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