Counter-Terrorism and Security Bill

Mark Durkan Excerpts

Tuesday 6th January 2015 Commons Chamber

[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.

[Mark Durkan (Foyle) (SDLP)]

The hon. Gentleman refers to conditions A to D, which refer to the Secretary of State “reasonably” suspecting or considering something. Amendment 22 states that

“the Secretary of State has provided evidence, whether or not conditions A to D are met”.

Provided evidence to whom or to what?

[Sir William Cash]

Provided evidence to those who will be making decisions about terrorism-related activities. It is not just about providing evidence to the court, which I think is implicit in what the hon. Gentleman is suggesting; it is about providing evidence about the facts described in the amendment. It is not necessary for the case to go to court, and the amendment leaves out the word “reasonable” in this context for that reason. If the Home Secretary provides evidence that is based on the person in question having repudiated their allegiance to the United Kingdom, and if that person has provided evidence of their allegiance to the new state by virtue of their actions and statements, that is enough in itself. That individual has done those things, and that is the evidence in question.

The legislative framework of this measure has already been mentioned, and I say to the Minister and my colleagues—some of whom I thoroughly disagree with on these matters—that it will be extremely difficult to exclude the operation of the charter of fundamental rights in applications of the kind likely to arise under the Bill. That is a serious problem because it will mean that under sections 2 and 3 of the European Communities Act 1972, the charter of fundamental rights will apply. That has already been made applicable—the European Scrutiny Committee has established that without a shadow of doubt, over and against the continuing belief, which has now been abandoned, that that charter does not apply to the United Kingdom. The charter of fundamental rights will apply, as will the Human Rights Act 1998. In those circumstances, the question of whether decisions will be taken by the British courts is a matter of extremely grave doubt; in fact, I would go further and say it is an impossibility. On the basis that the charter of fundamental rights does apply, if a decision were to go to the courts as in the Opposition amendments, it would be decided by the European Court of Justice under matters covered by the charter. That is a fatal objection. If the measure were to be carried out notwithstanding the European Communities Act 1972 it would be another story, but that is not what the amendments would do.

In conclusion, these are grave issues with great sensitivities, beliefs, convictions and principles at stake. There is an honest disagreement, to say the least, between myself and other Conservative colleagues, and I think we should put the British subject first, by which I mean those liable to be affected by jihadist atrocities, and not put forward the generalised view that the human rights lobby would prefer. This matter is too serious and too dangerous. It is not just about allegiance in its own right, but about a physical danger to the British public.

--- Later in debate ---

[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.