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11.45 pm

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

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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

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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

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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

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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.


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