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The question is whether the new legislation will move us closer to compliance with Security Council resolution 1373. I do not believe that it will, because we will still have the grounds of reasonable suspicion for making orders, rather than the commission or attempted commission of terrorism acts. There will not be a right of appeal on the facts, and I take issue with the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) on that. He said in an intervention that all the Government would have to prove was that a Minister had acted on reasonable suspicion. That is not right, because on judicial review, the claimant, not the Government, would have to prove on the Wednesbury test that the Minister had acted in such an unreasonable way that no reasonable Minister could have concluded
that there was reasonable suspicion of an offence having been committed. Let us remember that that is on the basis of the person concerned not even having a case against them in the first place.
A lot of the evidence will be closed, possibly through the special advocate procedure, and not open to the person involved. It might possibly be available through gisting, but certainly the whole case will not be available to them. If there were a case against them, the chances are that they would have been charged and prosecuted. The prospects of judicial review under the new legislation are a chimera, because it would be impossible to secure judicial review to challenge the basis on which orders are made. We have to have a proper judicial right of appeal, as with the decisions of Sir Thomas Legg, as the hon. Member for Poole (Mr. Syms) said. If we are entitled to have that right on the question of our expenses, surely people in the circumstances that we are discussing are entitled to have a similar procedure to challenge the freezing of all their funds and assets, no matter how small they may be. Judicial review is simply not a fair way of dealing with the issue.
We have heard about legal aid and living expenses being provided under the licensing regime. I challenged my right hon. Friend the Chief Secretary about how that could be appealed against, and he said that it could be challenged in court. Again, however, that would be under the same judicial review test. He gave the example of buying trainers or books, but do we seriously expect a vast amount of legal aid money to be wasted on a judicial review challenge about whether somebody is entitled to buy books or trainers for their kids? That would be the consequence of there not being a proper right of appeal, judicial or otherwise, on the facts of what has been decided, which cannot be fair or right.
Transparency is of course important, but let us remember that in most of these cases we will publish people's names. This is the first counter-terrorism judgment that I have read that names the individuals concerned. In other cases, people are called Mr. A or Mr. B or whatever-their anonymity is protected because they have not been convicted of any offences, and quite rightly. Those in the 14, 28, or 42-day cases have their anonymity protected, as do those subject to control orders, but those in the cases to which I have referred do not. It would be difficult to protect anonymity and achieve the object of the freezing order, but we need to think about some degree of confidentiality. It might be okay to tell the banks, but is it fair to broadcast it to the next-door neighbour?
There are many issues of fairness in the Bill. I suppose the Minister will say, "Well, this is determining a civil issue, not a criminal issue," but time and again that argument has been thrown out by the courts. Whether we like it or not, when it comes to counter-terrorism legislation, the courts determine criminal responsibility, which should be done using the criminal test.
I have grave doubts about the Bill. The right hon. and learned Member for Sleaford and North Hykeham mentioned the Joint Committee on Human Rights sixth report of 2003-04. That report was published before I was on the Committee, but I wholly agree with its endorsement of the recommendation of the Newton Committee
"that freezing orders for specific use against terrorism should be addressed in primary legislation".
I think we all agree with that, which I suppose is why we are here today. If that had been done at that time, we would not be here today and the matter would have been resolved long ago.
The Joint Committee report also states clearly that
"judicial review provides only a very limited protection against legislative orders of this kind".
I concur with that. The draft legislation that we will soon be debating simply does not provide the required safeguards. I say to my right hon. and hon. Friends on the Front Bench that I suspect that after the Joint Committee has scrutinised that Bill I will be making a similar speech, should I be re-elected.
7.12 pm
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): I will be fairly brief, because I know my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) and my hon. Friend the Member for Woking (Mr. Malins) want to speak and the winding-up speeches will start in about half an hour.
I begin by repeating what I said in the debate on the timetable motion: I accept that the Bill must pass and that it would be very unsatisfactory not to have such legislation in place, but I recognise that fact with an extremely heavy heart, because I deplore the process and what we are about to do. The Bill re-enacts the statutory instruments that were much criticised by the Supreme Court. We have been reminded by a number of right hon. and hon. Members as to the trenchancy of the criticisms of those orders made by, for example, Lord Hope.
The 2006 order went through without any parliamentary scrutiny at all. That is an extremely bad thing. We were told by the Chief Secretary to the Treasury that that was permitted by the 1946 Act, but that is not the view of Lord Hope, who said that that measure did not justify the insertion of the reasonable suspicion test. In any event, however, while the Act might have so permitted, it certainly did not require the passage of such measures by way of secondary legislation. What in fact we are doing today is simply re-enacting in primary legislation what was previously in secondary legislation that was deemed offensive in almost all its particulars by the Supreme Court.
It is worth reminding oneself of the scope of the 2006 order, which is being replicated in primary legislation. In the first place, the order creates quite serious criminal offences, which are punishable by a maximum of seven years. That is not trivial. Secondly and differently, to take up the point made by the hon. Member for Walthamstow (Mr. Gerrard), the designation of the person involved in terrorist activity simply involves the reasonable suspicion test, which is a very low standard of proof. In addition, there is no way of challenging that designation outside the judicial review mechanism. As I think everyone but the Chief Secretary recognises, the judicial review mechanism provides a very limited form of review.
One matter of concern to me is that the draft Bill that the House may be asked to consider in due course relies on judicial review as the only safeguard. I agree very strongly with the hon. Member for Hendon (Mr. Dismore), and indeed all others who have spoken, that there needs to be some way of reviewing the issue on the merits. The
2004 Joint Committee report echoes that point. Moreover, the freezing orders are extraordinarily wide in scope. So far as I am aware, having looked at both the draft Bill and the 2006 order, there is, aside from judicial review, absolutely no way in which the scope of the freezing order can be impugned.
I do not think that there is any good reason why proper safeguards should not have been written into the Bill. In fact, there are a number of models on which one could have drawn-pick them off the shelf! The special counsel procedure in control orders is a case in point. I very much dislike that process, but it is better than nothing. There is no point in the Government's arguing, "Well, we couldn't do that, because we thought we were going to win the case in the Supreme Court." That shows that they were jolly badly advised, because they did not win. Not only did they not win, but as the hon. Member for Twickenham (Dr. Cable) said, the orders were criticised with remarkable robustness by people whose role in life is generally to understate rather than overstate their views. The Government lost not only for legalistic reasons, but for reasons of substance: the Supreme Court thought that the powers given were too draconian.
That was also the view expressed in the 2001 report under the chairmanship of my right hon. and noble Friend Lord Newton of Braintree of the predecessors of the hon. Member for Hendon on the Joint Committee on Human Rights in 2004. The Government have been told time and again that such measures ought to be in primary legislation, not only because primary legislation is the proper vehicle, but because that process enables the House and others properly to review what is proper. On any view, therefore, what we are doing today is draconian.
The measure will last for a year or so, and the sunset clause is in place, which I welcome. I hope that my hon. Friends will forgive me if I dissent from them slightly, but I think that a March sunset is probably too soon, because this is a difficult area of law. I agree with whoever said that he did not want to see our rushing through new legislation that has not properly been considered. I am inclined to think, with some hesitation, that March is too soon, and that even July is too soon. My disposition, with a heavy heart, is to go for the timing in the sunset clause.
I will be happy to end my speech after this point, because I know that my right hon. Friend the Member for Suffolk, Coastal and my hon. Friend the Member for Woking want to speak. We are doing something that is pretty draconian. There is an essential rule in life that one must observe if one is a parliamentarian: all power given away is always, on occasion, abused. That is certain. From that follow two very important consequences. First, one gives away the minimum of power possible to the officers of the state. Secondly, where one must give power away, one must restrict the exercise of that power with proper constraints, reviews and appeals. Under this Bill we are falling foul of both propositions, and I deeply regret that fact.
7.19 pm
Mr. Humfrey Malins (Woking) (Con): I will be brief. I wish to make basically two points, both of which are relevant to the issues under discussion, but have a wider application.
First, I shall say a few words about the importance of parliamentary scrutiny. Lord Hope referred in his judgment the other day to the importance of parliamentary scrutiny and the relationship between Parliament and the Executive-in short, to the ability of this House, through Back Benchers and Oppositions, to scrutinise what Governments are doing, whether in legislation, Orders in Council or whatever else.
I first entered this House 27 years ago. I believe that those 27 years have seen a diminution in our ability to hold the Executive to account and to scrutinise them properly and at length. The late Lord Weatherill, the famous Speaker, told me once that he kept a record of those speeches in this House that actually altered the course of events through the power of their arguments, and there were many in those days. Can you believe it, Mr. Deputy Speaker: speaker after speaker in this House arguing something, and the Government turning round at the end and saying, "They're right-we've lost the argument"? That is what I mean by parliamentary scrutiny. Compared with 25 or 30 years ago, we are impotent in this House when it comes to doing the job for which we were elected.
After parliamentary scrutiny, the next most important point I wish to mention concerns judicial remedy, which has been covered by many other speakers today. Designation and freezing orders are very serious matters indeed. They can have a real effect on a person's life, and not just in the short term, but in the long term. Over in the Council of Europe, which I attend from time to time, we discuss human rights. We have representatives from many different European countries, some of which have good records, some of which have bad records. A year or two ago, a Swiss lawyer, Dick Marty, brought up United Nations blacklists at the Committee on Legal Affairs and Human Rights, and we had a report on them. He told us what they were and what they meant. Through the United Nations, somebody could be put on a blacklist in relation to terrorist matters, and have their assets frozen and all the rest of it. He told us of a case in Switzerland where the restrictions were such that the person concerned could not leave his own canton, if that is another word for village.
Mr. Hogg: No, it means county.
Mr. Malins: My right hon. and learned Friend confirms that it means county.
The key point was this: what remedy did that man have in relation to that designation? The answer was none. We thought-and I think-that that was a disgrace. If we hand power to the Executive without giving the citizen a proper legal remedy-a right of appeal-we are not doing our duty. If we make a whole series of orders-designation orders, freezing orders and so on-that have such a dramatic impact on someone's life, do we as a Parliament not have a duty to ensure that we give that individual some hope of overturning them? Otherwise, what kind of world will we be living in?
My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and others have pointed out that judicial review is limited. The special advocate procedure is limited. However, we have to do something, because it would be terrible if, in years
to come, we move further in the direction of the Executive being able to do something nasty against citizens, who then do not have the right to say to an independent judge, "Listen, this isn't fair. It's not just. Please overturn it." That is one of the most important factors in our election to this Parliament: we are here to speak up for those who are dealt with in such a way by the Executive that they are defenceless. It is our job to protect them and ensure that they are protected.
Judicial remedies and appeals, and parliamentary scrutiny are two important aspects of this debate. I would hope-but we have not got the time. Oh dear! I hoped we would have had time to explore those issues at some length over the coming months, to ensure the basic rights of our citizens.
7.24 pm
Mr. John Gummer (Suffolk, Coastal) (Con): Today we are discussing what is, in fact, the main purpose of being a Member of Parliament-that is, how the citizen is protected. The danger is that all necessary terrorism legislation can easily be the means by which citizens' freedoms are eroded. Over the past 250 years of legislation, the moments of most danger to the citizens have been those when we became most aware of the danger to the nation. That is a natural link. It is extremely difficult when we face the realities of terrorism to be as careful as we ought to be about the realities of individual freedom. Yet we are fighting terrorism in order to defend that freedom. That balance is therefore essential in the defence of freedom. We are not putting the one against the other: they are both part of the same effort.
That is why I would suggest to the Government that they have done themselves a disfavour by not using the House of Commons as the mechanism by which they ensure that that balance is achieved. The Government have spoken as if, somehow, using secondary legislation-or, indeed, no legislation at all-in order to carry through their requirements has been a necessary consequence of the terrorist threat. In fact, it should be the other way round: the terrorist threat should lead the Government to come to the House of Commons to debate the issues, to ensure that what they do can then be seen as proportionate and just.
That ought to be true in the highest way, but I suggest that it also needs to be true in a rather lower way. Two of my colleagues who have spoken are lawyers. I am not a lawyer. I do not much like the way the courts make law. Law ought to be made here, but if we make the law badly here, we will encourage judges in their increasing desire to make law themselves. Faced with bad law, I understand the anger, which is the only way I can refer to the language used by the Supreme Court-a phrase I dislike entirely. I understand the anger of those judges, who saw that what they were dealing with was wholly contrary to their understanding of the demands of the common law. There is therefore a reason not only for the Government to take Parliament seriously in making such judgments for the bigger scene, but to ensure that the distinction between the purposes of the courts and the nature of Parliament is continued and supported, which is the other issue.
We also have to look carefully at the result of what we are doing today. I recently saw this connection in a wholly different way, but I have seen how, when organs
of government get the bit between their teeth, it is possible to act most unjustly in respect of individuals. What I have seen has seared my view, so I say this to the Exchequer Secretary, who is going to sum up this debate. One has to recognise that many of the people involved are at least innocent enough never to be charged. The figures are interesting, are they not? Of some 51 cases, 18 have been reviewed and dropped. The Treasury has suggested that that is a compliment to its review procedure, but one could think that it was a statement about the danger of the system, because it might be that those people should never have been on the list at all and that it is not the review procedure that should be praised, but the original decision that should be criticised.
Mr. Hogg: I hope that my right hon. Friend will forgive me for making a slightly legalistic point-I know he does not like lawyers very much-but if there had been a proper inter parte review, if he will forgive the phrase, the aggrieved party might have succeeded in many cases in which the Treasury has not reviewed the case in the person's favour.
Mr. Gummer: I entirely agree with my right hon. and learned Friend. That is what really worries me. I could not quite do the mathematics quickly enough, but if 18 cases have been reviewed, another 33 have not been reviewed-yet the people involved in them have not been charged. It is very dangerous to have 33 people subject to draconian punishment, when there has been no possibility for them to raise the issues in a way this House would see as reasonable for citizens of the United Kingdom.
Mr. Dismore: Another thing we do not know about the 18 cases that were reviewed is how long it took before the orders were lifted.
Mr. Gummer: The hon. Gentleman makes exactly the right comment, but that means that we are dealing with 51 people who, to any reasonable person, may have been subject to draconian punishment-I quote the judge in using that term-yet they may not be guilty at all.
I believe that Parliament must be very careful before making judgments based on an assumption that Ministers are decent people-I am sure that the Exchequer Secretary is decent and I am sure she will look at cases very carefully-who are therefore unlikely to get it wrong.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC) rose-
Mr. Gummer: Before I give way to the hon. Gentleman, let me say that I am a believer in the infallibility of the Pope, but it makes me extremely suspicious of the infallibility of anybody else. In that sense, I do not believe that Ministers are ever infallible. Parliament should never give to Ministers powers that depend on the degree of infallibility that a Bill like this one suggests.
Mr. Llwyd: The Government will always say that powers like this will be used strictly and only occasionally, but may I remind the right hon. Gentleman that, so far as is known, the Icelandic Government have never been involved in any terrorism, but their assets were frozen?
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