Counter-Terrorism and Security Bill

David Winnick Excerpts

Tuesday 6th January 2015 Commons Chamber

[Mr David Winnick (Walsall North) (Lab)]

Is not the nub of the matter, as raised by the hon. Member for Stone (Sir William Cash) simply this: it is for the court to consider all the factors involved, hence the need for judicial intervention and decision making? This should not be left to the Home Secretary.

[Mr Hanson]

I am grateful to my hon. Friend for tabling his amendments, which have a similar hue to ours, in that we are trying to put in place judicial oversight. Given the concerns that have been raised since we discussed the Bill in Committee, I hope the Minister will again consider our new clauses. They would create a court process through which the Secretary of State would have to go to place an individual on a temporary exclusion order, as there is currently no judicial process before one can be awarded. The new clauses have not come out of the blue; they have arisen because of real concerns following the Prime Minister’s initial announcement in August that he would introduce this legislation. Those concerns have come from a number of authoritative sources. We discussed these matters prior to Christmas, but it is worth repeating the concerns.

David Anderson QC is tasked by the Government with being the independent reviewer of terrorism legislation, and both at the time of the Prime Minister’s announcement and in evidence given on 26 November to the Joint Committee on Human Rights he has raised big sceptical objections to the proposed TEOs against suspected jihadist fighters. He told the Joint Committee:

“The concern I have about this power—the central concern about it—is where the courts are in all of this…if the Home Secretary wants to impose a TPIM”—

the other legislative tool the Government currently have—

“she has to go to the court first, and if the court thinks she has got it wrong, it will say so...one will want to look very carefully to see whether this is a power that requires the intervention of the court at any stage, or whether it is simply envisaged as something that the Home Secretary imposes…if you are abroad when this order is served on you, it is a little difficult to see in practical terms how a right to judicial review could be exercised.”

Those are key issues, because what the independent reviewer of terrorism legislation has said is that under the TPIM legislation designed by this Government, the Home Secretary has to go to court to get a TPIM before one can be imposed on an individual. A TPIM restricts severely an individual’s movement in the UK and imposes a range of conditions on that individual. The TEO will have the same legislative impact, in that it will severely restrict an individual’s movement. As I said, that restriction might well be perfectly valid—it may well be in the interests of terrorism prevention and be a positive measure to protect British citizens—but it needs to have judicial oversight to ensure that an individual is able to challenge it without the right of judicial review. I agree with David Anderson QC and I want the Government to respond today to his concerns, as well as those of right hon. and hon. Members.

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[Mr Hanson]

I hope that I can. It is perfectly reasonable to have judicial oversight of such matters. As I have said, I have introduced it as a Minister in the past and we have supported it for TPIMs. Indeed, some of the issues relating to sunset clauses, which we will discuss later, have been supported by me and by the Government of whom I was a member.

To take the point made by the hon. Member for Gainsborough (Sir Edward Leigh), there is a reasonable argument to be made that these are serious issues, with difficult people trying to do things that are damaging to the UK’s national interest, and we should be cognisant of that. Part of the great power of this country is that we allow the rule of law to have some judgment over ministerial decisions. In this case, the Home Secretary’s decision will be what determines whether we can have a temporary exclusion order. I am not stopping that happening and I am not trying to shorten it. I am simply saying that there should be the opportunity to have oversight of the Home Secretary’s decisions.

[Mr Winnick]

In case the hon. Member for Esher and Walton (Mr Raab) was asking what the position would be if a Labour Government did not provide for judicial oversight, may I tell my right hon. Friend that in those circumstances there would be a great number of Labour Back Benchers who would make their views perfectly clear and would stand by the principle about which he is speaking?

[Mr Hanson]

That is reassuring. I will look forward to my hon. Friend’s support post-May in the happy event of my standing at the Government Dispatch Box arguing for the Government of the day. I am sure that we will continue to have the same level of support that he has given to those on the Labour Front Bench over many years in this House.

I hope that I have made the case sufficiently for the Government to consider the issue now and to give us some indication in this regard, saving us the potential difficulty of ping-pong, further discussion and further debate between both Houses in the short period before the measure reaches the statute book. I want to ensure that the Government are subject to that judicial oversight. It would not in any way impact on the ability of the Minister to make decisions effectively on intelligence about who needed to have a temporary exclusion order placed on them, but it would reassure the community in which we also serve. It would also ensure that the Home Secretary’s decisions were subject to some checks and it would, I think, help to enhance our international reputation in dealing with these issues. I commend the new clauses to the House.

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[Mr Grieve]

I agree entirely. The truth, I suspect, is that we simply do not know the full spectrum of individuals who have been lured to places such as Syria and Iraq, drawn by the attraction of ISIL. Some will indeed be crazed jihadists, and some might be mass murderers, but others might be terrified teenagers who have realised that they have in fact stepped into a type of hell. All those things need to be borne in mind.

I do not wish to take up any more of the House’s time. I hope that this debate may encourage my hon. Friend the Minister to move in the direction I have suggested—I have every confidence that it will. I do not think that the issue will go away unless we deal with it. I hope that we can deal with it here, but we might have to do so in another place. Whichever it is, I know that my right hon. Friend the Home Secretary, who is very level-headed on these matters, will take on board the concerns that have been expressed, which in any case in no way undermine the thrust of what she is trying very properly to achieve.

[Mr Winnick]

Amendment 18, which stands in my name, has been grouped with those that we are now debating. I endorse what the right hon. and learned Member for Beaconsfield (Mr Grieve), the former Attorney-General, has said. I have been concerned from the very beginning, as those who have been involved in the debates know, that powers are being given to the Home Secretary without any kind of judicial oversight or intervention, and that seems to me to be inappropriate.

Let me say straight away that I recognise that there is a danger that some of the individuals returning from Syria could have been indoctrinated in such a way that they could inflict damage and terrorism on our people. Reference has been made—indeed, I referred to this in the Home Affairs Committee—to attempts to draw comparisons, if they can be drawn, with the situation that existed nearly 80 years ago when people volunteered to go to Spain to fight fascism. Although many of those people changed their minds to some extent when they returned—not about fascism, but about domestic politics—and did not have the same politics at age 60 or 70 that they had at 20, they were nevertheless always proud of what they did in Spain. Of those who survive, one thing is absolutely certain: there was no danger that they, having survived the civil war, would inflict terrorism on this country when they returned. No one has suggested otherwise. I am somewhat surprised, having looked into the matter, that the security authorities in the late 1930s were asked to keep an eye on those returning from the International Brigade.



When it comes to present-day events, the hon. Member for Gainsborough (Sir Edward Leigh) mentioned jihadis. Yes, that is a possibility, but I do not work on the assumption that all those, or the majority of those, who return to this country from Syria do so with the sole aim of inflicting terrorism. The possibility exists, unfortunately, but that is for a court, not the Home Secretary, to decide on all the evidence.

If the Home Secretary is advised—obviously, Home Secretaries are advised by their civil servants—on the various names that should be considered for a temporary exclusion order, and the Home Secretary agrees that an order should be made, that should go to a court. My right hon. Friend the Member for Delyn (Mr Hanson) made the point that David Anderson made in evidence both to the Joint Committee on Human Rights and to the Home Affairs Committee. He suggested that if the restrictions imposed on a citizen by TPIMs require a court order, the same should apply to a temporary exclusion order. The Home Secretary has argued, in effect, that TPIMs are different and have more serious implications than TEOs, but I do not accept that. I would have thought that a TEO was a more serious order. Nevertheless, if TPIMs are subject to a court order, it is difficult to argue that the court should have no role in TEOs. In his evidence to the Joint Committee on Human Rights, David Anderson asked where the courts were in all this.

I hope I am not being unduly critical of the House of Commons when I comment on the fact that, on a matter so central to civil liberties, there are so few Members present. I cannot deny that that is the case on the Opposition Benches too. To some extent it is a reflection on present-day parliamentary politics and perhaps politics outside that there is not the concern that there should be.

If the Home Secretary is to be given such powers without any form of judicial intervention, is it not likely that on future occasions when a Home Secretary of whatever Government asks Parliament for powers and it is argued that there should be judicial intervention, the response will be, “Well, on temporary exclusion orders Parliament decided otherwise”? Why should there be any curb on the Home Secretary of the day when it comes to new powers? The hon. Member for Esher and Walton (Mr Raab) referred to mission creep. That would be mission creep, all right.

I hope I am in no way lecturing or being pompous—heaven forbid a hundred times over—but on matters concerning the civil liberties of subjects, we should be extremely cautious. I recognise that there are dangers. I am not accusing the Government of exaggerating. All of us want to do our utmost to prevent terrorism. Every one of us without exception, wherever we sit in the House, wants to safeguard the lives of our fellow citizens.

[Sir William Cash]

The hon. Gentleman talked about the exclusion of the courts, and the right hon. Member for Delyn (Mr Hanson) said much the same from the Front Bench, because it is implicit in what he is proposing that the courts would have to be involved, but clause 2 states:

“Condition A is that the Secretary of State reasonably suspects”,

“Condition B is that the Secretary of State reasonably considers”

and

“Condition C is that the Secretary of State reasonably considers”.

In each case, what evidence is there that the courts would be excluded? If there is a requirement to comply reasonably with certain conditions, it is open to the courts to have that challenged by judicial review. I am glad to see the Minister nodding. I do not understand the argument.

[Mr Winnick]

The hon. Gentleman and I are never likely to reach agreement on these issues. There are honest disagreements that arose in the previous Parliament, where we had sharp differences of opinion. I respect his point of view; I hope he respects mine. Judicial review is not the right way of trying to avoid the courts’ involvement. To cite David Anderson again in his evidence to the Joint Committee on Human Rights, what good is it to someone in Turkey to try to bring judicial review? It is a sorry argument.

I am not saying that the hon. Member for Stone (Sir William Cash) is putting forward a sorry argument, but rather that the Government are doing so when they say, “There’s no need for the courts to be involved. There’s always judicial review.” In practice, it would be extremely difficult for such a process to take place. If the amendments were defeated and the Government’s measure went through, and if I were asked whether it would be better for judicial review to stay in, of course I would say yes, but it is no substitute for what we are trying to achieve.

Earlier today there was a point of order about Magna Carta, and in June we will celebrate 800 years since its inception. I have some comments and some reservations which I hope to express when Magna Carta is debated. I remind the House of article 39, which states:

“No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land.”

That has some relevance, as does article 40, which states:

“To no one will we sell, to no one will we refuse or delay right or justice.”

Those are good points, despite my reservations about the barons at the time. I do not think my ancestors were around then.

There is not the slightest doubt that if the Liberal Democrats were in opposition, they would not only support, but would have proposed, the sort of amendments that we have tabled. When the Division is called, hundreds of Members will come in to vote without hearing the debate and, unfortunately, the inevitable will happen unless Liberal Democrats follow what, given his interventions, I take to be the position of the right hon. and learned Member for North East Fife (Sir Menzies Campbell). He knows that we have the utmost respect for him. I hope the right decision will be taken. If not, at least there is the other place.

[Sir Menzies Campbell]

I must begin by apologising for not being present at the outset of the debate. The business of the House accelerated beyond my expectation and I am not as fleet of foot, perhaps, as I once was.

In the felicitous event that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and I had been sitting together in judgment, I would have contented myself by simply saying “I concur”, because there was nothing in what he said with which I would want to take issue. Indeed, there was a great deal in what the mover of the amendment, the right hon. Member for Delyn (Mr Hanson), said with which I would agree. It is not necessary for me to delay the House over-long. It seems quite clear that the issue is whether the commencement of the sort of proceedings that regulated return would involve should be a matter of Executive responsibility or whether there should be judicial oversight.

I suspect that those who believe in judicial oversight do so as a matter of instinct, and perhaps not necessarily of logic, whereas, on the other side of the argument, people will think that an Executive decision is sufficient. As I explained on Second Reading, I have come down on one side of the argument against the background of reservations that I had, and still have, about the legitimacy even of managed return. A matter of this kind essentially enervates; it goes beyond TPIMs. It is a fundamental thing to say to someone who is a British citizen, “You may not return to this country.” That being so, we should incline towards the whole notion of judicial oversight.

That is a question of principle, but there is a pragmatism about it as well, because it would mean that every case would be considered on its own merits and that the Home Secretary of the time would have the protection of the court in proceeding in this direction. If the matter is left as one of judicial review, as it almost inevitably would be, there would be a period of uncertainty. In the course of a judicial review, the standard is not to satisfy oneself that there is a justification for the order but to satisfy oneself as to whether the execution of a discretion has been reasonable. It is sometimes described as having to demonstrate that a decision made as part of a ministerial discretion is arbitrary, perverse or capricious. That is a much more limited and very different approach from that proposed in the amendments. There should be a proper warrant for something that has an enervating effect on the rights of the individual. If one takes the view that rights depend only on loyalty to the principles under which those rights are exercised, then that opens up a very substantial door into areas where, for example, anyone who took a life would inevitably not be allowed the protection of life imprisonment but would be regarded as someone who, having taken a life, should sacrifice his or her own life. Our law has moved very firmly in the direction of judicial oversight.

I will vote for these amendments if they are pressed—indeed, I have told the Liberal Democrat Chief Whip that I intend to do so—because I think that this is a matter of principle. I will do my best to persuade reasonable men and women of the Liberal Democrats here present that they should do so also.

Having heard the debate so far, and having heard what was said on Second Reading and in Committee, I hope that the Minister may feel that this is an opportunity to try to produce a solution that reflects the view of the vast majority of the House rather than one that divides the House. In matters of this kind, it is always vital that if one possibly can, one should accept the will, if not of the whole House, then of the vast majority of the House. These are inevitably controversial issues, not least, as I said, because they have an enervating effect on fundamental rights. I shall wait with interest to hear what the Minister says. I hope that he will take account, if not of what I have said, then of the very eloquent and measured contribution of my right hon. and learned Friend the Member for Beaconsfield.

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The House is clearly determined that there should be temporary exclusion orders for the circumstances described; in other words, before such people come back to this country, they can have an order imposed on them. If that assumption is used as the basis of temporary exclusion orders and the people in question are in fact guilty of treason on their own admission—they have provided definite evidence of repudiating their allegiance, and have claimed allegiance to a new state and/or territory of the kind I have described—then it absolutely follows that they fall full square within the proposal in my amendment 22 and should therefore not be allowed to return.

[Mr Winnick]

A few moments ago, the hon. Gentleman referred to wishy-washy liberties. Is not liberty one of the most important reasons why this place exists?

[Sir William Cash]

Yes, it certainly is, but it is also subject to the question of what is the appropriate rule of law. The law—for example, on the right of abode, and in relation to the question of section 2 of the Immigration Act 1971—is what Parliament has decided is appropriate for the circumstances at the time. However, times have moved on and the circumstances are different. I have heard lawyers—I am one myself, and a former shadow Attorney-General—talk over and over again about the rule of law without asking this question: what is the rule of law based on? What circumstances does it apply in, and is it still relevant? We amend Acts of Parliament the entire time. This Bill and temporary exclusion orders are a new step forward, and they are a change in light of current circumstances. Looking across the Chamber, legislation relating to Ireland as it was in the days of the troubles was part and parcel of changes made at that time, and changes have been made to that legislation since. The answer is: liberty, yes, 100%, but not in circumstances where those who are prepared to perpetrate atrocities are allowed to get away with it.

[Mr Winnick]

Surely the rule of law must imply and mean in practice that no one’s liberty should be taken away except by the courts.

[Sir William Cash]

There are very sound reasons why the Secretary of State should have the right to determine these questions, as she does in many other cases. I have already made the point that at every stage in conditions A to D the Secretary of State may take only such action that she “reasonably” considers appropriate under the circumstances. The Bill already takes account of the possibility of judicial review.

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[Sir Edward Leigh]

I think we are talking about something slightly different. As I understand it, TPIMs deal with someone who is here and whose freedom of movement and operation in this country is being controlled. That is rather different from facing someone who has gone abroad to fight jihad. Presumably, intelligence suddenly arrives that these people are on their way back, so the Secretary of State has to act extremely quickly. I agree that the decision may be based on intelligence and that the sources of intelligence may not stack up in a court of law, but we are not trying to prove beyond reasonable doubt that these people are guilty of jihadism. We are simply saying that there is evidence, based on the available intelligence, to suggest to the Secretary of State that there is a real possibility that these people have fought jihad, have been brainwashed, are extremists, and, ipso facto, are a threat to our people. I think that is a bit different from TPIMs or indeed any other part of the judicial review system.

[Mr Winnick]

Following the atrocity of 7/7, public anger was very obvious and justified, given that 52 people had been murdered and so many others had been seriously injured as a result of terrorism. Surely, however, the role of the House of Commons following that atrocity was to assess whether or not the Government were responding correctly. If it is just a question of leaving it to the public and their anger, what is the purpose of the House of Commons?