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 who has 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.