Counter-Terrorism and Security Bill

Edward Leigh Excerpts

Tuesday 6th January 2015 Commons Chamber

[Mr Hanson]

Let me gently stroke the right hon. and learned Gentleman and try to keep him in the tent. I think that he will find the tent to be most comfortable. The question today is: do we have judicial oversight of the temporary exclusion orders? A number of Government Members have indicated that they feel that judicial oversight should be present. To be fair to the right hon. and learned Gentleman, we heard on Second Reading—and today this has appeared as being the position of the Deputy Prime Minister—that we should consider putting that in place. All I am saying is that there is a mechanism today for the Government to listen to that. They could even agree with our proposals without us forcing a Division, which would potentially put Members on the spot, forcing them to decide between loyalty to their party or to their principles. The Government could take this matter away and say that they agree with us.

[Sir Edward Leigh (Gainsborough) (Con)]

The right hon. Gentleman talks about carnage and defeat. I have been around this place during many rebellions, and I do not get the atmosphere in this Chamber of carnage and defeat. I do not feel a tremendous wave of anger against the Government. Could it be that most Members of Parliament think that if it is a choice between judicial oversight or their sons and daughters being blown up on a London tube, they would rather let the Secretary of State take action, and take action quickly?

[Mr Hanson]

I am not sure whether the hon. Gentleman was in the Chamber at the start of my comments when I said that this is a proportionate power. There are real issues of potential threat where this action should and could be taken. The question is whether we should have judicial oversight, as we have in other legislation. He says that there does not seem to be an atmosphere of massive rebellion in the Chamber. Let me reflect on that for a moment. We have a number of right hon. and hon. Members from the Conservative Benches who have expressed their disquiet publicly. They did so on Second Reading, in Committee and when the Prime Minister announced the proposal in the first place. They have also gone to the trouble of commenting on their concerns in the press at the weekend. The right hon. and learned Member for North East Fife has genuine concerns, expressed on Second Reading. Now the leader of the Liberal Democrats, the Deputy Prime Minister, representing the 50-plus Members of Parliament whom he leads in this Chamber, is apparently saying that he will seek these changes in the other place when the Bill goes down the corridor. There is disquiet from the official Opposition and our 250-odd Members, as well as from Members of other parties. It strikes me that even now there is potentially a majority in this Chamber to put judicial oversight in place.

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[Mr Grieve]

The biggest threat to the common law is the statutes we pass in the House that undermine it. The principles of the common law are crystal clear in respect of the right of a British-born citizen and the Queen’s subject to reside in their homeland. Parliament, if it so wished, could undermine that. That has always been the problem with the common law. It is one of the reasons why we have such things as Magna Carta and habeas corpus, because the common law was insufficient. Indeed, I must say to my hon. Friend that it is one of the reasons why we have the Human Rights Act and the European convention on human rights, and why in fact those are additions to the common law that I happen to think can be on their own, while by no means perfect—I do not wish to be drawn further down that route—very valuable. However, the common law principle is clearly there, and when there is a common law principle, the important point is that we should interfere with it only very cautiously, particularly when it is so clear.

I want to make some progress and not to be diverted. The point at issue for the national whose passport has been removed and who will be made subject to this process is that they could be left in a very vulnerable condition in the location in which they find themselves. That is why I think judicial oversight would be so valuable for the Government, were they to accept it, because it would allow the reassurance that, in taking an action that in my view is reasonable, necessary and proportionate, and on which I wholly support my right hon. Friend the Home Secretary and my hon. Friend the Minister, there will not be untoward consequences that would bring that action into disrepute.

[Sir Edward Leigh]

With respect, does my right hon. and learned Friend not realise how out of touch he is? He talks about vulnerable people and the rights of free-born Englishmen, which is all wonderful stuff, but the people that the Secretary of State is trying to exclude are crazed jihadists who hate our liberties and our country, who cut off the heads of aid workers and who would love to come here and kill our children. His wonderfully old-fashioned and legalistic arguments are not appropriate for dealing with those sorts of people.

[Mr Grieve]

They might be crazed jihadists, and they might be suspected of being crazed jihadists. It might be that they should be brought to justice and imprisoned for the rest of their natural lives. All those things are possible, but I happen to believe in the presumption of innocence. If I may say so, I am a bit surprised, given my hon. Friend’s background, that he seems to be ignoring that. Of course I recognise the threat; that is why I am wholly supportive of the broad thrust of the Government’s approach. However, on trying to get the balance right, I happen to think that judicial oversight would be helpful in giving—if I may put it this way—the authority to the decisions and thereby ensuring that they are accepted within the communities that have more individuals who might be affected by them and that they are therefore unassailable. That would reinforce the values that underpin our society and be precisely the approach that we ought to adopt.

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[Pete Wishart]

After almost four days of debate, this Bill has almost burst into life after I do not know how many hours. Today there have been all sorts of threats of Back-Bench rebellions. The Liberals were going to get up to something; there was going to be a vote against the Government; and there are newspaper articles suggesting all sorts of things. I thought we were going to have a really exciting debate.

Who could believe that something as important as counter-terrorism and security could attract so little attention from Members of this House? [Interruption.] I would say to the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) that I have spoken at every stage of these debates. I have turned up and played my part, and I feel that I have contributed to the debate, but where are our Labour friends and colleagues? They have made two contributions during these remaining stages; I do not know how many they made in Committee of the whole House. We are hearing a bit more from our Conservative friends today. I very much enjoyed the speech by the right hon. and learned Member for Beaconsfield (Mr Grieve); it was a worthy contribution and something we should be hearing more of.

Why so quiet? What is going on? Is it because this is rushed legislation that has gone through so quickly that people have not been able to keep up with what the Government intend to do? Our constituents will find it very peculiar that this debate has secured so little attention and so few contributions.

[Sir Edward Leigh]

Perhaps the answer to the hon. Gentleman’s question is that most Members of Parliament support the Government line.

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

I associate myself almost entirely with the assessment of the Bill by my hon. and learned Friend the Member for Harborough (Sir Edward Garnier).

Over the past several decades, any number of counter-terrorism Bills have been put before the House. Some have been justified; some have not. Some have been effective; some have not. Some have, in the words of the hon. Member for Foyle (Mark Durkan), fought terrorism, while some have fed terrorism. This Bill is a complex mix of measures, most of which I suspect are necessary, but it shares one characteristic with every single other counter-terrorism Bill I have seen here before: it brings more unfettered power to the Executive. With that go two problems. One is the increasing power of the Executive, which is a bad thing in itself, and the second is an increase in the likelihood of a miscarriage of justice.

I do not have a particular objection to a “managed return” approach to some of the individuals currently abroad committing crimes in other states. I do not subscribe to the “stateless person” concern, particularly when people have deliberately rejected their own allegiance to the state. I think there is a reasonable argument to be had on that, but I am concerned that this power will be effectively unfettered, which is what the Bill says at the moment, in the hands of the Home Secretary.

In common with my hon. and learned Friend the Member for Harborough and indeed others who have spoken, I shall listen very closely to what the Minister has to say. In my view, reform is necessary to bring about, ideally, judicial decision rather than judicial oversight. I would prefer this power to be one for the courts full stop—with all the proper appeal procedures that go with it. Judicial review is not good enough: it is too restrictive, too procedural and insufficiently material. My preference is for a judicial decision, but in its absence, for a close and unfettered judicial oversight. I say to my honourable and old friend the Minister that I hope he will be able to put the conscience of the House at rest today with his proposals. If not, I fear I shall have to support the Opposition in a number of their amendments and new clauses in the group.

[Sir Edward Leigh]

I hesitate to speak in the company of such distinguished lawyers, as I am just a former common or garden practitioner in the criminal courts, but I would like to give the view, as I understand it, of most members of the public. I very much hope in respect of what the public want that the Government will be firm today and will resist amendments tabled by the hon. Member for Walsall North (Mr Winnick). I accept that he is entirely sincere and consistent in his views, and would indeed resist the amendments tabled by the Labour party. I commend the amendments tabled by my hon. Friend the Member for Stone (Sir William Cash), which I signed. I fully understand that the Government might not be able to accept them today, but I hope they will take them away and look further at these entirely sensible amendments.

I wanted to speak today because I believe we need a sense of balance in this debate. We have heard reference made to “carnage”, “atmosphere”, “revolts” and the House of Commons being “up in arms” about this. Judging from how the debate has developed and from the number of Members attending it, I am not sure that that is necessarily the case. As I said in an intervention, I suspect that most Members of Parliament—and, more importantly, most members of the public—support what the Government are trying to do, and we will see what happens in the vote later.

We have these debates, and I quite understand where my legal friends are coming from, and liberty is entirely important. We are using language relating to Magna Carta, habeas corpus, and the God-given rights of free-born Englishmen; that is all very well, but I think the public view the issue in a different way. They are absolutely outraged that people who come here and are given British passports, which should be a tremendous honour and privilege—or indeed people who are raised here and have British passports—feel that this gives them the right to go abroad and fight for an extremist cause. These people not only hold views, but practise views that are wholly alien to everything this country has stood for for hundreds of years. These people are not even like Sinn Fein. At least Sinn Fein in their worst years, even if they were blowing up Members of Parliament, soldiers or innocent members of the public, presumably saw some sort of logic in their own eyes in what they were doing. We are talking about people who are religious fanatics whose idea of fun and aggro is to cut off the head of an aid worker.

The Government are not going to act in a vacuum. The Home Secretary is not going to act unreasonably. We need look only at what the Bill, which I support, says. It refers again and again to the Secretary of State needing to

“reasonably suspect that an individual is, or has been involved in terrorism-related activity”,

and to her “reasonably considering” that action is

“necessary for a purpose connected with protecting members of the public”.

The Secretary of State, furthermore, must

“reasonably consider that the individual is outside the UK”.

She has to act “reasonably”. Surely we must trust our Government and our Secretary of State to protect our people. If the Secretary of State acts unreasonably, we can surely trust the courts in a judicial review system to provide oversight and, if necessary, overturn it. I do not think for a moment that the Secretary of State would act unreasonably.

For the sake of argument, I refer to the amendment tabled by the hon. Member for Walsall North. As I understand it, he wants to replace the system whereby the Secretary of State has to act reasonably, presumably on the basis of intelligence, which may be nuanced, with a full court procedure. His amendment 18 states:

“The court may impose a temporary exclusion order on an individual following an application from the Secretary of State if the court is satisfied that conditions A to D are met.”

I have tried to understand how the amendments from the Labour Front-Bench team are more nuanced, but let me develop the argument. Those who oppose what the Government are trying to do are saying that there should be a court hearing in which all these factors can be discussed and through which we can assess whether a person—he may have gone to Syria, been a jihadist and all the rest of it—is a real threat to the United Kingdom.

I do not know a lot about intelligence, but I suspect that much of what will motivate the Secretary of State in her actions to exclude an individual will be based on intelligence. We are not talking about depriving somebody of their liberty. We are not talking about a free-born Englishman who goes abroad, gets in a spot of trouble, comes over here and is locked up. We are not talking about anything like that. We are talking about excluding somebody—temporarily, as I understand it—who the Secretary of State is reasonably satisfied has gone to fight jihad and engage in terrorist activity, and there is a real danger of them coming back here to blow up our children.

I suspect that a member of the public is not overly motivated by complex, legalistic arguments about judicial oversight, judicial review, delay and the rights of people to claim unfettered return. I suspect that a member of the public will be primarily, fundamentally and, indeed, probably wholly concerned about the safety of themselves and their family, and they will have trust. I trusted the last Labour Government. I know that the Governments of Tony Blair and the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown) received a lot of stick over this, but I think they were right in wanting to protect the public. I realise that it went against many of their instincts, but they rightly took the view that such was the nature of the threat that we were fighting a war. It is a situation rather like the one we faced in the second world war, in which some sort of deprivation of traditional liberties has to take place, although we are not actually depriving anybody of their liberty here. We are not putting people in prison. We are simply saying, “You have gone abroad to fight an extremist cause, and if you want to come back here, we think the Secretary of State has the right to exclude you.”

[Mr Hanson]

Given the logic of the hon. Gentleman’s argument, does he believe that we should remove judicial oversight for the current TPIM regime?

[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?

[Sir Edward Leigh]

Of course I do not propose to leave it to the public and their anger. That is taking my arguments to an extreme limit. I am not suggesting that there should be a lynch mob and that everyone who comes back from Syria should be stopped by the public. We are not talking about the public. We are talking about the Secretary of State acting reasonably, on the basis of all the Government and intelligence sources available to her, to exclude someone temporarily from coming back to this country. This is not an assault on Magna Carta, habeas corpus or the traditional rights of English people; it is a sensible precaution, taken in circumstances in which we face jihadists who have no concept of our liberties, or indeed of any kind of logic. That is why I support the Government’s position.

[Mr David Davis]

rose—

[Sir Edward Leigh]

Before I end my speech, I had better give way to my good friend.

[Mr Davis]

It is necessary to protect public security while avoiding miscarriages of justice. Does my hon. Friend accept that, in a number of cases, the clear finding of the Special Immigration Appeals Commission—the court, a secret court, that will probably consider these matters—has been that the Home Secretary of the day has made a mistake, sometimes on the basis of fallacious evidence and sometimes on the basis of straightforwardly bogus evidence presented by the intelligence agencies? The protection against that, surely, is a court, even if it has to be a secret court.

[Sir Edward Leigh]

I broadly accept that point. Much as I admire the Secretary of State and her advisers, I freely accept that she may make a mistake. However, I think that, just as in the second world war, the threat is such that there must be some diminution of our traditional civil liberties to protect the liberty of the wider public. I am not saying that the end justifies the means, but we are in a very dangerous situation.

We are talking about the Bill; we are not talking about hypothetical situations. The Bill lays an injunction on the Secretary of State to act reasonably, and if a court finds that the Secretary of State has acted unreasonably, it can reverse her decision. I repeat, however, that we are not talking about some fundamental assault on civil liberties, or about depriving people of their liberty in this country. We are simply talking about a reasonable belief that people have fought jihad and a reasonable belief that they are a threat to our people. I think that the bulk of members of the public and the majority of Members of Parliament trust the Secretary of State to act reasonably.

[Mr Raab]

I want to make a few brief comments about the important and, in many respects, symbolic issue that is being raised in the wider context of the Bill.

I think that there are strong principled arguments in favour of judicial oversight in relation to the power of temporary exclusion, especially when it involves a British citizen. A range of points have been made about that, but I want to stress that this is a very strong power. We are talking about the exercise of state power—Executive power—against the citizen. I think that, both in that context and in the broader context, the presumption, or general principle, should be that there ought to be a judicial check. I say that first in the light of basic principles of natural justice, and secondly because the focused, efficient exercise of state power requires checks and balances. The House of Commons is one of those checks on state power, and the courts are another.

I do not think that judicial oversight would weaken the exercise of that power; I think that it would strengthen it, because it would prevent arbitrary abuse. It would ensure that the power was exercised against the crazed fanatic rather than the misguided youth who finds himself wrapped up in some business of which, on reflection, he genuinely wants no part, let alone mistaken cases involving the genuinely innocent. We know from the exercise of state power, particularly under recent counter-terrorism legislation, that there is a risk of innocent people becoming wrapped up in cases. We do not think that the Secretary of State or other Ministers act from any sense of bad faith, but, given the accumulation of state and Executive power, the broader that power becomes in the absence of checks and balances, the more likely it is that innocent people will be caught up in the net. That is my first principled argument.

My second argument is that there have been a number of objections to judicial consideration of the exercise of the power by the Secretary of State. It has been suggested that it may be an emergency power and that the courts are too slow. I think that it is the other way round. If British jihadis come back to this country after being up to no good in Syria, or wherever they may have been, it is hardly an emergency power. A wider argument could be that we are locking the stable door after the horse has bolted, but it is certainly not an emergency power in that sense, although of course we want to keep track of the individuals who are returning home.

I do not buy the argument that the courts would be too slow. In practical terms, of course, the individual could be barred from returning until the court had given due consideration to the application by either the Secretary of State or the individual concerned. I do not entirely understand either the public safety argument or the emergency argument against some form of judicial oversight.

The second point has been made about judicial review, but that is clearly about process rather than the substance relating to an individual case. Notwithstanding the proliferation of judicial review claims—which the Government are rightly trying to curtail—I do not think that judicial review will provide an adequate judicial check on the exercise of state power of this nature, given how intrusive it is in relation to the rights of the individual citizen.

Let me make one broader contextual point about the power and the amendments. Hundreds of British jihadis are coming home from abroad following some form of involvement in foreign conflicts and thousands of individuals are under the radar of M15. However, according to the Home Office’s annual update, released in March 2014, the number of people convicted of terrorism offences under terrorism legislation, or wider legislation, dropped from what was a pretty meagre 54 in 2006-07 to 27 in 20013-14.

The real hole in the Bill is the gaping gap in our ability to enforce the law, and that is true of successive Governments across the board. We have a huge, broad criminal base, and we have very wide powers, but what is missing from the Bill, and, to some extent, from in the debate, is a reference to measures—not necessarily legislative to improve law enforcement. We seem constantly to legislate, although not necessarily hyperactively: I think that a great deal of consideration has gone into the Bill. The elephant in the room is our inability to enforce the laws that we already have. I do not subscribe to the view that there is a zero-sum game between liberty and security. The justice system is a powerful tool in the fight against terror and should not always be viewed as some sort of heavy, onerous baggage that is weighing us down.

I hope that the Minister’s clarification of the compromise changes that are likely to be forthcoming in the Lords will be sufficient to enable me either to abstain or to vote with the Government if the new clause is pushed to a vote.