HC Deb 06 March 1991 vol 187 cc369-77

'Where the Secretary of State is of the opinion that an organisation in receipt of public funds is furthering the aims of a proscribed organisation, he may seek an order from the High Court permitting him to terminate such public funding.'.—[Mr. Jim Marshall.]

Brought up, and read the First time.

Mr. Jim Marshall

I beg to move, That the clause be read a Second time.

The new clause deals with an issue which has been a matter of some contention in the Province for a number of years, but more particularly in recent months in respect of a specific case. It would provide judicial control over the Secretary of State's power to end the public funding of organisations that he believes promote the interests of proscribed organisations. The intention is to limit the present arbitrary and unfair system, rather than to make it easier for proscribed organisations to obtain access to public funds. I wish to make that clear.

The present power of the Secretary of State is exercised under the terms of policy set out by the present Foreign Secretary, the right hon. Member for Witney (Mr. Hurd), in his written answer of 27 June 1985. It is not my intention to read out that answer, but the House will recognise that it gives the Secretary of State wide powers and wide discretion to stop financing certain organisations.

Our new clause recognises the fact that it may be necessary to stop funding if it might be of benefit to proscribed organisations. However—this is where our clause differs from Government policy—it places the exercise of such power on a statutory basis and provides for independent scrutiny of the power by the courts.

As the Secretary of State recognises, under the existing system there is no right of redress, despite the severe consequences that groups, individuals or communities may suffer if funds are removed. Appeals can only be made to, and heard by, the Secretary of State—the very person who made the decision in the first place. Such a practice creates an image of arbitrary and, in some cases, unfair government.

A few moments ago, I referred to a specific case—the Glor na Gael affair—which will come as no surprise to the Secretary of State. For whatever reason, he removed funding from that Irish language group. Unfortunately for him, no one—including, apparently, the RUC—believes that his decision was either sensible or correct.

The present system makes it difficult to reverse such decisions, which are essentially political, without causing embarrassment to the Government, and, as we all know, no Government likes deliberate political embarrassments. The new clause would provide judicial scrutiny before such decisions were taken. We recognise that that is not a perfect solution, but at least it would reduce the arbitrary nature of such decisions, while meeting any Government objections based on security grounds, since the flexibility of a system of judicial review is such that it can be conducted without any security risks.

I commend the new clause in the hope that it will find favour with the Government. Even if the Secretary of State cannot accept it as it stands, I hope that he will reflect the bipartisanship shown by his Minister of State in our previous debate and will be able at least to accept the spirit and intent of the new clause.

Mr. A. Cecil Walker (Belfast, North)

How does the Secretary of State form his opinions on these organisations? Does he receive advice or information from someone or some group who may be against the activities of such an organisation? They might be motivated by petty jealousy, because the organisation in question is maintaining and making progress in community and social activities. Such individuals or groups may have political or other aspirations and may believe that they are reduced because of the beneficial activities of such an organisation.

What appeals can such an organisation make against an adverse opinion or complaint by the Secretary of State? Is machinery to be set up to investigate such complaints?

Mr. Stanbrook

The hon. Member for Belfast, North (Mr. Walker) illustrates the weakness of the new clause. It would transfer responsibility from the Secretary of State to a High Court judge with no rules, motivation or purposes, and without limiting the judge's discretion in any way. It has been admitted that the decisions concerned involve political considerations. Are we content to transfer responsibility for them to a judge who, for these purposes, would be superior to the Secretary of State, who is himself responsible to Parliament? That is absurd. The new clause is fundamentally misconceived.

9.45 pm
Mr. Trimble

I share the doubts expressed by the hon. Member for Orpington (Mr. Stanbrook). I think that the new clause would cause more problems than exist now.

The hon. Member for Leicester, South (Mr. Marshall) mentioned an Irish language organisation from which funding had been withdrawn. It is interesting to note that that organisation subsequently sought support from the Irish Government—unsuccessfully; I do not know what that implies. Another interesting fact, which the hon. Gentleman failed to mention, is that it applied for a judicial review of the Secretary of State's decision, and failed in that as well.

I think that what the hon. Member for Leicester, South said was inaccurate. The existing law provides for the challenging of decisions to withdraw funding made by the Secretary of State or others. Applications can be made for judicial reviews, and, if an organisation can show that the Secretary of State had arrived at his decision unreasonably, a remedy, albeit limited, is available.

How would the court proceed if the existing judicial review procedure were replaced by new clause 15? Under the new clause, Where the Secretary of State is of the opinion that an organisation … is furthering the aims of a proscribed organisation, he may seek an order from the High Court". What does the High Court do then? Is it bound to grant the order? Must it consider whether to grant it, and, if so, on what evidence must it proceed? How can such procedures be adopted, given that the Secretary of State may be in receipt of confidential information?

I hope that I am not misquoting the hon. Member for Leicester, South—if I am inadvertently misleading the House, no doubt he will correct me—but I believe that he said that the flexibility of the judicial review system is such that it can be implemented without any security risk. What does that mean in this context? Does it mean that the Secretary of State's opinion will be conclusive, allowing him not to divulge any information that would carry a security risk?

The new clause refers to furthering the aims of a proscribed organisation". Proscribed organisations have many aims. I believe that one of the IRA's aims is the promotion of the Gaelic language. Does this mean that funds should be withdrawn from all organisations that promote the Gaelic language?

Mr. Brooke

This novel measure seeks to substitute the judgment of the court for that of the Secretary of State in a matter that is manifestly the domain of the executive —as my hon. Friend the Member for Orpington (Mr. Stanbrook) pointed out.

The hon. Member for Leicester, South (Mr. Marshall) was concerned about the manner in which the Secretary of State exercises his discretion in discharging his responsibility to protect public funds where there is a grave risk that the provision of support would assist a paramilitary organisation, directly or indirectly. He did not quote the answer given by my right hon. Friend the then Secretary of State—who is now Foreign Secretary—on 27 June 1985, and I shall not do so in full. The heart of that answer was in the words However, I am satisfied, from information available to me. This is a matter properly for the Government, not the courts.

As my hon. Friend the Member for Orpington and the hon. Member for Upper Bann (Mr. Trimble) said, the courts have acknowledged that judges should not make decisions on policy. Lord Diplock, in Council of Civil Service Unions v. The Minister for the Civil Service in 1984 —a case to which, ironically and coincidentally, reference was made this afternoon in the debate on the Employment Protection (Government Communications Headquarters) Bill—made that clear when he said that the application of Government policy involves the weighing of competing policy considerations— a balancing exercise which Judges by their upbringing and experience are ill qualified to perform. To give the courts the role that the new clause suggests would conflict with our well established and sensible separation of powers. As the hon. Member for Upper Bann said, the new clause does not make clear what the High Court should take into account in considering an application by the Secretary of State for an order permitting him to terminate public funding. It would be most unusual if the court were empowered to examine the merits of the Secretary of State's opinion and substitute its judgment for that of the Secretary of State should it see fit.

Hon. Members can be assured that all decisions to withhold public funds in line with current Government policy are taken by the Secretary of State after most careful consideration.

Mr. Dennis Canavan (Falkirk, West)

The new clause would enable the Secretary of State to seek an order from the court. Under the law in Northern Ireland, is it possible for an organisation whose public funds have been terminated by the Secretary of State to appeal to the court?

Mr. Brooke

I shall deal with that later, but there is the right of appeal to myself in the first instance.

Decisions to withhold public funds are taken by the Secretary of State after the most careful consideration. The policy is even-handed and has been applied in respect of republican and loyalist paramilitary interests. Ignoring the four cases in which the decisions were reversed after fresh evidence was put before the Secretary of State, the pattern of the withholding of public funds shows that just under 60 per cent. have been in connection with republican paramilitary groups and just over 40 per cent. with loyalist groups.

Political opinion is not an issue. Decisions are subject to review and can be changed in the light of a change in circumstances. That is what happened in the four cases in which the decisions were reversed. That is not an answer to the legal question that I was asked but it is a response to the hon. Member for Belfast, North (Mr. Walker).

It is not possible, for security reasons, to divulge the information on which decisions are based. I do not accept that the introduction of a court in a supervisory capacity, as proposed by the hon. Member for Leicester, South, is appropriate or would lead to an improvement in the quality of decision making. Well established arrangements for the judicial review of administrative decisions—this answers the question asked by the hon. Member for Falkirk, West (Mr. Canavan)—recognise the different responsibilities of Ministers and the courts. Any organisation that considers that it has been unfairly treated by a decision of the Secretary of State can apply to the courts for a review of the decision, as happened recently. I see no reason to introduce any further judicial scrutiny.

It is not practicable—this answers the question asked by the hon. Member for Belfast, North—either at present or under the proposed new clause to advise an organisation of the precise grounds for the Secretary of State's belief that withdrawal of grant is justified. Such decisions are taken on the basis of confidential security advice, the disclosure of which could reveal to those engaged in unlawful activities involving paramilitary organisations the extent of the information known about them, how it is evaluated and possibly its source, with consequential risk to those involved in its procurement.

The hon. Member for Leicester, South referred to the case of Glora na Gael. The decision to withdraw funding from the west Belfast committee and the procedure by which such decisions are taken are subject to judicial review. The hon. Member for Upper Bann thought that it had been turned down, but the case is still under review.

In those circumstances, the House will understand if I am constrained in what I say on such matters. I do not accept that the present arrangements are unreasonable or inappropriate; nor am I prepared to be drawn on the detail of the arrangements or the nature of the information relied upon.

In view of those overall considerations, I must ask the hon. Member for Leicester, South to withdraw his new clause or the House to vote against it.

Mr. Jim Marshall

I and my party are naturally disappointed with the Secretary of State's reply. Within a matter of minutes, we shall be showing our dissatisfaction by supporting our new clause in the Lobby. I ask the House to support us in that action.

The hon. Member for Orpington (Mr. Stanbrook) said that, in his view—I recognise that it is his view only—our new clause is to be described as "absurd". His reason for using that word was that he claimed that only the Secretary of State and only the Government can make political decisions. There is no disagreement between us on that point. Politicians and Governments are there to make political decisions. If the Secretary of State was to come to the Dispatch Box to say, "I have made this decision on political grounds; these are my reasons for doing that," there would be no disagreement between the two sides, because I recognise that that is the nature of politicians and of Governments.

However, that is not the point at issue. These judgments are not supposed to be based on political considerations; they are supposed to be based on security considerations. In those circumstances, we have every right to say that, if it is a matter of judgment and of balance, a judge and the system of judicial review are able to make that decision and to judge that balance. We are not asking the judges——

Mr. Stanbrook

indicated dissent.

Mr. Marshall

The hon. Member for Orpington is shaking his head, but we are not asking the judges to make political decisions; we are asking them to decide whether, on balance, they believe that the Secretary of State has acted fairly or unfairly when weighing up the security risks to make his decision.

The altercations between myself and the hon. Member for Upper Bann (Mr. Trimble) are increasing. He always accuses me of misrepresenting his case and of making half a case myself. I tend to believe that my assertions about him are always correct and that his assertions about me are always wrong. He is clearly wrong in the specific point that he has made in this debate. The Secretary of State supports and buttresses my point when he reminds the hon. Gentleman that the case of Glora na Gael is still in the process of judicial review.

In case he has forgotten, I remind the hon. Member for Upper Bann that the Secretary of State has made it even more difficult for that organisation to defend itself and to put its case to the judicial review because the right hon. Gentleman has introduced a public interest immunity certificate, which is signed by him, the Secretary of State, and which has prevented that organisation or its counsel from gaining access to specific papers that it believes would assist it——

Mr. Brooke

The case is sub judice.

Mr. Marshall

The Secretary of State reminds me that the case is sub judice. I am referring not to the details of the case, but to the actions that the Secretary of State has taken which make it more difficult for that organisation to present its case at the judicial review. The Secretary of State has issued a public interest immunity certificate which refuses the organisation access to certain documents which it thinks would support or further its case at judicial review. I think that the point made by the hon. Member for Upper Bann in the specific instance is spurious.

Mr. Trimble

I thank the hon. Gentleman for giving way, particularly as he prefaced his remarks by comments, which I thought inappropriate, about what I had said. The hon. Gentleman has not answered the question which I put to him: if his clause is adopted, and if the Secretary of State has to make an application to the court, on what basis is the court to proceed? I am grateful to the Secretary of State for pointing out the stage which the case has reached. There is in existence a judicial review procedure——

It being Ten o'clock, the debate stood adjourned.

Ordered, That, at this day's sitting, the Northern Ireland (Emergency Provisions) Bill may be proceeded with, though opposed, until any hour. —[Mr. Neil Hamilton.]

Question again proposed, That the clause be read a Second time.

Mr. Trimble

I was asking the hon. Member for Leicester, South (Mr. Marshall) to state how the court should proceed. Will it accept the opinion of the Secretary of State? Will it ask itself whether that opinion was made unreasonably, in which case it is doing exactly the same as the existing judicial review procedure, or will it examine the merits of the case itself? If it is examining the merits of the case——

Mr. Speaker

Order. The hon. Gentleman is making an interjection in the middle of a speech.

Mr. Trimble

I think that I have said enough to make my point clear.

Mr. Marshall

The hon. Gentleman always says more than enough. The answer clearly is that the judge would decide whether the Secretary of State's action was reasonable in the light of all the evidence, based upon security considerations, that the Secretary of State had available at the time. I do not see anything wrong with that.

Mr. Stanbrook

That is not the point that is included in the new clause. The new clause says: Where the Secretary of State is of the opinion that an organisation in receipt of public funds is furthering the aims of a proscribed organisation". No decision is made; the Secretary of State is simply of the opinion, and he then may seek an order from the High Court. In other words, the whole decision is transferred to the High Court. It is not a question of confirming, or of some sort of review, under the wording of the new clause. The new clause is talking not about judicial review but about transferring responsibility for the decision from the Secretary of State to a judge. That is entirely and utterly wrong, and I still think that it is absurd.

Mr. Marshall

I am not pleased to hear that the hon. Gentleman still thinks that the new clause is absurd. We are seeking to reverse the present procedure. If the new clause was adopted, before the Secretary of State took a decision, he, his ministerial colleagues and his officials would have to realise, in the light of all the security considerations available at the time, that any decision they took was likely to be upheld or turned down by the judge. The position seems to be clear.

The Secretary of State repeated many of the points put forward by the hon. Members for Orpington (Mr. Stanbrook) and Upper Bann (Mr. Trimble). He seemed to imply that many of his decisions were taken on political rather than security grounds. I am sure that he did not mean to give that impression, but he made the point. I accept that he makes the decisions not on political but on security grounds.

Mr. Brooke

I gave the statistics so that the House might have a clear picture that we were talking about an even-handed policy addressed to paramilitary organisations. I think that the hon. Member for Leicester, South (Mr. Marshall) has not answered the question put by my hon. Friend the Member for Orpington (Mr. Stanbrook). As the new clause is drawn, he is asking the judiciary to take on an executive role which in the past it has been disinclined to take.

Mr. Marshall

Mr. Speaker—[Interruption.] I am receiving advice from all quarters. Perhaps I could put it to the Secretary of State this way. Our view remains that the present system must be changed. There must be a movement away from the present arbitrary and unfair system. Our view is and remains—and we shall press it in the Lobby—that the new clause represents a step in the right direction. If the Secretary of State says that there are inadequacies in it, I make this offer to him. If he is prepared to support us in the Lobby or even to accept the spirit of the new clause, we will sit down with him and draft a new clause which meets his criticisms and those of the hon. Member for Orpington (Mr. Stanbrook). I see that the Secretary of State is not prepared to accept that compromise, so we intend to press the new clause.

Question put, That the clause be read a Second time:—

The House divided: Ayes 76, Noes 150.

Division No. 88] [10.05 pm
Adams, Mrs Irene (Paisley, N.) Illsley, Eric
Ashdown, Rt Hon Paddy Jones, Martyn (Clwyd S W)
Barnes, Harry (Derbyshire NE) Kennedy, Charles
Beckett, Margaret Lamond, James
Bellotti, David Leadbitter, Ted
Bermingham, Gerald Leighton, Ron
Campbell-Savours, D. N. Lewis, Terry
Canavan, Dennis Livingstone, Ken
Clarke, Tom (Monklands W) Livsey, Richard
Clelland, David McAvoy, Thomas
Clwyd, Mrs Ann McGrady, Eddie
Cohen, Harry Maclennan, Robert
Corbett, Robin McMaster, Gordon
Corbyn, Jeremy McNamara, Kevin
Crowther, Stan Madden, Max
Cryer, Bob Mahon, Mrs Alice
Cunliffe, Lawrence Mallon, Seamus
Dalyell, Tam Marshall, Jim (Leicester S)
Davis, Terry (B'ham Hodge H'l) Meale, Alan
Dewar, Donald Michael, Alun
Dunnachie, Jimmy Mullin, Chris
Fearn, Ronald Nellist, Dave
Flynn, Paul O'Brien, William
Foster, Derek Powell, Ray (Ogmore)
Galloway, George Prescott, John
George, Bruce Primarolo, Dawn
Godman, Dr Norman A. Quin, Ms Joyce
Golding, Mrs Llin Skinner, Dennis
Gordon, Mildred Smith, Andrew (Oxford E)
Griffiths, Nigel (Edinburgh S) Strang, Gavin
Griffiths, Win (Bridgend) Taylor, Mrs Ann (Dewsbury)
Grocott, Bruce Taylor, Matthew (Truro)
Harman, Ms Harriet Turner, Dennis
Hinchliffe, David Vaz, Keith
Home Robertson, John Wallace, James
Howells, Dr. Kim (Pontypridd) Wareing, Robert N.
Hughes, John (Coventry NE) Watson, Mike (Glasgow, C)
Welsh, Michael (Doncaster N) Tellers for the Ayes:
Wise, Mrs Audrey Mr. Jack Thompson and Mr. Ken Eastham.
Aitken, Jonathan Lester, Jim (Broxtowe)
Alexander, Richard Lilley, Rt Hon Peter
Amess, David Lord, Michael
Amos, Alan Luce, Rt Hon Sir Richard
Arbuthnot, James Lyell, Rt Hon Sir Nicholas
Arnold, Jacques (Gravesham) McCrea, Rev William
Ashby, David MacGregor, Rt Hon John
Atkins, Robert MacKay, Andrew (E Berkshire)
Baker, Nicholas (Dorset N) Maclean, David
Beggs, Roy McLoughlin, Patrick
Bennett, Nicholas (Pembroke) McNair-Wilson, Sir Michael
Bevan, David Gilroy Madel, David
Blackburn, Dr John G. Malins, Humfrey
Brandon-Bravo, Martin Maples, John
Brazier, Julian Mawhinney, Dr Brian
Brooke, Rt Hon Peter Maxwell-Hyslop, Robin
Brown, Michael (Brigg & Cl't's) Mayhew, Rt Hon Sir Patrick
Buchanan-Smith, Rt Hon Alick Miller, Sir Hal
Chapman, Sydney Mitchell, Andrew (Gedling)
Chope, Christopher Mitchell, Sir David
Conway, Derek Molyneaux, Rt Hon James
Coombs, Anthony (Wyre F'rest) Monro, Sir Hector
Cope, Rt Hon John Mudd, David
Cran, James Neale, Sir Gerrard
Davis, David (Boothferry) Needham, Richard
Day, Stephen Nelson, Anthony
Douglas-Hamilton, Lord James Neubert, Sir Michael
Dykes, Hugh Newton, Rt Hon Tony
Evennett, David Norris, Steve
Fallon, Michael Page, Richard
Favell, Tony Paice, James
Fenner, Dame Peggy Paisley, Rev Ian
Forman, Nigel Patnick, Irvine
Forsyth, Michael (Stirling) Pawsey, James
Forsythe, Clifford (Antrim S) Peacock, Mrs Elizabeth
Forth, Eric Porter, David (Waveney)
Fowler, Rt Hon Sir Norman Redwood, John
Fox, Sir Marcus Roberts, Sir Wyn (Conwy)
Franks, Cecil Robinson, Peter (Belfast E)
Freeman, Roger Ross, William (Londonderry E)
French, Douglas Rowe, Andrew
Gale, Roger Sackville, Hon Tom
Gill, Christopher Sayeed, Jonathan
Glyn, Dr Sir Alan Shepherd, Colin (Hereford)
Goodhart, Sir Philip Smith, Sir Dudley (Warwick)
Goodlad, Alastair Smith, Tim (Beaconsfield)
Greenway, John (Ryedale) Smyth, Rev Martin (Belfast S)
Gregory, Conal Speller, Tony
Griffiths, Peter (Portsmouth N) Spicer, Sir Jim (Dorset W)
Ground, Patrick Stanbrook, Ivor
Hampson, Dr Keith Stanley, Rt Hon Sir John
Hannam, John Stern, Michael
Harris, David Stevens, Lewis
Haselhurst, Alan Stewart, Andy (Sherwood)
Hawkins, Christopher Summerson, Hugo
Heathcoat-Amory, David Taylor, Ian (Esher)
Hicks, Mrs Maureen (Wolv' NE) Taylor, John M (Solihull)
Hill, James Taylor, Teddy (S'end E)
Hordern, Sir Peter Temple-Morris, Peter
Howe, Rt Hon Sir Geoffrey Thompson, D. (Calder Valley)
Hughes, Robert G. (Harrow W) Thompson, Patrick (Norwich N)
Hunter, Andrew Thorne, Neil
Irvine, Michael Thurnham, Peter
Janman, Tim Tracey, Richard
Jones, Gwilym (Cardiff N) Trimble, David
Jones, Robert B (Herts W) Twinn, Dr Ian
Jopling, Rt Hon Michael Viggers, Peter
Kilfedder, James Walker, A. Cecil (Belfast N)
King, Roger (B'ham N'thfield) Walker, Bill (T'side North)
Kirkhope, Timothy Watts, John
Knight, Greg (Derby North) Wells, Bowen
Knowles, Michael Wheeler, Sir John
Knox, David Whitney, Ray
Leigh, Edward (Gainsbor'gh) Widdecombe, Ann
Wood, Timothy Tellers for the Noes:
Young, Sir George (Acton) Mr. Neil Hamilton and Mr. Tim Boswell.

Question accordingly negatived.

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