Counter-Terrorism and Security Bill

Lord Campbell of Pittenweem Excerpts

Tuesday 2nd December 2014 Commons Chamber

[Mrs May]

These matters will be looked at on a case-by-case basis. The point is to be able to manage the return of individuals who have been involved in terrorist-related activity abroad, and we are discussing how the power would be operated practically with a number of other Governments, as I have said. The point is to ensure that when somebody returns, they do so under control and on our terms.

[Sir Menzies Campbell (North East Fife) (LD)]

I confess that I am by no means convinced of the legality of what is being suggested under temporary exclusion orders, which will, no doubt, be known in due course as TEOs, given our enthusiasm for acronyms. What is the position of someone who declines to accept conditions of return and who is not subject to deportation by the country in which they temporarily find themselves? Are they not de facto stateless in such circumstances?

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[Sir Menzies Campbell (North East Fife) (LD)]

My right hon. Friend the Home Secretary opened the debate by referring to the nature of the threat, as did my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) in his contribution. The truth is that in some quarters there is a continual effort to suggest that the characterisation of the threat is in some way designed for political purposes. Both my right hon. Friend the Home Secretary and my right hon. and learned Friend have been closer to the centre of the ring of secrecy than I ever have, although we on the Intelligence and Security Committee do acquire a degree of information that is not public. It is important that people understand that what we are facing is unprecedented, and that in such conditions, in deciding where the balance rests between security and privacy, it may be felt necessary to tilt the balance in a direction other than that in which one would normally wish to tilt it.

May I make one preliminary point? I happened to be at St Andrews university yesterday conferring degrees on grateful students, and in the course of that it became clear to me that there is some anxiety among the university authorities about how they would properly implement the obligations that may be placed upon them. I therefore agree with the shadow Home Secretary that my right hon. Friend the Home Secretary’s guidance in this matter is going to be of enormous importance. I am sure it will be as well drawn as possible, but the sooner that guidance is available, perhaps even for consultation, the better.

In my intervention on my right hon. Friend the Home Secretary, I made it clear that I am still not yet persuaded about the legality of the temporary exclusion order. It is helpful to look briefly at the conditions that would apply to someone against whom such an order was pronounced. They would be required not to return to the United Kingdom unless one of two conditions was satisfied: either the Secretary of State has issued a permit, or the individual has been deported to the United Kingdom. Some concern has been expressed about the fact that it is entirely within the power of my right hon. Friend the Home Secretary, or indeed her successors, to apply the terms of such a permit. We are entitled to assume that they will be reasonable, but they may not be reasonable in the mind of the person against whom they are directed.

So far, it has been perfectly clear from the contributions that have been made that everyone accepts that the exclusion of a British-born national from the United Kingdom is contrary to both law and practice. The right hon. and learned Member for Beaconsfield was eloquent in his description of what the common law amounted to. Is it not the case that the effect of exclusion is to remove the right of statehood to return, even if only temporarily, if the individual accepts the terms of a permit? If an individual does not accept the terms of a permit—subject to the fact that the orders have to be renewed at two-yearly intervals—the individual may, in effect, be unable to return in perpetuity to the United Kingdom, of which he or she is a national.

The Prime Minister’s original statement on 1 September suggested that some kind of blanket ban on return could be effected, and my right hon. and learned Friend the Member for Beaconsfield and I were both at pains to say that we doubted the legality of that. I understand that the temporary exclusion order is designed to bring within the sphere of legality the provision that the Government consider to be appropriate. However, I maintain my reservations for this reason: if the right to return is a matter of such principle, it can be neither capable of modification nor subject to conditionality. We are told that we are dealing with managed return. If it is managed return, why is it described in the Bill as a temporary exclusion order? The sense is turned right around by the description in the Bill, notwithstanding the explanation that my right hon. Friend the Home Secretary has given.

[Sir Edward Garnier]

I may have misunderstood the point that the right hon. and learned Gentleman is making, and I hope that he will forgive me if I have done so. If the orders were to be called managed return orders, but the same procedures applied, would that make any difference? I am not sure that it would.

[Sir Menzies Campbell]

No, it certainly would not. I think that that points up the fact that perhaps the issue was to find a description that, as has been suggested, might easily fit a headline, rather than the substance of the proposal. I see heads shaking on the Treasury Bench, but it would not be the first time that a definition created for easy understanding by the public and the press did not accurately reflect the precise terms of the legislation.

One difficulty is that the Government, although they were no doubt informed by the advice of Law Officers, have none the less produced something that on any view innovates against the principle of the right of return. I respectfully say that if that principle is as inviolate as has been suggested, any such innovation must be contrary to law and contrary to practice. In that, I differ from my right hon. and learned Friend the Member for Beaconsfield but, as was pointed out to me on my first day as a law student, lawyers are well paid for being wrong 50% of the time. There are genuine differences of emphasis and understanding. The one thing we can be most certain about, however, is that this matter will be tested in the courts and, no doubt, in the Supreme Court in due course.

[Mr Grieve]

I should emphasise that I do not disagree with the right hon. and learned Gentleman’s characterisation of “contrary to law”, which is why we have to be so very cautious about this. However, Parliament is ultimately sovereign and despite the existence of great things such as Magna Carta and habeas corpus, Parliament has, on occasion, ignored some of the key terms of both. One has to remember that power ultimately resides here, but when one starts to interfere with what is seen as a fundamental common law right, one should look at it carefully, and the courts will look at it carefully if they come to have to scrutinise it.

[Sir Menzies Campbell]

A lot would depend on the interpretation of the strength of the right that a court was willing to place on the right of return. That is why I suspect that this will eventually be a matter for the Supreme Court, rather than for any intervening forum between the House of Commons and the Government.

I wish to draw attention to another element in this matter. My right hon. Friend the Home Secretary and her successors—I almost said heirs and successors, according to law—have a considerable discretion conferred upon them in this matter, first, about the imposition and, secondly, about the terms of a permit. It is said that judicial review is available for this, but let us consider the position of someone in a foreign country with a legal aid system less generous than ours—how could we even describe ours as generous these days? What is the possibility of their mounting a judicial review in advance of accepting that they can return only under certain conditions? David Anderson QC, who has already been referred to with some approval in this debate, has drawn particular attention to this matter. So the Government would be well advised to follow the suggestion that came at one stage in our debate—I do not recall from which side of the House—to ensure that there is some intervention from the court much earlier in the system. My right hon. Friend might be obliged to go to court to ask for such an order.

As my right hon. and learned Friend the Member for Beaconsfield and I can agree, even if we do not agree in the ultimate interpretation, these are matters of considerable seriousness involving the liberty of the individual. In those circumstances, not only would it be right and proper to have the intervention of the court, but that might avoid the Home Secretary and her successors being engaged in political controversy because of the pronouncement of a TEO in a particular case. So I retain my scepticism and there is certainly a requirement that if this provision is to pass into law, the discretion of the Secretary of State should not be as stated in the Bill. Instead, there should be a requirement to seek judicial authority before the pronouncement of such an order.

[Mr Winnick]

I have listened carefully to the right hon. and learned Gentleman’s speech and fully agree with it. When the matter is being debated on the Floor of the House, as it will be on more than one occasion—I am also pleased about that—will we get the support of Liberal Democrats? I am not making a party point as such, because I know that he will vote as he considers appropriate. But it would greatly help to strengthen the measures announced by the Home Secretary, particularly on TEOs, if we could get a majority vote in favour of the High Court being involved before any such order is made.

[Sir Menzies Campbell]

I am too long in the tooth to try to speak on behalf of my party leader, as the hon. Gentleman might expect, but I would most certainly support an amendment of that kind, and I would seek to persuade other men and women of like mind and good sense to do exactly the same.

[Sammy Wilson (East Antrim) (DUP)]

The right hon. and learned Gentleman has spoken a lot about the rights of those who may be excluded as a result of this provision, but would he care to say something about people who feel under threat from those who have gone from this country, trained to be terrorists, committed acts of terrorism and are likely to come back here to commit acts of terrorism? What has he got to say to the people who feel threatened? What safeguards would he put in place for them?

[Sir Menzies Campbell]

In my own defence, when I first got to my feet—I do not know whether the hon. Gentleman was present at the time—I went out of my way to applaud the fact that the Home Secretary and the former Attorney-General had both emphasised the nature of the threat that we face. I am in no doubt about it as I am a member of the Intelligence and Security Committee, but that does not mean that we should close our eyes to the possibility of an illegality that might be challenged in the Supreme Court, which would have an enormously undermining effect on legislation of the kind that we are proposing. It is an argument in favour of careful consideration, which I am sure that this Bill will have as it passes through Committee.

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[Dr Lewis]

I see the hon. Gentleman nodding in agreement, so I will quit the exchange at that point.

[Sir Menzies Campbell]

rose—

[Dr Lewis]

I was about to wind up my remarks, but I cannot resist giving way to the right hon. and learned Gentleman.

[Sir Menzies Campbell]

The hon. Gentleman will forgive me for taking advantage of his good manners. In his very careful analysis, does he draw any parallel between the fact that for a long period in the 1930s Nazism was tolerated—indeed, in some parts of this country, it was welcomed—without a full understanding of the philosophy behind it, and the extravagant and extreme fruition of that philosophy in Hitler’s expansionist ambitions?

[Dr Lewis]

I absolutely accept that parallel. Many other parallels could be drawn that are similar to the one the right hon. and learned Gentleman has made so perceptively. For example, democracies in the 1930s faced the twin dangers of Soviet communism on the one hand and Hitlerism on the other, which is why it is understandable, although unforgivable in retrospect, that some people chose to back the Nazi approach in preference to meeting what they thought was the threat of bolshevism advancing against the western system of life and liberty.

Therefore, one can indeed draw parallels with the twin problems that we see now. There is a thousand-year war between Shi’a Muslims and Sunni Muslims. As the hon. Member for Perth and North Perthshire (Pete Wishart) said in his interventions, as we make our attempts—sometimes misguided and sometimes more sensible—to mitigate the outcomes of such conflicts, we should not be surprised if there is a blowback effect, to some extent, on the more volatile elements in the community here. I think that I have now got his point to his satisfaction.

In conclusion, bearing in mind your precept, Mr Speaker, that one should never have more than one or perhaps two main points for somebody to take away from a contribution in the House of Commons or any other public arena, the point that I wish to urge on the Government is the same one that I have urged before with the support of—indeed, I should say under the leadership of—the right hon. Member for Salford and Eccles: we need to face up to the ideology in its purest and most evil form. It is an ideology. It is not the ideology of Islam. We must mobilise and support those people in the Muslim community who wish to tackle this matter, and we must not be afraid to set up institutions and organisations that are capable of dealing with this formidable threat.