Counter-Terrorism and Security Bill

Debate between Dominic Grieve and Lord Campbell of Pittenweem

Tuesday 2nd December 2014 Commons Chamber

[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.

Oral Answers to Questions

Debate between Dominic Grieve and Lord Campbell of Pittenweem

Tuesday 20th March 2012 Commons Chamber

[The Attorney-General]

It is worth bearing in mind that part of the problem for the first three years was that the last Government decided to implement the extradition treaty on a one-sided basis, so that we extradited to the US under the terms of our treaty at a time when the US would not carry out such extraditions. I think the hon. Lady will find that one of the reasons why I made that comment was that at the time of that debate, which took place in 2006, the United States had still not ratified the treaty. There are undoubtedly differences between the way in which the test that is required is applied, but having looked at the matter carefully. I do not think that the treaty as it stands at the moment can be described as one-sided. What can be said is that, as I explained to the Home Affairs Committee, there remain serious issues with public confidence in the way in which the extradition system with the United States operates.

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

But is it not important to recognise why there are serious anxieties among the public about the nature of the system for extradition, and does not the question of the different standard of proof on each side of the Atlantic lie right at the very heart of that anxiety? The Attorney-General will be obliged to give legal advice to the Home Secretary. Will he give her advice that points to the fact that the two standards are different, and therefore that the political conclusion that the system is failing is a legitimate one?

[The Attorney-General]

I have to say to the right hon. and learned Gentleman that I do not think that, in practice, the difference between a test of “probable cause”, which we have to show in the United States, and a test of “reasonable suspicion”, which the United States has to show here, amounts to a very significant difference at all. As I mentioned to the Home Affairs Committee, in any event, the United States usually provides material to its own “probable cause” standard, so I have to say that I may disagree with him on this. Although I accept that there is an argument that this country could seek to move to a “probable cause” basis, to mirror that of the United States, in practice I do not think that that would make a very substantial difference to the way in which the extradition agreement with the US worked.

Oral Answers to Questions

Debate between Dominic Grieve and Lord Campbell of Pittenweem

Tuesday 15th November 2011 Commons Chamber

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

I have the misfortune to disagree with Lord Justice Scott Baker’s conclusion in relation to the standard of proof. May we have an assurance from the Attorney-General that in determining these matters proper account will be taken of the principle of reciprocity, and that it will be ensured that British citizens are not at a constitutional disadvantage in comparison with their American counterparts?

[The Attorney-General]

Mr right hon. and learned Friend makes another important point. Again, that is one reason why we asked for that matter to be looked into by Lord Justice Scott Baker and those who served with him. We are going to have to take account of his proposals, and I hope very much that my right hon. and learned Friend will make a contribution to that discussion.

Phone Hacking

Debate between Dominic Grieve and Lord Campbell of Pittenweem

Wednesday 6th July 2011 Commons Chamber

[Sir Menzies Campbell]

I believe that the Attorney-General is right when, as he has done so far, he confines the argument to the question of competition. But do not the Government, as the overall regulating authority, retain a discretion in relation to the management of this industry throughout the United Kingdom? Does not that discretion, for example, allow the Government to give consideration as to whether the directors of any company have been fulfilling their public obligations?

[The Attorney-General]

I have no doubt at all that my right hon. and learned Friend is correct in what he says, and those are matters that can be borne in mind by the Government in reviewing the process of this takeover bid and, indeed, the competition laws underlying it.

Injunctions

Debate between Dominic Grieve and Lord Campbell of Pittenweem

Monday 23rd May 2011 Commons Chamber

[The Attorney-General]

The hon. Lady is absolutely right and it is therefore open to this House and the Government to consider those issues. To return to where I started in my answer to the urgent question, a mechanism has been put in train that will, I hope, allow, on the basis of some cross-party consensus, a sensible view to be taken of how the law can be improved in this area.

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

Does my right hon. and learned Friend agree that some important issues of principle and of the constitutional rights of Members of Parliament are under discussion, as some of the exchanges have already demonstrated? Is it not now time for either the Joint Committee that he mentioned or a special Select Committee of the House of Commons to determine the boundaries of privilege in the modern day and age, some of which were touched on by the special Select Committee that examined the case of Mr Damian Green in the last Parliament?

[The Attorney-General]

May I reassure the right hon. and learned Gentleman that that matter is in the Government’s programme? Indeed, there should be a draft Bill on that very subject before the end of the Session.