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'(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
(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
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
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.
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