Northern Ireland (Ministerial Appointments and Regional Rates) Bill

Debate between Mark Durkan and James Brokenshire

2nd reading: House of Commons
Monday 24th April 2017 Commons Chamber

[James Brokenshire]

Yes, I have. That is why I believe that agreement is possible. The discussions that have taken place over recent weeks have shown where the space for agreement and compromise may lie. It is important that the Bill provides that space and opportunity for the parties to be able to find resolution of the outstanding issues and get back into devolved government, which is what the people of Northern Ireland voted for.

To go back to the budget, that budget does not allocate the resource and capital funding provided in the Chancellor’s March Budget. This funding was not allocated before the dissolution of the last Executive, and it is right that funding is available for parties to allocate to further priorities as they deem appropriate. Further detail on the spending plans will need to be provided through the Appropriation Act. My hope and belief is that the Act will be taken through the Northern Ireland Assembly, but that obviously relies on the Executive being formed. As I have indicated, that is where the focus should lie. If not, as I have said, we would be prepared to legislate to provide certainty, in line with our ultimate responsibility for political stability and good governance in Northern Ireland.

[Mark Durkan (Foyle) (SDLP)]

Will the Secretary of State clarify whether, in his mind, such legislation in that context would amount to direct rule in the sense that we have always know it, or would it be some form of downloadable legislative cover for administrative governance when it comes to further budget setting?

[James Brokenshire]

Again, I would not want to prejudge what the situation might be. That will be for an incoming Government. My point remains that that does not need to be the outcome. The outcome we want is for an Executive to be formed and a devolved Government to be in place, making decisions in Northern Ireland for the people of Northern Ireland. That is why I make these point about what the Bill provides and how it gives the space to allow that to happen. That must be the focus of us all in the time ahead.

By passing this Bill, we can provide the scope and space for a deal to be done by the parties. I will be working intensively with the parties to secure that outcome in the weeks ahead. Northern Ireland needs the restoration of an inclusive devolved Government working in Northern Ireland’s best interests. That is what the people of Northern Ireland voted for. It is what will deliver the public services that people rely upon, and it is what businesses, community groups and individuals across Northern Ireland want. The Bill will secure a framework within which that can be delivered. I commend it to the House.

Northern Ireland: Political Developments

Debate between Mark Durkan and James Brokenshire

Tuesday 28th March 2017 Commons Chamber

[James Brokenshire]

I simply do not accept the hon. Gentleman’s analysis or the approach that he advocates. The Prime Minister has been, and will continue to be, actively engaged in the process. The UK and Irish Governments feel that they have a shared responsibility on the matter, and that informs our approach. We desire to see a devolved Government back up on their feet again, delivering for Northern Ireland, because that is what people want. It is our absolute intention to ensure that that is brought about.

[Mark Durkan (Foyle) (SDLP)]

Notwithstanding your stress on the constraints of brevity, Mr Speaker, I want to take this opportunity, as MP for Foyle, to pay proper tribute to the late Martin McGuinness, with whom and against whom I worked for well over three decades in all sorts of contexts and roles. As his predecessor as Deputy First Minister, as a former colleague in the Government and as a counterpart in the negotiations, I would say that he was someone who went from opposing the very concept of the institutions in which he went on to serve to demonstrating a remarkable capacity for outreach and acknowledgment using those shared offices. He proved not just his own better character, in the democratic context, but the transformative value of the institutions that we are talking about.

The Secretary of State has indicated that legislation may be introduced after the Easter recess. Is he deliberately precluding the possibility of such legislation rectifying the defects in how the First and Deputy First Ministers are appointed—that process no longer conforms to what was laid down in the Good Friday agreement— or, indeed, rectifying the problems with the petition of concern, which has never operated consistently with what was laid down in paragraphs 11 to 13 of the Good Friday Agreement?

[James Brokenshire]

Questions about governance have formed part of the talks that have taken place over recent weeks. The hon. Gentleman highlights the petition of concern, and other issues were also discussed. With the legislation, my focus is on serving the people of Northern Ireland, where public services are challenged as a consequence of the budgetary issues that they face. I intend to deal with that in the legislation that will have to be introduced after the Easter recess. Fundamentally, this is about ensuring that the parties achieve an agreement, and the legislation will give us the opportunity to effect any legislative changes that may flow from the requirements of that agreement. That is why we need to use the few short weeks ahead to get an agreement such that an Executive can be returned to Northern Ireland, to deliver for the people of Northern Ireland.

Oral Answers to Questions

Debate between Mark Durkan and James Brokenshire

Wednesday 15th March 2017 Commons Chamber

[James Brokenshire]

My hon. Friend has raised the issue of her constituent on a number of occasions, and I pay tribute to her for her work as a constituency MP. She will understand that I am unable to comment on individual cases, but I can say that the current system for dealing with a range of issues related to legacy is not working for anyone. It is not working for service personnel and it is not working for victims, which is why it is important that we move forward with the Stormont House bodies to create the balanced, proportionate and fair system that everyone recognises is needed.

[Mark Durkan (Foyle) (SDLP)]

Does the Secretary of State not understand that Brexit could have implications for the standing and currency of some of the implementation bodies that were created under strand 2 of the agreement? Also, does he appreciate that strand 2 offers an ambit of north-south co-operation and common implementation that could help to answer some of the problems that Brexit creates?

[James Brokenshire]

Before Christmas there was a good discussion at the North South Ministerial Council on the EU and other related issues. It is important to recognise the institutional framework that we have under the Belfast agreement. That is something we support, and I draw the hon. Gentleman’s attention to the White Paper, which highlighted that support and our recognition of it.

Northern Ireland Assembly Election

Debate between Mark Durkan and James Brokenshire

Tuesday 17th January 2017 Commons Chamber

[James Brokenshire]

There is a limited period under law in which to form a new Executive; it is around three weeks following a poll. That is why I make the point about maintaining open dialogue and thinking about how we can bring parties together. There has to be a sense of commanding support from across the community, which is why we need to listen very keenly and intently to the voices of the hon. Gentleman’s party and other parties on the process ahead. I stress the need to hold dialogue and discussions, and to focus on the principles in the Belfast agreement and its successors—those things to which all parties have signed up. That provides us with the framework, and we need to get on and do it.

[Mark Durkan (Foyle) (SDLP)]

As we face this phase of challenges, it is right that we should mourn the passing of Dermot Gallagher, former doyen of the Department of Foreign Affairs and one of the lynchpins for so much of this process, bringing us from transfixed to transactions to transformations. We need to emulate his purposeful ethic in the time ahead. Ar dheis Dé go raibh a anam. Will the Secretary of State recognise that, after the elections, there will be negotiations, and that those negotiations will have to be more inclusive, more comprehensive and more fundamental than what passed for negotiations in Stormont House? The outcome will have to be more robust and more reliable than the political Febreze that we got with the “Fresh Start” agreement.

[James Brokenshire]

I certainly pay tribute to Dermot Gallagher, and send my condolences to his friends and family and all those who remember him and his contribution. As I have said, I do not want to prejudge the outcome of this election, nor indeed of discussions that will take place. I earnestly want that to be achieved throughout this election period, in whatever way possible. I also want to see that in the discussions that take place afterwards. We must achieve a position that creates stability and a sense of shared power arrangements, as that will allow Northern Ireland to move on. That must be our focus and our intention, and it is why I make the point about being very thoughtful and conscious the nature of the campaign, so that we can bring people back together afterwards.

Northern Ireland: Political Developments

Debate between Mark Durkan and James Brokenshire

Tuesday 10th January 2017 Commons Chamber

[James Brokenshire]

The historical investigations unit has not yet been established and the chronological approach that he highlights—that proportionate approach—is not in place. The need for reform and change was reflected in the Stormont House agreement, which is precisely why it is necessary to take this matter forward. Notwithstanding recent events, there is still the opportunity for us to move forward with the parties to ensure that we get the political stability required for these issues to be taken forward, precisely for the cross-community interests that reside around this issue.

[Mark Durkan (Foyle) (SDLP)]

Does the Secretary of State not recognise that it is the hubris of the outgoing First Minister that has brought about the humiliation for our institutions of his now having to contemplate the options he has discussed today? Does he also note that Sinn Féin is saying it has called time on the “DUP status quo”, which seems to be how it is now describing the “Fresh Start” agreement? Would not a future real fresh start involve a return to a key precept of the Good Friday agreement: that the First and Deputy First Minister should be jointly elected by the Assembly? They might then both act as though they were accountable to the Assembly that appointed them, which would have avoided these difficulties.

[James Brokenshire]

We need to focus on using the time available over the coming days to see what resolution can be found and how people can work together in the best interests of Northern Ireland, because so many issues are at stake. Part of that is about how we move forward and get an inquiry in place so that questions can be answered and so that appropriate accountability, based on the information that comes from that inquiry, is allowed to happen. That is where the focus needs to be.

Oral Answers to Questions

Debate between Mark Durkan and James Brokenshire

Wednesday 7th December 2016 Commons Chamber

[James Brokenshire]

It is important for everyone to work together to move the process on. That is why I continue to commit significant efforts and work to doing just that. The hon. Gentleman is right: at present, the system is heavily focused on the 10% rather than the 90%, and the balanced, proportionate measures that I put forward will assist in changing that.

[Mark Durkan (Foyle) (SDLP)]

First, I associate myself with the tributes paid both to the fine journalist Austin Hunter and to the fíor Gael Danny Murphy, who was such a good servant of community relations and reconciliation. Would the Minister not do better in building consensus if he did not revisit pejorative remarks that give offence to victims of state violence? In relation to having a balanced approach, surely having a stronger provision in respect of thematics would be much better—one that was not restricted to killings, as other measures are, but would examine the patterns and practices of paramilitaries.

[James Brokenshire]

The hon. Gentleman will be well aware that the legacy bodies contemplated cover a range of issues. Yes, of course, part of this is about investigation, and part is about more information and consideration of the issues to come forward in a number of different ways. That is why it is a priority that we move forward with the Stormont House bodies, and why that remains a key focus for me.

Oral Answers to Questions

Debate between Mark Durkan and James Brokenshire

Wednesday 26th October 2016 Commons Chamber

[James Brokenshire]

My hon. Friend underlines a very significant point, which is the support that other EU member states have provided to the political process in Northern Ireland over many, many years. That is a point we have underlined and the Irish Government have underlined. We will continue to do so as we look towards the negotiations.

[Mark Durkan (Foyle) (SDLP)]

Charlie Flanagan said in Derry on Friday night:

“I view my role as a co-guarantor of the Good Friday Agreement as a solemn duty and—together with the Taoiseach—will be working to ensure that all aspects of that international agreement are fully respected in the new arrangements between the EU and the UK. Ireland has a seat at the EU table which we will use in the best interests of the whole island.”

Does the Secretary of State recognise that that will include the need for a bespoke and explicit reflection of the key constitutional precepts in annex A of the Good Friday agreement in any new EU-UK treaty?

[James Brokenshire]

The Irish Government and the UK Government are co-signatories to the Belfast agreement. I have said on a number of occasions that we stand behind our commitments. There are unique circumstances that operate on the island of Ireland: the common travel area, the single electricity market and so on. We are determined to find the right solutions that serve Northern Ireland well and all of the all-Ireland issues.

Oral Answers to Questions

Debate between Mark Durkan and James Brokenshire

Wednesday 20th July 2016 Commons Chamber

[Mark Durkan (Foyle) (SDLP)]

Thank you, Mr Speaker. I extend my courtesies to the new ministerial team.

Does the Secretary of State acknowledge that the concern is to avoid not just the creation of new border posts, but the unnecessary and unhelpful borderism that the separation of north and south—of non-EU and EU—would entail? The new Immigration Minister gave an example of borderism yesterday when he boasted of his pre-Brexit bout of borderism with the HGV levy on cross-border trucks.

[James Brokenshire]

I certainly recognise the various points the hon. Gentleman has made. Border issues are significant both for the movement of people and for goods and services, and that is intrinsic to the overall arrangements between Northern Ireland and the Republic of Ireland. It is why I have made a very clear commitment in all my statements to ensuring that we do not return to the arrangements of the past, and that is precisely what will remain a priority for me in my role.

EU Migrants: National Insurance Numbers

Debate between Mark Durkan and James Brokenshire

Thursday 12th May 2016 Commons Chamber

[James Brokenshire]

Obviously, one of the key elements is that we need a strong economy to be able to support our public services. As for the pressures on particular communities, the Government are introducing a controlling migration fund to assist those that may be specifically affected by population increases linked to migration, and we will continue with reforms to control migration.

[Mark Durkan (Foyle) (SDLP)]

The Minister knows that I represent a border constituency with a natural hinterland. I have constituents who cannot get national insurance numbers. They have worked in the south and are pensioned from the south, but they pay tax in the UK and have been issued with UK tax numbers under double taxation rules. However, they cannot get national insurance numbers. Can the Minister assure me that the sensitivity around the statistics and the nonsense about EU migrants are not factors in their predicament?

[James Brokenshire]

I will certainly ensure that his comments about people’s ability to obtain national insurance numbers are passed on to colleagues at the Department for Work and Pensions. I point the hon. Gentleman to the ONS’s clear statement on the lack of a connection between national insurance numbers and long-term migration and to what I have already indicated about the best measures.

Counter-Terrorism and Security Bill

Debate between Mark Durkan and James Brokenshire

Monday 15th December 2014 Commons Chamber

[James Brokenshire]

I understand the hon. Lady’s sincerity and the manner with which she has advanced her point, and we must be vigilant about risks and threats that may be posed to the United Kingdom, whether in Northern Ireland or any other part of the UK. There is good work between the Police Service of Northern Ireland and the Garda Siochana, and the United Kingdom and the Republic of Ireland have a clear joint interest in ensuring border security. Indeed, we very much consider the common travel area to be an external border, which is why we work closely with the Republic of Ireland to ensure that it remains effective and in no way goes down the path mentioned by the hon. Lady. The Government must maintain that sense of vigilance and focus.

[Mark Durkan]

I represent a border constituency and we do not particularly want the border demarcated further in ways that applied historically. Schedule 1 defines the border area as one mile from the border with the Republic of Ireland. Is that as the crow flies, or when travelling? If there is a dispute about where the person was stopped and had their passport seized, how will the question of where the seizure took place be resolved?

Justice and Security Bill [Lords]

Debate between Mark Durkan and James Brokenshire

Tuesday 18th December 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

I am grateful for the range of contributions that have been made today, including those made by informed members of the Intelligence and Security Committee, the Joint Committee on Human Rights, and the Justice Committee. This is an important Bill, and it is right for it to be the subject of such vigorous and thorough debate in the House.

As is plain from the quality of the debate since the introduction of the Bill, these are challenging matters, and I respect the concern that we should get the balance between justice and security right. The changes in the global landscape present us with a number of complex problems that we cannot ignore. The concepts of justice, the rule of law and human rights are fundamental principles of which our nation has a rich heritage.

Having carefully examined our options, we believe that the Bill will enable us to tackle the problems that we face both justly and securely, but I accept what has been said by a number of Members today about some of those difficulties. The Chairman of the ISC, my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), said that the Bill was not perfect, but was a great deal better than what we have at present. My hon. Friend the Member for South Swindon (Mr Buckland) said that we must start with the world in which we find ourselves, rather than the world that we might like it to be.

Those themes were underlined during the debate, along with other challenges that were mentioned by Members. I was struck by what was said by my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood) about the changes that had been made in the Lords, and the impact that they had had on her impressions of the Bill. I was also struck by the comments made by my hon. Friend the Member for Wycombe (Steve Baker) about the need to ensure that liberty and justice were appropriately balanced. I can say to him very clearly that this is not about expediency but about how we can ensure that the difficult challenges of providing safety and security while reflecting justice are properly reflected in the changes made to the Bill. The same applies to the comments made by my hon. Friend the Member for Edinburgh West (Mike Crockart) and my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes).

I recognise that some Members in the Chamber this afternoon are fundamentally opposed to the Bill in principle and do not accept that the provisions are balanced in the way that I have characterised them. The speeches from the hon. Member for Islington North (Jeremy Corbyn), my hon. Friend the Member for Dewsbury (Simon Reevell) and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) underlined some of those themes. The situation we are in at the moment is not right, however, and does not meet many of the objections they proffered against the Bill. We believe that it will make an important improvement to the situation by ensuring that difficult cases, which cannot be heard at all because the evidence does not come within the ambit of the court or the public view, are put before a judge so that justice can be done.

The points made by the right hon. Member for Salford and Eccles (Hazel Blears), which were reflected in the speeches made by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) and the right hon. Member for Blackburn (Mr Straw), underlined that if there is no adjudication, that is unsatisfactory for justice, particularly in the context of the cases that are settled in which there is a defence for the Government but the moneys have to be paid out. We judge the reputational risk that poses for the Government and, as my hon. Friend the Member for Ipswich (Ben Gummer) highlighted, for those individuals concerned in those particular cases to be significant.

We have seen significant changes over the past few decades in the evolving threat from terrorism. The UK faces a global terrorist threat from beyond our shores and our intelligence services are heavily committed to protecting our national security by tackling those threats. We are also now in a more litigious society and the combined effect has seen an increase in numbers of civil claims against the Government. The problem is that in these cases, the material the Government need to defend their case is often classified and cannot be disclosed to the court without compromising operations or risking the sensitive sources and techniques on which we rely to keep the people of this country safe. As the former Lord Chief Justice, Lord Woolf, said in Committee in the Lords,

“PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material.”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1189.]

The result is that at present the courts cannot rule in those cases, so the Government might be left with no option but to settle. That is why the Bill seeks to introduce the use of closed material procedures in a small number of cases that hinge on sensitive national security material.

Some hon. Members have suggested that the public interest immunity system is perfectly adequate to deal with national security matters. Let me be clear that the Government are not trying to abolish PII through this Bill: it will continue to exist and be used in certain contexts. Without the possibility of a closed material procedure, however, a very small number of cases that hinge on national security-sensitive information will not be able to reach a conclusion. When the very material that would determine a case would be excluded from PII, the case cannot be fairly concluded without a forum for it to be heard in. If it is central to the Government’s case, the case cannot proceed and the Government may have to settle. Vast sums of taxpayers’ money could be paid out as a result.

Some have argued that PII leads to more information being disclosed than would be the case under a CMP, but we do not accept that that is the case. The court can order the disclosure of material, notwithstanding the damage that would be caused to national security. But the Government then have the choice not to rely on that material, to make admissions or to seek to settle the case entirely. That means that such a damaging disclosure is never made. So, in practice, we believe that no evidence that can currently be heard in open court will be put into closed proceedings in future. Only evidence that would otherwise not see the light of day will be heard by a judge in closed proceedings.

There have been concerns that the claimant will be kept in the dark about accusations against them, though I hope it has been made clear through a number of contributions to today’s debate that that is not the case. It does no harm to restate that the Bill will introduce closed material procedures only in civil cases, not criminal cases, where the Government are the defendant, and claimants will have full knowledge of the allegations that they are making.

CMPs will allow the Government to defend their case and the claimant will have a special advocate working on their behalf, fighting their case. Moreover, it could well be that information that could be considered in a closed material procedure is of benefit to the claimant, and having the case heard using a closed material procedure does not guarantee that the Government will win.

[Mark Durkan]

Will the Minister address the implications of schedule 2 part 2 as it applies to Northern Ireland? That provides that where the court is of the opinion that there are or that there will be section 6 proceedings, a jury can be dismissed. If there is a jury trial, the jury can be dismissed, so it is not just a matter of select proceedings. The provision fundamentally alters the nature of the trial. What reputational damage does that do to the due character of the devolved justice system?

[James Brokenshire]

I am clear that, as we have said throughout the debate, the measure does not relate to criminal matters. It relates only to civil proceedings. If there are concerns, I look forward to robust scrutiny, debate and discussion in Committee. I know that hon. Members on both sides will make their points clearly. As right hon. and hon. Members who have previously served on Bill Committees with me know, I welcome all those contributions and we will respond to them.

The Lords indicated that closed material procedures are absolutely necessary and strongly rejected an amendment to remove the CMP clauses altogether. It is worth noting that the amendment was defeated by 164 votes to 24. Fair points have been made. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) highlighted the issue of special advocates. We are working with the special advocates to establish where there may be further training needs, and on ways of dealing with some of the administrative issues and the processes involved. There are detailed points that we can return to in Committee. The right hon. Gentleman also highlighted the issue of inquests, a point that was touched on also by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). We have considered this, but believe that the current arrangements, with an inquiry being established, are still the appropriate way forward, but I look forward to further discussion on those matters.

I heard the points made from the Front Bench and more generally in relation to the part 1 provisions on oversight. We believe that the changes proposed in the Bill strengthen oversight. A good point was made that our intelligence agencies are better for the oversight. That view is reflected in all parts of the House, respecting and acknowledging the excellent work that they do for all of us in keeping our country safe. I look forward to further detailed discussions on those topics and on the memorandum of understanding that is being worked through with the Intelligence and Security Committee.

In relation to Norwich Pharmacal, I think that there is broad agreement across the House that the issue needs to be dealt with. Essentially, we are the only country that has this type of arrangement, which was created through jurisprudence established to deal with intellectual property cases, rather than national security cases, in which there is the ability to obtain information in that way, and that impacts on the willingness of our international partners to share intelligence information with us in respect of the control principle. Again, I look forward to discussing the matter further in Committee.

In conclusion, we strongly believe that the Bill is needed. Yes, there are difficult issues that need to be addressed, but when we look at justice and security we believe that justice is better served by ensuring that more cases are heard than are not heard. Essentially, the part 2 provisions are the fundamental issue at stake. Although I respect a number of important points that have been made this afternoon, that is the core of the issue. We believe that justice and security will be established through the Bill. Therefore, I commend the Bill to the House.

Question put, That the Bill be now read a Second time.

Terrorism Prevention and Investigation Measures Bill

Debate between Mark Durkan and James Brokenshire

Monday 5th September 2011 Commons Chamber

[James Brokenshire]

The right hon. Gentleman’s question is premised on various assumptions that I just do not accept. He can make his point but the Bill and the enhanced measures that sit alongside it have been part of a very considered approach in relation to the overall legislative framework, which has not been rushed but has been considered. It has very much at its heart our responsibility to protect the public, but it also recognises that there is a balance to be struck. We believe that the balance has previously been wrong and that it needs to be adjusted, as contemplated by the Bill, to ensure that our counter-terrorism measures are appropriate, necessary and focused on delivering safety and security in a way that is judged appropriate on the basis of the evidence.

The draft enhanced TPIM Bill contains provisions that mean that if it is brought into force while a temporary enhanced TPIM order is in force, a decision taken under that order should be treated as a decision under the new enhanced Bill. The regime provided by the emergency TPIM order is intended to be the same as that provided by the enhanced Bill. In other words, the new clauses are intended to be complementary. They set out the various provisions and matters that may, or in some cases that must, be secured by a temporary enhanced TPIM order, to give effect to the regime set out in the emergency Bill. This includes in particular setting out the more stringent restrictions that would be available, and the fact that an enhanced notice may be imposed only where the Secretary of State is satisfied on the balance of probabilities that the individual is or has been involved in terrorism-related activity. Once made, the temporary enhanced TPIM order would remain in force for 90 days, or a shorter period if specified in the order. It must be laid before Parliament as soon as practicable. While it is in force the Secretary of State can repeal its provisions at any time.

The 90-day period is intended to cover, but not significantly to exceed, the period during which Parliament would be unable to pass the emergency legislation. After parliamentary business resumes, the Government can introduce the enhanced TPIM Bill, if they judge it appropriate, to replace the powers conferred by the order with powers under primary legislation.

These are essential provisions. The power that they provide may never need to be used. Indeed, we would all prefer that the exceptional circumstances for which it and the enhanced TPIM Bill are intended never arise. None the less, it is necessary for a responsible Government to ensure that the enhanced TPIM powers can be brought into force in all circumstances in which they may be necessary.

[Mark Durkan]

Does the Minister not recall that when the previous Government introduced the Counter-Terrorism Bill with provision, at that stage, for 42-day detention, which was to be the subject of a parliamentary debate and vote when the powers were activated, the then Opposition rightly argued that it would create dangers for Parliament and eventually for the judiciary, potentially, to activate parliamentary control in relation to measures that were being taken against known individuals? Questions were asked, such as how a parliamentary debate in such a situation would be informed. What information would be in the media and in Parliament, and how could we ensure that, if there was a prosecution, that did not destroy the basis for a fair trial? Exactly the arguments that the Opposition used against the previous Government’s measures surely apply in respect of the arguments that the Minister has just made for his enhanced TPIMs.

[James Brokenshire]

I understand the hon. Gentleman’s case, and care will be required, but the House often considers topics in relation to which matters are before the courts. The emergency legislation deals with the principles, not with individuals. The House has demonstrated clearly that it is able to do that and to consider and debate matters where care is required.

Amendments 1 to 4 address situations where more stringent measures are needed to protect the public than those available under the Bill. Amendment 1 would in effect place a version of the enhanced TPIM proposals formally on the statute book through the Bill. We debated an almost identical amendment in Committee. It would add a new paragraph to schedule 1, allowing the Secretary of State to impose any measure, in addition to those otherwise specified in schedule 1, on an individual where

“there is a serious terrorist threat”

and where such measures are

“necessary for the protection of the public.”

It reflects the position in the enhanced TPIM Bill that the test for imposing such additional measures would be raised from “reasonable belief” of involvement in terrorism-related activity to being satisfied on the “balance of probabilities” that this is the case.

Amendments 2 and 3 offer an alternative approach to providing for the use of additional measures to that set out in amendment 1. Instead of provision being made on the face of the Bill, the Government would be able to add further measures to schedule 1 by order. Amendment 2 envisages that Parliament would approve those measures in advance; amendment 3 provides for retrospective parliamentary approval and so seeks to address other concerns. Amendments 1, 2 and 3 highlight a difference in approach between those on the Opposition Benches and my right hon. and hon. Friends on the Government Benches.

The Government’s position is that the Bill provides a robust and effective set of measures to manage the risk posed by suspected terrorists whom we cannot prosecute or deport, and it will be complemented by additional funding for the police and Security Service for covert investigation. The Government consider that more stringent powers will be required only in exceptional circumstances. So although the Government agree with the Opposition that there may be a need for additional measures to those contained in schedule 1, we believe, as we flagged up in our counter-terrorism review, it is right that those more stringent powers are not on the statute book or available at all times through an order-making power, as amendments 1, 2 and 3 would provide, but are contained in draft emergency legislation that is introduced only if required. This is also reflected in the Government’s approach to extended pre-charge detention.

Furthermore, the Government consider that it is appropriate for the measures available to the Secretary of State to be set out on the face of primary legislation, and to have been agreed in advance by Parliament. That is the clear approach adopted in the Bill before us, and it is also the approach that we have taken in the enhanced Bill. Indeed, I would argue that the more stringent nature of measures available under the enhanced Bill is an even greater reason for them to be clearly defined and agreed by Parliament, rather than decided on an ad hoc basis by the Secretary of State. The Government are therefore not in favour of amendments 1, 2 and 3. For the reasons that I have set out, I ask hon. Members not to press them.

Amendment 4 is specifically concerned with what would happen if the additional measures are required during a period when Parliament is dissolved. The same issue was raised during pre-legislative scrutiny of the emergency Bills for extended pre-charge detention. The Government have listened to the concerns expressed and new clauses 5 and 6, which I have already outlined, directly address the point. I trust that this means that Opposition Members will be content to withdraw their amendment.

--- Later in debate ---

[James Brokenshire]

I am not quite sure how to respond to the lack of coherence in the previous contribution—the Opposition fundamentally oppose something, but then say that they support new clauses 5 and 6—but I shall seek to respond to the points that have been raised in the course of the debate.

I again return to the counter-terrorism review. The measures are not a surprise—it is not as though they were not set out clearly back when the counter-terrorism reported in the early part of this year. The review concluded that

“there may be exceptional circumstances where it could be necessary for the Government to seek Parliamentary approval for additional restrictive measures. In the event of a very serious terrorist risk that cannot be managed by any other means more stringent measures may be required.”

Therefore, to suggest that this situation has just happened and that it was not foretold highlights the lack of reading of the counter-terrorism review when it was published earlier this year.

The Government consider that the enhanced powers will not routinely be needed, and that the standard TPIM Bill will provide robust powers to protect the public. We also consider that there may be circumstances in which more stringent powers will be needed. However, such powers should be introduced only at that time—they should not be routinely available on the statute book.

Obviously I accept that there is a clear difference of opinion. During previous contributions from Opposition Front Benchers, I was minded to believe that control orders were the default. That appeared to be the approach taken by the previous Government, which is why this Government undertook our counter-terrorism review and why we have sought to rebalance the provisions contained in the legislation.

I appreciate the points made by right hon. and hon. Members about the term “exceptional circumstances”. As I have said, that would be when we are faced with a serious terrorist risk that cannot be managed by any other means. It would be inappropriate to say, “Would it apply in this or that control order case?” I am not prepared to second-guess future developments in the threat picture, and the circumstances might be hard to predict. However, credible reporting could point to a series of concurrent attack plots, all of which appear imminent, or it might apply in the wake of a major terrorist attack when there is the prospect of further attacks to follow. Parliament will need to approve the emergency legislation for it to come into force. Ultimately, therefore, it would be for Parliament to determine whether the circumstances are exceptional in that way.

In response to the points made by my hon. Friend the Member for Cambridge (Dr Huppert), I would highlight the fact that clearly there are additional safeguards for the new clauses to cover the period during a general election, when the House is unable to pass emergency legislation. The enhanced measures will be subject to a higher legal test. The Secretary of State must be satisfied that the person is or has been involved in terrorism-related activity on the balance of probabilities, which is a higher threshold than reasonable belief, which is the test for imposing standard TPIMs.

The comprehensive judicial oversight of standard TPIM notices will also apply to the enhanced measures, including a requirement for court permission before imposing measures; an automatic and full High Court review of the decision to impose the enhanced TPIM notice, and each of the measures specified in it; and rights of appeal against decisions taken by the Secretary of State when the measures are in force. Therefore, the intent is that the broader safeguards will apply in the context of those situations.

I hear what my hon. Friend the Member for Cambridge says about his discomfort with the contexts in which we would need such provisions. We are all in that situation. Equally, we have considered carefully the potential of alternatives. He highlighted the possibilities of the Civil Contingencies Act 2004. However, careful reflection on both sides of the House leads us to consider that that would not be a useful or usable route in dealing with the circumstances that we are contemplating. The 2004 Act has been considered on both sides of the House, but its mechanisms and its structure do not lend themselves easily to the scenarios and situations in which we would consider using TPIMS—indeed, the Act was in many ways directed more to dealing with floods, epidemics and those sorts of problems. Although I understand why my hon. Friend raises that point, as hon. Members have done in the past, we consider that the 2004 Act does not provide a workable mechanism to cover such circumstances.

We believe that the draft emergency Bill would provide a mechanism to deal with a situation while Parliament was either sitting or in recess, although we accept the need to legislate in this Bill to cover a period during a general election. I am pleased to note that the Opposition are prepared to support the new clauses that are contemplated, although clearly there are differences over the emergency Bill itself. However, a Joint Committee will obviously be established to consider, scrutinise and examine the matter in detail in the way one would expect from the House and no doubt to improve, make suggestions and make amendments to the draft Bill.

[Mark Durkan]

The Minister has talked about these extra bat belt powers, shall we say, that might be available to the Home Secretary and activated by a draft Bill. I have a question about the parliamentary situation that would then be created. If those powers were activated in relation to a particular threat, hon. Members would receive all sorts of instructions and advice not to mention specific cases in the Chamber, but the chances are that the media would be full of suggestions and innuendos against particular individuals or locations. In those circumstances, how would Parliament discharge the awkward responsibilities that the clause would give it? The Opposition in the previous Parliament made exactly those valid arguments against the then Government’s measures in respect of 42-day detention activated on the basis of parliamentary approval.

[James Brokenshire]

I know that the hon. Member has made that point before. I responded to him then as well. I think that the House is able to debate the principle of the underlying issues, although in relation to detailed, confidential briefings and so on, we would seek to provide more detailed information to Opposition spokespeople on privy counsellor terms, as appropriate, in order to assist debate. However, we believe that Parliament is able to consider emergency legislation in that way. In many ways, it is important to put out the draft legislation now to ensure that there is a mechanism—a tool—that has been considered coolly and calmly outside some of the febrile situations that understandably arise in the sorts of horrendous situations that, sadly, we have seen in the past. That is why it is important that we have the scrutiny that would be applied by a Joint Committee—and obviously it is for the House to resolve the matters around that. That is an important way of ensuring that legislation is considered in a more rational way.