Counter-Terrorism and Security Bill

David Davis Excerpts

Monday 15th December 2014 Commons Chamber

[Frank Dobson]

That might be an improvement, but the practicalities of what happens in Turkey or Syria are not changed by a court decision or endorsement here.

What the process does not do—I would have thought that we all want to see this done—is bring people under our jurisdiction, prosecute them and, if they are found guilty, jail them. Surely that should be the main objective of Britain’s policy. The process is likely to get them picked up, but not by us: they will be picked up by somebody who may or may not be one of our allies. I believe, therefore, that the basic Government proposal undermines and interferes with their fundamental rights of abode in this country and it does not achieve what we want, which is to see terrorists brought to justice. The proposal of my right hon. Friend the Member for Delyn (Mr Hanson) would address both issues, so it would be an improvement.

The human right of a British citizen to abode in this country is not some fancy right dreamt up in Brussels or Strasbourg, and it has not been created by the Human Rights Act 1998. It is a right of citizens to which Gladstone and Disraeli would have subscribed, not to mention Palmerston, who, after all, sent a gunboat to Greece to protect the interests of an exceedingly dodgy Maltese who probably had committed a crime. There is nothing new about this right and we need to be very careful abut doing anything that would undermine it.

I believe that notification and managed return orders do not deny the fundamental rights at all; do not expose people to being picked up by the Turkish authorities and still less by the Syrian authorities; involve the identification of the suspects but do not tip them off that they will be arrested if they come back to this country; which the temporary exclusion orders do; bring the suspects within British jurisdiction; and will result, if those people are guilty, in their being prosecuted and punished, which is what we want. We do not want them roaming around. If they come back here and are guilty of what they are suspected of, they will be picked up when they arrive at the port, the airport or St Pancras station. That is what we want to happen and it will not happen under the exclusion orders.

[Mr David Davis (Haltemprice and Howden) (Con)]

I had not intended to speak today, but I have been sitting here getting rather more uncomfortable about some aspects of the proposal. I do not propose to go into the complex practical issues, which were well laid out by the right hon. Member for Holborn and St Pancras (Frank Dobson), who gave thoughtful input, as ever, and by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). They outlined the issues and complexities very well and I suspect that those complexities will best be addressed by negotiation between those on the two Front Benches, which is not something I often recommend.

What concerns me today is the issue of the Home Secretary herself exercising the power. I am concerned that it comes about without prior judicial approval or, indeed, without being a power of the court, which would be my preference. Over time, I have become progressively concerned about the accretion of fairly absolute power to the state in counter-terrorism policy. Absolute power is pretty important. My hon. Friend the Member for Skipton and Ripon (Julian Smith) suggested that these measures did not impinge on people’s liberties in the same way as TPIMs might, but I am afraid that the impingement is pretty sizeable. I do not necessarily disapprove of it at all, but it should be exercised with a degree of judicial care.

These accretions of power have come about since the late 1980s and the 1990s when we avowed the various security services that had up until then not been recognised in public policy, or that were at least not in the public domain. At the time, it seemed quite reasonable for the Crown prerogative to be used as a method of giving warrants and of enacting the state’s will to protect the public. I took the 1994 Bill on the Secret Intelligence Service through the House. We did not foresee the level of use—the number of warrants used and the level of power being exercised—that is now necessary to deal with the Islamist terrorist threat.

What is more, we did not give much thought to how such power might be abused—not that it is at the moment, but it might be in the future—or how many errors might occur, which does happen. We had at the back of our mind a model of accountability that, frankly, does not work. The Minister for Security and Immigration will be familiar with the number of times on which he and I have had exchanges that amount to my asking him a question and his writing back something like, “I never comment on security matters.” That is not a particularly good form of accountability for any mechanism.

My concern is that along with progressive secrecy, secret courts and all the other things we now have, the weak accountability—

[Julian Smith]

Will my right hon. Friend give way?

[Mr Davis]

If my hon. Friend will permit me, I am coming to the end of my speech.

The level of secrecy, the low level of accountability and the power accruing to the Government, which is enormous when we think about our historic liberties in this country—this is in no way a criticism of the Home Secretary, as I would say the same of any Home Secretary, any Foreign Secretary or any Secretary of State—are why I am attracted by new clause 11. I do not know whether it will be pressed to a vote tonight, or whether it will come back on Report, but I ask the Government closely to consider the TPIM model. It is very sensible and those on the Opposition Front Bench have made a good case for it.

[Caroline Lucas]

I want to say a few words about the amendments tabled in my name. The tone of the debate has been useful and thoughtful and I have agreed with much of what others on both sides of the House have said. We are all trying to grasp our way towards something that provides robust security while guaranteeing human rights. My worry about the Government’s proposals on temporary exclusion orders is that they get that balance slightly wrong. There is a significant risk that, for many of the reasons that were outlined by the right hon. Member for Holborn and St Pancras (Frank Dobson), they will, rather perversely, be counter-productive. I therefore think that the alternative system of notification and managed return orders has a lot to commend it, although the comments of the right hon. and learned Member for Beaconsfield (Mr Grieve) caused me to think again about how it would work in practice. There is a lot to explore here.

--- Later in debate ---

[Mr George Howarth (Knowsley) (Lab)]

The right hon. and learned Member for Beaconsfield (Mr Grieve), my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson), the right hon. Member for Haltemprice and Howden (Mr Davis) and now the hon. Member for Brighton, Pavilion (Caroline Lucas) have all argued, from slightly different standpoints, that the ideal situation is to have some sort of judicial process. I do not think anybody could argue against that from a democratic and human rights perspective. In cases in which there is the possibility of a prosecution or other judicial process to bring about the type of outcome that we desire, that is clearly the preferred option.

As I see it, the choice is between the measures in the Bill—temporary exclusion orders with a managed return—or a form of judicial process that might be even worse than that. Perhaps the Home Secretary will correct me if I am wrong, but in almost every case I can envisage that would be affected by this process, the information that will determine the trigger of a temporary exclusion order would be based on intelligence—she is not shaking her head in disagreement, so I will assume assent on that point. If that is the case, any form of judicial process to verify or authorise that process would inevitably involve wholly or partly closed proceedings. It would be impossible to give evidence from intelligence in open court for all the reasons that we have repeatedly debated. Although that is the ideal situation, given the presumption that in most, if not all, of these cases the evidence will be intelligence based, it will be difficult to rely solely on a court proceeding, no matter how it was constructed or held, other than on the basis that it would be either closed, or at very least semi-closed.

[Mr David Davis]

The right hon. Gentleman is a thoughtful and long-standing expert in this area, and he is right to say that it will be a Special Immigration Appeals Commission style process. In the past, however, SIAC-style processes with control orders and TPIMs have prevented quite egregious errors—he will remember the case of MI5 presenting the same passport two weeks running against two different suspects, and that being caught and stopped by the SIAC. My concern is not just about the increase in power; it is also the error rate and the fact that someone can be denied serious rights without a proper review. The right hon. Gentleman is right that a SIAC-style process would be necessary. He knows I am not fond of that, but it is better than nothing.

[Mr Howarth]

I think I am grateful to the right hon. Gentleman for his intervention, but none of that changes the fact that, regardless of the quality of the submission to the SIAC court, some intelligence material would be required. Even from a justice point of view that is not an ideal situation, and that is a problem.