National Security Bill (Eighth sitting)

Stuart C McDonald Excerpts

Committee stage & Committee Debate - 8th sitting
Tuesday 19th July 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

Clause 35 sets out the function and powers of the court on the application by the Secretary of State to obtain permission from the court before imposing measures on an individual, as required under condition E in clause 33(5).

Subsection (4) provides that the court may consider the Secretary of State’s application without the individual on whom the measures would be imposed being aware of the application or having the opportunity to make representations. That feels to be at odds with the rest of the justice system; however, given the nature of the risks we are attempting to manage and supress with the measures, the clarity in the explanatory note that this is

“to avoid a risk of the individual absconding”

is a sobering reality.

We welcome subsections (7), (8) and (9), which provide powers for the court in various scenarios. Clear tests are set out for the courts in subsection (3)(a), under which the court has to determine whether the Secretary of State’s decisions are “obviously flawed”. That standard is also used in schedule 5, under clause 36.

I sought a legal opinion about “obviously flawed” and, although there is a similar test in schedule 2 of the Counter-Terrorism and Security Act 2015, the sense from lawyers was that “obviously flawed” sets an unusual standard—for example, decision making might be found to be flawed only upon scrutiny, but not obviously so. Will the Minister clarify the standard? Is he in a position to confirm how many times the Secretary of State’s decisions have been deemed to be “obviously flawed”, so that we can consider any learning from that?

Clauses 37 and 38 provide for a directions hearing and a review hearing. Under clause 37(2), on giving the Secretary of State permission to impose measures the court must give directions for a directions hearing. According to subsection (3), those directions must not be served on the individual in a case in which permission has been granted until the part 2 notice has been served.

We will come to the importance of the ongoing review in clauses 39 and 40, which I expect will feed into the processes set out in clause 37. I am reassured that the operability of the whole of part 2 will be considered by an independent reviewer, as outlined in clause 49, in addition to the review hearing and the ongoing assessment of individual circumstances.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

As the shadow Minister says, these clauses put in place some important oversight and a scrutiny mechanism in relation to state threats prevention and investigation measures. On the whole, the oversight and scrutiny mechanisms appear to work, but I have some questions to put to the Minister for clarification.

First, to pick up on a point made by the shadow Minister, why is it the function of the court to determine whether the Secretary of State’s decision was “obviously flawed”? I was slightly surprised by that standard and not familiar with it at all. What is the difference between an “obviously flawed” decision and one that is merely “flawed”? Is not the simple requirement in clause 35(6) to apply judicial review principles in itself sufficient to let the court know what it is supposed to do?

Secondly, clause 35(4) allows the court to have its hearing on the Secretary of State’s application “in the absence of” the relevant individual and even without that person being notified of that happening. I can well understand that there will be some reasons why that may appear to be necessary, but the Bill does not provide any guidance at all to the courts as to when it would or would not be appropriate to proceed in that way. That struck me as quite a strange way to do things. It just says that the court may consider the application

“in the absence of the individual”,

without providing any guidance as to when that would be appropriate and the reasons the court should have for doing that.

That question is even more pertinent when the court hears an urgent case under schedule 5, which says that the Secretary of State must serve the part 2 notice on the individual and then, immediately after, refer the measures to the court. Given that the part 2 notice has been served on the individual and is enforced because of urgency, it seems strange that there would be justification for the court to consider the reference under the part 2 notice without the individual being present or even aware of the hearing. The individual will have been served the notice, so why does the hearing then need to proceed without them even being aware of it? Why would that power be necessary?

Finally, on the review hearing, clause 38(3) gives the court a broad power to simply

“discontinue the review hearing in any other circumstances.”

There is not much in the Bill that sets out why the court might want to do that and what factors would prompt a court to behave in that way. When is it envisaged that that would be necessary and why is there no more detail about that in the Bill?

[The Minister for Security (Stephen McPartland)]

I will respond to the questions as I go through my speech. I am always happy to take interventions.

Clause 35 mirrors the terrorism prevention and investigation measures and sets out the function and powers of the court on an application by the Secretary of State to obtain permission before imposing measures on an individual, as required under condition E of clause 33. The clause means that the court must apply judicial review principles and consider

“whether the relevant decisions of the Secretary of State are obviously flawed”.

The hon. Member for Halifax asked how many times decisions have been considered “obviously flawed” by the court and the answer is never; hopefully that gives some reassurance.

The Secretary of State will put the draft part 2 notice before the court. If the court considers that the decisions that conditions A, B or C are met were obviously flawed, it may not give permission to impose the notice. If the court considers that the decisions relating to condition D were obviously flawed, the court can give directions to the Secretary of State on the specific measures while otherwise permitting the notice to be imposed—again, there are more safeguards.

The court may assess the Secretary of State’s application without the potential subject of the measures being aware. That is important because, as the hon. Member for Halifax made clear, it prevents the individual from receiving notice that the measure could be imposed on them and obviously stops them running away and absconding.

Once the measures are imposed, the subject will of course have the right to an automatic full review by the High Court where the individual will be present and have legal representation. For any closed proceedings in the review hearing, there will be a special advocate to act in the subject’s interest. I have checked that the special advocate cost will be met by the Home Office for both parties. The review hearing is where the court will apply a high level of scrutiny to the Secretary of State’s decisions. The Government feel it is right that, rather than at the initial stage of obtaining court permission, the full scrutiny takes place at the second stage of court review, after the individual has had an opportunity to seek legal advice. We will come on to that in more detail.

Clause 36 gives effect to schedule 5, which makes provision for urgent cases in which the Secretary of State may, under clause 33(5)(b), impose measures on an individual without first obtaining the permission of the court. This provision has long-standing precedents: there are similar provisions relating to TPIMs in the Terrorism Prevention and Investigation Measures Act 2011 and to control orders in the Prevention of Terrorism Act 2005.

This urgent and exceptional power has never been used since the TPIMs regime was introduced. In all cases, it has been possible to obtain court permission in advance, and that will always be the preferred option. We do not expect the regime in this Bill to operate any differently. We have tried to put in place safeguards throughout the whole Bill. As I have said, the STPIMS are a last resort and it is all about trying to find other ways to prosecute.

As we know, the power will be used in rare and exceptional cases when there is an operational need to avoid any delay in taking measures that are considered necessary to protect the UK from a foreign power, threat or activity. We will come to oversight in later deliberations on this part of the Bill. To help the hon. Member for Halifax, I will say that I absolutely expect the person appointed to review the operation of this part to comment on the appropriateness of any use of the urgency process. I hope that provides reassurance.

Clause 37 ensures that there is timely and clear progress towards a full High Court review. The basis of the clause is, in essence, to ensure that in each case, when measures are imposed, a prompt and clear timeline is put in place, with the steps that need to be taken towards the subsequent full High Court review. The directions hearing must take place within seven days of a part 2 notice being served on the individual or, in an urgent case, within seven days of the notice being confirmed. Directions must then be set for a full review hearing to take place as soon as possible. The proceedings leading up to the full review hearing will be agreed by all parties.

The clause is not about the court considering the restrictions or the nature of the evidence; it is there more to ensure the speedy process of the approach to the full hearing. It is important that the hearing takes place speedily within that seven-day period, so that there is a direction of travel to ensure that subsequent oversight is well prescribed.

On clause 38, the involvement of the court is an important safeguard for the rights of the individual subject to the measures, and full judicial oversight of the process of imposing measures is key. As I alluded to earlier, clause 38 provides for a full High Court review to take place automatically in every single case in which state threat prevention and investigation measures are imposed. This will happen automatically, with no need for the individual to initiate the proceedings, in each case in which measures are imposed, subject only to the provisions that allow the discontinuance of proceedings included in subsection (3)—for example, if the person does not want the review to take place. Only the individual or court may make the decision to discontinue the proceedings, and the individual will always be able to make representations in respect of a proposal to discontinue.

At the full review, the function of the court is to review the decisions of the Secretary of State that conditions A, B, C and D were met at the time she made the decision and continue to be met at the time of the review. To remind the Committee, the decisions are that they reasonably believe the individual is or has been involved in foreign power threat activity; that some or all of that activity is new foreign power threat activity; that they reasonably consider that the imposition of STPIMs is necessary to protect the UK from the risk of action that constitutes foreign power threat activity; and finally, that they reasonably consider that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity, for the specified measures to be imposed on the individual.

Clause 38 requires the courts to apply the principles that are applicable on an application for judicial review. As Committee members will be aware, the courts take the view that judicial review is a flexible tool that allows for differing degrees of intensity of scrutiny, depending on the circumstances and the impact of the decision in question on the individual concerned.

As well as setting out the functions of the court in a review, clause 38 sets out the powers available to the court, which may overturn the Secretary of State’s decisions in their entirety if it finds that they were unlawful. If the court finds that it was necessary to impose measures but one or more of the measures imposed was unlawful, the Bill is clear that the court may quash the particular measures or direct that they be varied, while also directing that the rest of the notice comes into force. That will provide a balance between being able to protect the UK and ensuring that the measures imposed represent the minimum necessary interference with the rights of the individual.

In addition to the function and powers of the court, clause 38 also makes provision for circumstances in which the review may be discontinued. The court must discontinue the review if the individual requests it—for example, if they do not wish to challenge the case against them. However, as a further safeguard, the Bill specifies that before the court may discontinue proceedings under the power the individual subject to the measures and the Secretary of State must have the opportunity to make representations.

It is imperative that the correct checks and balances are in place to govern the operation of STPIMs, and the Government consider that clause 38, together with other provisions in the Bill that provide the requirement for court permission before the imposition of measures and subsequent rights of appeal, will deliver rigorous end-to-end judicial oversight of the decisions taken by the Secretary of State in the exercise of her powers. The continuous involvement of the court will provide a key, important safeguard for the rights of the individual subject to the measures.

In summary, clauses 35, 36, 37 and 38 are exceptionally important for the Bill and I urge the Committee to support them.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clauses 37 and 38 ordered to stand part of the Bill.

Clause 39

Criminal investigations into foreign power threat activity

Question proposed, That the clause stand part of the Bill.