviewer of Terrorism Legislation on the exercise of powers contained in this section.”

Lord Rosser: As mentioned in the debate on the previous amendment, the group of amendments to which Amendment 3 belongs requires the Secretary of State to commission an annual report to be laid before both Houses by the Independent Reviewer of Terrorism Legislation on the exercise of the powers contained in Chapters 1 and 2 of Part 1 and in Part 2, which relate to the seizure of travel documents and temporary exclusion from this country. The amendments also require the Secretary of State to publish annual figures on the usage of these powers, and for an annual review of the arrangements made by the Secretary of State under the powers in paragraph 14 of Schedule 1 to be published and laid before both Houses.

I think I am right in saying that in its recent report the Joint Committee on Human Rights drew attention to the fact that neither of the new powers in Part 1 concerning the seizure of passports and managed return are made subject to independent review. It seems that the Minister told the JCHR that the Government had considered independent review, but apparently they were satisfied that any review of the extensive new powers in Part 1 should not extend beyond that carried out by parliamentary Select Committees. The Joint Committee on Human Rights referred in its report to the fact that the Independent Reviewer of Terrorism Legislation had commented on this issue, saying that if the powers we already have under the Terrorism Act need independent review, then surely the new powers in Part 1 also need independent review. It could be said that if that review took place it might help to inform a discussion on whether the powers needed reviewing if there was a sunset clause in the Bill. The Joint Committee on Human Rights said that, like the Independent Reviewer of Terrorism Legislation, it believed in principle that the operation in practice of the new powers to impose restrictions on the travel of terrorism suspects should be subject to

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independent review, and therefore it was recommending that the powers in Part 1 concerning passports and managed return should be subject to review by the independent reviewer.

In moving Amendment 3, I am also speaking to the other amendments in this group. I hope that the Minister will be able to give a positive response to them.

Baroness Hamwee: My noble friend Lord Carlile has already referred to the fact that the independent reviewer can, does and did look at far more than is spelled out in statute. My inclination would be to spell that out, but to spell out that the independent reviewer’s powers extend to all terrorism legislation. I have half a clause drafted to that effect for later in Committee stage. That does not mean to say, as these amendments suggest, that that should necessarily be annual. It may need to be done more than annually. Some legislation—I think it is the asset-freezing legislation—requires quarterly reports. As time goes on, subject to the eventual decision about a sunset clause, it may be not so necessary to report as frequently. Perhaps more importantly, I would prefer that a report was not subject to commissioning by the Home Secretary. A future Home Secretary might decide not to commission a report, and we can all see where that might go.

This is an important issue. I am glad that it has been raised, and it has been covered quite substantially already this afternoon. I am not convinced that this is quite the way to go about it. We need to look at the comments made by David Anderson on the scope of the role and the balance between its constituent parts, and not pick bits off in individual parts of the Bill.

Lord Pannick: My Lords, I agree with the noble Baroness, Lady Hamwee: these amendments raise a very important subject. For my part, I agree with paragraph 7.8 of the report from the Joint Committee on Human Rights that it is absolutely essential that the independent reviewer’s remit is extended to cover all terrorism legislation. I would be quite content to leave it to the independent reviewer to decide when it is appropriate to publish reports. It seems entirely unnecessary and inappropriate to require reports to be published annually.

4 pm

Lord Carlile of Berriew: My Lords, I spoke earlier and will not repeat what I said. Listening to this debate, I agree entirely with what was just said by the noble Lord, Lord Pannick, and my noble friend Lady Hamwee. It is essential that the independent reviewer has the flexibility to report on any issue that relates to counterterrorism legislation in the order in which he deems it appropriate, subject of course to commissions being given by the Government, or possibly by Select Committees or others, from time to time.

Baroness Buscombe: My Lords, I will add to what my noble friend Lord Carlile said. Speaking as a member of the Joint Committee on Human Rights, it is certainly my understanding that we kept this aspect of our report purposely broad to ensure flexibility and

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to leave it to the experience and expertise of the independent reviewer in supporting a role for them in reviewing this and all other counterterrorism legislation, ensuring that he or she should not be pinned down by prescription, in either content or time limits.

Baroness Ludford: My Lords, I agree with my noble friends and the noble Lord, Lord Pannick, on the need for both broad scope and flexibility in powers for the independent reviewer. On Amendment 4, can the noble Lord, Lord Rosser, say whether there is any further detail on the requirement that:

“The Secretary of State shall publish figures on the usages of powers”?

What sort of degree of detail or scope was envisaged?

On Amendments 41 and 41A, it may just be that I am a little befuddled, coming back from much less complicated EU legislation to more complicated domestic legislation. However, as I read those amendments, they seem to refer only to a review of the arrangements for food and accommodation, because they are specifically inserted after paragraph 14 of Schedule 1. I am not sure that that refers to a review of the whole powers under Clause 1 and Schedule 1 because it seems to be rather specific about just the powers in paragraph 14. Indeed, the term “arrangements” seems to refer only to the arrangements appropriate for the person, which, according to the draft code of conduct, relate to food and accommodation, and so on. It may be that I am completely on the wrong track here; if so, I will be most grateful for the noble Lord’s clarification.

Lord Ashton of Hyde (Con): My Lords, I am grateful to the noble Lord for tabling these amendments, which cover issues concerning the oversight and accountability of officers who exercise the powers in Part 1.

Amendments 3 and 55A would require the Independent Reviewer of Terrorism Legislation, David Anderson QC, to report annually on the exercise of powers contained in Part 1. I am grateful to the noble Lord for tabling this amendment because it allows us the opportunity to give due consideration and attention to a very important matter—that of ensuring that there are appropriate checks and balances and independent scrutiny of our counterterrorism powers, including those introduced in the Bill.

We have discussed at length the need for the measures contained in the Bill before us today, as the eight hours of debate in Second Reading amply demonstrated, but it is of course a cardinal principle that these important powers are subject to robust independent scrutiny. As most noble Lords have said, the recent report by the Joint Committee on Human Rights on the measures contained within this Bill included a recommendation that the remit of the Independent Reviewer of Terrorism Legislation be extended to cover those areas of our domestic counterterrorism laws which are currently not subject to independent review. I think this, among other things, is recognition of the excellent job which David Anderson QC has done in his current role and the high regard in which he is held. I wanted to take the opportunity to make that point. I hope that virtually all noble Lords who spoke will be reassured that the Government are giving careful consideration to the

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points raised by the Joint Committee and, indeed, to David Anderson’s last annual report, which covered similar ground.

Another part of this Bill, Part 7, deals with the vital matter of checks and balances by providing for the creation of a Privacy and Civil Liberties Board. I very much look forward to our consideration of that part of the Bill, which I know from the various contributions made at Second Reading and today will be of particular interest to a number of noble Lords. Clearly, there is more to be said about how the board will operate and how it will genuinely support and enhance the independent reviewer’s capacity. It is apparent that we cannot simply keep adding to the independent reviewer’s role. David Anderson has himself been clear that he is operating at the limit of his capacity, as my noble friend Lord Carlile mentioned, and that there is a need for reform of the independent reviewer role. I hope that our debate on Part 7 will allow us to explore these broader considerations.

However, we need to consider the whole question of oversight in the round. If I may say so, it seems a little premature to take this amendment in isolation ahead of the wider debate that I know we are going to have when we get to Part 7 of the Bill. So I ask the noble Lord to withdraw the amendment today in the knowledge that we will certainly consider the issue which it raises during our deliberations of the broader issues about how our oversight arrangements for the use of counterterrorism powers should be structured and resourced, which we will be having next week. I refer, too, to my earlier remarks that we are giving consideration to the JCHR report as well as to the last annual report from David Anderson.

Amendments 4, 41, 41A and 50A introduce a requirement to publish statistics on the use of the passport seizure and temporary exclusion powers on an annual basis and introduce an annual review of the arrangements made by the Secretary of State under Paragraph 14 of Schedule 1, which allows the Secretary of State to make arrangements he or she thinks appropriate in relation to persons whose travel documents have been retained for the retention period. The Government are committed to increasing the appropriate transparency of the work of our intelligence, security and law enforcement agencies, but it is essential that this is done without damaging national security or effective law enforcement and, above all, public safety.

The Government have committed to publishing an annual report on disruptive and investigative powers. The first report, covering the operation of these powers in 2014, will be published shortly. We intend to cover the use of the new passport seizure power in future annual reports. This approach is consistent with our approach to similar disruptive and investigative powers, such as the exercise of the royal prerogative to cancel or refuse to issue a British passport, which are included in the annual transparency report. We will also include the exercise of the temporary exclusion power in these reports.

For the reasons I have given, I therefore hope that your Lordships will feel reassured about the exercise of these powers and, accordingly, I would be grateful if the noble Lord would withdraw the amendment.

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Lord Rosser: Once again, I thank all noble Lords who have taken part in this debate. I hope that if I have misunderstood, the Minister will immediately put me right, but, as I understand it, he is saying that the Government will look at the issue of independent review of these parts of the Bill, or how that might be done, as part of discussions we will have on a later section of the Bill. Have I understood that correctly, or have I misunderstood it?

Lord Ashton of Hyde: The noble Lord has understood it correctly. We will discuss these matters further in Part 7. I also said separately that we are considering the report of the Joint Committee on Human Rights.

Lord Rosser: I thank the Minister for that clarification. Obviously, I am very grateful to him for his comments, which are extremely helpful. I will withdraw my amendment in a moment, not least in the light of his very helpful response.

I hope that the noble Baroness, Lady Ludford, will not mind if I do not give a detailed response to her question. However, I will look at the issue she raised about some of the amendments that we have tabled. In the short time since she raised the point—obviously, I was trying to listen to what was said in the debate—I have not had a chance to do so. Clearly, if they are wrong, that has been a slip-up on our part. However, I will have a look at the wording to see whether I share her view that that may be the case. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4 not moved.

Clause 1, as amended, agreed.

Schedule 1: Seizure of passports etc from persons suspected of involvement in terrorism

Amendment 5

Moved by Baroness Hamwee

5: Schedule 1, page 26, line 24, leave out from “issued” to “by” in line 25

Baroness Hamwee: This is a probing amendment, picking up a point which I raised at Second Reading. The passport which can be seized is either a United Kingdom passport or, according to paragraph 1(7) to the first schedule, one issued by another country,

“or by or on behalf of an international organisation”.

It is the passports of other countries and the international organisations’ documents that I would like to ask my noble friend about. UK passports are not the property of the passport holder and I believe it is the case in some other countries that the passport remains the property of the state. Perhaps my noble friend can confirm the position. Therefore, the first and obvious question is: what international discussions have there been and what agreement, if any, has been reached about this provision? Are other states happy, or at

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least relaxed, about the seizure of their property? Might there not be occasions when they would themselves ask to have the passport back?

Some international organisations issue laissez-passer documents, of which I think the UN is one. Is this provision compatible with our obligations to those international organisations? As I say, this is a probing amendment, as, I think, are all our amendments today. I hope that my noble friend can assist. I beg to move.

4.15 pm

Lord Rosser: My Lords, we have Amendment 16 in this group. Paragraph 4 of Schedule 1 deals with authorisation by a senior police officer for retention of a travel document. The travel document could, of course, be a non-UK passport. The purpose of our amendment, which provides for the relevant embassy to be informed immediately if a travel document is being retained, is to ascertain how the Government intend to manage the seizure of non-UK travel documents and the individual concerned, including where there is dual nationality.

Bearing in mind that the individual in question, who will presumably be a foreign national, will be unable to leave this country for a period of time, who or what will be informed of this who would not have been so informed if the individual in question was a British national with a British passport? If the country of which the individual concerned was a national became aware, or was made aware, that the passport had been retained and travel denied, would we, if that country so requested, prevent the individual travelling until it had carried out and implemented the kind of measures and procedures which we are providing for under the temporary exclusion orders?

If we were satisfied that the foreign national in question whose passport had been retained was seeking to go to another country, which was not their own, for purposes associated with terrorism, what action might we take? Would we consider legal proceedings against them in this country; would we deport them back to their own country; or would we allow them subsequently to continue on their way to wherever it was they were going?

This is very much a probing amendment to find out how the Government would manage the situation, or what actions they would take in relation to the seizure of non-UK travel documents and the individual concerned. I hope that the Minister will clarify some of the issues that I have raised, as well as those raised by the noble Baroness, Lady Hamwee.

Lord Bates: My Lords, I am grateful to my noble friends Lady Hamwee, Lord Thomas and Lady Ludford for tabling Amendment 5 and for providing advance notice of their amendments. The debate on this group has also concerned Amendment 16, tabled by the Opposition, and to which the noble Lord, Lord Rosser, has spoken. I will seek to address the issues that both amendments raise.

Amendment 5 would amend the definition of a passport to exclude,

“a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom”.

20 Jan 2015 : Column 1225

It would prevent police officers and designated Border Force officers exercising the power against individuals travelling on a foreign passport. This would mean that the police could not use this power to disrupt the travel of foreign nationals they reasonably suspected to be travelling overseas for terrorist-related activity. In the case of British citizens with dual nationality, the amendment would have the effect that the person’s British passport could be seized but their foreign passport could not. I accept the probing nature of the amendment, and I am sure that my noble friend is aware of that point but is seeking to elicit further information and reassurances.

The increasing number of people leaving the UK and Europe for the purpose of engaging in terrorism-related activity overseas—and returning with enhanced terrorist-related capabilities—means that we need proportionate powers to counter the real threat that we face from terrorism at home and abroad. This power will send out a robust message to anyone considering travelling to and from the UK for the purpose of involvement in terrorist activities.

It would not be appropriate—indeed, it may unlawfully discriminate against British citizens—if the police were able to use this power against British citizens suspected to be travelling overseas for terrorist-related activity but unable to use this power to disrupt the travel of foreign nationals. The power therefore applies to British citizens and foreign nationals, including European Economic Area nationals. Databases at a port would be updated to disrupt any further attempts at travel for the period in which the travel documents have been retained.

Passports are the property of the issuing authority—my noble friend sought clarification on this—and it is an International Civil Aviation Organisation, ICAO, standard for the issuing authority to be shown on the passport. There is no legal requirement to inform other issuing authorities when passports are seized or surrendered in other circumstances, such as to meet bail conditions. That would be the same for a British national in another country subject to similar actions.

Amendment 16 would require the police to inform the relevant embassy or high commission if the police exercised the power at Schedule 1 against their country’s citizens. If a foreign travel document is seized under this power, we will consider whether to notify the Government concerned on a case-by-case basis. In some cases, there could be concerns about the consequences for an individual if information like that is made available. Individuals affected can, of course, if they choose, seek consular assistance from their Government’s representatives here.

Foreign Governments are not routinely notified when their passports are seized or surrendered in other circumstances, such as under Schedule 7 to the Terrorism Act 2000, when a passport can be held for up to seven days for examination purposes, or when an individual subject to a terrorism prevention and investigation measure is prohibited from possessing a travel document.

My noble friend Lady Hamwee asked about the definition of travel documents. Our definition is anything that is or appears to be a passport, ticket or another document that permits a person to make a journey by

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any means from within the UK to outside the UK. It would include, for example, a boarding pass. A passport means a UK passport or a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom or by or on behalf of an international organisation or a document that can be used in some or all circumstances instead of a passport.

I was asked whether the power applied to diplomatic passports. Under international law and treaty diplomats may enjoy certain immunities. This power cannot be used to breach one of those. I think that is fairly clear.

The noble Lord, Lord Rosser, asked whether we would return a foreign national’s passport to their country, if it was requested. Passports are the property of the issuing authority, as I have already mentioned. There is no legal requirement to inform issuing authorities when passports are seized or surrendered. If the issuing authority requested it to be returned, we would consider whether it was appropriate to do so. In most circumstances we would expect to return it unless it was required, for example, as evidence in connection with a prosecution.

I have tried to answer the points of what I know were probing amendments. I hope with those bits of explanation and justification my noble friend will feel free to withdraw her amendment.

Lord Thomas of Gresford (LD): I wonder whether the Minister can help me. It just occurred to me, as I was listening to him, about a foreign national who is in transit through this country. Is this power exercisable to remove the passport of a foreign national who is simply passing through this country with a view to going to a further destination?

Lord Bates: I will check this, because it is a very important matter, but intuitively my belief would be that the answer is yes, because they would be in the United Kingdom and they would be reasonably suspected by the authorities or the police of intending to travel overseas from this country for terrorist-related activities. I will check on that and if it is not the case I will write to the noble Lord.

Lord Hope of Craighead: My Lords, I think there may be different types of transit. There are certainly some instances in an airport where you pass through and do not actually go through immigration control. You are simply passing from one airline service to another and you bypass the place where the police officer would be to seize your passport. Other people in transit may have to remain for a while, possibly because they want to see somebody or collect luggage. It may well be that the noble Lord is entirely right that in that situation, because you are confronted by a constable with the power, the power would be exercisable —so it may depend very much on the circumstances of the individual traveller.

Lord Bates: I agree and I shall seek clarification on that. It may also be the case that the power is triggered when someone on a no-fly list comes in, even though effectively they are not entering UK territory. However, when they arrive in the UK, they have to present their passport and travel documents—and, as I argued in

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my answer, at that point I would expect any action to be taken. Again, these are very important points and I will check with the authorities on how this will work in practice. It is probably covered in the draft code of practice on the seizure of passports, which is currently out for review. If so, I will certainly make sure that those views are noted as part of the consultation process.

Lord Pannick: The answer may be that the powers apply in the case of a person at a port in Great Britain. That is at paragraph 2 of Schedule 1, and “port” is defined in paragraph (1)(8) as including “an airport”. From that, my understanding is that if you are at the airport, whether on the land side or the air side, the power will exist. However, I should be very grateful if the noble Lord could write with the answer to all noble Lords who are interested in this matter.

Lord Bates: That seems to be excellent legal advice and I am sure that it is absolutely correct. Certainly we will review it and, if that is not the case, we will write.

Baroness Hamwee: My Lords, the point about not passing through immigration control occurred to me as well as noble Lords were speaking. Then my mind turned to the question of what would happen if someone was travelling on one passport but carrying the passport of another country and switched half way through the journey. All this goes to the workability of these provisions, which is really the overarching question that noble Lords are asking. I do not think that I am alone in finding it a little difficult to imagine quite how the powers will operate in some circumstances.

It is not always easy to probe something without suggesting the opposite of what one intends. There is another example of that coming up shortly. So the noble Lord is right: I was not trying to take the words out but merely probing.

I am not sure—I may have missed it—whether the Minister referred to international organisations other than quoting what is in the schedule. Perhaps I may look at that after today and, if necessary, have another word with him. It looks as though I may not need to withdraw the amendment quite yet.

Lord Bates: I am just looking for help in order to answer my noble friend Lady Hamwee. The answer that I gave on diplomatic immunity was that, under international law and treaties, diplomats may enjoy certain immunities, and this power could not be used in breach of those. Therefore, that is clear. In relation to the point that the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick, raised on transit passengers, my briefing note says, reassuringly, “Yes, your answer was accurate”. That is helpful. There may be cases where it is appropriate to use this power against transit passengers and, in practice, these will mostly occur following prior information provided to the police about an individual’s intention to travel. The power can be exercised both air side and land side, including against passengers who do not present at immigration control. I hope that that is helpful to noble Lords.

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Baroness Hamwee: My Lords, that depends on somebody knowing that the passengers are there if they remain air side. I may have this wrong and I accept that my amendment did not take out the reference to international organisations. They may have the equivalent of diplomatic immunity. I was not thinking of that; I was thinking of the large international organisations which issue a laissez-passer, as I understand it. Maybe that is something on which I could have a word with my noble friend. He nods; I am grateful for that. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by Baroness Hamwee

6: Schedule 1, page 27, line 13, leave out “or is intended to do so” and insert “either intentionally or recklessly as to the consequences”

4.30 pm

Baroness Hamwee: My Lords, I shall also speak to Amendment 7. Amendment 6 is one of those probing amendments which may seem a bit unexpected or counterintuitive coming from me. It seeks to inquire whether the reference to intention in paragraph 1(10) covers recklessness. The words I have used are, “recklessly as to the consequences”. Will my noble friend share with the Committee the Government’s thinking on restricting the term to intentionality?

My second amendment, already trailed by the noble and learned Lord, refers to humanitarian assistance. This is another probing amendment to ask how the Government plan to deal with workers travelling out who are associated with reputable organisations such as the Red Cross. I accept that this is a difficult area because there can be individuals who are not with such organisations but who, in their own minds, are going out to provide humanitarian aid. They might be so closely associated with those who are fighting that they would be seen by others as providing something which is closer to military support than the broader humanitarian assistance.

We need to find a way through this difficult area, but at this stage perhaps my noble friend can explain the Government’s thinking on this issue and what work they have done with the big, overstretched—I am sure they could do without a further consultation, but there you go—humanitarian organisations working in the Middle East. I beg to move.

Lord Hope of Craighead: My Lords, as I hinted earlier, I wish to add a little more detail in support of Amendment 7, in the name of the noble Baroness. The background to what I am going to say comes from my experience chairing the Joint Committee on the Draft Protection of Charities Bill, which has been considering a clause which would seek to add offences under the Terrorism Act 2000 to the list of offences a conviction for which will result in automatic disqualification from being a trustee of a charity. That may seem a little bit removed from what we are considering this afternoon, but we have heard evidence on that issue from various witnesses speaking about the chilling effect of the risk

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of prosecution under the terrorist legislation on the efforts of those who seek to provide humanitarian assistance in areas which are under the control of, for example, proscribed organisations.

Among our witnesses was the chairman of the Muslim Charities Forum, who said:

“I go to difficult areas like Afghanistan, South Sudan and Chechnya. Recently, two weeks ago, I was in Iraq, in Baghdad. I have been in Somalia, in Mogadishu and other countries. I think counter-terrorism legislation is preventing us from having access to the neediest people. There are proscribed groups in those areas, and we know them. They are the gatekeepers. How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world?”

That was the problem to which he drew our attention.

Among our other witnesses was the Independent Reviewer of Terrorist Legislation, David Anderson QC, to whom the noble Lord rightly paid tribute early this afternoon and I entirely endorse his remarks. He said that charities operating in these areas run the risk of falling foul of terrorism law—for example, by delivering relief to a general population which may include individuals or groups designated as terrorists. He suggested that increased risk could deter charities and their trustees from delivering humanitarian support. He was talking about the risk that would be created by extending the definition that disqualifies people from being trustees on conviction for these offences. As I mentioned earlier, we are talking about a rather softer mechanism, which is very important but depends on a decision taken by a constable at the point of entry.

One of the points to which David Anderson drew our attention was that there are examples in other countries where this issue has been addressed. The Minister might be interested to know that the kind of exception which the noble Baroness is suggesting can be found in connection with the broad definition of terrorism when one studies, for example, legislation in Australia or New Zealand. They have specific exceptions in terrorism law to meet that point, including that of association with proscribed organisations for the purpose of providing humanitarian aid. That is very important and it is rather odd that it is raised as a tiny, probing amendment in a debate on a temporary exclusion order. It runs right through the effect of the broad definition of terrorism, which Mr Anderson described as quite disturbing because of its breadth, and adds a great deal of force to the noble Baroness’s amendment.

I invite noble Lords to think carefully about that because the humanitarian effort is something all of us would wish to support. Given the amount of effort that the Government rightly put into providing aid overseas, it would be most unfortunate if it is being cut off because of this kind of measure. Of course, there are ways in which it can be done without embarking at all on this kind of risk area, but those who are right at the frontier in these very difficult areas should not be discouraged by legislation of this kind if it is possible to protect them against its effects. The humanitarian exception may be one of the more important issues that we are considering today. I would be very interested, and I am sure that the noble Baroness would be too, to hear how the Minister would wish to consider the point.

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Lord Harris of Haringey (Lab): My Lords, I, too, want to say a word about Amendment 7. I have some difficulty with the arguments being presented in favour of it. I accept that there is clearly a potential issue about humanitarian assistance in terms of other terrorist legislation, but Schedule 1 relates to, “Seizure of passports etc from persons suspected of involvement in terrorism”. The paragraph is referring to an individual at a port in Great Britain where a constable has reasonable grounds to suspect that person of being involved in terrorism. To amend in terms of humanitarian support seems completely unnecessary. Surely, it is palpably obvious to a constable making this decision that this is not someone engaged in terrorist activity if what they are doing is humanitarian activities.

If, however, an exception is put in, which says that you except people who might be engaged in humanitarian activities, a situation would be created in which people will purport to have been providing humanitarian assistance rather than anything else. It seems to me that, although there is a genuine debate to be had about humanitarian activities and the extent to which crossing into various areas might be deemed to apply, this is a circumstance in which a constable is exercising a judgment about whether the individual in front of him is engaged in terrorist activities. If they are palpably humanitarian, there is no suspicion. If, however, they are given the option of pretending to be humanitarian so as to avoid the constable having the right, it seems to me that an additional problem is being created.

Lord Ashton of Hyde: My Lords, I am grateful to my noble friends for tabling more probing amendments. The Minister and I will be well and truly probed by the end of the Committee stage.

We have had an interesting debate, with arguments expressed on both sides. The definition of “involvement in terrorism-related activity” used in Schedule 1 is the same throughout the Bill. It may be helpful to explain to the Committee that this definition has already been changed from that which exists in previous legislation in line with the recommendation of the Independent Reviewer of Terrorism Legislation that the definition of terrorism-related activity in the TPIMs Act should be narrowed.

The effect on the current Bill is that involvement in terrorism-related activity does not include conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct which facilitates or gives encouragement to acts of terrorism, or which is intended to do so. David Anderson described these individuals as those who are at three stages removed from actually committing a terrorist act: the giving of support to someone who gives encouragement to someone who prepares an act of terrorism. This change in definition is consistent with the public protection to which the legislation is directed.

Amendments 6 and 7 would amend the definition of involvement in terrorism-related activity as it currently appears in the Bill. The provision to which Amendment 6 relates refers to,

“conduct that gives encouragement to the commission, preparation or instigation”,

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of acts of terrorism, whether or not the conduct is intended to do so. The amendment would amend the definition to conduct that gives intentional or reckless encouragement. To answer my noble friend Lady Hamwee, we believe that reckless encouragement is included in the current definition and we believe that accidental or reckless encouragement should be captured when its consequence is to encourage the commission, preparation or instigation of acts of terrorism.

The provision to which Amendment 7 relates refers to,

“conduct that gives support or assistance to individuals who are known or believed by the person concerned to be involved in”,

the commission, preparation or instigation of acts of terrorism. It is clear that the support or assistance which falls within that definition is that which supports or assists individuals with acts of terror. We do not want to specify explicitly—this point was well made by the noble Lord, Lord Harris of Haringey—that those providing humanitarian assistance, however defined, are excluded from the definition of involvement in terrorism-related activity. For example, as the noble Lord mentioned, it is possible that a person acting in a humanitarian capacity can also give support or assistance that would enable others to engage in terrorism.

My noble friend Lady Hamwee asked whether we have consulted NGOs or charities on this, and the noble and learned Lord, Lord Hope, mentioned its possible chilling effect on charities. We have not specifically consulted, but such organisations are capable of referring to the consultation. We would encourage them to do so and to reply to it.

I want to reassure your Lordships that support or assistance is, in this legislation, quite clearly that which supports or assists individuals with acts of terror and not any other legitimate activity.

Lord Hope of Craighead: Does the Minister appreciate the difficulty our witness was talking about of having to deal with people he described as “gatekeepers”? There is a risk of misunderstanding where someone is trying to get through the gate, as it were, into these difficult areas and is being told what to do, as a condition of getting through to provide the assistance, by the so-called “gatekeeper”, who may well be in a proscribed organisation. There is a considerable risk, so we are told, of being thought to be providing assistance to him because you are telling him what to do, whereas in fact what you are trying to do is to take the aid through to those who really need it. I appreciate the point that is being made, but I wonder whether the Minister will consult a little more carefully on this sensitive issue to see whether it is being accurately dealt with in sub-paragraph (10)(d) on page 27.

4.45 pm

Lord Ashton of Hyde: I take on board the point made by the noble and learned Lord. I will go back and make sure first of all that I have understood it correctly and then that we have looked at this, though I cannot give any guarantee as to the outcome.

On the basis I have outlined, I hope that noble Lords are reassured that this is specifically to do with acts of terror, and I invite my noble friend to withdraw the amendment.

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Baroness Ludford: Just before my noble friend sits down, would he clarify whether I understood correctly that someone could be caught by sub-paragraph (10) if they had accidentally committed any of these activities of giving encouragement or offering assistance? Is this because of general principles of law or interpretation? Maybe I misheard him. Perhaps he could enlighten me.

Lord Ashton of Hyde: I did say that we believe that accidental or reckless encouragement should be captured when its consequence is to encourage,

“the commission, preparation or instigation of acts of terrorism”.

Baroness Ludford: Is there not rather a difference between accidental and reckless?

Lord Ashton of Hyde: I completely agree that there is a difference between those two words, but they are not mutually exclusive.

Baroness Hamwee: My Lords, of course there is a difference and it is not just about mutual exclusivity, but I do not wish to pursue that at this point.

On the second of the amendments in this group, one never knows where one’s probing is going to lead. Although the noble Lord, Lord Harris of Haringey, may disapprove of my drafting, I am glad that I raised it. I do not think that it will necessarily be palpably obvious to an immigration official why somebody is seeking to leave the country. I accept that the point is not confined just to this schedule and I think it is worth consideration. I would be grateful to have a conversation with the noble and learned Lord, Lord Hope, as to whether we can use the opportunity of this legislation to try to deal with the point more widely. I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendment 7 not moved.

Amendment 8

Moved by Lord Rosser

8: Schedule 1, page 28, line 3, leave out “reasonable grounds” and insert “evidence or intelligence”

Lord Rosser: My Lords, my amendments in this group are Amendments 8, 14 and 15. Amendment 8 provides that, for the powers relating to search and seizure in respect of travel documents in paragraph 2 of Schedule 1 to be exercised, a constable must have “evidence or intelligence” to suspect that the person in question is there with the intention of leaving this country for the purpose of involvement in terrorism-related activity rather than “reasonable grounds” as provided for in the Bill.

This power of seizure of travel documents in this way is a new one and is presumably expected to be exercised only where the relevant authorities have either some hard evidence in respect of the individual whose travel documents they intend to retain or intelligence of a nature which they believe, bearing in mind its nature and source, may well prove accurate.

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The Bill does not make provision for the person whose passport is seized to be informed, even in outline, of the reasons for the authorities suspecting that they may wish to travel abroad for purposes associated with terrorism and neither does the draft code of practice require a person who is subject to the exercise of the power to search for and seize travel documents to be told anything about the reasons underlying the suspicion that the person is intending to leave the country for the purpose of involvement in terrorism-related activity.

It is important that this new power should be exercised, as I have no doubt whatever is the intention, in a responsible and proportionate manner. The question is this: what do the Government intend the phrase “reasonable grounds” to mean if it does not mean suspicions based on evidence or intelligence? If it does mean that, why not say so in the Bill? No doubt the Minister will address that point in his reply.

Amendments 14 and 15 provide that an individual whose travel document has been removed may appeal against this decision in the courts over the evidence on the basis of which the conditions in paragraph 2(1)(a) and (b) of Schedule 1 were met. Those conditions relate to suspicions that the person is leaving the country for the purpose of involvement in terrorism-related activity or has arrived in this country with the intention of leaving it soon for that purpose. The use of these new powers of seizure of travel documents, including passports, will no doubt be undertaken in an appropriate, reasonable and proportionate manner. But since the tests as set out in the Bill are to be ones of “reasonable suspicion”, there is inevitably scope for genuine mistakes to be made on occasion. Our amendments provide for a right of appeal in court following the temporary seizure of a passport, initially for up to 14 days, over the reasons which led to that administrative decision under the terms of the Bill, a decision which, if wrong, could have significant implications for a person who found themselves, because of that decision, unable to travel outside the country for a period that could be up to 30 days. No doubt if further information had come to light in the mean time prior to the appeal which either strengthened or weakened the case for the original decision to seize the travel documents, that would also be placed before the court. Judicial review alone would not achieve this objective since it would not enable the person whose passport had been seized to challenge directly the basis on which the power had been exercised; namely, whether there were reasonable grounds to suspect that they intended to leave the country to become involved in terrorism-related activity.

It is of course the case that under the Bill the police have to apply to a court for an extension of time up to a maximum of 30 days if they wish to retain the seized travel documents beyond the maximum of 14 days laid down in the Bill. However, the court making that decision is not reviewing the reasons that led to the decision being made to seize the travel documents, but simply whether the authorities considering whether further disruptive action should be taken against the individual concerned had been acting diligently and expeditiously. An authorisation process of the decision to seize travel documents will exist up to the level of chief constable, but there is no provision within that

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process for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. That authorisation process surely cannot be regarded as an alternative to a right on application to have the decision to seize travel documents reviewed by a court. I hope that the Minister will be prepared to consider carefully the points I have made in support of my three amendments. I beg to move.

Lord Hope of Craighead: My Lords, I should like to say a word about Amendment 8. With great respect to the noble Lord, Lord Rosser, I think that the phrase used in the Bill, if it is properly understood, accommodates the point he is seeking to raise. I speak about this with a certain amount of background because the very first judgment I was asked to write when I began my career as a Lord of Appeal in Ordinary in this House was in a case called O’Hara against the Chief Constable of the Royal Ulster Constabulary, reported in 1997 as Appeal Case 286. What we had to do in that case was consider the meaning of the phrase. A bit of research revealed that it has actually been with us for something like 100 years and has been used repeatedly in measures such as the Public Order Act 1936 and other measures where a constable is being asked to take a decision as to whether to exercise a power of search, entry or something of that kind. That situation is analogous to the one we are contemplating in regard to the position of the constable under this schedule.

What, then, do the words mean? As we said in the judgment, they concentrate on what was in the mind of the constable at the time that he exercised the power. But it is important to appreciate that there are two aspects to what was in his mind. One is what we described as the subjective aspect, which is whether he formed a reasonable suspicion. However, the important point, which is a reply to the noble Lord, Lord Rosser, is that there is also an objective element, because he has to be able to say what the objective element was. There must have been reasonable grounds for the suspicion that he formed. They are the grounds that were in his mind at the time when he was judging whether they were reasonable. That is directed to the information that he had when he decided to do what he did. That raises certain questions. What was his information? Where did it come from? What was its content? How could one say whether it was reliable? In particular, who imparted the information to him?

These are the kind of questions that anyone examining the issue would wish to have answers to. The point is not so much whether the information was true or not, because that is not something that the constable can judge at the time. The point is what information did he have and did it include information that purported to be intelligence, which is the kind of point that the noble Lord was raising.

Properly understood, this phrase, which every constable is trained to understand, and the courts are well used to, is really able to accommodate the point quite adequately, and I suggest that the safest course is to stick to the familiar phrase, given the import of the phrase as understood and as explained in the case of O’Hara.

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Baroness Hamwee: My Lords, with no such authority —neither mine nor anyone else’s—I wrote, against Amendment 8, “If it is reliable intelligence is it not already covered?”. Intelligence may be less than reasonable; evidence may be more than is reasonable. I am not clear what standard would be required by the provision as amended. The noble and learned Lord has made my point much more clearly and authoritatively.

I have a number of amendments in this group. Amendments 10, 12, 13 and 21 all provide for the giving of reasons for the suspicion and for allowing the person the opportunity to make representations at the different stages of the process. I hope that both those items are self-explanatory: there should be an explanation, at the very start and at each stage, and the person concerned should be able to make representations—make representations is about the right level; I am not quite saying make a case—and to state their position.

Amendments 17, 18 and 19—

Lord Harris of Haringey: Before the noble Baroness moves on, she said that she felt the arguments to be self-explanatory. Perhaps, for the assistance of the Committee, she could talk a little about what she means by the reasons. If you present an individual with the reasons, are you in fact asking that all the material that has led to that reasonable view being taken be presented? That could require the provision of intelligence material, which could have an implication for government. It would be helpful, therefore, to understand what the noble Baroness thinks would be sufficient to meet the requirement to provide reasons.

5 pm

Baroness Hamwee: I do not think that the noble Lord was present when I said that all our amendments today, and no doubt on subsequent days, will be probing ones. I think he was here when I said that many of our amendments—not just the ones that I and my noble friends have tabled—are about the workability of these provisions. I am sure that the Committee would like to understand what will happen at each stage.

I do not of course expect an immigration officer to come out with the kind of address that might be made to the Bench at a later point, but there is a very great difference between that and seizing the document under the provisions in Schedule 1. I dare say that the code of practice—and any additional guidance—will deal with this. I hope that it does, because I think it ought to. I am going to talk later, under a different amendment, about perceived discrimination, which I am sure the noble Lord will be as concerned about as I am. That is, in part, addressed when those who are exercising powers are as clear as they reasonably can be at any given stage about why they are doing so.

One set of amendments would change the 14-day period to seven days. The Joint Committee on Human Rights raised this point and drew comparisons with other provisions, such as those relating to property rights under the Anti-terrorism, Crime and Security Act, where an application must be made to a court to retain cash after 48 hours; equally, where a person is arrested under Section 41 of the Terrorism Act 2000

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on reasonable suspicion of being a terrorist, a judicial warrant of further detention must be applied for within 48 hours of arrest. The JCHR recommended that seven days should be substituted for 14 days. I would have hoped that the committee did not make this point, but that would be adequate time to assemble the material that needs to be presented—and indeed to assemble the presentation—to the court, which in any event can extend the time.

The last of my amendments in this group, Amendment 28, amends Schedule 1(8). Under paragraph 8(4),

“the judicial authority must grant an extension if satisfied that the relevant persons have been acting diligently and expeditiously”.

My amendment would add a reference to “reasonable grounds”. In other words, it seeks to ensure that the judicial authority would apply the same test as under paragraph 2.

Baroness Ludford: My Lords, in relation to this group, without I hope stretching anyone’s patience, I will just repeat two questions that I asked at Second Reading, to which I do not think I got an answer. The first question, which may be very daft, is why it is not possible to use powers under Schedule 7 to the Terrorism Act to retain passports for up to seven days. Why can those not be used for outward travel? The Minister may not be able to instantly answer that. Secondly, how do you stop a rolling renewal? I gave the analogy of declaring the whole of Greater London a terrorism exclusion zone. How do you stop that just being renewed on a repetitive basis?

Lord Pannick: My Lords, in relation to the amendment of the noble Baroness, Lady Hamwee, concerned with the giving of reasons, and in relation to the concern of the noble Lord, Lord Harris, I suggest that the answer is the one given by the Joint Committee on Human Rights, from paragraphs 230 to 233. The obligation in the Bill should surely be that there is a duty to give the gist of the reasons. No one would suggest that all detailed reasons must be given, but if someone is told that their passport is being taken away they should be told the essence of the reasons why if this power is to be acceptable and not criticised as obviously unfair. It may be necessary to write in an exception. There may be security reasons why not even the gist can be given. It is fundamental that if you exercise a power of this sort you give the gist of the reasons for doing so.

Lord Thomas of Gresford: I wonder if the Minister could consider a concrete and perhaps not too remote example. Let us suppose the authorities in the United States were to send an e-mail to the authorities in this country, saying that X should be stopped; he is passing in transit through the UK and going to Ukraine— for instance—for terrorism purposes. Would that be reasonable grounds for stopping him and removing his passport? I would like the Minister to consider that. There would be no evidence or intelligence in the hands of the British authorities. A reason given to the passenger could, I suppose, be that their country says that their passport must be taken away; but would that be reasonable grounds? Could that possibly be the basis of the decision by the policeman or immigration officer?

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Baroness Warsi: Following on from my noble friend’s comments, would our response and assessment of what would amount to reasonable grounds differ depending on the country that was making that request and on the laws of that country?

Baroness Kennedy of The Shaws (Lab): My Lords, I declare an interest as a member of the Joint Committee on Human Rights.

I have a number of amendments in this group and they all relate to judicial oversight of the powers to remove passports and travel documents. They are all ways of giving weight to the right to a fair hearing, as provided by Article 6 of the European convention. Basically, they are ways of making the oversight of the power procedurally fair and it is on procedural fairness that I want to make this contribution.

The relevant parts of Schedule 1 provide for a judicial role and are modelled to some extent on the provision made for warrants for further detention in Schedule 8 to the Terrorism Act 2000. That governs the detention of a person arrested on reasonable suspicion of being a terrorist. If you make a close comparison of the two schedules, it becomes clear that the procedural safeguards that were introduced into the Terrorism Act are not present in this Bill. This makes it significantly weaker as a result.

When Schedule 8 to the Terrorism Act was procedurally strengthened it was as a result of some of the recommendations of the previous Joint Committee that I was not on. That kind of coherence should be there in legislation of this sort. At the moment Schedule 1 is not compatible with the European Convention on Human Rights; the requirements on fair hearing are certainly not. I want to outline where the weaknesses lie, which is why I have tabled my amendments.

Amendment 24 refers specifically to,

“a warrant of further retention”,

to draw that analogy with the warrant for further detention that exists in the previous terrorism legislation. I have an amendment relating to gisting too. I repeat what others have said: a person who is having this power exercised against them really should know the basis on which the documents have been taken and there is the need for an extension. It is just not good enough to say, as it does in the Bill, that we should be preventing people dragging their feet or not being diligent enough. While we want to ensure that people are acting diligently and expeditiously, there has to be more to it. There should be some requirement to consider the grounds for the retention of the documents, so I have inserted that into my Amendment 27.

This is all drawing on the report of the Joint Committee on Human Rights. With regard to Amendment 29, I urge the Committee to recognise how important it is to have oral argument in something as important as this. To have it done just in writing is not good enough. This is all fair hearing stuff. I really urge the Government to have regard to the ways in which this has been done in previous legislation.

With regard to Amendment 30, I am very concerned that while the Bill provides for a closed material proceeding at the extension hearing, there is no provision for special advocates. I am no great fan of special advocates—

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that process of having secret hearings—but I certainly feel that if you are going to have a closed material proceeding, you really must have protections for the person who is having their documents taken. I urge the Government to look at this again because I do not think that Strasbourg is going to think that it is compliant. Strasbourg has accepted the procedure that we have introduced here but one of the things it sees as being an important element is the role of the special advocate. There is a case waiting to come up in Strasbourg—Duffy—but I think we will find that this is going to fall foul of our obligations. Having special advocates involved is a very important element here.

Amendment 31 is really just tidying up in order to make the procedures parallel with those in Schedule 8. Amendment 32 says that if the court allows closed material proceedings, the state must provide a summary. Of course, if the state does not want to do that and there are special reasons why the intelligence agencies do not want it to be in the public domain, it is open to the state to withdraw. I think it is important that we use the model of other legislation that we have to help us get the best kind of legislation that the Government are seeking in this set of circumstances.

Those are the reasons for my amendments. I support the reduction to seven days that is being proposed by the noble Baronesses, Lady Hamwee and Lady Ludford, and the noble Lord, Lord Thomas of Gresford. I hope that the Government will see why it is important that we create fair proceedings around this special set of powers.

Lord Macdonald of River Glaven: My Lords, I support what the noble Baroness has said. There cannot be any doubt that the power to exclude British citizens from their own country is a wholly exceptional power of the sort that we have not seen before. In fact, it is warranted by the threat that emanates from the globalisation of terror and the ease with which young men in particular, but some young women as well, can pass in and out of parts of the world that are controlled by terrorists, and of course the threat that they represent to us when they return from those zones.

However, it is the exceptional, drastic nature of this power, warranted though it is, that requires that procedural fairness is absolutely guaranteed by the processes under which the power is exercised. It is because the power is so extraordinary that it is so important, in order to avoid the scenario that the noble Baroness was talking about at the outset of this debate, that we observe the highest degree of procedural fairness. To that extent, I support what she has been saying.

5.15 pm

Lord Bates: My Lords, this has been a substantial debate, which is not surprising because there are 24 amendments in the group. I will run through a full response and then address in particular the key concerns and comments which were made. They have been particularly helpful because they provide an opportunity to flesh out the workability of the options before us.

This debate is about judicial oversight of the temporary passport seizure power. I am grateful to noble Lords whose amendments we are considering and all those

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who contributed their expertise—very deep expertise in the case of the noble and learned Lord, Lord Hope, who has experience of the judgments in which he has taken part and has written.

These amendments cover a number of areas including: requiring the police to inform a person of the reasons his or her travel documents are being seized; allowing an individual to make representations at the point of seizure; creating a statutory right for the person whose travel documents have been seized to appeal the police officer’s decision to a court; and reducing the initial period of retention from 14 days to seven days. I reassure noble Lords that the power is already subject to considerable safeguards proportionate to the level of interference. Safeguards already in place will ensure that, as the noble Lord, Lord Rosser, sought, this power will be exercised in a fair, reasonable and lawful manner and in a responsible and proportionate way. Crucially, individuals can already challenge the exercise of this power, if they choose to do so, by seeking a judicial review. Given the safeguards and constraints on the use of the power, we believe it is the appropriate form of court scrutiny to which the exercise of the power should be subject.

Let me briefly summarise for the Committee the safeguards that we already envisage. The decision to exercise this power will be made by a trained police officer and subject to authorisation by a senior police officer of at least the rank of superintendent who must be satisfied that the test for exercise of the power was met. If the travel documents are still being retained 72 hours after they were seized, a police officer of at least the rank of chief superintendent must carry out a review of that decision and communicate his findings to the relevant chief constable, who must consider and take appropriate action.

Unless a court agrees to extend the retention period, the police may retain the travel documents for a maximum of 14 days from the day after the documents were seized. This timescale has been set deliberately. The investigation should have progressed to the extent that a court can meaningfully consider whether the investigation into whether there are grounds for further action to be taken is being conducted diligently and expeditiously, and the evidence heard should be tailored to the case being considered. A statutory code of practice for police and Border Force officers, which is currently open for consultation, will make provision for how officers are to exercise the powers and guard against any risk of improper use.

I have listened to today’s debate and noted the implication that taking a passport for up to a maximum of 30 days is an infringement of liberty equivalent to detaining an individual in a police cell. Indeed, the amendment tabled by the noble Baroness, Lady Kennedy, to name an extension of the seizure period a “warrant of further retention” seeks to draw that exact analogy. Even if we were not facing the threat that we are from foreign fighters, I hope that noble Lords will agree that this is not an appropriate analogy. Individuals subject to this power will remain at liberty. During the period that the police hold that person’s passport, the police and others would work diligently to investigate the situation further.

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As the Bill stands, there is a clear threshold that must be met to justify the exercise of the power, and it can be used only at a port or border. The police are not empowered to detain the individual or remove his or her passport privileges permanently under this power. The legislation places a statutory duty on the police to return the travel documents as soon as possible if their investigations do not substantiate grounds to support further action being taken in respect of the person. In the light of the extensive nature of those safeguards, the Government believe that the changes proposed in these amendments are not necessary given the relatively limited impact of the power, and the amendments could have the unintended consequence of inhibiting its use. In other circumstances where a police officer forms a reasonable suspicion about an individual’s activities, there is no automatic court hearing to challenge his or her decision.

I hope that noble Lords will see that while a number of these amendments are helpful on the face of things, they could be damaging to national security if the police are required to justify their reasons for reasonable suspicion. To consider what information can be disclosed without prejudicing national security can take time and cannot be rushed. The use of reasonable suspicion as an evidential standard is used in relation to many other police powers, as the noble and learned Lord, Lord Hope, said. What constitutes reasonable suspicion will depend on the circumstances in each individual case. There must be an objective basis for the constable’s state of mind based on the facts, and it must be specific to the personal conduct of the person.

Although we cannot deal with hypothetical cases such as the one I was invited to comment on by my noble friends Lord Thomas and Lady Warsi, I can say that evidence will come to the police officer from many different sources. The point is that he must have reasonable suspicion and reasonable grounds for his suspicion that something is wrong. I know that in many cases the people most concerned to ensure that the individual does not travel abroad are the individual’s family and friends, who care for them, so information may come from that source. In some circumstances it may come from other sources, which we would want to take great care to protect. That is why we have this test in place at present; I will come to some of the specifics in a minute.

Under Schedule 7 to the Terrorism Act 2000, to which my noble friend Lady Ludford referred, people may be questioned by the authorities for the purpose of determining whether they appear to be persons who are or have been concerned in terrorism without any prior suspicion, and anything found on them, including their passports, can be retained for up to seven days for examination purposes. Under Schedule 7 there is neither a statutory right of appeal nor an automatic court review of passports permanently cancelled under the royal prerogative. If the police apply to the court to extend the retention period of the passport, they will issue a notice to the individual informing him or her of the reasons for the seizure and retention of the travel documents, provided that that information did not prejudice national security. The information provided will enable a person to understand why they are under investigation and will help the court—if the

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police apply to extend the retention period—to consider whether the case is being considered diligently and expeditiously. Your Lordships should also be aware that a person subject to this power is not prevented from making representations at any time, including at the point of seizure.

Due to the nature of the appeal or review envisaged in a number of these amendments, the court would need to provide for closed material proceedings with the appointment of special advocates. As the House will know, closed material proceedings are resource intensive and it would be challenging for such a hearing to take place within that initial seizure period. Indeed, by the time it is heard the travel documents might already have been returned or alternative disruption action have been taken.

A number of the amendments sought to reduce the initial seizure period to seven days. The 14-day period was set following consultation with the police; by that point the investigation should have progressed to the extent that a court can meaningfully consider whether the investigation into whether there are grounds for further action to be taken is being conducted diligently and expeditiously, and the evidence heard should be tailored to the case being considered.

As I previously outlined, the Government have established rigorous and stringent measures to ensure that this power will be used in a fair, reasonable and lawful manner, that the 14-day retention period is proportionate to the level of interference, and that safeguards are already in place to ensure that travel documents are not retained any longer than absolutely necessary.

Let me just deal with some specific points raised in the debate. First of all, the noble Lord, Lord Rosser, raised the issue of judicial oversight and review. In a judicial review, the court will consider whether the police officer’s decision was reasonable and in compliance with the public law and human rights principles. It will not substitute its own view on whether the test was met. However, the level of scrutiny is a high one and appropriate to this power. When we are dealing with closed material procedures, special advocates and gisting, on the point that the noble Baroness, Lady Kennedy, raised, the Justice and Security Act provides the basis by which closed material procedures could be used in such a judicial review challenge. The police may apply to the judge for an order to exclude an individual or representatives from the court hearing. The Bill sets out the circumstances in which this may happen—for example, if evidence of an offence under the Terrorism Act would be interfered with or harmed. The court is not examining the police officer’s decision to seize the travel documents; there is no explicit provision for special advocates to be appointed. However, case law suggests that magistrates would have jurisdiction to appoint special advocates if considered appropriate or necessary.

The noble Baroness, Lady Ludford, raised a couple of questions at Second Reading, and I am sorry that I did not get around to responding to them then, but I shall try to do so now. She asked, quite reasonably, why we could not use Schedule 7 to the Terrorism Act 2000. That schedule and this power have different

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tests and focus on different things. Schedule 7 is a no-suspicion test that focuses on the commission, preparation and instigation of terrorist offences. Any documents can be retained for seven days for the purposes of examination only. This new power has a reasonable suspicion test, and only travel documents can be retained for up to 14 days in the first instance. That is because the purpose, as we have set out, is that this is disruptive; it seeks to disrupt the travel plans of somebody who is reasonably suspected of travelling abroad for the purposes of terrorism-related activity.

The noble Baroness also asked about the rolling renewal of an extension. The power is exercised for 14 days initially and can be extended—so documents may be retained for up to 30 days with the permission of a court. The power cannot be renewed beyond 30 days because, at the end of that time, some alternative course of action might be taken. It might be a TPIM or a prosecution of some type, but the travel documents cannot be retained for longer than 30 days.

I have tried to address most of the issues raised. I shall deal with the particular, formal response about reasonable grounds, on the point raised by my noble friends Lord Thomas and Lady Warsi. It is for the police officer to decide whether he or she has a reasonable suspicion on which to exercise the power. Police officers are familiar with making decisions to this threshold. A request from another state would not be sufficient for a police officer to form a reasonable suspicion for him or herself—but, of course, we have intelligence-sharing arrangements with other states, and they may provide information to a level that would be sufficient for a UK police officer to form a reasonable suspicion about the individual’s travel intentions. In the consultation document that has been referred to, on page 8, there is a very detailed setting out, as noble Lords would expect, of what constitutes reasonable suspicion. Of course, extensive training would be given to those who would exercise that very serious power—I accept that is the point being made—before it is actually used.

With those assurances and explanations, I ask the noble Lord to consider withdrawing his amendment.

5.30 pm

Baroness Hamwee: My Lords, I realise that there is plenty of material in the Minister’s response for us to read and think about. However, at the start of his response, he said that an officer should not have to justify his suspicion. I wondered whether he was equating that with gisting, which was raised by the noble Lord, Lord Pannick, and others, because I do not think that they are the same thing. If he does not want to commit to answering that point now, perhaps I may have a word with him about that between now and the next stage.