Counter-Terrorism and Security Bill

Lord Garnier Excerpts

Tuesday 6th January 2015 Commons Chamber

[Mark Durkan]

Like other Members, I have listened to the debate and to the various points that have been made. What strikes me is that the parties, in the political ballet of this place as people swap Benches, have taken different positions on judicial oversight on previous occasions, adding to the observation that irony in politics is often hypocrisy with panache. It also reflects the fact that people are trying to deal with a Bill that may not be the Bill we designed. Certainly, I have profound reservations about the whole idea of temporary exclusion orders, based on my experience in Northern Ireland where counter-terrorism legislation was often counter-productive. Along with all the other dangers that other hon. Members have rightly highlighted in terms of the dangers posed directly by terrorism itself, we have to remind ourselves of the dangers of feeding what we are trying to fight. If people are trying to foster alienation and radicalism, we have to take care not to propagate the seeds they are trying to sow with legislation that might be misdirected or misguided.

Following your strictures, Mr Deputy Speaker, I will focus on the clauses and amendments before us. I want to make a point that relates to both the Opposition amendments and the Bill. The Bill contains conditions A to D in respect of temporary exclusion orders, while the Opposition new clause proposes conditions A to E. The difference is whether there should be judicial oversight to the issuing of a TEO. In some of the previous exchanges and interventions, questions have been raised about whether the option of a judicial review mechanism would provide a degree of judicial oversight. People have questioned where a court might be asked to look at something differently.

A court may find itself asked to consider whether an order has been issued appropriately, for example when somebody is prosecuted for breaching an order by returning. It may well be that somebody who has been found and charged in the UK, and who is the subject of a TEO, will say, as part of their defence, that condition C of the order was flawed. Part of their defence may be that they were in the United Kingdom when the order was made and that the Secretary of State should have had cause to know that. They may well be able to point to evidence that an element of the security services or police could, would or should have been aware that they were in the United Kingdom at that time. The order might well be challenged at the stage when it is meant to apply most—at the point of prosecution for a breach of the order. That would be a huge point of weakness. The Secretary of State could then be left to try to smother things, under closed material proceedings, and say that no evidence had been given that that person was known to the security services and that the security services knew that they were there.

We have seen that happen often. The hon. Member for Stone (Sir William Cash) referred to the experience of the troubles in Northern Ireland. How many times were there cases in Northern Ireland in which people, who found themselves in court in relation to charges for illegal paramilitary activity, gave evidence as part of their defence, and as part of the obfuscation against the charges brought against them, that they were actually acting as an agent or with the full cognisance of elements of the security services, the police or somebody else? That created a whole situation of disrepute and a sense of scandal around the application of the law, which did not do the rule of law, or confidence in the administration of justice, any good. It helped the propaganda efforts of many of those who were trying to challenge, with a subversive interest, the order of the state. There will be those who say that, in passing the Bill, we have to be alert to those dangers and to the wider malicious agendas of all sorts of nefarious forces and interests. We need to be alert to that.

The Bill states:

“Condition C is that the Secretary of State reasonably considers that the individual is outside the United Kingdom.”

If an order has been issued under judicial oversight on the subject of court approval, when it comes to any subsequent prosecution for breach of the order, the court making the criminal decision will have already known that a court had decided that the Secretary of State was acting reasonably. If the person claims that they were in the United Kingdom at the time of the order, the criminal court would be able to rely on the fact that the person should have challenged the order at that stage, by virtue of the fact that they were in the United Kingdom and could have presented themselves or got a legal representative to make that case or that suggestion, and so could remove that ground of challenge.

I raise that point not as some vague, remote technicality that somebody might say that they were in the United Kingdom when they were thought not to be. In current circumstances not related to the troubles in Northern Ireland, there is a situation—I will not go too deeply into the specifics of a case that is ongoing—where a constituent of mine was believed to have been fighting in Syria. It turns out that in the period the authorities believed that that person was in Syria, the person had in fact already returned to the United Kingdom and to my constituency. That person has been arrested and is now before the courts, but a judge has already said that he is minded to give consideration to the fact that in Syria the person was fighting against Islamic State and against the Assad regime.

That is not the material point I want to address, but the fact is that there have been circumstances where the authorities seemed to believe for a period that a person was outside the United Kingdom when the record now shows that they were inside the UK. The person may not have been making it evident, or going out of their way to advertise the fact that they were present in the UK. However, if the arrest of that person had been on the basis of breaching a TEO, they could well have been able to say that it did not stand or apply because they were in the UK and that the authorities should have known that.

The fact is that we have experience in Northern Ireland, and not just in Northern Ireland, where elements of the security services have known people to have been involved in certain things and have not necessarily shared that information with all the other forces of law and order, including the police service. We are to believe, from the de Silva report and so on, that often, and for their own purposes, different elements of the intelligence and security services know things that they do not share with others, and allow Ministers to act, speak and issue orders in full ignorance of what the intelligence and security services know. We cannot rule out that possibility in the future for all sorts of reasons. The best way of proofing against the risk of TEOs being brought into disrepute whenever someone is arrested for breaching the order, the best way of protecting the Secretary of State’s position in those circumstances, and what Members who support the Bill more than I do want to see, is judicial oversight when orders are made.

[Sir Edward Garnier (Harborough) (Con)]

The experience of the constituent of the hon. Member for Foyle (Mark Durkan), which I was interested to learn about, illustrates the difficulty that faces us. I do not suppose that anybody in the House—certainly not the Home Secretary or the Minister—wants to do anything that makes it more difficult to catch terrorists and others who wish to do us, our allies and our citizens harm. None the less, in our enthusiasm to deal with the problem, we need to come up with the best answer, and in my view the best answer includes much greater judicial oversight than is currently in the Bill.

I share the great honour, with my hon. Friend the Member for Stone (Sir William Cash), of being a former shadow Attorney-General. In fact, I was shadow Attorney-General twice, although I do not know whether that makes my arguments twice as good or half as good—I do not imagine it is of any relevance whatsoever. However, I think we need to extract from the Government a little movement. I hope that the Minister, in his response, can reassure me on this matter. I do not mind whether that movement comes in this House or the other place. I do not share the objections of my hon. Friend the Member for Cities of London and Westminster (Mark Field) to altering the Bill in the House of Lords. We are a bicameral Parliament, and if the Lords can come up with an answer that is politically acceptable, elegant and efficacious, let them do it. If it satisfies me and the Government, I am all for it.

[Mark Field]

My objection is not that there is not a great power of intellect in the House of Lords; it is that if the Government have already made up their mind to do it, they should do it here, rather than waiting for a defeat in the Lords.

[Sir Edward Garnier]

I see. That is a different point from the one I was addressing, so I apologise to my hon. Friend. Either way, I want the Bill adjusted for greater judicial oversight.

My hon. Friend is not as anxious as I am about the temporary exclusion orders in clause 3. I would not be as anxious as I am if the expression “temporary” related to a period far shorter than two years. To me, a temporary exclusion order means a matter of months, at the most, and possibly only days and weeks. Once one moves from days, weeks or a few months, one moves into something other than temporary, which bolsters the arguments behind the need for judicial supervision. I do not like the word “permission” in new clause 2 tabled by the right hon. Member for Delyn (Mr Hanson), but I do not think we should be frightened of judicial supervision. By “judicial supervision”, I mean getting to grips with the substance of the case, not judicial review, irrespective of the fact, as my hon. Friend accepted, that judicial review is a bit meatier and has more teeth than when it started. I share the concerns of many hon. Members, therefore, that although the Home Secretary—particularly this one—will be entirely well motivated, we should not allow her or her Ministers to persuade us that their motives trump our concerns about the absence of judicial oversight.

[Sir William Cash]

Would my hon. and learned Friend be kind enough to give way?

[Sir Edward Garnier]

I give way to a fellow member of the former shadow Attorney-General’s club.

[Sir William Cash]

The old cabal.

I wonder if my hon. and learned Friend would be good enough to answer this simple question: does he believe that the charter of fundamental rights could not get involved in this process? If so, what would his answer be?

--- Later in debate ---

[Sir Edward Garnier]

I am not going to answer that question, because it is not central to my point. When my hon. Friend and I meet elsewhere—perhaps in some shadow Attorney-Generals’ afterlife—we can have a long and fascinating conversation about the matter he has just raised, but if he does not mind, I want to make a few brief points.

Temporary is not two years; to my mind, it is something far shorter. I have no objection to the Home Secretary making a temporary exclusion order, but I prefer the expression used by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) on Second Reading when he talked about “managed return”. That is a much more accurate description.

[Sir Alan Beith]

Would the hon. and learned Gentleman be happier, as I would be, if, by the time the Bill returned from the Lords, it was a Bill about managed return, not exclusion, and if exclusion were the back-up to enforcing managed return?

[Sir Edward Garnier]

For all sorts of reasons, “managed return” is a more accurate description of what we are about, and I do not see there is any harm in being accurate. I do not know whether the Government will change the Bill to the extent of removing the expression “temporary exclusion”, except in the sense the right hon. Gentleman means, but I will not go to the cross over the matter; I just happen to think that “managed return” is a better description.

[Sir Menzies Campbell]

The hon. and learned Gentleman might recall that when the Home Secretary introduced the Bill she referred several times to “managed return” rather than “temporary exclusion order”, so perhaps he is pushing at a door that is more open than he expected.

[Sir Edward Garnier]

One never knows if the draught is going one way or the other, but let us hope that there is some meeting of minds. As I said, it is not a matter of fundamental principle; I just think it would be neater and more accurate to use the expression “managed return”.

I have no objection to the Home Secretary, in an emergency, making an order that governs the return of British citizens to this country, but within a short space of time—by that I mean hours and, at the most, a fortnight, three weeks or four weeks—the order should be supervised by the courts. Most obviously, it could be supervised by the Special Immigration Appeals Commission, which is now used to hearing matters in private. I know there are objections, but it is used to hearing from special advocates who can present information to the court on behalf of the respondent to the application, who, although the client, cannot hear all that is being said about him. SIAC would be the most obvious court to deal with these cases. The sooner they get to a court experienced in dealing with issues of national security and evidence that cannot be revealed to the wider world, the better. I have a little difficulty, however, with the Secretary of State being given the power to manage someone’s return and exclude them for as long as two years. We need to think about that, and I hope that the Minister, when he responds, will give me some comfort.

I am attracted by the thrust of new clause 2 tabled by the right hon. Member for Delyn, but I am not yet sufficiently persuaded that it will not be bettered by something the Minister, who is a man of great acuity, could come up with, if not this afternoon, then soon. I ask the right hon. Gentleman, therefore, to keep his new clause on hold and let the Minister, either here or in another place, deal with the problem in a way that is acceptable to the Government, the Opposition and those of us on the Government Benches—their loyal supporters—who would like to see the Bill adjusted. That way, before long, we could have a Bill that satisfies us all and deals with the problem of what to do about people who want to do disobliging things to us and our allies, either here or abroad.

[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.

--- Later in debate ---

[James Brokenshire]

I promise that I will come back to my hon. Friend’s points, but I would like to get to the Opposition Front-Bench amendments. These amendments would require the Secretary of State to apply for permission from the courts before imposing a temporary exclusion order. The mechanism provided for in these amendments is almost identical to that in the TPIMs Act. As the Home Secretary stated in Committee, as the Minister with responsibility for national security it is right that she, not the courts, imposes an order of this kind. This is a discretionary power which will be used only in a limited number of cases where it will have the greatest impact.

Several Members have shared their views on the matter of oversight of this measure. I think a distinction is being drawn, and I will come on to the other amendments tabled in the group. It must be clear that, with responsibility for all other national security and counter-terrorism matters, it is the Secretary of State who is best placed to make an informed judgment about whether a temporary exclusion order is appropriate in each case, taking into consideration the wider context of the terrorist threat that we face. Indeed, as my right hon. Friend the Home Secretary outlined in Committee,

“to vest the power to impose one of these orders in the Secretary of State without first requiring an application to the courts is in line with the comparable use of the royal prerogative to cancel the passport of a British citizen.”—[Official Report, 15 December 2014; Vol. 589, c. 1208.]

We must also consider in this context the level of interference with an individual’s rights as a result of the power, and I reiterate that a temporary exclusion order does not take away the right of an individual to return to the UK. The in-country elements that might be imposed on an individual as part of it are much less restrictive than those available under TPIMs, and for this reason do not require the same level of review. That is the approach we have taken.

[Sir Edward Garnier]

What the Minister has just said seems to support the suggestions made by me and others that this is not a temporary exclusion order. It is not an exclusion order at all; rather, it is a managed return order. If we get the semantics right, a lot of the other stuff fits better into place.

[James Brokenshire]

I hear the point my hon. and learned Friend makes, and the issue came up when we considered this in Committee, but I think it is right to describe it as a temporary exclusion order because although it clearly facilitates return—it manages return; it manages the control of an individual once they have returned to the UK and consent has been granted—it is exclusionary in its nature during the period prior to return. It seeks to prevent someone from returning without that permission being granted, because there is that other aspect: if someone does seek to return to the UK when they are subject to one of these temporary exclusion orders, it is potentially a criminal offence unless they can show due justification as set out in the Bill. I appreciate that my hon. and learned Friend would like to describe this in a particular fashion, but the focus is on the substance of it, and I hope he will understand the approach we are seeking to take, and how this is intended to operate in practice.

The Bill as currently framed would allow judicial review to be brought. That has been used by people to challenge decisions of the Secretary of State in other contexts from abroad. We frequently receive challenges of this nature from individuals abroad in relation to the use of other powers. It is important to recognise that.

Amendments 18 to 20, tabled by the hon. Member for Walsall North (Mr Winnick), go even further than the amendments tabled by the Opposition Front Bench, and would give the courts the power to impose a TEO following an application from the Secretary of State. The Government do not consider these amendments to be appropriate for the reasons I have outlined. I highlight to the House that requiring the Secretary of State to apply to the courts before a TEO can be made could create undue delay and decrease the operational value of the power. It is sometimes important that we are able to act quickly to obtain the maximum benefit from the operation of the powers, to meet the goal of keeping the British public safe from terrorism.

The Government are committed to the appropriate and proportionate use of the temporary exclusion power, but I note the views of David Anderson, the independent reviewer of counter-terrorism legislation. I have a great deal of respect for him and the contributions he has made on a range of matters, including the issue of judicial oversight of the process of granting a temporary exclusion order. Although this issue arises at a late stage in the Bill’s passage through this House, it is important, as has been reflected in many of the contributions. The House has not had the chance properly to consider the Opposition amendments. I hope they will be minded to withdraw them at this stage, and I can assure the House that the Government will look very carefully at the constructive suggestions from David Anderson and return to this issue in the other place.

On a point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), the Government have listened to the arguments made both in Committee and—with, I think, sincerity—in today’s debate, and also to the comments of David Anderson. I can give my hon. Friend the assurance that we will reflect on them and that the next stage when we would be able to respond to them is in the other place. No discourtesy is intended. Rather, we want to get this right and to reflect on the views that have been put forward. That is why I judge that this is the most appropriate way of addressing the issues highlighted today.