Lord Bates: I am happy to expand further on that but, effectively, the justification I referred to was that the police officer would have had to have arrived at a position where he believed that there was a reasonable suspicion, and that the reasonable grounds test had been met. He would then have to justify that to a senior officer of the rank of superintendent or above and then, after 72 hours, that would have to be a chief
superintendent and it would have to go to the chief constable, so it was in that setting that I was referring particularly to the justification rather than gisting.
Lord Rosser: I thank all noble Lords who have taken part in this debate and thank the Minister for his very full reply which, as the noble Baroness, Lady Hamwee, has already commented, will probably need to be read through fairly carefully in Hansard to make sure that the different points that he made are fully digested. As I understand it, based on the Minister’s reply, the Government do not have any intention of going down the road of either my Amendments 14 and 15 on judicial oversight or, indeed, of the proposition made by the Joint Committee on Human Rights, which was of a different nature but clearly addressed the same issue. I think I am right in saying that the Government are not making any movement at all in the direction of either my amendments, or, indeed, the views of the Joint Committee on Human Rights. Have I understood that correctly?
Lord Bates: My Lords, the noble Lord seeks to draw me on this. This is the Committee stage of a very important Bill and we are very much listening and reviewing your Lordships’ comments. I am inviting the noble Lord to withdraw his amendment and therefore, obviously, signalling that we are not comfortable with it as it stands.
Lord Rosser: I give the assurance now that I intend to withdraw the amendment, so there is no need for the Minister to think that I am about to test the opinion of the Committee, if that is what is running through his mind. I was seeking to ensure that I had correctly understood the thrust of his reply on behalf of the Government, which I think I have interpreted correctly. I suppose that we can all wait in hope that the Government may change their mind, but the Minister did not say that he intended to reflect on the points that were made in the debate today, as he did in relation to other groups of amendments, so I think, for that reason alone, one puts a rather different interpretation on what he said on this group from the interpretation that one might justifiably put on what he said in response to previous groups.
I do not think that we have moved any further on the issue of people being given some indication of the reasons for the powers that be having suspicions that they intended to leave the country for the purpose of involvement in terrorism-related activity. I will need to read Hansard, but I thought that the Minister said that it was open to an individual to make representations at any time, including on seizure, but perhaps I misunderstood what he said. If he did say anything along those lines, I was going to ask him exactly what representations and to whom, but perhaps I misunderstood the reply.
I think that we have different views about what can and cannot emerge as a result of judicial review, since I think the Minister was of the view that somehow that contained a power to review the grounds on which a decision had been made as opposed to not being able to look at that issue, which is my understanding
of what judicial review would involve. It would not encompass that question. However, once again, I will read carefully what the Minister said.
We then had the comments in relation to the application to court to extend the period from 14 days up to a maximum of 30 days. Once again, as I understand it, that court is considering only whether the authorities are acting diligently and expeditiously and is not considering the reasons behind the decision—that is, the reasons behind the suspicion. So, in that sense, we do not seem to have moved any further forward in the light of the Minister’s reply. Likewise, I do not think that he responded to another point I made, although I did not specifically ask him to do so. I simply made the statement that, under the authorisation process, there is no provision 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. As I say, I do not think that the Minister commented on that, so I assume that my version is correct and that there is no provision for them to consider representations. So I think the point of view of those who have tabled the amendments must be that they have not made any progress so far. However, as I said, I will want to read carefully the Minister’s response, as I am sure will all other noble Lords who have taken part in this debate, in order to ensure that we have fully understood it. In the mean time, I beg leave to withdraw the amendment.
Baroness Hamwee: Amendments 22, 42 and 43 in this group are also in my name, and Amendment 11 is in the name of the noble Lord, Lord Rosser.
Amendment 9 has rather an automatic, almost knee-jerk—or perhaps wrist-jerk—wording that anyone who has dealt with contracts for more than five minutes is likely to produce; namely, if something is in someone’s possession, does that adequately cover the situation or do you need to refer to the item as being under that person’s control? Again, this issue is about workability. I raised it with the Bill team some two or three weeks ago, before Christmas, and asked what would happen if it were not the individual but a companion who was holding the travel documents, and what powers would be available to get at those documents. When people are travelling as a pair or in a group, an individual does not always carry his own documents at every point. I understand that the amendment’s wording is wide enough because I think that the documents must always come into the individual’s possession, but I thought that it was worth getting clarity on that in Committee.
Amendment 22 seeks to amend paragraph 6(4). That paragraph states that on reviewing the retention of travel documents:
“The relevant chief constable must consider those findings and take whatever action seems appropriate”.
That is a wide phrase and I do not think the Minister will be surprised that my point boils down to whether he can share with the Committee what is anticipated to be within the range of “appropriate” and how this will be dealt with. Will it be covered by guidance, a code of practice and so on?
My other amendments in the group, Amendments 42 and 43, concern the perception of discrimination in the exercise of these powers—an issue that I have already raised today. I accept that this is an immensely difficult area; I have referred in the amendments to training, including equalities training, and recording the performance of the exercising of the powers. The latter is certainly covered by the draft code, which I saw after I had tabled the amendment. However, I will probably not be the only Member of the Committee who is aware of concerns about discrimination or who has received from one organisation a copy of a briefing to its members to make representations to MPs. It says:
“The proposed legislation could bear serious consequences for British Muslims including”,
and lists a number of items. It then states:
“This is a deeply troubling piece of legislation for British Muslims and will change our lives forever it is passed in its current form”.
I have no easy answer on how to deal with this but the Government must, I am sure, have been considering the perception, particularly in the light of the fact that those against whom it is sought to exercise those powers are likely—that may be the wrong word—to come disproportionately from Muslim communities. I felt that the matter had to be aired for us to seek some reassurance, which I hope the Minister will be able to give. I beg to move.
Lord Rosser: I have Amendment 11 in this group, to which I wish to speak. Schedule 1 includes the procedure for the authorisation by a senior police officer for the retention of a travel document, and states in paragraph 4:
“The document may be retained while an application for authorisation is considered. Any such application must be considered as soon as possible”.
The effect of my amendment, which is more a probing amendment, is to provide a time limit within which the application for authorisation must be considered—namely, within 12 hours—rather than leaving it somewhat open-ended, as provided for in the Bill.
No doubt, the Minister will indicate in his reply why it was felt desirable not to lay down a specific maximum time limit but to leave the provision without any time limit at all by using the phrase “as soon as possible”. The length of time taken for the application for authorisation to be dealt with is presumably—although I should be grateful if it could be confirmed or otherwise—in addition to the period during which the travel document can be seized, as laid down in the Bill. If that is the case, it is important that such authorisations are not delayed but are dealt with expeditiously. How long do the Government believe it will take for applications for authorisation to be considered, and how long do they consider is reasonable in that context? Who will decide whether it has been dealt with as soon as possible? Who can take any action, and through which
channels, if they consider that the application has not been dealt with as soon as possible? How will they obtain the evidence for that?
I was going to ask the Minister: in what circumstances do the Government envisage that it would not be possible to consider an application within 12 hours? It may be that he will say in reply that he considers that an application should be dealt with in considerably less time than that but, bearing in mind my amendment, which aims to find out more about the reasons for the government wording, it would be helpful if the Minister could say what kind of factors leading to a delay—for example, beyond the period laid down in my amendment —the Government would believe were still compatible with dealing with the application as soon as possible.I hope that he will respond to these points, either now or subsequently.
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Baroness Hamwee: My Lords, I had intended to say a word about Amendment 11. Given that this is Committee, I may do so. I am sympathetic to the questions that the noble Lord has asked, although—as I suspect he may agree—12 hours is too long. However, the point that has been exercising me is whether it is a good idea to have a maximum period, or whether that might become the standard and efforts to deal with the matter as soon as possible will not be made. Perhaps the individuals will think, “I’ve got so long to deal with it and will therefore take that long”.
Lord Harris of Haringey: My Lords, I wish to comment on Amendments 42 and 43 in this group. I have to say that the grouping is slightly odd because it relates to a whole range of different issues. I assume that the purpose of the amendments of the noble Baroness, Lady Hamwee, is to ensure, first, that the way in which the action of removing someone’s passport is carried out is mindful of equalities issues and the background of the people concerned; and, secondly, that a proper record is kept of what is done, so that any subsequent look at how the powers had been applied can show that they had been applied proportionately. I have no objection to that; indeed, it goes to the essence of the point about this power and the subsequent powers—the extent to which they will be exercised in such a way as to achieve their purpose but avoid a situation in which they alienate a particular community by reinforcing the narrative that suggests that that community is being oppressed or whatever.
In that context, it would be helpful if the Minister could indicate how frequently it is anticipated that these powers will be used? Are we talking about six, 600, 6,000 or 60,000 times a year? It makes a significant difference because if every time people from a particular community try to leave the country they have to go through these procedures—and these documents are held for a period, whether for six, 12 or even two hours—that will produce resentment. If the powers are to be used in a much smaller number of cases, it may be that the proportionality will seem to be more reasonable. It would be useful if the Government, in asking for these necessary powers, were to confirm how frequently the powers would be used. I am sure
they have considered that. Perhaps the Government can say, having thought through the information and intelligence that has been available for, say, the past six months, how many times they think they would have sought to use these powers.
Baroness Ludford: My Lords, I, too, will speak to Amendments 42 and 43, which I strongly support and to which my name is also attached. The draft code of practice refers to the need for an objective basis for the constable’s state of mind and how such information must be specific to the personal conduct of the person and not formed on the basis of assumptions about attitudes, beliefs or behaviour of persons belonging to particular groups. Training in equalities would want specifically to address the danger of stereotyping or behavioural assumptions. There has been a great deal of concern in the last decade and a half about what might sometimes be called racial, ethnic or religious profiling. One of the things that distinguishes this country from, for instance, France is that we believe—and this also relates to the need to record statistics on the use of the powers—that it is a useful exercise to record statistics which include, as indeed does our census, a voluntary question on ethnic identity and religious practice because it helps inform social, economic and, in this case, legal lessons to be learnt. It is not helpful, as is sometimes done in other countries, to pretend that we are colour and identity blind, because that actually means that we are blind in terms of the policy conclusions drawn. The need for training to avoid discriminatory behaviour and stereotypical assumptions and to record how the constables and other qualified officers behave and perform their duties is a useful addition to the Bill.
Baroness Buscombe: My Lords, listening to this debate and a debate on the previous amendments, some of which I was listening to on my screen elsewhere, I say we must not lose sight of just what an incredibly difficult task our intelligence services and police face in relation to counterterrorism. As I said at Second Reading, we do not know all that the intelligence services know. We must not tie their hands too much and be too prescriptive. I suggest that these powers are not being sought lightly. We have to be really careful when we debate “how many hours” and “as soon as possible” in Committee to step back now and again to remind ourselves why we are here and what we are debating.
With specific reference to these amendments, I have some sympathy with my noble friend Lady Hamwee in relation to “possession” or,
“under his or her control”.
That sounds more all-encompassing; perhaps that comes from my legal background as well. It would be good to hear the Minister’s view on this.
In relation to Amendment 11, “evidence”, “as soon as possible” and “12 hours” have been mentioned. We need to give the security services the freedom—if that is the right word—to be able to do their job and need to trust them to some considerable degree to do the right job. I worry about the reference to statistics and so on in relation to later amendments in this group. Of
course we must be concerned about discrimination but at the same time how can we know—and how can my noble friend the Minister, with respect, stand here today and say—how many times we think these measures will be sought or used? We are in an incredibly difficult place at the moment on a global level. We have to do all we can to protect our citizens and collaborate with others across international boundaries to ensure to the best of our ability that we can counter terrorism. In that case, we should not ask for statistics at this stage. I understand where and why statistics look good and that we can look back and say that this made sense or that did not, or that it looks as if we have overused this or that power. Let us give the freedom necessary for the security services to do the job properly or to the best of their ability in the most difficult circumstances, remembering also that the circumstances have changed considerably since our last counterterrorism Bill. We are now in a situation where the speed to be able to act is absolutely of the essence, given that so much of this relates to information and evidence coming from possibly multiple sources and often digitally, in which case with enormous speed. We are asking our security services to act in response to that speed and the speed with which the perpetrators, those who we are seeking to prevent from carrying out terrorist acts, are able to act against us.
Baroness Warsi: My Lords, my noble friend Lady Buscombe makes some incredibly important points, many of which I agree with. Like her I pay tribute to the huge work done by our intelligence services, which are overseen by a very thorough oversight process. Noble Lords will be aware that not all services are perfect and mistakes can be made and it is therefore important that all our services, including our intelligence services, work within parameters.
The lawyer in me always says when I look at legislation, “What is the mischief we are trying to fix?”. When we pass legislation it is important that we bear that in mind. While I accept that these are difficult times and it is important to make sure that we are protected, it is also important that we ensure that we do not make the challenges we face worse. Huge progress has been made under this Government with the reform to stop-and-search powers. There has been progress in the right direction with many communities that felt alienated by the use of such powers and felt that their co-operation with, for example, the police would have been so much better had the powers not been exercised in a way that led to profiling and discrimination. We are all aware of arrests made under terrorism legislation that did not lead to charge and charges that did not lead to convictions. The numbers were so overwhelming at one moment that it appeared the powers were being in used in a way that was doing more harm than good. In those circumstances it is important for us to ensure—not just because discrimination is wrong and we should fight it—that in exercising these powers we do not discriminate and make the problem worse. In those circumstances I support many of the comments made by my noble friend Lady Hamwee and the noble Lord, Lord Harris.
Lord Ashton of Hyde: My Lords, I am grateful to all noble Lords for their contributions to this debate. My noble friend Lady Buscombe pointed out the need
to trust the authorities within reason. We accept that there should be proportionate oversight and controls. The issue in this area, as in so many areas of the Bill, is drawing the line correctly between civil liberties and the need that the authorities have to deal with the threat.
These amendments cover issues concerning the seizure of travel documents, the process to authorise the retention of travel documents and the code of practice. Amendment 9, in the name of my noble friend Lady Hamwee, seeks to amend the powers and conditions of seizure relating to travel documents, from the documents being in a person’s “possession” to them being,
“under his or her control”,
based on my noble friend’s experience of corporate law. As the Committee knows, this power disrupts an individual’s immediate travel by removing his or her passport while he or she is investigated. The police then have time to investigate the individual’s travel plans and their reasons for travelling, and to consider whether a longer-term disruptive measure is necessary.
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In defining the conditions of seizure in Schedule 1, the current drafting reflects where the power will be exercised and the likely conditions surrounding the travel documents. If a person is at a port and is seeking to travel, they or a travelling companion, as mentioned by my noble friend Lady Hamwee, will be in possession of the necessary travel documents and will need to be able to present them for inspection if asked. My noble friend answered the question herself when she made the point, as I am about to do, that if the travel documents are presented to Border Force officers for inspection at a port by an accompanying passenger, those documents will have legally come into the possession of a Border Force officer and the power may be exercised. Seizing travel documents in a person’s possession, rather than them being under their control, reflects where the power can be used and that the aim is to disrupt immediate travel for the purposes of engaging in terrorism-related activity. Therefore, I hope that the Committee is reassured that this amendment is unnecessary.
Amendment 11, in the name of the noble Lord, Lord Rosser, seeks to impose a time limit of 12 hours from when travel documents first come into the possession of a constable or a Border Force officer at a port to when authorisation from a senior police officer is provided to retain the travel documents under this power. The decision to retain the travel documents for up to 14 days must be authorised by a senior police officer of at least the rank of superintendent. If authorisation is granted, travel documents may be retained for up to 14 days. If authorisation is refused, travel documents must be returned to the individual.
On 18 December we published a draft code of practice for public consultation, which will run until 30 January. Once finalised, officers will be required to follow the code of practice and the courts will take the code into account when determining any question arising out of the exercise of these powers. We have defined in the draft code of practice that the authorisation,
“must be provided in writing or verbally as soon as is reasonably practicable”.
We have used the term “reasonably practicable” as this provides operational flexibility and is well understood by the police. In any event, in the vast majority of cases we expect the authorisation process to have been completed within 12 hours. We will consider further whether a specific time limit could be set when we consider the responses to the code of practice consultation.
The noble Lord, Lord Rosser, asked a number of questions. I may not be able to respond to all of them but I will read the report of this debate and, if necessary, reply to him in writing. One question was: why do we not have a maximum time limit? I agree with my noble friend Lady Hamwee that there is a danger that it could be set as the standard to which police will work rather than providing authorisation as soon as is reasonably practicable. We think that “as soon as is reasonably practicable” will be well within 12 hours. The senior police officer, of chief superintendent level or above, would consider the time taken for the authorisation process in his report to the relevant chief constable at 72 hours. The timeliness of the authorisation —and the reason that we want it to be provided as soon as is reasonably practicable—could of course be affected by the time that the exercise of the power takes place, as ports operate 24/7, or the staffing level at that point. For example, at the point of seizure the superintendent may be based elsewhere or may be otherwise occupied. Therefore, although we consider that it will normally be provided within 12 hours, we would like to retain operational flexibility.
Amendment 22 would require the code of practice to specify potential actions deemed appropriate for a chief constable in receipt of a senior police officer’s review of the decision to seize travel documents. The threshold for exercising the power is a police constable having reasonable grounds to suspect that the person is at the port in connection with travelling for the purpose of involvement in terrorism-related activity.
We have already made it clear in the draft code that, following the completion of the 72-hour review and its findings being communicated to the relevant chief constable, he or she must take whatever action is appropriate. This may include either returning travel documents or upholding the original decision to retain the documents. These are the broad outcomes of the review that we envisage. However, we submit that the differing and often complex circumstances of these cases means that the actions that we specify in the code of practice following the 72-hour review should not be circumscribed. Doing so could weaken police discretion to respond to the particulars of any given case. It is for the chief constable, who is a very senior and experienced officer, to take whatever action she or he deems appropriate.
Amendment 42 refers to a subject that my noble friend Lady Hamwee mentioned in a previous debate concerning equalities. The amendment would require the code of practice referred to in Schedule 1 to specify that equalities training must be undertaken by persons who are to exercise the powers under the schedule. Amendment 43 seeks to require constables, immigration officers or customs officers who perform functions under Schedule 1 to record the performance of these functions. My noble friend acknowledged that there was no easy answer to this problem.
However, I hope to reassure noble Lords, and particularly groups outside this House who are listening to and thinking about this debate and who may be under the impression that this could potentially be discriminatory, that the draft code of practice, currently out for consultation, reminds police officers and Border Force officers exercising functions under Schedule 1 of their existing legal obligations under Section 149 of the Equality Act 2010. This places them under a duty to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, to advance equality of opportunity between people who share a protected characteristic and people who do not share it, and to take steps to foster good relations between those persons.
The draft code of practice, incorporating the Equality Act duty, already requires the police to monitor the use of this power and to consider in particular whether there is any evidence of it being exercised on the basis of stereotyped images or inappropriate generalisations. We will of course consider noble Lords’ contributions to today’s debate, and at other stages of the Bill’s consideration, as part of the public consultation.
The noble Lord, Lord Harris of Haringey, asked how often it is expected that these powers will be used. I think that he asked what has happened in the past six months. We are reluctant to say how often they will be used. It will not be that often but it is difficult to tell. At the moment we would not like to commit ourselves to a specific number on that, except to say that, particularly when you take into account the number of flights and so on going to and from our airports and ports, it will not be very large.
Lord Harris of Haringey: That is more helpful than the noble Lord might have thought when he received that note. To put it in context, if 600 or so—different numbers have been bandied about—individuals have gone out to take part in activities overseas, are we talking about specifically targeting that sort of number or about a rather broader sweep? That is what I am trying to get at.
Lord Ashton of Hyde: We would obviously like to stop as many as we can from going, but I am reluctant to give the numbers, or even a broad indication of them, today. I will go back and find out how much we would be prepared to discuss numbers or even ranges but I would not like to commit myself now, if that is all right.
Lord Pannick: I am very grateful to the noble Lord, who has been very helpful. He referred, on several occasions, to the draft code of practice and to the consultation, which I understand will finish at the end of this month. The Bill comes back on Report only a week later. Are the Government going to be able to give the House their views on the consultation and what they are minded to do in relation to the code of practice at that stage? It is a very short period of time, but unless we know what the Government’s views are it is going to be very difficult to debate these issues.
Lord Ashton of Hyde: A lot depends, of course, on how many responses there are to the consultation. I am unable to make a firm commitment today but it will be as soon as possible and if I can get more and clearer information on the subject I will let the noble Lord know.
I hope noble Lords will feel some reassurance and I would be grateful if the noble Baroness will withdraw her amendment.
Baroness Hamwee: My Lords, I am grateful to noble Lords who made the points on equalities, discrimination, the perception of discrimination and so on far better than I did. There is, again, material to consider and perhaps I—and others—should be encouraging responses to the consultation on the draft code. The Government may not wholly welcome a shedload of comments but that is what consultation is about. I beg leave to withdraw the amendment.
Amendments 10 to 34 not moved.
35: Schedule 1, page 34, line 2, at end insert—
“12A A judicial authority shall have the power to direct payment of compensation by the Secretary of State to any person whose travel document is seized (whether or not retained).”
Baroness Hamwee: Amendments 35 and 40 relate to practical and legal provisions. The first, probing, amendment allows a judicial authority the power to direct the payment of compensation to a person whose travel document has been seized. I would not suggest that such a power might be used in anything other than the exceptional circumstances, but there would be disruption and damage—I think that is the right term—to a person whose travel documents have been seized and whose travel has been massively disrupted. If you miss a flight, you miss a flight. You might be delayed by some hours or, depending on your destination, by some days. You might miss some important engagement or event, even if you are delayed by only a couple of hours, because you miss a connection, and so on. I do not think I need to labour the point. Have the Government considered whether there should be a power to direct payment of compensation? If not, why not?
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Amendment 40 would amend paragraph 14 of the schedule which allows the Secretary of State to make “arrangements” during the period in which the documents are retained or thereafter. The amendment seeks to ensure that this covers payment for accommodation and alternative travel arrangements. “Arrangements” could mean a number of things so I hope that my noble friend can explain to the Committee what is envisaged here. I would not want to restrict the Secretary
of State in making helpful arrangements, but I would like to understand the term a little better. I beg to move.
Lord Pannick: My Lords, I am not surprised that the Bill does not include any power for the judicial authority to order payment of compensation. As a matter of administrative law, the lawful exercise of an administrative power, provided it is carried out in good faith, will not normally lead to a right for the claimant to claim damages. One hopes it never happens, in this context or others, but if these powers were to be exercised in bad faith, or if there were some other form of misfeasance in public office, the individual concerned—the victim—would already have a right to claim compensation from the state. Amendment 35 is not necessary to cover cases of bad faith or misfeasance in public office. If it is intended to extend to other cases, I would not support it.
Lord Hylton: My Lords, when the noble Lord replies, will he deal with the specific issue of abortive travel costs—flights that have been booked and paid for—and accommodation, which probably means hotel rooms, because the journey cannot be continued?
Lord Harris of Haringey: My Lords, this comes back to the earlier point about whether the various powers in the Bill are proportionate and effective. What is being done to minimise the risk that they are going to exacerbate problems with particular communities? It is not simply a question of whether the powers have been issued improperly. In that case, I hope that compensation would be paid. It is more about when the powers may have been exercised entirely properly but are wrong in the sense that there was a reasonable suspicion, a passport was seized, investigation over a few hours demonstrated that this was completely wrong and the journey was permitted.
Under those circumstances, the person concerned, who had absolutely no malign intent, will have a real sense of grievance which will be reflected among all their friends, relatives and entire community, and which might be disproportionate to what was achieved. That is not the wrong use of the power: it is just the use of the power under circumstances in which it turned out that the intelligence or suspicion was wrong. That would then have a consequence. I appreciate that this could open up a whole mare’s nest of other circumstances in which this issue might arise. However, I hope that the Government have given this some thought because it is the sort of issue which could provoke a sizeable backlash in terms of people’s consideration of how these powers are being used—powers which otherwise people in that community might feel are reasonable.
Lord Pannick: The reason why the law does not award damages for the good-faith exercise of administrative powers in circumstances that turn out to be erroneous is because, if you confer a right to damages in those circumstances, you inevitably deter the authorities from taking action in the first place. I think that in this context we would wish to avoid deterring the security services from taking action for which they have at the time reasonable grounds.
Lord Harris of Haringey: I do not want to get into an extended dialogue. I understand exactly the point, but it is a fine balancing act and there is a real issue. If we are saying that one of the concerns is the extent to which these powers are exercised proportionately, given not only that it is extremely important for the entire community and entire society that these powers are exercised and that they exist but at the same time we are trying to avoid a situation in which there is a backlash, these matters need to be considered. I am sure that the Government have considered them and perhaps the Minister will give us an indication as to how they have tried to strike that balance, not in the circumstances where the powers have been used incorrectly or inappropriately but simply when this has happened.
I do not want to go back to the numbers question, but if for example we found that these powers were exercised quite widely because there was a real concern about people going overseas for terrorist purposes but necessarily because of those concerns there were a large number of false positives, the backlash in the communities concerned would be extremely great. It is just the same argument that arises about a very large number of stops and searches taking place—not that compensation arose there—simply to deter a small number of people.
Lord Thomas of Gresford: Accepting the view of the noble Lord, Lord Pannick, that we should not give a course of action to someone who has had their passport removed, if the Minister were to give an assurance that the state will be open to ex gratia payments in appropriate cases, the fears expressed by the noble Lord, Lord Harris of Haringey, would be met. Ex gratia payments are frequently made in circumstances where there has been a degree of injustice. One cannot imagine any greater sense of injustice than to have one’s flight removed and the cost of a hotel imposed without any possibility whatever of being recompensed.
Baroness Butler-Sloss (CB): Sympathetic though one may be to how individual people may feel, perhaps I may respectfully say that my noble friend Lord Pannick is absolutely right.
Lord Ashton of Hyde: My Lords, we have had an interesting debate on this small group. I hope that I will be able to address most of the points raised by your Lordships.
Amendment 35 seeks to allow the court to direct that the Secretary of State should pay compensation to any person whose travel documents have been seized under Schedule 1. This is regardless of whether or not these travel documents have been retained. Protecting the public from terrorism is the central aim of this power. The power to seize and retain travel documents can play an important role in the detection and prevention of terrorism, and using the power fairly makes it more effective. The Government completely accept the dangers involved with minority groups, as referred to by the noble Lord, Lord Harris, and my noble friend Lady Warsi in another debate, and the effect if this power is not used fairly.
However, if the power—this is exactly what the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said—is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss. This principle is consistent with the exercise of other police powers: if a power was exercised lawfully, there is no requirement to compensate the individual. I take completely the point made by the noble Lord, Lord Harris, that this can have effects that have wider ramifications but, to use the noble Lord’s own words, that would open up a mare’s nest. Therefore, we do not agree that we should change precedent so that compensation is paid in these circumstances.
Complaints about the conduct of examining officers or the treatment of an individual during the seizure and retention of travel documents may be directed to either the police or the Border Force, depending on which officer seized and retained the travel documents. The draft code of practice explains how an individual may complain. If an individual wishes to challenge the police officer’s decision, she or he may seek redress—again, the noble Lord, Lord Pannick, referred to this—including compensation, from the courts. This is the appropriate avenue to challenge the police’s operation of this power and is in line with procedures in similar circumstances.
The noble Lord, Lord Hylton, asked about travel costs and whether the Government would compensate. As with the compensation principle generally that I outlined, if it is exercised in good faith, this would not lead to a requirement to pay compensation. However, at present, if someone’s flight is disrupted due to the use of Schedule 7 to the Terrorism Act and the police judge that no further action is required, they will often work with the individual and the airline to help them get on another flight, which happens reasonably often. They would do the same with this power where reasonably practicable. Under this Bill, we could also provide assistance to individuals who have had their documents seized, are not resident in the UK and do not have any means to provide for their continuing stay in the UK.
Amendment 40 seeks to illustrate the type of arrangements that may be made by the Secretary of State in relation to a person whose travel documents are retained under Schedule 1. The illustrative examples provided are to include payment for accommodation and making alternative travel arrangements. The power to seize and retain travel documents can play an important role and using the power fairly makes it more effective. The Government are clear: the power in Schedule 1 must be used fairly and proportionately, with respect for the person to whom the power has been applied, and must be exercised in accordance with the prescribed procedures and without discrimination. A failure to use the power in the proper manner will reduce its effectiveness. Amendment 40 is superfluous, as the power under paragraph 14 in Schedule 1 is deliberately broadly framed and could include the Secretary of State making arrangements which include payment for accommodation and alternative travel arrangements for those whose travel documents have been retained.
Protecting the public from terrorism is the central aim of this power, but it is right that we make such provisions to meet our obligations under the European
Convention on Human Rights. Therefore, if necessary, an individual who has no means to provide for himself or herself would be provided with basic support for the period that his or her travel documents have been retained. This would involve basic temporary accommodation and subsistence if the individual has no other means to support themselves.
However, we assess that the use of this power against those who do not already reside in the UK will be infrequent. In other cases, where for instance a UK resident has had their travel disrupted, if the power is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss, which is consistent with the exercise of other police powers. For the reasons that I have set out, I hope that my noble friend will feel able to withdraw the amendment.
Baroness Hamwee: My Lords, the explanation given by the noble Lord, Lord Pannick, was exactly as I had understood the position to be. However, for the reasons covered by the noble Lord, Lord Harris of Haringey, I felt that it was important that we set out during our proceedings the reasons for compensation not being payable. I took care to use the phrase “very exceptional”. Perhaps that was not quite strong enough. As to the suggestion made by my noble friend Lord Thomas of Gresford about the possibility of an ex gratia payment, one would not presumably need statutory provision for that by definition. However, it is an interesting suggestion.
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Lord Ashton of Hyde: My Lords, I apologise that I did not refer to that in my reply. There is no provision at the moment. We have not decided or made any provision to make ex gratia payments.
Baroness Hamwee: I was suggesting that it would not need provision by virtue of being ex gratia. After today, perhaps we can think about whether specific provision would be needed to allow an ex gratia payment to be made. The examples given in paragraph 14 are helpful and some of the examples given in response to Amendment 35 probably were at least equally applicable to that paragraph. However, we are at Committee stage and, as I keep saying—I hoped that I was being reassuring—all our amendments today are probing. I beg leave to withdraw the amendment.
37: Schedule 1, page 34, line 27, leave out “is” and insert “and any accompanying persons is or are”
Baroness Hamwee: My Lords, Amendments 37, 38 and 39 are also amendments to paragraph 14. They are probing amendments as to what arrangements the Government might have in mind for the companions
of an individual whose travel documents are seized. The Minister may feel that he has covered the ground in his answer to the previous group of amendments but, to put it briefly, if there is anything more that he can say to flesh out the provision, I am sure that the Committee will be glad to hear it. I beg to move.
Lord Ashton of Hyde: My Lords, this will be a brief debate—in fact, hardly a debate.
The amendments in the names of my noble friends have allowed us to think about the implications of this power for the travelling companions of a person whose passport has been seized. Amendments 37 and 39 seek to extend the protections in paragraph 14 of Schedule 1 to any persons travelling with an individual whose travel documents have been retained. It would allow the Secretary of State to provide assistance to the accompanying persons during the retention period and would provide that his or her presence in the UK was not unlawful under the Immigration Act 1971 for the retention period.
As I previously set out, the police can exercise the power in Schedule 1 only based on reasonable suspicion. It is possible that the police may reasonably suspect the intentions of one person travelling in a family group but have no suspicions that the entire family is planning to travel overseas for the purpose of terrorism-related activity. In such a hypothetical circumstance, the accompanying family members may require means to lawfully remain in the UK with the stopped person while the police investigation was on-going and the person’s travel documents were retained. This may be particularly relevant if the power was exercised against a person who was under 18.
These amendments would also allow the Secretary of State to provide assistance to those accompanying an individual who had his or her documents seized, or were not resident in the UK and did not have any means to provide for their continued stay in the UK. I am grateful to my noble friends for shining a light on such a circumstance. However unlikely it may be to occur in reality, they have highlighted a potential gap in the current provisions and the Government are committed to considering this issue in greater detail.
Paragraph 14 provides protections to the individual that would apply during the period that his or her travel documents were retained and he or she was unable to leave the UK. Amendment 38 seeks to alter this to include where a person is “unable to make the journey to which the travel relates”. The additional wording is unnecessary, as being unable to make a journey to which the travel relates is captured in the current drafting, which is “unable to leave the United Kingdom”. However, as the amendment has raised some interesting points on how this provision could be applied, the Government are committed to considering this issue, too, in greater depth.
I hope that my brief reply has satisfied my noble friend and has done all that is required.
Baroness Hamwee: Yes, indeed. I wonder whether officials in the Home Office have been undertaking role-play as to all the different circumstances that might apply when these powers could be exercised,
because, as I said, one of the concerns of the House is always about workability. I am grateful to my noble friend. I beg leave to withdraw the amendment.
Amendments 38 to 43 not moved.
Debate on whether Schedule 1 should be agreed.
Baroness Hamwee: My noble friend is aware of this point—at least I hope that he is, because I sent an e-mail on it. Schedule 1 provides for the usual 40-day period in paragraph 19 and I had intended to ask the Minister to confirm that that period is suspended during the Dissolution of Parliament. However, the question now has a second limb, because the Government have tabled Amendment 45, which refers to a similar 40-day period but actually spells that out. I wonder why there is a distinction between these two. I am not objecting to this. The Statutory Instruments Act 1946 covers the point, but dealing with it in detail in the new schedule raises a question that needs to be sat upon with regard to the first schedule.
Lord Bates: I am happy to respond to my noble friend and to thank her for giving advance notice that she intended to speak on this. She asked whether the 40-day period described in paragraph 19 is suspended during Dissolution. I can confirm that the period would be suspended. However, in reality, our intention is for the code of practice to come into force the day after Royal Assent, using the affirmative procedure, as these powers are urgently needed by law enforcement. My noble friend noted that the new schedule in Amendment 45 suspends the 40-day period. It may not be possible to timetable the debate on the court rules necessary to implement the temporary exclusion order provisions by Dissolution. However, we are confident that the House will debate the code of practice on the exercise of the passport seizure provision before Dissolution.
Baroness Hamwee: I am grateful for that answer, but I am not sure that I entirely understand the procedure that the Minister referred to at the start of it. I wonder if he might write to noble Lords about how this would operate.
Lord Bates: I will give an undertaking to do that.
44: After Schedule 1, insert the following new Schedule—
ScheduleUrgent temporary exclusion orders: reference to the court etcApplication1 This Schedule applies if the Secretary of State—
(a) makes the urgent case decisions in relation to an individual, and
(b) imposes a temporary exclusion order on the individual.
Statement of urgency
2 The temporary exclusion order must include a statement that the Secretary of State reasonably considers that the urgency of the case requires the order to be imposed without obtaining the permission of the court under section (Temporary exclusion orders: prior permission of the court).
Reference to court
3 (1) Immediately after giving notice of the imposition of the temporary exclusion order, the Secretary of State must refer to the court the imposition of the order on the individual.
(2) The function of the court on the reference is to consider whether the urgent case decisions were obviously flawed.
(3) The court's consideration of the reference must begin within the period of 7 days beginning with the day on which notice of the imposition of the temporary exclusion order is given to the individual.
(4) The court may consider the reference—
(a) in the absence of the individual,
(b) without the individual having been notified of the reference, and
(c) without the individual having been given an opportunity (if the individual was aware of the reference) of making any representations to the court.
(5) But that does not limit the matters about which rules of court may be made.
Decision by court
4 (1) In a case where the court determines that any of the relevant decisions of the Secretary of State is obviously flawed, the court must quash the temporary exclusion order.
(2) If sub-paragraph (1) does not apply, the court must confirm the temporary exclusion order.
(3) If the court determines that the decision of the Secretary of State that the urgency condition is met is obviously flawed, the court must make a declaration of that determination (whether it quashes or confirms the temporary exclusion order under the preceding provisions of this paragraph).
Procedures on reference
5 (1) In determining a reference under paragraph 3, the court must apply the principles applicable on an application for judicial review.
(2) The court must ensure that the individual is notified of the court’s decision on a reference under paragraph 3.
Interpretation
6 (1) References in this Schedule to the urgency condition being met are references to condition E being met by virtue of section 2(urgency of the case requires a temporary exclusion order to be imposed without obtaining the permission of the court).
(2) In this Schedule “the urgent case decisions” means the relevant decisions and the decision that the urgency condition is met.
(3) In this Schedule “the relevant decisions” means the decisions that the following conditions are met—
(a) condition A;
(b) condition B;
(c) condition C;
(d) condition D.”
Lord Bates: My Lords, in moving Amendment 44, I shall speak also to the other amendments in the group.
As I have made clear to your Lordships, the Government are absolutely committed to the appropriate and proportionate use of the temporary exclusion power. As we indicated that we would, we have looked very carefully at the constructive suggestions from
David Anderson, the Independent Reviewer of Terrorism Legislation, on the matter of judicial oversight. Following this consideration, we have tabled amendments which seek to introduce oversight of the power in line with his recommendations. Specifically, the amendments propose the creation of a permission stage before imposition of the temporary exclusion order—also very much in line with the amendments tabled by the Opposition. In addition, they propose a statutory judicial review mechanism to consider both the imposition of the order and any specific in-country requirements. I will address each of the elements in turn.
For the permission stage, the court would be asked to consider whether the decision to impose the temporary exclusion order “is obviously flawed” using principles applicable under judicial review, and whether to grant permission for it to be imposed. There would also be a provision for retrospective reviews in urgent cases, where the Secretary of State has deemed the situation of such urgency that the order must be imposed without prior permission of the court. I must point out that this provision for a retrospective review is an additional safeguard which is absent in other amendments which have been tabled. The court would have the power to refuse permission for the order, where prior permission was being sought. In retrospective review cases, it would have the power to quash the order. I hope noble Lords will agree that this gives the courts a significant role in the imposition of a temporary exclusion order.
The second element of judicial oversight which the Government are seeking to introduce is a statutory judicial review mechanism. The in-country elements of a temporary exclusion order will not be imposed until the individual has returned back to the United Kingdom, allowing law enforcement partners to assess the most appropriate measures to manage the risk posed by the individual at that time. The statutory judicial review will ensure that the individual, if he or she applies for it on return to the UK, can challenge any in-country requirements placed on them. Of course, ordinary judicial review would always have been open to the individual, but putting it on a statutory footing in this way provides some additional structure which I hope will be reassuring to the House. Most importantly, the individual will not have to seek permission from the court for there to be a review.
The government amendment provides that the court would not only have the power to consider in detail—and quash—the specific in-country requirements placed on an individual, but it would also have the power to consider again whether the relevant conditions for imposing the temporary exclusion order were and, in respect of the ongoing necessity of the in-country measures, continue to be met, and again have the power to quash the whole order or direct the Secretary of State to revoke it. This is in line with David Anderson’s recommendations and means that there is a further opportunity for judicial scrutiny of the imposition of the order as well as the in-country requirements.
The government amendments place considerable power with the courts in the temporary exclusion process, allowing effective judicial scrutiny of that power both before and after its use. I hope that this provides the reassurance the House seeks in respect of
court oversight of this measure, and also in respect of the importance the Government place on an appropriate and proportionate use of this power. I beg to move.
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Baroness Ludford: My Lords, I thank the Minister for explaining these welcome amendments. Something is puzzling me and it may simply be my lack of understanding of the field. The test which the court has to determine in the case of prior permission, under Amendment 52, or in the review of urgent TEOs, under Amendment 44, is whether the decisions are “obviously flawed”. I am challenged to understand the position with an in-country statutory judicial review in Amendment 65, which I understand would follow the normal principles of judicial review, including necessity and proportionality. I know that the independent reviewer referred to a test of “obviously flawed” in a commentary that he made, but I do not understand the justification for the difference in the test in Amendments 44 and 52 compared to the statutory judicial review in Amendment 65. The phrase “obviously flawed” seems both a high and a somewhat problematic threshold: obvious to whom? I would have thought that the application of that test would create some difficulties. However, I may be on entirely the wrong track.
Baroness Butler-Sloss: My Lords, I want to ask a rather practical question. The whole of Clause 2, together with the amendments, appears to deal with someone over whom the Government assume there will be some degree of control. I take the example of someone who has gone to Syria and comes back through Syria to the airport in Istanbul. He then seeks to fly back to England and is made the subject of a temporary exclusion order. What is to happen to that person in Istanbul? What are the Government of Turkey to do with this person? If you stop them at an airport outside the United Kingdom, is there not a very real danger that they will just go back into Syria or into Iraq? What I have not understood about this temporary exclusion order is what will happen to these people who are not able to come back to this country.
Lord Lang of Monkton (Con): My Lords, your Lordships’ Constitution Committee managed to produce, at fairly short notice because this was a semi-fast tracked Bill, a report in which we drew attention to the absence of judicial oversight and expressed considerable concern about it. Therefore, I welcome the development that my noble friend the Minister has announced today. I do not, for one moment, suggest that we were the only organisation which drew attention to this gap and called for change. The Independent Reviewer of Terrorism Legislation, David Anderson, was considerably more robust in his wording than we thought it appropriate to be. He pointed out that,
“in peacetime we have never accepted the power of the Home Secretary simply to place someone under Executive constraint for two years without providing for some relatively speedy process of appeal”.
It seems that the principle of what we, and others, have called for has now been met and I welcome what my noble friend has said.
Baroness Warsi: I thank my noble friend for introducing these amendments and for the progress that has been made. I also thank him for the incredibly helpful briefing session he held last week. Perhaps he can help me with something that did not come out of that session, if this is the right moment to deal with it. What is the Government’s thinking on the extent of time these orders are intended to apply for? The Minister in the Commons, James Brokenshire, indicated that it was intended that these orders would be in operation potentially for only two or three days. I am not sure whether that is the case and I should like clarification on that point if the Minister here were able to give it today.
Lord Pannick: My Lords, I too welcome these amendments, which introduce judicial control. The Government have listened to the Constitution Committee and the independent reviewer. They have also listened to the observations made from all sides of the other place and indeed here at Second Reading.
The noble Baroness, Lady Ludford, raised a concern about paragraph 3(2) in the proposed new schedule set out in government Amendment 44 and the reference to whether the decision is “obviously flawed”. I draw her attention to the fact that its paragraph 5(1) states that:
“In determining a reference under paragraph 3, the court must apply the principles applicable on an application for judicial review”.
So my understanding—I would welcome the Minister’s confirmation—is that when the court asks whether the decision itself is obviously flawed, it will apply the principles of judicial review. It will ask whether the decision has been made on a lawful and proportionate basis, for a proper purpose and other matters of that sort, although of course the court will not look at the merits of whether a lawful decision has been made.
There is one other matter to which I draw attention in the schedule being introduced by government Amendment 45. Paragraph 5 of the proposed new schedule expressly confirms that:
“Nothing in paragraphs 2 to 4, or in rules of court … is to be read as requiring the relevant court to act in a manner inconsistent with Article 6 of the Human Rights Convention”.
That is very important indeed and I welcome the fact that the schedule expressly confirms that the court should comply with Article 6. I ask the Minister to tell me if I am wrong, but I am not aware of anything in the Bill which suggests that the courts, in exercising their judicial control powers, should be required to depart from our obligations under the human rights convention, and indeed the noble Lord, Lord Bates, has made a statement on the front page of the Bill under Section 19(1)(a) of the Human Rights Act 1998 that in his view the provisions of this Bill,
“are compatible with the Convention rights”.
I hope that that will give some further reassurance to those who are concerned about these powers.
Baroness Smith of Basildon: My Lords, I welcome the government amendments and I thank the Minister for his explanation of them. I also welcome the Government’s conversion to the principle of judicial
oversight in regard to temporary exclusion orders. That is because it has to be said that any measure which seeks to restrict the movements of an individual and restrict their right to return to the country of which they are a citizen is a hugely significant power. I will not go into the other points that have been raised because we have yet to discuss the detail of how the exclusion orders will work, but the noble Baroness said that they would remain in force for two days. My information suggests that they can remain in force for two years from the date they are first imposed.
The Government previously insisted that this was a power for the Home Secretary alone, but that was not a view we could share. Both the Home Secretary and the noble Lord have referred in their comments to judicial review. That was already in place, but judicial oversight is, as we have heard, something that the Constitution Committee referred to and the Joint Committee on Human Rights said would be a necessity. Indeed, from the beginning we have been convinced of the need for parliamentary scrutiny of this aspect of the Bill. At Second Reading in the other place on 2 December, the shadow Home Secretary, my colleague the right honourable Yvette Cooper, rightly pointed out that there is such a judicial process for TPIMs and stated that we would be tabling amendments on judicial oversight. The Home Secretary responded in Committee on 15 December saying that such oversight was not necessary because it was the operation of a royal prerogative in terms of cancelling a passport, and that it was less restrictive than the conditions under TPIMs. The debate continued through to the Report stage, where again we tabled amendments which both the government parties voted against on the explanation from the Minister that there had not been,
“the chance properly to consider the Opposition amendments”.—[
Official Report
, Commons, 6/1/15; col. 208.]
Three weeks has been long enough for noble Lords to consider the Bill, but it was not long enough for Home Office Ministers to consider our amendments. That is why I am particularly grateful to the noble Lord. In the 10 days since it was voted down in the House of Commons, the Government have found time to consider the issues and table amendments. It is a minor point, but I received an e-mail about this last Friday evening, which was a little late. Also, it would have been nice to have had the amendments with that e-mail. Perhaps that could be considered for the future when letters about new amendments are sent out at a late stage.
However, those are minor matters as compared with the fact that the Government have come around, and we greatly welcome that. The case for judicial oversight of this has been clear from the beginning. We understand and appreciate that there are times when a swift application and decision have to be made, but the Government have rightly recognised in their amendments that that should be subject to judicial processes.
Perhaps I may raise a couple of points for clarification. There are some differences between the amendments we tabled at the start of the process and government Amendment 52. First, the new amendment does not require the Secretary of State to set out a draft of the proposed notice in the temporary exclusion order
application, unlike subsection (2) of the proposed new clause in our Amendment 54. Why do the Government not think it necessary to set out the draft of the proposed TEO notice, as we propose? Secondly, proposed new subsection (2) provides that the court may, in addition to giving the Secretary of State permission to impose a TEO,
“give directions to the Secretary of State in relation to the measures to be imposed on the individual”,
who is subject to such an order. That is not in the government amendment. There may be good reasons for that, but it would be helpful to know from the noble Lord the reasons for those changes.
We are committed to judicial oversight along with the other measures we have proposed. We have not had total success, although the Minister has agreed to reconsider some of them. These measures should be subject to a sunset clause; that is, a renewal requirement for Parliament to look at them again. We also think that Parliament should be assisted in that consideration. There should be further scrutiny in the form of a report from the independent reviewer and a report on their use from the Home Secretary. All these measures are important, but we are pleased that the Government have accepted the need for judicial oversight. It will not threaten the ability of the Home Secretary to impose a TEO where there is intelligence and evidence to support that measure, as the noble Lord has clarified. However, what judicial oversight does provide is legitimacy and validity to the order. That, I think, will provide the public with greater reassurance when they see these orders being imposed.
We support these amendments, but it would be helpful if the noble Lord could give us an explanation of the differences between our proposals and those set out in the government amendments.
Lord Bates: I am grateful to all noble Lords for their broad welcome for the amendments which have been put forward. As the noble Lord, Lord Pannick, said, we have listened in the other place, which is why my honourable friend the Minister for Security and Immigration, James Brokenshire, said that he would seek to bring forward measures in this House. We have listened to the Independent Reviewer of Terrorism Legislation and what we have proposed has been moulded by and fits in with what he sought to set out. We have also been significantly influenced by the persuasive report of the Constitution Committee, to which I referred earlier. Again, I thank my noble friend Lord Lang for his thoughtful work, which has been extremely helpful. That has all come together and we have made our recommendations and presented the amendments.
Let me deal with some of the points raised, in no particular order. However, certainly on the human rights side, I stand by the declaration that I made in the Bill. It is a very important statement in terms of giving assurance to people about the proportionality of what is being proposed regarding temporary exclusion orders and how they will operate.
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The noble and learned Baroness, Lady Butler-Sloss, asked what was going to happen in-country when these orders are applied. This has been described by
some people as a way of managing the return of the individual who is there. We will have issued the temporary exclusion order on the basis of a belief that the person has been engaged in terrorism or terrorism-related activities. That notice will have been served in person, or, more likely, to their last known address. That would be communicated to them before they return home. Part of that is for a very obvious reason: particularly if they are boarding an aircraft—and some terrorist organisations focus their threat on air travel—we want to be absolutely sure that they are accompanied by a police officer during their return to the UK, for example, or that they agree to be on a specific flight and to be met by a police officer, and that when they arrive back in the UK they agree to undertake certain in-country commitments.
This relates to the point of my noble friend Lady Warsi about the duration of these orders. The two years relates to the potential in-country element, so that when they return to the country there could be a stipulation about taking part in a deradicalisation programme, or something similar, or agreeing not to travel, which could be in place for up to two years. It is more likely that they would be switched to one of the other mechanisms, particularly if there was evidence that they had been engaged in terrorist activities and we wished to engage in a prosecution on that basis. So we hope that the amount of time they would be, as it were, at a port, seeking to return, would be very short, and that they would have access to consular facilities in-country. Then they would return and the in-country element of the exclusion order would be part of the conditions for their return to the UK.
Baroness Smith of Basildon: The Minister said that the in-country application of a TEO—if I understood correctly—would be two years. Am I incorrect, then, in my understanding that if a temporary exclusion order were served either at the address or in person, the person’s return would be subject to that for two years, so that if at any time in that two-year period they sought to return to the UK they would be subject to the conditions of the TEO? Is he saying that that is incorrect and it is only the in-country provisions of the TEO that last for two years?
Lord Bates: I will clarify that point to make sure I have got it absolutely right. My belief, however, is very much that we are talking here about two elements. On the in-country element, technically—of course, we are dealing here with legal processes and they would have to be reviewed—if the person were to refuse the conditions of their return they would not be able to return and therefore the order would effectively remain in place while they are not in the country. The intention, however, would be that there would be reasonable requirements about being accompanied, the time and place, their mode of travel, the fact that they would be met, and the in-country element would expire at that point. However, I will look again carefully at the words that I used and clarify them if need be.
The noble Baroness also asked why we would not provide the court with the conditions to impose on an individual at the application stage. Temporary exclusion orders differ from TPIMs in that the imposition of a TEO is likely to be put in place many months before
the individual returns to the UK and is subject to in-country measures, as I have mentioned. The nature of the individuals who will be subject to TEOs means that the specifics of their cases will vary, and it would be inappropriate for the security services and police to decide on the conditions so far in advance. The individual will be served with the conditions of their return to the UK and will be able to challenge these conditions as part of the statutory review.
The temporary exclusion order remains in force for two years. This includes both the out-of-country provision and the in-country element. In practice, how long the in-country obligation lasts will depend on how quickly the person returns, which is what we were discussing there.
I think that I have covered the point of my noble friend Lady Warsi about the briefing session. I am grateful that she found that helpful.
Baroness Warsi: I hesitate to rise but the discussion that took place was about the purpose of the temporary exclusion order. The clear sense that I got from the briefing and subsequent discussion with the Minister was that the whole purpose was to facilitate a controlled entry back into the United Kingdom, and a controlled entry back into a programme of potential deradicalisation and whatever that would involve, a move by the Government which I hugely support and welcome. I felt that if the whole purpose of this temporary exclusion order was not to keep people out of the country—as has been suggested in the press—but was about managing somebody’s return, to make sure that we protected the security of our citizens, then we are talking about an incredibly short period for which the person would find themselves outside the United Kingdom but a much longer period subject to conditions within the United Kingdom. If that is the case, I would be grateful if it was clarified at the Dispatch Box.
Lord Hylton: Before the Minister replies to that, can he include in his reply whether the Government have studied the experience of countries such as Denmark and Germany, which have working knowledge of how returns of such people can be satisfactorily dealt with?
Lord Bates: On the point just raised by the noble Lord, Lord Hylton, we have been very mindful of the fact that we need to work, not in isolation but in partnership with other countries. The level of co-operation and working across Europe in particular with our European colleagues, not least because of the events in Paris, has increased dramatically. We want to learn what works best. To answer my noble friend’s point, these orders will not exclude somebody from the UK per se. Through them we are saying that if you have been abroad and we believe that there is evidence that you have been engaged in terrorist activities we are not simply going to allow you to drift in and out of this country with impunity. That would need to be managed and supervised. We want that to happen—it is the purpose of the temporary exclusion orders.
My noble friend Lady Ludford—it now seems like a little while ago—was the first to speak about this. She raised a point about the tests and the phrase
“obviously flawed”. Here, we are seeking to introduce a permission-stage model and a statutory judicial review mechanism similar to those already in place for the TPIM and asset-freezing regimes, which will consider both the decision to impose the TEO in general terms and for the in-country elements. Having considered these suggestions, we tabled these amendments in line with the recommendation. It is, as was said, simply consistent with those other elements to which we are referring. I hope that that has been helpful.
Baroness Ludford: I apologise for prolonging this, but I forgot to ask my noble friend something earlier. I am trying to understand the architecture of all this. Under the new clause relating to prior permission of the court, in Amendment 52, proposed new subsection (9) says:
“Only the Secretary of State may appeal against a determination of the court under … this section”,
and the urgency provision. I wonder whether that is a bit unfair on the person. Why would the individual not have a comparable right of appeal? Is there a clear reason why that is the case?
Lord Bates: Again, I will write if necessary, but I think the answer is simply that in that example, it is the Secretary of State who has made her decision and then subjected that decision to scrutiny by the courts. The courts will obviously make their judgment, and therefore the appeal is in connection with that particular part of the process. The individual concerned with that has access, through different routes, to judicial review of the temporary exclusion order. On the point about the Secretary of State, the individual is not involved in that stage, but will have the chance to challenge the substance. We are basically talking about two not quite parallel but different parts of the process. Therefore, the rights of appeal apply to different entities or individuals, as appropriate to those elements.
With those comments, I commend the amendments standing in my name in this group and invite noble Lords to consider not pressing theirs.
45: After Schedule 1, insert the following new Schedule—
ScheduleTemporary exclusion orders: proceedingsIntroductory“appeal proceedings” means proceedings in the Court of Appeal or the Inner House of the Court of Session on an appeal relating to TEO proceedings;
“the relevant court” means—
(a) in relation to TEO proceedings, the court;
(b) in relation to appeal proceedings, the Court of Appeal or the Inner House of the Court of Session;
“rules of court” means rules for regulating the practice and procedure to be followed in the court, the Court of Appeal or the Inner House of the Court of Session;
“TEO proceedings” means proceedings on—
(a) an application under section (Temporary exclusion orders: prior permission of the court),
(b) a reference under Schedule (Urgent temporary exclusion orders: reference to the court etc),
(c) a review under section (Review of decisions relating to temporary exclusion orders), or
(d) an application made by virtue of paragraph 6 of this Schedule (application for order requiring anonymity).
Rules of court: general provision
2 (1) A person making rules of court relating to TEO proceedings or appeal proceedings must have regard to the need to secure the following—
(a) that the decisions that are the subject of the proceedings are properly reviewed, and
(b) that disclosures of information are not made where they would be contrary to the public interest.
(2) Rules of court relating to TEO proceedings or appeal proceedings may make provision—
(a) about the mode of proof and about evidence in the proceedings;
(b) enabling or requiring the proceedings to be determined without a hearing;
(c) about legal representation in the proceedings;
(d) enabling the proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a party to the proceedings (or to any legal representative of that party);
(e) enabling the relevant court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party);
(f) about the functions of a person appointed as a special advocate (see paragraph 10);
(g) enabling the relevant court to give a party to the proceedings a summary of evidence taken in the party’s absence.
(a) references to a party to the proceedings do not include the Secretary of State;
(b) references to a party’s legal representative do not include a person appointed as a special advocate.
Rules of court: disclosure
3 (1) Rules of court relating to TEO proceedings or appeal proceedings must secure that the Secretary of State is required to disclose—
(a) material on which the Secretary of State relies,
(b) material which adversely affects the Secretary of State’s case, and
(c) material which supports the case of another party to the proceedings.
(2) This paragraph is subject to paragraph 4.
4 (1) Rules of court relating to TEO proceedings or appeal proceedings must secure—
(a) that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose material otherwise than to the relevant court and any person appointed as a special advocate;
(b) that such an application is always considered in the absence of every party to the proceedings (and every party’s legal representative);
(c) that the relevant court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be contrary to the public interest;
(d) that, if permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide a summary of the material
to every party to the proceedings (and every party’s legal representative);
(e) that the relevant court is required to ensure that such a summary does not contain material the disclosure of which would be contrary to the public interest.
(2) Rules of court relating to TEO proceedings or appeal proceedings must secure that provision to the effect mentioned in sub-paragraph (3) applies in cases where the Secretary of State—
(a) does not receive the permission of the relevant court to withhold material, but elects not to disclose it, or
(b) is required to provide a party to the proceedings with a summary of material that is withheld, but elects not to provide the summary.
(3) The relevant court must be authorised—
(a) if it considers that the material or anything that is required to be summarised might adversely affect the Secretary of State’s case or support the case of a party to the proceedings, to direct that the Secretary of State—
(i) is not to rely on such points in the Secretary of State’s case, or
(ii) is to make such concessions or take such other steps as the court may specify, or
(b) in any other case, to ensure that the Secretary of State does not rely on the material or (as the case may be) on that which is required to be summarised.
(a) references to a party to the proceedings do not include the Secretary of State;
(b) references to a party’s legal representative do not include a person appointed as a special advocate.
Article 6 rights
5 (1) Nothing in paragraphs 2 to 4, or in rules of court made under any of those paragraphs, is to be read as requiring the relevant court to act in a manner inconsistent with Article 6 of the Human Rights Convention.
(2) The “Human Rights Convention” means the Convention within the meaning of the Human Rights Act 1998 (see section 21(1) of that Act).
Rules of court: anonymity
6 (1) Rules of court relating to TEO proceedings may make provision for—
(a) the making by the Secretary of State or the relevant individual of an application to the court for an order requiring anonymity for that individual, and
(b) the making by the court, on such an application, of an order requiring such anonymity;
(2) Rules of court may provide for the Court of Appeal or the Inner House of the Court of Session to make an order in connection with any appeal proceedings requiring anonymity for the relevant individual.
(3) In sub-paragraphs (1) and (2) the references, in relation to a court, to an order requiring anonymity for the relevant individual are references to an order by that court which imposes such prohibition or restriction as it thinks fit on the disclosure—
(a) by such persons as the court specifies or describes, or
(b) by persons generally,
of the identity of the relevant individual or of any information that would tend to identify the relevant individual.
(4) In this paragraph “relevant individual” means an individual on whom the Secretary of State is proposing to impose, or has imposed, a temporary exclusion order.
Initial exercise of rule-making powers by Lord Chancellor
7 (1) The first time after the passing of this Act that rules of court are made in exercise of the powers conferred by this Schedule in relation to proceedings in England and Wales or in Northern Ireland, the rules may be made by the Lord Chancellor instead of by the person who would otherwise make them.
(2) Before making rules of court under sub-paragraph (1), the Lord Chancellor must consult—
(a) in relation to rules applicable to proceedings in England and Wales, the Lord Chief Justice of England and Wales;
(b) in relation to rules applicable to proceedings in Northern Ireland, the Lord Chief Justice of Northern Ireland.
(3) But the Lord Chancellor is not required to undertake any other consultation before making the rules.
(4) A requirement to consult under sub-paragraph (2) may be satisfied by consultation that took place wholly or partly before the passing of this Act.
(5) Rules of court made by the Lord Chancellor under sub-paragraph (1)—
(a) must be laid before Parliament, and
(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which they were made, cease to have effect at the end of that period.
(6) In determining that period of 40 days no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.
(7) If rules cease to have effect in accordance with sub-paragraph (5)—
(a) that does not affect anything done in previous reliance on the rules, and
(b) sub-paragraph (1) applies again as if the rules had not been made.
(8) The following provisions do not apply to rules of court made by the Lord Chancellor under this paragraph—
(a) section 3(6) of the Civil Procedure Act 1997 (Parliamentary procedure for civil procedure rules);
(b) section 56(1), (2) and (4) of the Judicature (Northern Ireland) Act 1978 (statutory rules procedure).
(9) Until the coming into force of section 85 of the Courts Act 2003, the reference in sub-paragraph (8)(a) to section 3(6) of the Civil Procedure Act 1997 is to be read as a reference to section 3(2) of that Act.
Use of advisers
8 (1) In any TEO proceedings or appeal proceedings the relevant court may if it thinks fit—
(a) call in aid one or more advisers appointed for the purposes of this paragraph by the Lord Chancellor, and
(b) hear and dispose of the proceedings with the assistance of the adviser or advisers.
(2) The Lord Chancellor may appoint advisers for the purposes of this paragraph only with the approval of—
(a) the Lord President of the Court of Session, in relation to an adviser who may be called in aid wholly or mainly in Scotland;
(b) the Lord Chief Justice of Northern Ireland, in relation to an adviser who may be called in aid wholly or mainly in Northern Ireland;
(c) the Lord Chief Justice of England and Wales, in any other case.
(3) Rules of court may regulate the use of advisers in proceedings who are called in aid under sub-paragraph (1).
(4) The Lord Chancellor may pay such remuneration, expenses and allowances to advisers appointed for the purposes of this paragraph as the Lord Chancellor may determine.
9 (1) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise the function under paragraph 8(2)(a).
(2) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise the function under paragraph 8(2)(b)—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;
(b) a Lord Justice of Appeal (as defined in section 88 of that Act).
(3) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise the function under paragraph 8(2)(c).
Appointment of special advocate
10 (1) The appropriate law officer may appoint a person to represent the interests of a party in any TEO proceedings or appeal proceedings from which the party (and any legal representative of the party) is excluded.
(2) A person appointed under sub-paragraph (1) is referred to in this Schedule as appointed as a “special advocate”.
(3) The “appropriate law officer” is—
(a) in relation to proceedings in England and Wales, the Attorney General;
(b) in relation to proceedings in Scotland, the Advocate General for Scotland;
(c) in relation to proceedings in Northern Ireland, the Advocate General for Northern Ireland.
(4) A person appointed as a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent.
(5) A person may be appointed as a special advocate only if—
(a) in the case of an appointment by the Attorney General, the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990;
(b) in the case of an appointment by the Advocate General for Scotland, the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980;
(c) in the case of an appointment by the Advocate General for Northern Ireland, the person is a member of the Bar of Northern Ireland.
Relationship with other powers to make rules of court and other proceedings
11 Nothing in this Schedule is to be read as restricting—
(a) the power to make rules of court or the matters to be taken into account when doing so, or
(b) the application of sections 6 to 14 of the Justice and Security Act 2013 (closed material proceedings).”
46: After Schedule 1, insert the following new Schedule—
ScheduleTemporary exclusion orders: appeals against convictionsRight of appeal1 (1) An individual who has been convicted of an offence under section 9(1) or (3) may appeal against the conviction if—
(a) a temporary exclusion order is quashed, and
(b) the individual could not have been convicted had the quashing occurred before the proceedings for the offence were brought.
(2) An individual who has been convicted of an offence under section 9(3) may appeal against the conviction if—
(a) a notice under section 8, or a permitted obligation imposed by such a notice, is quashed, and
(b) the individual could not have been convicted had the quashing occurred before the proceedings for the offence were brought.
Court in which appeal to be made2 An appeal under this Schedule is to be made—
(a) in the case of a conviction on indictment in England and Wales or Northern Ireland, to the Court of Appeal;
(b) in the case of a conviction on indictment or summary conviction in Scotland, to the High Court of Justiciary;
(c) in the case of a summary conviction in England and Wales, to the Crown Court; or
(d) in the case of a summary conviction in Northern Ireland, to the county court.
When the right of appeal arises
3 (1) The right of appeal under this Schedule does not arise until there is no further possibility of an appeal against—
(a) the decision to quash the temporary exclusion order, notice or permitted obligation (as the case may be), or
(b) any decision on an appeal made against that decision.
(2) In determining whether there is no further possibility of an appeal against a decision of the kind mentioned in sub-paragraph (1), any power to extend the time for giving notice of application for leave to appeal, or for applying for leave to appeal, must be ignored.
The appeal
4 (1) On an appeal under this Schedule to any court, that court must allow the appeal and quash the conviction.
(2) An appeal under this Schedule to the Court of Appeal against a conviction on indictment—
(a) may be brought irrespective of whether the appellant has previously appealed against the conviction;
(b) may not be brought after the end of the period of 28 days beginning with the day on which the right of appeal arises by virtue of paragraph 3; and
(c) is to be treated as an appeal under section 1 of the Criminal Appeal Act 1968 or, in Northern Ireland, under section 1 of the Criminal Appeal (Northern Ireland) Act 1980, but does not require leave in either case.
(3) An appeal under this Schedule to the High Court of Justiciary against a conviction on indictment—
(a) may be brought irrespective of whether the appellant has previously appealed against the conviction;
(b) may not be brought after the end of the period of 28 days beginning with the day on which the right of appeal arises by virtue of paragraph 3; and
(c) is to be treated as an appeal under section 106 of the Criminal Procedure (Scotland) Act 1995 for which leave has been granted.
(4) An appeal under this Schedule to the High Court of Justiciary against a summary conviction—
(a) may be brought irrespective of whether the appellant pleaded guilty;
(b) may be brought irrespective of whether the appellant has previously appealed against the conviction;
(c) may not be brought after the end of the period of two weeks beginning with the day on which the right of appeal arises by virtue of paragraph 3;
(d) is to be by note of appeal, which shall state the ground of appeal;
(e) is to be treated as an appeal for which leave has been granted under Part 10 of the Criminal Procedure (Scotland) Act 1995; and
(f) must be in accordance with such procedure as the High Court of Justiciary may, by Act of Adjournal, determine.
(5) An appeal under this Schedule to the Crown Court or to the county court in Northern Ireland against a summary conviction—
(a) may be brought irrespective of whether the appellant pleaded guilty;
(b) may be brought irrespective of whether the appellant has previously appealed against the conviction or made an application in respect of the conviction under section 111 of the Magistrates’ Courts Act 1980 or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (SI 1981/1675 (N.I. 26)) (case stated);
(c) may not be brought after the end of the period of 21 days beginning with the day on which the right of appeal arises by virtue of paragraph 3; and
(d) is to be treated as an appeal under section 108(1)(b) of that Act or, in Northern Ireland, under Article 140(1)(b) of that Order.”
Clause 2: Temporary exclusion orders
7.15 pm
Baroness Smith of Basildon: My Lords, I think what has come out of the last debate is that we are all trying to find our way through how the temporary exclusion order is going to work. I come back to the point I made at Second Reading about whether they should ever have been called temporary exclusion orders. I suspect they were named as such because of the Prime Minister’s statement that he was going to exclude people who had fought abroad as terrorists and prevent them from coming back to the UK, which of course is not what is being proposed. “Managed return” is a better description, but we need to understand exactly how that managed return will work in practice—a point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Warsi. This is a probing amendment, as is Amendment 59, which we will come on to later, to try to tease out some of the detail of how this will work in practice.
Amendment 49 leaves out the requirement that the Secretary of State “reasonably suspects” that the individual has been involved in “terrorism-related activity” outside the UK and inserts “has evidence”. In this amendment, we are trying to seek some further information on how the process of issuing the temporary exclusion order will be managed. It would be helpful if the Minister could give some information on the evidence threshold. What evidence would be required for the Home Secretary to reasonably suspect that condition A has been met and that someone is, or has recently been, involved in terrorism-related activity? As previously discussed, the imposition of such an order will have a similar legislative impact to a TPIM, and will restrict an individual’s movements over a period of time. There may be other obligations, either through TPIMs or, for example, to engage in perhaps the Prevent programme or Channel.
The Government’s fact sheet is very interesting. It states that MI5 would have to make an application to the Secretary of State for her to consider. Is that the only route to a TEO—for MI5 to apply to the Secretary of State with information and to ask her to consider it? The Bill states only that certain conditions have to be met; it is the fact sheet that refers to MI5. The fact sheet also refers to the threshold, where it merely repeats the “reasonably suspects” wording. I am seeking some clarity on the threshold and on the process. Will a TEO always, and in all circumstances, be considered only on evidence from MI5 or the wider security services? Are there any circumstances where a Home Secretary, or any other Minister including the Prime Minister, could initiate the process? Are there any circumstances in which a Home Secretary could issue a temporary exclusion order without, or against, the advice of MI5? That is what the fact sheet says but, again, it is woolly on the legislation.
I think the noble Baroness, Lady Hamwee, mentioned humanitarian support earlier. What if someone has left the country—for example, to go to Syria—to be involved in humanitarian support, and although it is quite likely that is what they have been doing there, there is not hard evidence to prove it but, equally, there is not hard evidence to say that they are engaged in terrorism? What, then, would fulfil the definition of reasonable suspicion? When the legislation is in place—and if the Government get their way and do not agree to a sunset clause—it will not just apply to current threats but this will be law for ever and in any circumstances in the future.
We have to ask whether there is a value judgment to be made as to how the UK views the cause on the side of which somebody goes to fight. I want to just explore this with the Minister. I wonder whether he can help me, as I genuinely do not know the answer and am trying to find a way through this. Let us take the case of somebody with dual nationality who travels abroad to fight on the side of a cause in their second country that the UK would support. It has not been unknown in history for us to change sides, but let us say they have gone to another country, we support the cause they are fighting for, and they have dual citizenship of that country and this one. What about the British-Iraqi Kurd who, on his own evidence, leaves to fight against ISIL and against extremism? Could they find themselves subject to a temporary exclusion order? I know that the noble Lord cannot comment on intelligence matters, but just for this amendment it would be helpful to have some clearer explanation of what the Government mean by “reasonably suspects”, and what the evidence threshold will be for imposing a TEO. I beg to move.
Lord Ashton of Hyde: My Lords, this allows us to consider the legal threshold for issuing a temporary exclusion order. Before I get on to what our position is, I shall answer a couple of the noble Baroness’s questions.
She asked about the basis on which reasonable suspicion is used in the power to seize and retain travel documents at a port. The test uses the evidential standard of reasonable suspicion that is used in relation to many other police powers. What constitutes reasonable
grounds for 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 facts. Such information must be specific to the conduct of the person. It can include observation of the person’s behaviour, information obtained from any other source or a combination of these. Reasonable suspicion cannot be formed on the basis of assumptions about the attitudes, beliefs or behaviour of persons who belong to particular groups or categories of people. To do that under Schedule 1 on this basis would be discriminatory.
The noble Baroness also asked whether the Home Secretary will make a TEO application only on the basis of an application from MI5. It will be for the Secretary of State to decide whether the tests are met. In practice, she would base her judgment on advice from the security services. The final decision will of course be hers, even though, in practice, she will generally require input from the security services to establish reasonable suspicion.
Baroness Smith of Basildon: Perhaps I might press the noble Lord further on that point. The other purpose of my question was to ask whether the Secretary of State or any other Minister, including the Prime Minister, would be able to initiate the process. Would they ever be able to act against or without the advice of the security services in imposing a TEO?
Lord Ashton of Hyde: I think it would be better if I clarified that and came back to the noble Baroness. I do not want to say something that is incorrect on the precise details of this. I could make a guess, but I would rather not.
The noble Baroness’s amendment would mean that the Home Secretary would be required to have evidence that an individual has engaged in terrorism-related activity abroad rather than having a reasonable suspicion. The reasonable suspicion may well be based on intelligence, which is clearly not always the same as evidence. This change would greatly reduce the number of individuals against whom the Home Secretary could use this power. The result of this would be that the Government would not be able to control the return of individuals suspected of fighting alongside terrorist groups and would have fewer tools available to manage the threat these individuals posed to the British public.
Furthermore, where there is clear evidence that an individual is engaged in terrorism-related activity, it is likely that we would be in a position to seek their prosecution, which would be preferable to placing them under the conditions of a temporary exclusion order. Such a high test would also bring them within scope of the much stronger TPIM regime. Given the less stringent obligations of a TEO compared with the other measures, the Government’s view is that such a test would be disproportionate. On that basis, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee: My Lords, I am glad that my noble friend made those concluding remarks, referring particularly to prosecution where it is possible.
Should we be comforted by the distinction between the words in Condition A, “reasonably suspects”, with an emphasis on “suspects”—the noble Lord referred to “reasonable grounds for suspicion”, which we covered earlier today—as against, in Conditions B and C,
“the Secretary of State reasonably considers”?
That seems to require more of the Secretary of State. Conditions A to D must all be met, so we can look at them together and see an escalation of the seriousness of the Secretary of State’s views, if I may put it like that. I could understand the concerns of the noble Baroness if we were to look only at Condition A, but I do not think that we can look at it in isolation.
Baroness Smith of Basildon: I am grateful to the noble Baroness for trying to help the Minister but the purpose of the amendment was merely to probe the issues around the evidence base for “suspects”. She was taking me very literally on that.
I am grateful to the Minister for his response and glad that he will write to me on the point that I raised with him. Could he also write to me on the second point, which he did not address? This was about somebody who might have dual nationality and was fighting against terrorism, for instance. I gave the example of a British Iraqi Kurd who was fighting against ISIS. It would be helpful if he could clarify that.
The purpose of this amendment and my next, Amendment 56, is to tease out how this will work. The Government need to answer some of these complex questions. It is a big and important power, but we need to understand how it will work. I am grateful for the Minister’s help and his offer to write to me, and I beg leave to withdraw the amendment.
50: Clause 2, page 2, line 15, at end insert—
(a) the court gives the Secretary of State permission under section (Temporary exclusion orders: prior permission of the court), or
(b) the Secretary of State reasonably considers that the urgency of the case requires a temporary exclusion order to be imposed without obtaining such permission.”
Amendments 50A and 51 not moved.
52: After Clause 2, insert the following new Clause—
(a) makes the relevant decisions in relation to an individual, and
(b) makes an application to the court for permission to impose a temporary exclusion order on the individual.
(2) The function of the court on the application is to determine whether the relevant decisions of the Secretary of State are obviously flawed.
(3) The court may consider the application—
(a) in the absence of the individual,
(b) without the individual having been notified of the application, and
(c) without the individual having been given an opportunity (if the individual was aware of the application) of making any representations to the court.
(4) But that does not limit the matters about which rules of court may be made.
(5) In determining the application, the court must apply the principles applicable on an application for judicial review.
(6) In a case where the court determines that any of the relevant decisions of the Secretary of State is obviously flawed, the court may not give permission under this section.
(7) In any other case, the court must give permission under this section.
(8) Schedule (Urgent temporary exclusion orders: reference to the court etc) makes provision for references to the court etc where temporary exclusion orders are imposed in cases of urgency.
(9) Only the Secretary of State may appeal against a determination of the court under—
(a) this section, or
(b) Schedule (Urgent temporary exclusion orders: reference to the court etc);
and such an appeal may only be made on a question of law.
(10) In this section “the relevant decisions” means the decisions that the following conditions are met—
(a) condition A;
(b) condition B;
(c) condition C;
(d) condition D.”
Amendments 53 to 55A not moved.
Clause 3: Temporary exclusion orders: supplementary provision
56: Clause 3, page 2, line 22, at end insert after “include” insert “the Secretary of State’s reasons,”
Baroness Hamwee: My Lords, I wondered whether the noble Baroness was adopting this one.
Baroness Smith of Basildon: I apologise—mine is Amendment 59.
Baroness Hamwee: I think we are all being as co-operative as we can be on this: we are aiming at the same thing.
Briefly, Amendment 56 amends Clause 3, which provides that notice of the imposition of an order must include an explanation of the procedure for
making an application under Clause 5. My amendment would provide that it should also include,
“the Secretary of State’s reasons”.
This is simply for the reasons that we discussed earlier: an individual affected needs to have an understanding, not necessarily—almost inevitably not—of the fine detail, but of the gist of the reasons why. This might not be the right term in this context, but in normal terminology it covers what I mean. Having knowledge of the procedure is not a great deal of use unless one knows the reasons for the Secretary of State’s decision. I did not quite keep that to under a minute but I beg to move.
7.30 pm
Lord Bates: My Lords, I appreciate that this is the last group of amendments before we seek the permission of the House to break. I am grateful to my noble friend for raising this point, which relates to the information provided to the subject of a temporary exclusion order.
It is, of course, important that the individual is informed that they are subject to a temporary exclusion order—after all, that is the point of it—and that they are given some indication of why this is the case. However, I trust your Lordships will understand that it is not appropriate for the individual to be provided with detailed reasoning behind the Secretary of State’s decision, which is likely to include sensitive information, the disclosure of which could damage national security and put lives at risk.
Any notice given to the individual would state that the Secretary of State has reasonable suspicion that they have been involved in terrorism-related activity abroad. We believe that this is sufficient disclosure, which informs the individual of the basis for the decision while protecting sensitive information.
My noble friend was brief in moving her amendment. I have been fairly brief in responding to it but I hope I have answered the point she was making. I therefore ask her to withdraw her amendment.
Baroness Hamwee: My Lords, I am conscious of the time. I think that was one of those answers that may raise further questions, which perhaps I will keep for another day. As there is another debate about to happen, I beg leave to withdraw the amendment.
House resumed. Committee to begin again not before 8.31 pm.
Health: Human Papilloma Virus
Question for Short Debate
7.32 pm
Asked by Lord Patel of Bradford
To ask Her Majesty’s Government what action they are taking to include all adolescent boys in the national vaccination programme for human papilloma virus.
Lord Patel of Bradford (Lab): My Lords, I am most grateful for the opportunity to discuss the very important issue of whether adolescent boys as well as girls should be included in the national vaccination programme for HPV—human papilloma virus. I thank all noble Lords who will be speaking in this short but important debate, and express my gratitude to Peter Baker, former chief executive of the Men’s Health Forum and the current campaign director of HPV Action, for all his expert advice and guidance.
This debate is particularly timely because the Joint Committee on Vaccination and Immunisation—JCVI—is currently looking at whether the national HPV vaccination programme should include boys. I have a particular interest in the outcome through my role as chair of the All-Party Parliamentary Group on Men’s Health. Some two years ago, the all-party group held a meeting jointly with the All-Party Group on Sexual and Reproductive Health in the UK. The chair of that group, my noble friend Lady Gould of Potternewton, and I heard evidence from two distinguished speakers—Professor Margaret Stanley from Cambridge University and Mr Peter Greenhouse, a consultant in sexual health from Bristol—which absolutely opened my eyes to the avoidable risks to the health of men caused by HPV infection.
I realised that HPV is not just a problem for women. It does not cause just cervical cancer but other cancers in women and a wide range of cancers in men as well. We know that HPV can cause, in men and women, cancers in the head and neck, as well as anal cancer. In women it can cause vaginal and vulval cancer, and in men penile cancer. In fact, worldwide HPV is understood to cause 5% of all cancers and is thought to be behind the steep rise in oral cancers in the past 20 years.
Unfortunately, HPV is a very common and easily acquired sexually transmitted infection. The majority of people—probably over 80%—will be infected with HPV at some stage in their lives. The good news is that most people’s bodies clear the virus naturally and it causes no lasting damage. But in others it can persist, especially if they have weakened immune systems, and can lead to potentially life-threatening problems. HPV is not just a cause of cancer; it is also responsible for genital warts and a very unpleasant but fortunately much rarer condition called RRP—recurrent respiratory papillomatosis. This can cause serious breathing problems and is very difficult to treat.
Thirty-six organisations have come together as HPV Action to make the case for gender-neutral vaccination; in other words, protecting both males and females from the consequences of HPV infection. These 36 organisations are major names in the fields of cancer, sexual health, men’s health, oral health and public health; in fact, one of them is the Royal Society for Public Health, of which I happen to be a vice-president. HPV Action has informed me that some 2,000 cases of cancer in men are caused each year in the UK by HPV. Around 48,000 men also develop genital warts as a result of HPV infection, and about 600 men and boys live with RRP. This is a huge burden for the individuals affected and their families, and a significant issue for the NHS, which has to find the resources to treat and care for them.
It seems patently unfair that we exclude boys from a vaccination programme that can easily prevent a wide range of diseases, including several types of cancer. This makes no sense on the grounds of equity or public health. I also wonder if it might even be unlawful to exclude boys from this programme under our current equality legislation. I would be very interested to hear from the Minister whether this is the case and whether an equality impact assessment has been undertaken on this issue.
With regard to the JCVI’s timescale for a decision on adolescent boys, in 2014 it stated that it would be in a position to make a recommendation later this year. Unfortunately, in the past few weeks we have heard that the JCVI will not be taking a view until early 2017. Given the facts and figures that I have just presented, this delay is totally unacceptable. I ask the Minister to meet the JCVI urgently to discuss how the decision-making process can be accelerated. Any continued delay is causing many, many more people to suffer avoidable ill health. In fact, I believe that the case for vaccinating boys is already proven and that Ministers should make a decision now to vaccinate boys as soon as possible.
Of course, as always, there are arguments put forward that seek to justify excluding boys. I will briefly address a couple of these. First, it has been argued that the current vaccination programme for girls is so good that it protects males as well. It is true that the programme reaches over 80% of girls; 80% is the level at which the population as a whole is believed to be well protected. The UK HPV vaccination programme is without doubt one of the best programmes in the world for girls. But it is not perfect. There are some areas, notably in London, where vaccination rates in girls are well below 80%. The latest data for Enfield, for example, show that just 67% of girls received all the doses they needed. A recent study by University College London also found that girls from black or other ethnic minority backgrounds were less likely to have been vaccinated than girls from white or Asian ethnic backgrounds. These shortfalls leave large numbers of unvaccinated girls and women at risk of contracting HPV and limit the efficacy of the wider vaccination programme.
Evidence from Denmark clearly shows that while HPV vaccination for girls is reducing the incidence of genital warts in girls, it is not reducing the incidence of warts in boys. This suggests very strongly that boys are continuing to be infected with HPV, either by unvaccinated Danish girls or by girls from countries without a vaccination programme. Men in the UK, as in Denmark, do not conveniently have sexual contact just with women brought up in their own country. It is also the case that not all men have sexual contact with women of their own age group. For those men who have partners who are older than the first female cohort to receive the vaccination, the risk of HPV infection and disease will remain.
Secondly, there are some who believe that the problem with not vaccinating males is largely confined to those who have sex not only with women but also—or instead—with men. It is true that men who have sex with men are, in general, more seriously affected by
HPV. Rates of anal cancer in this group have risen sharply in recent years, and anal cancer rates are even higher in men who have sex with men who are HIV positive. It has been suggested that the solution to this problem could be to offer HPV vaccinations to men who have sex with men, on attendance at a GUM clinic. Indeed, this step was recently recommended by the JCVI. In my view, and in the view of HPV Action and other experts, this is a useful but certainly nowhere near a sufficient response. It might be of some help to individuals who receive the vaccine, but it is not an effective solution for all men, or indeed for all men who have sex with men.
That is because we know that people generally become infected with HPV very soon after their first sexual experiences. That is why it is best to vaccinate before a person begins sexual activity. It is also best because the body’s immune response is greater if the vaccine is administered before the age of 16. But if we wait until men who have sex with men turn up at GUM clinics, they are likely already to have had sex with one or more sexual partners. There is lots of evidence to prove that the median age of men approaching GUM clinics is their late 20s and early 30s.
As we cannot practically or ethically identify and vaccinate the 12 and 13 year-old boys who will in their adult lives go on to have sexual activity with other men, the only effective way to protect men who have sex with men is to vaccinate all boys. This would, of course, also protect all other men and increase the level of protection for unvaccinated girls, especially in those areas where, as I have just mentioned, vaccination rates are below 80%.
The proposal to vaccinate all boys has far-reaching support. In fact, it is now hard to find anyone in the field of public health in the UK who does not support gender-neutral vaccination. Significantly, other countries are already vaccinating their boys. Australia, several Canadian provinces and Austria have already introduced gender-neutral vaccination programmes, and the United States is recommending vaccination for both sexes.
I want briefly to mention the issue of cost. HPV Action estimates that the additional cost of extending the HPV vaccination programme to boys in the UK would be in the region of £20 million to £22 million. This relatively small cost has to be set against the economic impact of HPV-related disease. In England, the cost of treating genital warts alone is estimated to be more than £52 million a year. The cost of treating RRP has been estimated at £4 million a year and there are the costs of treating a rising number of HPV-related cancers.
I serve as chairman of Bradford Teaching Hospitals NHS Foundation Trust, so noble Lords will appreciate that I am very interested in health interventions that are cost-effective, as this one clearly would be. But, ultimately, any decision about whether to vaccinate boys should not be made solely on a financial basis, although that is very clear cut. I believe that public health, equity and, above all, the human costs of HPV-related disease for both sexes must be the primary considerations. I would be grateful if the Minister could assure the House that the Government will act quickly to vaccinate both boys and girls in the UK.
7.42 pm
Baroness Hollins (CB): My Lords, I thank the noble Lord, Lord Patel of Bradford, for initiating this important debate. It comes at a time of growing consensus within the medical community that now is the right point to extend HPV vaccination to all boys. It is the only effective and equitable solution to protect against HPV infection. I want to focus my remarks during this debate on the role of HPV in a range of cancers affecting men and the growing evidence that the best way to target HPV in boys is to vaccinate them in school. I shall also raise concerns about a group which is often overlooked in discussion: men with learning disabilities. I ask the Minister to remember this group of men in his response.
There is no doubt that incidences of cancers associated with HPV are going up. The UK has seen a recent rise in the incidence of HPV-related oropharyngeal carcinoma among men, and I understand from the research of Professor Margaret Stanley, who has already been mentioned in this debate, that this has the fastest rising incidence of any cancer—15% a year. Over the past four decades, rates of anal cancer in both men and women in the UK have risen steadily. It is estimated that 90% of anal cancer in men is related to HPV infection, and roughly six people die every week in the UK from this cancer. Infection with HPV is also responsible for nearly all cases of genital warts.
Men who have sex with men are especially at risk of exposure to HPV infection because they are completely outside the vaccinated herd. Reflecting on the comments of the noble Lord, Lord Patel, I presume that if only 80% of girls are vaccinated, since girls are only half the population, that must reduce the effectiveness of the herd to 40%. Does it? The incidence of anal cancer in this group is estimated to be similar to that of cervical cancer in an unscreened population of women.
A not insignificant number of boys will be sexually abused before reaching adulthood, including boys with learning disabilities, who are at much higher risk of abuse and are less likely to have received sex education or to know how to report abuse. Although some improvements have been made, the sexual health needs of those with learning disabilities have, for the most part, been overlooked. This is particularly worrying as evidence suggests that men with learning disabilities who have sex with men are less likely to identify themselves as gay and therefore are less likely to have access to formal or informal sexual education, which places them at even greater risk of getting STIs or even HIV.
It is against this backdrop that HPV Action has been formed. It is a coalition of organisations that support gender-neutral vaccination. It includes the British Dental Association, the Royal College of Obstetricians and Gynaecologists, the Royal Society for Public Health and the Faculty of Public Health, among others. All agree that the case for vaccinating both sexes against HPV is growing stronger. The House will wish to be reminded that my interests include being chair of the board of science of the British Medical Association. The British Medical Association, which represents doctors, has also said that it now believes that there is an overwhelming case for expanding
the school-based HPV vaccination programme to include boys. This was debated at the 2014 annual representatives’ meeting, and members voted to accept this evidence and advocate for equity in the vaccination programme.
It is clear that scientific and medical opinion now largely believes that HPV vaccination will prevent many cases of head, neck and penile cancer, and an increasing number of clinicians and public health organisations in the UK recommend HPV vaccination for boys. There is also a growing consensus that the most effective approach to providing this protection to boys would be to provide vaccination in school. To ensure that vaccine recipients are protected, they must receive the immunisation prior to the initiation of sexual activity. As such, there are concerns that providing immunisation only at GUM clinics would not do this effectively. It is not practical to offer HPV vaccination only to men who have sex with men because, to be most effective, boys should receive the vaccine prior to the age of sexual activity. The optimum age for this would be 12 or 13. It is clear that 12 or 13 year-old boys would not attend GUM clinics. We have already heard that the median age for first attendance is around 28 or 29. Boys of 12 or 13 may be unaware of their sexual orientation.
In the existing school-based vaccination programme, we already have an appropriate mechanism for vaccine delivery. From September last year, the HPV vaccination schedule was reduced to two doses. This reduction now provides capacity—this is an important point—to extend the school-based HPV vaccination programme to include boys. I believe that this presents us with a real opportunity, and providing HPV vaccination to all boys in schools will guarantee that high vaccine coverage rates are achieved. If we were to take this step, we would not be the first. Australia, Canada and the USA already offer HPV vaccination to boys.
The introduction of HPV vaccination to protect women against cervical cancer has made a significant contribution to reducing incidences of HPV infection among young women in the UK. This undoubtedly represents a significant health gain. However, there is now overwhelming evidence—and consensus—that there is a case for expanding the school-based HPV vaccination programme to include boys.
7.49 pm
Baroness Gould of Potternewton (Lab): My Lords, I, too, congratulate my noble friend Lord Patel of Bradford on securing this important and rather urgent debate. It is urgent because there are more than 100 different types of HPV being passed from one person to another, not only by sexual contact but by skin-to-skin transmission and through non-sexual routes of HIV transmission, which include vertical transmission from mother to newborn baby. As my noble friend said, HPV is very easily acquired. It is reckoned that most women and men will acquire it at some time during their lives.
This discussion on vaccination for boys takes me back to the early 2000s, when we made similar requests for HPV vaccination for girls, when I was chair of the Independent Advisory Group on Sexual Health
and HIV. We need only look at the success of that campaign. It is now the norm for secondary schoolgirls aged 11 to 13 to be routinely offered the vaccination as prevention against cervical cancer. Boys were not included at the time, although our campaign argued strongly that Gardasil should be the chosen vaccine so that they could be vaccinated against genital warts. Not to include boys was a mistake, which we are now trying to rectify.
Since then, the non-vaccination of boys has been a growing issue and concern, as it has become evident that in fact it has serious public health consequences. As a result, as has been said, the BMA reports that there is a growing consensus in the UK that extending vaccination to all boys represents the only effective answer to the question of how to ensure that all are protected against HPV infection. To add to the list of organisations that we have already heard, that is also supported by Cancer Research UK and Jo’s Cervical Cancer Trust and a large number of organisations that work in the field of men’s health.
As has been said, there is increasing evidence of the association between HPV and the many types of cancer and precancerous lesions caused by HPV. A reduction of precancerous lesions would help to reduce the rate of penile and anal cancer in men, as confirmed by Cancer Research UK. As it says, 90% of anal cancer in men is related to HPV infection. A recent statement by the Royal College of Surgeons makes it clear that scientific evidence suggests that the vaccination of boys could help to prevent anal cancer and cancer of the oropharynx and tonsils. The college goes on to say that those types of cancer are increasing. Data from 2012 showed that while there were 2,483 cases of cervical cancer and decreasing, there were also many cases of oropharyngeal cancer and tonsil cancer, which is fast growing.
On getting throat cancer, the actor Michael Douglas got a great deal of publicity—as though it was something unique—when he spoke out about the link between the virus and throat cancer. That view is supported by the Throat Cancer Foundation, which also firmly believes that schoolboys should receive the HPV vaccine to protect against throat cancer. James Rae, head of the foundation, has called the disease a “ticking timebomb”, because boys are routinely exposed to a virus that can cause loss of life. Nor should we ignore in that list of cancers, as has been said, the possibility of head and neck cancers occurring because of HPV.
The importance of the vaccine Gardasil is that it is a protection against genital warts. HPV is responsible for nearly all cases of genital warts. Genital warts are not only a source of infection but can be a source of sexual shame and embarrassment. The medical treatment can be long, often requiring multiple visits for treatments from which there is, unfortunately, no absolute cure. Clinical trials in Australia have shown that the vaccine is 89% effective in preventing genital warts but less effective in those who have already been exposed to HPV. That outcome surely illustrates and identifies not only the need but also the sense of early intervention well before boys become sexually active and are potentially exposed to the virus. To roll out the vaccine to boys would also help to reduce incidence of cervical cancer in women. Equally, at the appropriate age we should
also give children information about the risks and about the protection that condoms and dental dams provide. However, they will not absolutely remove transmission; the greater guarantee has to be a vaccine.
At the start of the review in 2013 the JCVI set up a sub-committee to assess whether the programme should be extended to adolescent boys, men who have sex with men or both. As has been said, the review was due to report in 2015. The JCVI concluded that men who have sex with men should be offered the HPV vaccine, and of course that is welcome. However, that will not protect the majority of men who have sex with men because, as has been said, they attend GUM clinics at a rather later age, by which time they may have had multiple sexual partners and so be at risk before they attend a sexual health clinic.
The question that has to be asked, as other noble Lords have asked, is: why the two-year delay to 2017? That delay seems to focus on the model being developed by Public Health England. Maybe the Minister can tell the House if representation has been made to Public Health England, which I spoke to this evening, so that the Government can honour their original and welcome commitment.
I will make two final points. The cost of a jab of vaccine is £45. If that is multiplied by the nearly 400,000 boys who should be vaccinated, the total cost would be around £23 million per annum. We might say that that is a lot of money, but if that figure is set alongside the cost of the treatments for the consequences of HPV, there would be savings, be it in the treatment of the various cancers or of genital warts. To take just two instances, it is estimated that the treatment for throat cancer costs the NHS £45,000 per patient. The cases are not all caused by HPV, but the number that is caused by it is growing, so there could still be substantial savings. Add to that the cost of treating genital warts of the figure we just heard—£52 million each year—and add the cost of treatment for anal and penile cancers and head and neck cancers. Put it all together and it is clear that over a period there would be savings to the NHS. Can the Minister say whether that exercise has been undertaken, so that we can show that in fact there is a financial case for implementing the vaccination of boys against the HPV virus? In addition, the fact that the HPV vaccination schedule has been reduced to two doses should mean that there is the capacity within the existing school-based programme to extend that vaccination programme to include boys.
My second and last point relates to the question of equity. Withholding a health intervention from any group at risk of easily preventable diseases is inequitable and discriminatory. Not vaccinating boys may be, as has been said, in breach of the Equality Act—I think it is—because it discriminates against boys who are at risk because of the withholding of a particular health intervention. Vaccinating girls is not sufficient; men will continue to have sexual contact with unvaccinated women, whether in this country, where according to Public Health England the critical 80% threshold for girls is not being met in many parts of the UK, or they may have sexual partners outside the UK. It might also be said that providing vaccination to gay men only discriminates against heterosexual men. Therefore, this question of discrimination should be looked at.
The human cost of HPV-related diseases has to be the primary consideration, and this is a genuine opportunity to make progress in the fight against cancer by a simple jab at a cost of £45. Lives can be saved each year if boys are given the same vaccination that protects girls from developing cancer. Other countries have been named, such as Canada, Australia and the United States, but one country has not been mentioned: South Korea, which has vaccinated boys and shown the efficiency of the vaccine. I therefore ask the Minister why we have to wait another two years for a decision, or even longer before the programme starts. The answer has to be prevention—a programme of prevention that provides for a gender-neutral vaccination strategy in schools for all 11, 12 and 13 year-old boys and girls.
7.58 pm
The Countess of Mar (CB): My Lords, I am grateful to the noble Lord, Lord Patel of Bradford, for bringing this question to our attention this evening. I am afraid that I do not share his enthusiasm or that of my noble friend Lady Gould for HPV vaccines.
I know that the Minister is aware of my concerns about the safety of human papilloma virus vaccination when it is used in girls. The problems that I have taken to him over the past two years do not apply only to girls and young women in the UK. Wherever HPV vaccine programmes exist there also exist high numbers of adverse reaction reports. After only six weeks, the Japanese Government withdrew their recommendation for the administration of HPV vaccine as a result of adverse event reports for Gardasil that were 26 times higher, and those for Cervarix 52 times higher, than those for the annual flu vaccination. One-quarter of these adverse events were considered serious. Denmark has recorded a quarter of adverse events as serious, while Italy reports adverse events at a rate of 219 per 100,000, 10 times higher than most of the other vaccines administered in Italy. According to the High Court in India, where 24,000 girls were vaccinated during demonstration projects, an estimated 1,200 were left with chronic health problems and/or autoimmune disorders. In the USA, HPV vaccines account for nearly 25% of the entire Vaccine Adverse Event Reporting System, or VAERS, a system that was established in 1990—and HPV vaccines were not introduced before mid-2006. In France, Spain and Colombia, there are ongoing court cases relating to girls who are suffering chronic ill health following HPV vaccination. In the USA, the National Vaccine Injury Compensation Programme has awarded $5,877,710 dollars to 49 HPV vaccine-damaged victims, and to date there have been 200 claims filed. This demonstrates that my concerns are not confined just to the UK.
Merck, the manufacturers of the vaccine Gardasil, admits in its own research documents, where Gardasil is compared with a new vaccine, Gardasil 9, that of 7,378 girls who were vaccinated, 2.5%—that is, 185—suffered serious adverse events. It also admits that 3.3%—that is, 240—suffered autoimmune disorders. A serious adverse event must fit one of the following criteria: death; life-threatening; disability or permanent damage; hospitalisation; congenital abnormality or birth defect; or the requirement to intervene to prevent
permanent impairment. It is likely that such events in the general population would be higher because certain at-risk groups are excluded from clinical trials but not from vaccination programmes.
Cancer rates are always quoted as so many per 100,000; in the case of the Gardasil clinical trial, there would be 2,500 serious adverse events per 100,000 vaccinated. UK cancer cases are identified as 8.8 per 100,000 and with deaths as three per 100,000. UK HPV vaccine yellow card adverse reaction reports have been identified at 341 per 100,000, with serious reports numbering 108 per 100,000. We must not lose sight of the fact that the MHRA admits that possibly only 10% of adverse events are reported. A report represents a person and, within that report, the symptoms experienced by the individual are listed. The MHRA identifies the number of reports received, and the number of symptoms from individual reports are put under the appropriate headings in the MHRA statistics.
Interestingly, at the meeting of the JCVI HPV sub-committee, the MHRA reported:
“No significant new safety concerns have been identified during 2012/13 since Gardasil was introduced”.
In the light of what I have already said, I ask the Minister just how significant a serious reaction must be before it becomes a safety concern. How many have to report serious reactions before preventive action is taken? Are more than 108 per 100,000 young people to have their lives destroyed in order to save a possible 8.8 per 100,000 lives from cancers which, if detected early by the PAP screening programme for cervical cancer, which is not known to cause deaths or serious side-effects, can be treated?
Had the Minister been at the meeting of the All-Party Parliamentary Group for Vaccine Damaged People last week, he would have heard of the tragic lives many of the young women are leading. He would have seen videos of two young women who are bedridden—young women who, had they not been vaccinated with Cervarix or Gardasil, would have been leading active lives and, instead of being totally dependent on their parents, would have been about to fly the nest, go to university and be productive members of society. They represent many more in the UK and worldwide whose lives have been totally destroyed.
Gardasil has been on the market in the USA since June 2006 and has two of the high-risk HPV strains, 16 and 18, which are believed may lead to cervical cancer. The VAERS is now receiving reports from Gardasil-vaccinated women who have developed HPV infection, cervical dysplasia or cervical cancer. There are some 15 high-risk strains of HPV which are thought to be cancer-causing. These reports could well represent only the tip of the iceberg. Even the Minister’s honourable friend Anne Milton acknowledged on 7 July 2011 that:
“There is a possibility that other HPV strains could replace HPV 16 and 18 following the introduction of the HPV vaccination programme. However, there is no data with which to determine whether and how quickly this would take place”.
I have read the JCVI interim position statement on HPV vaccination of men who have sex with men, dated November 2014. It seems that the jury is still out
as to the science behind offering HPV vaccination to this group, though they would appear to be the most vulnerable to HPV infection. I believe that the JCVI is rightly cautious. I understand that the human papilloma virus has never been proven to cause cancer by itself and that HPV vaccines have never been proven to prevent a single case of cancer. Other risk factors must be present for cancer to develop. According to the World Health Organization, only 0.15% of all people exposed to any high-risk strain of HPV will ever develop cervical cancer. There is no guarantee that eliminating one risk factor for the development of cancer will have any impact on the disease incidence or mortality rate, and there is no guarantee that any suppressed oncogenic HPV type will not mutate over the next 20 years to become more dangerous.
I have seen what has happened to our girls and young women when vaccination goes wrong. Do we really want all young boys to be just as vulnerable?
8.07 pm
Baroness Wheeler (Lab): My Lords, I, too, am very grateful to my noble friend Lord Patel for securing this debate and providing the opportunity to address this important issue. I also pay tribute to his contribution and work as chair of the All-Party Parliamentary Group on Men’s Health and to his dogged and persistent campaigning on the need to give teenage boys the HPV vaccine to prevent men getting cancers. Indeed, we have been very fortunate today to have the expert contributions from other strong campaigners on this and other key sexual health issues.
As we have heard, there is certainly a compelling case for challenging the Joint Committee’s 2008 conclusion that evidence did not support applying the universal programme of HPV vaccination for girls to boys. We have heard today how the contention that for boys such a programme would provide little additional benefit or be cost effective—because vaccine efficacy was high, and high coverage in girls would provide herd protection for boys—is increasingly difficult to sustain.
HPV Action, which leads the campaign for a gender-neutral HPV vaccination programme, is an authoritative voice on this issue and an umbrella body whose members include a wide range of leading public health, cancer, oral health, sexual health and men’s health organisations. The BMA, the Royal College of Physicians, the Royal Society for Public Health, and the charities Cancer Research and others, such as Jo’s Cervical Cancer Trust, all strongly support the campaign for the vaccine and the vaccination itself. The latter stresses that vaccinating both girls and boys at a young age may be the best way to achieve the greatest protection for females against the risk of cervical cancer, and that extending the vaccine to boys would provide universal protection to both sexes from many other HPV-related cancers. The BMA points to “overwhelming evidence” supporting extending the HPV vaccine to all boys as well as girls before they start having sex. Indeed, there is growing consensus in the UK and internationally that extending the HPV vaccination to boys represents the only effective, equitable solution to ensure that all are protected.
We can also acknowledge that the JCVI’s recent recommendation for men who have sex with men—MSM—to be offered HPV vaccinations when they attend sexual health clinics is an important step forward. However, we have heard today the strong concerns that this is not enough to protect MSM, and that the reality is that most MSM will remain unvaccinated. The most effective protection for MSM and heterosexual men is to vaccinate all adolescent boys before they become sexually active. The JCVI consultation on MSM ended this month. Does the Minister have any update on the level of response and do the Government have an estimated date for receiving the JCVI’s final advice?
There is also strong evidence that vaccinating boys will also help to protect women. The Royal Society for Public Health says:
“While the vaccination for girls does offer herd immunity for boys, this doesn’t take account of transient populations and presumes that males remain within the herd. Men may still contract HPV elsewhere (e.g. travelling abroad) or from females in the UK who have had the vaccination”.