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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