§ Mr. Simon Hughes
I beg to move amendment No. 186, in page 2, line 19, at end insert—
- '(ii) he has satisfied a judicial authority that there are reasonable grounds for believing that it is concerned in terrorism; and
- (iii) that the judicial authority has issued a declaration that there are reasonable grounds for the exercise of the Secretary of State's power'.
Mr. Deputy Speaker
With this, it will be convenient to discuss the following: Amendment No. 187, in page 2, line 19, at end insert—'(4A) In this section "judicial authority" means—
- (a) in England and Wales, the Lord Chief Justice or his designated appointee
- (b) in Northern Ireland, the Lord Chief Justice of Northern Ireland or his designated appointee
- (c) and in Scotland, the Lord Advocate or his designated appointee.'.
§ Government amendments Nos. 1 to 5 and 9.
§ Amendment No. 162, in schedule 3, page 62, line 9, after "Chancellor", insert—
§ 'after consulting the Chairman of the Intelligence and Security Committee'.
§ Amendment No. 163, in page 62, line 33, after "may", insert—
§ ', after consulting the Chairman of the Intelligence and Security Committee,'.
§ Government amendments Nos. 48 to 57, 95, 115 and 119.
§ Mr. Hughes
One of the consequences of the definition of terrorism that we were debating on the last group of amendments is that, if an organisation is regarded as being concerned with terrorism, it can be proscribed. Under the present legislation there are 14 proscribed organisations, which are listed in a schedule to the current Bill and included in the existing emergency powers legislation. The list has remained the same for some time.
The Bill will allow proscription in relation to United Kingdom and international organisations. In Committee, the Government implied that they would expect Northern Ireland or Irish organisations to remain proscribed and did not expect in the immediate future to add any United Kingdom-based organisations, but they did not preclude the possibility of adding non-UK organisations. I hope that I have represented them correctly. A political group in the middle east, for example, could be proscribed here, and could then be within the remit of the legislation. The same could apply to a political group in Africa or one in Pakistan.
In Committee, we spent some time debating how Parliament regulates a decision to proscribe an organisation, and what then happens. The Bill allows the initiative to be taken by the Government; requires the Government to come to Parliament; and requires Parliament to approve the proscription of the organisation by a simple vote in both Houses. Then, and only then, can any organisation that thinks that it should not have been proscribed because its members are not terrorists start a process to undo the proscription.
One of the arguments that struck us as central was that there should be a process, independent of the politicians, for adjudication on whether the criteria for proscription had been met before proscription had taken place.
§ Mr. Hogg
The hon. Gentleman spoke of starting a process to undo the proscription. He was, of course, referring to the appeal procedure mentioned in clauses 4 and 5. As he will know, the criteria in clause 5 are the judicial review criteria. The decision to proscribe will not be reviewed on merit; rather, it will be asked whether it was an irrational decision. That is a quite different test.
§ Mr. Hughes
With respect, I was about to deal with the fact that the procedure thereafter is only partial—and the right hon. and learned Gentleman put very well the way in which it is only partial.
This is the process: the Secretary of State decides that an organisation ought to be proscribed; he presents an order to Parliament; there is a debate lasting an hour and 421 a half in both Houses, following which the Government would normally expect to whip their majority through the Lobby. Proscription then takes place immediately. Thereafter, there is a non-judicial process, starting with clause 4. Either the organisation concerned or anyone affected by the proscription, under regulations that have not yet been seen or approved, will apply to a proscribed organisations appeals commission.
We had a big debate about whether what was appropriate was a commission—another body that would do only that job in the United Kingdom and that would be specially appointed. At no stage other than on a point of law and later can there be any legal review. From the discussions in Committee, it seems that an application can take place only on the basis of a failure of process—some technical deficiency—or on the basis of the court saying that the Secretary of State and Parliament could not reasonably have come to that decision. As colleagues will know, effectively, no opportunity is allowed for a judicial overturning of the decision.
§ Mr. Winnick
Is there not a possibility that the amendment, although it might seem reasonable, would weaken the Government's powers to deal with some notorious organisations from abroad that are involved in terrorism and want to campaign on the most subversive grounds in this country? One or two organisations in the UK have been banned in countries in the middle east, yet operate freely here, intimidating students, in the main, from countries in the middle east, which is totally unacceptable.
§ Mr. Hughes
I hope that I can persuade the hon. Gentleman that, while I accept what he has said, he can support the amendment. I accept his premise. There are such organisations. They do work here. They do have an effect on students and people who are nationals of the same country as their members who are now here, and who work in a way that we would not condone. We are clear that it is our policy and position that there should be a UK-wide legislative framework and that, in theory, it should be able to deal—it does not happen yet—with international or national organisations from abroad, so I am with him.
§ Mr. McNamara
The hon. Gentleman rightly says that judicial review is not sufficient because it is hard to see a case being overturned by that means. But when the gays in the military case went to the European Court of Human Rights, it ruled that judicial review was not sufficient and that a case could be examined on its merits.
§ Mr. Hughes
That is correct, for the reason that we discussed earlier. As of 2 October, everything in the Bill will be reviewable under the European convention in domestic courts in the UK. In the case to which the hon. Gentleman alludes, the convention was used to hold that fair process had not been provided, so the hon. Gentleman is right to say that there is a qualification to the rather limited review process.
There is in the Bill a process for undoing proscription. In later clauses in the same part, there is a provision whereby the Secretary of State can come before the House to de-proscribe. That happens in a similar way.
My hon. Friends and I are asking the House to agree to a proposition that says that it should not be for the Secretary of State alone—of whatever party, in whatever 422 Administration—to make a decision without someone other than politicians having a view that there is evidence sufficient to get across the threshold. I take the point of the hon. Member for Walsall, North (Mr. Winnick). If he thinks about it, if Ministers wanted, on the basis of intelligence advice that they had received, to proscribe an organisation from the middle east, Northern Ireland or Ireland, they might not wish, or be in a position in the interests of security, to come to the House with the information. For understandable reasons, they might not be able to tell us all their reasons for wanting to proscribe an organisation. It has long been agreed that security matters are not discussed in the House. Answers from Prime Ministers have indicated that during every Administration since I have been a Member.
That means that the most serious decisions could be taken about organisations of which we knew little. The organisation and everyone in it could be proscribed. There would be a remote chance of overturning proscription if an application were made in this country, although the organisation might not be based here, but the Minister who sought Parliament's approval on trust on the information that he had been given would be the only authority for its proscription.
I do not mean to undermine the role of both Houses in questioning such decisions. On security matters, however, we know to our cost—although we have members of the Security and Intelligence Committee—that there are many things about which we are not told, and certainly things about which we are not told until long after the event. We seek to provide an external adjudicator who can consider the evidence to see whether a reasonable test has been passed. It would be bizarre not to do that.
The Bill, which many of us consider draconian in many respects, requires police constables seeking certain things and those who request special powers to go to court to ask for them. It would be unusual if a move as draconian as proscription did not require a Minister to go to some authority independent of the state and the Executive before the event to say that evidence supported it.
Amendment No. 186 makes a simple proposition. The Minister should satisfy a judicial authority that there are reasonable grounds for believing that an organisation is concerned in terrorism, and the judicial authority should issue a declaration that there are reasonable grounds for the exercise of the Secretary of State's power. That simple process of seeking a declaration is used every week in the courts under administrative law. A judge could hear the case in camera, and the Minister could come to the House with the authority of a declaration.
§ Dr. Godman
I was going to ask the hon. Gentleman what he meant by a judicial authority, but he has told us that he means a judge who would deliver a formal opinion. May I point out that the Lord Advocate, who is referred to in proposed new section 4A(c), is a Law Officer and therefore a member of the Government? The hon. Gentleman may think the point technical, but he should refer—
Mr. Deputy Speaker
Order. The hon. Gentleman may wish to make a speech, but his intervention is too long.
§ Mr. Hughes
Judicial authorities are defined for other purposes elsewhere in the Bill. Sometimes the authority 423 is a senior magistrate. In this sort of case, according to the advice that I took—I do not pretend that it was the highest in the land—in England and Wales and in Northern Ireland, the authority should be the Lord Chief Justice, who deals most with criminal matters. In Scotland, the position is slightly confused—I mean no criticism—by a recent ruling of the European Court of Human Rights about when judicial appointees may have political roles. I am willing to be corrected: another senior judge may be more appropriate in Scotland. I shall not press amendment No. 187 to the vote because there may be better suggestions. However, the principle is that, in each of the three jurisdictions, a senior judge should be the person who issues a declaration that there is evidence for proscription.
§ Dr. Godman
The Lord Advocate is not a judge but a Law Officer, and hence a member of the Government.
§ Mr. Hughes
I know that. Nevertheless, the advice was given that he might be the appropriate person. The point that I was trying to make was that, because of a recent ruling—which the hon. Gentleman, as a Scottish Member, will know as well as if not better than I do—in Scotland, the issue of re-defining appointments is being considered. It has been ruled that in certain cases involving sheriffs, and in other matters that are not irrelevant to the issue that we are debating, there is a conflict.
§ Mr. Fisher
Will the hon. Gentleman explain to the House how the scrutiny of the judicial body would be more rigorous than the scrutiny of the House? He made the valid and justifiable point that the House might not have in its possession all the material necessary to scrutinise a case, but would not that apply also to the judicial body?
§ Mr. Hughes
The answer to the hon. Gentleman's perfectly good question is that there is much precedent establishing the courts' ability to see in camera—effectively, in private—the Minister's evidence for proceeding with a case, although that evidence could not be provided to Parliament. Quite often, courts decide cases on the basis of papers that are given to them, and on which they form a view. I am not criticising the fact that Ministers could not give that material to Parliament. Ministers would give Parliament an assessment and some information, and offer a view on the case. However, at that stage, we would not necessarily be able either to question the assessment or to elicit necessary information.
As the hon. Member for Walsall, North said, decisions sometimes have to be made quickly. If there were information about an imminent terrorist attack in this country by a foreign organisation—or about an attack abroad by an organisation based in the United Kingdom—action would have to be taken speedily. That does not mean that there should not be some way of our stopping that action being taken, to the severe detriment of individuals and organisations.
We are trying to balance measures affecting the individual's liberty with security. Individuals could wake up one morning to discover that an organisation to which they belonged had been proscribed although they would have had no say at all in that decision, and no opportunity 424 to argue or resist the designation with all its consequences. We also have to consider the practical difficulties of overturning such a decision.
The question is whether we should give powers only to the state, the Government and Parliament, or allow a body that is independent of politicians to make an adjudication. I hope that the House will feel that it is appropriate to provide for judicial oversight; that such oversight adds something; and that it will provide great protection, should severe action—proscribing an organisation—be taken. The United Kingdom has never taken such action against a non-Irish organisation.
§ Mr. McNamara
I listened with increasing confusion to the speech of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). I have a gut feeling against any type of secret court, but he seemed to be describing precisely the type of situation—against which the European Court of Human Rights ruled in the gays in the military case—in which there is no opportunity to examine the case's merits.
The hon. Gentleman has not thought the matter through. Although he rightly criticised the procedure proposed in the Bill, he has not stated clearly whether we should follow that procedure, accept the drawbacks of judicial review or accept the Strasbourg Court's action to overcome those drawbacks. Indeed, I thought that he slightly—but unintentionally—misled the House when he said that courts issue declarations every day. They do, but they give their reasons for doing so. They do not simply state, "On the evidence that I have seen—therefore … "
Ever since the Scott inquiry, the courts have been scrupulous about issuing declarations such as public interest immunity certificates. Governments have to demonstrate whether issues are relevant to a specific decision, and whether material should be disclosed to the parties. I cannot envisage that the courts would want to find themselves subject to all sorts of criticism on the basis of their reaching decisions, when the people involved in the case know nothing about those decisions.
The hon. Member for Southwark, North and Bermondsey is looking at the purpose of proscription somewhat wrongly. I am not certain about the value of proscription, but I believe that its main purpose is to show society that to belong to or to support particular organisations is not desirable for a whole host of reasons—because they shoot people and do other nasty things seeking to subvert the state. The state must give reasons for proscription.
It is worth arguing whether proscription is a good or bad idea, but reasons must at least be given for proscribing an organisation. If no reasons were given, one would want to know why an organisation was proscribed. The list of proscribed organisations shows that, at one time or another, they were associated with actions that, under the old legislation, would have been considered to be acts of terrorism.
I object to the amendment on two grounds. First, the hon. Member for Southwark, North and Bermondsey has not thought it through and, secondly, he has completely misinterpreted the role and purpose of proscription.
§ Mr. Hogg
I shall be brief. This debate flows from the fact that we have a wide definition of terrorism. What is troubling the hon. Member for Southwark, North and 425 Bermondsey (Mr. Hughes) is that Ministers will come to the House seeking an affirmative resolution and have within their knowledge material that they cannot disclose to the House, so there will be a judicial filter. I have some sympathy with that approach, but it is probably not a judicial exercise. I do not think that the Lord Chief Justice or anyone else would want to exercise it.
The problem goes a little further, however. The power to proscribe can be exercised under clause 3 if the organisation to be proscribed is engaged in terrorist activity, but that test should not be sufficient. For reasons that we have demonstrated in previous debates, many organisations pursue activities that are capable of constituting terrorist activities, but their activities are not such that the House would think it proper, right, appropriate or in the public interest to proscribe them. Thus the real question that the House ought to consider is not a judicial filter, but whether the proscribing power should be extended so that, first, the organisation has to be committing acts of terrorism and, secondly, it is in the public interest to proscribe them. Unless the second test is written in, it will be possible to proscribe simply because an organisation is pursuing activities that fall within the definition of terrorism.
That takes us back to the miners, demonstrators and hunt saboteurs who pursue activities as defined, but nobody wants them proscribed, however beastly they may be. We should, therefore, build into clause 3 a further test that addresses the public interest.
§ Mr. Lidington
I shall speak to amendments Nos. 162 and 163, which stand in my name, and then comment briefly on the amendments moved by the hon. Member for Southwark, North and Bermondsey (Mr. Hughes).
Amendments Nos. 162 and 163 would require the Lord Chancellor to consult the chairman of the Intelligence and Security Committee about appointments to the proscribed organisations appeal commission and about the rules under which that commission should operate.
I do not want to labour the point, as the subject was alluded to earlier. I tabled amendments Nos. 162 and 163 because it is important to find a way in which to involve the Intelligence and Security Committee, and the Select Committee system more generally, in overseeing the work that the Bill will set in hand.
We are in the course of establishing a range of commissions, authorities and commissioners, whose duty will be to oversee Ministers' work in respect of various aspects of security and intelligence, and it is time to give serious thought to how best to involve parliamentarians in appropriate scrutiny and oversight of that work.
I am dubious about amendments Nos. 186 and 187. The decisions that the Bill requires of the Secretary of State in respect of proscription are exactly the sort of responsibility that Secretaries of State are there to carry out. If we ask a judge to look at acutely sensitive security material—perhaps details of informants—we are putting that judge in an invidious position, as it would be normal judicial practice to look at both sides of the argument and, if possible, to allow either party to make representations about the other's evidence.
Under the amendments, we would be asking the Lord Chief Justice and others to take on what is properly a role for the Executive. It is right that Parliament should hold the Secretary of State to account for such important 426 decisions. If Parliament does not have confidence in the persuasiveness of a Secretary of State's argument, it has the right and the responsibility to refuse the order and leave the organisation unproscribed. That is proper parliamentary accountability and the better way to proceed.
§ Mr. Charles Clarke
Amendment No. 1 and the other Government amendments are technical amendments concerning proscription, and I will not go into the detail of them.
On amendment No. 186, I agree with the points made by the hon. Member for Aylesbury (Mr. Lidington): the decision is for the Executive. The issues that have to be taken into account include the nature and scale of the activity, the specific threat posed to the United Kingdom and to UK citizens abroad, the extent of the organisation's presence in the UK, the need to support other members of the international community in the global fight against terrorism and the importance of deterrence.
The Home Secretary and the Executive are the right people to take those decisions, with accountability to Parliament in the way that the hon. Member for Aylesbury described. I hope that the House will reject the amendment if it is pressed to a vote, but I urge the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) to withdraw it.
I understand the motive behind amendments Nos. 162 and 163. It is a perfectly reasonable proposition that we should find a better way of binding the parliamentary process into the procedures. As I wrote to Committee members following this discussion in Committee, the role of the Intelligence and Security Committee is defined in section 10 of the Intelligence Services Act 1994. It isto examine the expenditure, administration and policy of—
It seems unlikely that the ISC's remit as currently established would allow for the role and responsibility that the hon. Member for Aylesbury has suggested, although I appreciate his motives and I am happy to consider other proposals that he may have for more effective integration.
- (a) the Security Service;
- (b) the Intelligence Service; and
- (c) GCHQ.
I hope that the House will support the Government amendments and that the others will not be pressed to a vote.
§ 12 midnight
§ Mr. Simon Hughes
I am grateful for the other contributions to this debate. Good and valid points were made by the hon. Members for Hull, North (Mr. McNamara) and for Greenock and Inverclyde (Dr. Godman), as well as by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). I do not agree with the view of the hon. Member for Aylesbury (Mr. Lidington) that there may not be an appropriate forum for other people to have a say in the process. If there is a method that would command greater support in terms of the public interest test, rather than a traditional court proceeding, we could reasonably consider it. On that basis, I shall seek the leave of the House to withdraw the amendment and I shall talk to my colleagues 427 to see whether we can increase citizens' powers and reduce the state's power slightly. I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.