The House of Commons debated yesterday, and approved, the draft Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015. During the debate Bill Cash made the following interventions and speech:
The Minister for Security and Immigration (James Brokenshire): I beg to move,
That the draft Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015, which were laid before this House on 12 March, be approved.
(…) This secondary legislation has been brought forward to implement measures in the Counter-Terrorism and Security Act 2015. The measures were debated by the House very recently and the primary legislation was enacted only on 12 February. During Parliament’s consideration of the legislation, there was widespread recognition of the threat from terrorism and broad support for the measures in the Bill. The instruments bring to life two of those important provisions. In passing the legislation in February, the House accepted the need for these measures.
I should inform the House that the Joint Committee on Statutory Instruments has considered both the instruments we are debating. I place on the record my appreciation for the forbearance that was shown by the Chair and members of the Committee in considering the instruments outside the normal time scales. The Committee cleared the Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015, but drew the attention of both Houses of Parliament to the Civil Procedure (Amendment) Rules 2015. I shall return to the issues that were highlighted by the Joint Committee later in my contribution.
It may help the House in its consideration of the instruments if I briefly outline what the Government seek to achieve by them and why we have brought them forward at this time. The regulations have been brought forward in respect of part 5 of the 2015 Act, which is concerned with reducing the risk of people being drawn into terrorism. During the recent debates on the primary legislation, there was a very informed debate on the duty that is imposed by section 26 of the Act, which is known as the Prevent duty. The regulations are crucial to the effective implementation of the new duty.
The purpose of the regulations is threefold. First, they amend schedules 6 and 7 to the 2015 Act to add Scottish bodies to the list of authorities that are subject to the Prevent duty and to those that are listed as partners to local authority panels, which are required to be in place by section 36. Those panels form part of the Channel programme—the deradicalisation programme—in England and Wales, and Prevent Professional Concerns in Scotland, which are programmes designed to provide support to those who are vulnerable to being drawn into terrorism.
Secondly, the regulations make a number of amendments to the Act that are consequential on adding those Scottish bodies. In particular they ensure that Scottish further and higher education institutions will have the same requirement to have particular regard to the need to ensure freedom of speech and the importance of academic freedom while complying with the Prevent duty as their counterparts in England and Wales. It has always been the Government’s intention that provisions in part 5 of the Act would apply to bodies in Scotland. We have consulted Scottish Ministers, and they are supportive of adding Scottish bodies to the duty.
Thirdly and finally, the regulations will bring into effect guidance issued under section 29(1) of the Act for specified authorities in carrying out the Prevent duty. The guidance sets out the detail of what that duty will mean in practice for authorities subject to it, and seeks to explain the steps that should be taken to best secure compliance.
The House will recall that the Government introduced an amendment to the Bill to ensure that the guidance will only take effect following Parliament’s approval. During the passage of the Bill, a formal public consultation on the draft guidance took place, and hon. Members will have read the summary of responses referenced in the explanatory memorandum. More than 1,700 responses were received during the consultation, and another 300 people were reached over the course of five events held in London, Manchester, Birmingham, Cardiff, and Edinburgh. The responses enabled a thorough revision to take place, and the results of that revision are now before the House.
There are two versions of the guidance: one for authorities in England and Wales, and a separate one for authorities in Scotland. Following discussions with the Scottish Government, the Government decided that separate guidance that specifically addresses the particular circumstances of Scotland would be more helpful than trying to address those circumstances through one set of guidance. The Scottish guidance has also been subject to consultation through a targeted process undertaken by the Scottish Government.
Hon. Members will have noted that neither document addresses the issue of managing speakers and events in further and higher education institutions. How universities and colleges balance the Prevent duty with the need to secure freedom of speech and have regard to the importance of academic freedom is an extremely important issue that requires careful consideration. On account of that, the Government amended the legislation to ensure that institutions pay particular regard to the importance of academic freedom and freedom of speech when complying with the Prevent duty. As I made clear during the passage of the Bill, that freedom is important in challenging extremist views and providing almost an antidote to some of the extremism that might take place were it not for that challenge. We shall use the time before the duty commences to produce further guidance on managing speakers and events in further and higher education institutions, and it will be for the next Government to bring that to Parliament early in the next Session for the approval of both Houses.
Sir William Cash (Stone) (Con): In the context of human rights legislation, and particularly the Human Rights Act 1998 and the charter of fundamental rights, which is increasingly being brought in by the European Court of Justice, does the Minister believe that these proposals, and many aspects of the Counter-Terrorism and Security Act 2015, will survive against those in the human rights lobby who are determined to put human rights ahead even of the prevention of terrorism?
James Brokenshire: Yes, I am confident of that. Obviously, we considered the implications of the Human Rights Act when the primary legislation was taken through this House. That does not necessarily mean that it will not be subject to legal challenge—we have legal challenge for all forms of legislation—but we are confident about the way the measure has been brought forward, and it touches on the competency of member states in national security issues. I recognise the long-standing and consistent approach that my hon. Friend has highlighted, and I am sure he will continue to highlight it to ensure that we get legislation in the right place and properly consider human rights challenges and other issues in that regard. I welcome his intervention.
As for the guidance itself, it is essential that it is accurate and workable for all institutions. It is not the Government’s intention that the duty in respect of higher education and further education institutions should commence for those sectors until guidance on speakers and events has been published. This, as I have explained, will of course be for the next Government to carry through.
It is important to take the opportunity to remind the House of the purpose of the new duty and its importance. The emergence of ISIL and the number of people—particularly vulnerable, young people—who have misguidedly travelled to Syria and Iraq present a heightened threat to our national security. The intelligence agencies tell us that the threat is now worse than at any time since 9/11. It is serious and it is growing. The threat has changed and so must our response.
As part of that response, we need to continue to combat the underlying ideology that feeds, supports and sanctions terrorism, and to prevent people from being drawn on to that path. The Prevent duty will ensure that such activity is consistent across the country and in all bodies whose staff work on the front line with those at risk from radicalisation.
(…)
Sir William Cash: My hon. Friend can probably guess that I am about to ask a question similar to my last one about judicial oversight, the charter and human rights legislation. I am sure he recognises that there is a potentiality, if not a certainty, that these matters will be challenged, particularly the exclusion orders. Does he not think that there is still time to consider imposing a restriction on those who have repudiated allegiance to the UK to prevent their returning to the country?
James Brokenshire: My hon. Friend tempts me into a broader debate that extends beyond the statutory instruments and deals with preventing from returning to this country people who have engaged in activity contrary to the interests of this country. This issue was considered at length in this House and the other place, and it was determined that TEOs were the appropriate mechanism, considering our international obligations and the issues he highlighted of legal challenge and ensuring an effective mechanism. We judge that the TEOs provide this, but we recognise the potential for challenge. Indeed, we have built in an oversight process through the scrutiny of the judiciary.
I hope that I can assure my hon. Friend that the rules are based on those used for similar preventive measures, such as terrorism prevention and investigation measures, some asset-seizing legislation and closed material proceedings, and therefore are based on the experience and judicial oversight applied to those rules. I hope that gives him some assurance of the careful consideration we have given to the rules.
Sir William Cash: I raised this question precisely because of my concerns about how the judiciary is effectively subordinated to the European Court of Justice, which overrides not only our Supreme Court but this Parliament. On matters concerning TPIMs, control orders and the rest of it, the Minister knows that people who should never have been allowed out have continued their stay.
James Brokenshire: I can assure my hon. Friend that TPIMs are robust and that we have taken steps to ensure their legal compliance. That was considered when they were introduced and during the passage of the Terrorism Prevention and Investigation Measures Act 2011. I fear that I am straying from the statutory instruments, but I recognise his challenge and assure him that our consideration of the rules reflected our experience of similar orders and some of the operational legal practice that the rules intend to operate.
The regulations are needed to implement effectively the Prevent duty across England, Wales and Scotland, which ultimately will help the Government and law-enforcement agencies to keep the country safe from terrorism, and the court rules govern proceedings that are essential to ensure appropriate safeguards for the TEO. With those comments, I hope the House will be minded to support the instruments.
(…)
Sir William Cash (Stone) (Con): In the couple of interventions I made on the Minister and on the shadow Minister, I returned to a point I made in the lead letter in The Sunday Telegraph of 8 March. Following its lead of the previous week, I said that we were talking not about just an accident, but about a failure of legislation in dealing with the question of human rights and the charter of fundamental rights in relation to all the matters we are now discussing and to the whole problem of counter-terrorism. The Minister has had a pretty hard time from me over the past couple of years on this subject, but I wish to say to him that I acknowledge that difficult issues are clearly involved here. I am not denying that for a minute. But many of us were deeply disturbed when in a recent discussion—I cannot give the precise details but I am paraphrasing—the question arose as to whether taking action against terrorism would have human rights consequences. In that instance, the human rights lobby indicated that human rights should prevail.
I find that view completely impossible to understand, not least because the first human right is the right to be secure—the second, and equal, human right is the right to life. We have only to consider what happened in the case of Lee Rigby or in the case of the terrible murders that have been taking place in parts of the middle east to realise the difficulty that such a view represents. On the simple proposition that human rights does not trump terrorism, we have to be absolutely clear. I am very glad to see a slight nod from the shadow Minister, because she knows that this is true. But the trouble is that there is a tremendous amount in these documents—I will not make a long speech on this, but will simply get it on the record. We discussed judicial oversight in relation to an amendment when these matters were before the House of Commons. I cannot remember whether the amendment was defeated or withdrawn, but it then went into the House of Lords and it was that shambolic debate that we recall. Judicial oversight has now come in. My point is about the substance of the issue: if judicial oversight is part and parcel of these issues before us today, then on the basis that the judges have to obey the law and the law does invoke the question of human rights, be it under the European convention on human rights and the Human Rights Act, or the more difficult and invasive charter of fundamental rights, which is justiciable by the European Court of Justice, we have got a real problem on our hands in dealing with terrorism. The reason why many people whom we have tried to deport—in some cases for more than a decade—were not deported was to do with human rights. Everybody should be in favour of human rights, but there are questions over how they are applied and what the procedures and thresholds are.
I conclude with this thought: we have not got it right. As I said in that letter in The Sunday Telegraph, tinkering with control orders, TPIMs and the rest of it, might go some way to dealing with the problem but it will not resolve the issue if people can launch a challenge in the courts based on human rights or the charter of fundamental rights. They will not be deported and they will not be dealt with.
In the Prevention of Terrorism (No. 2) Bill that I introduced in 2005, I proposed that we should override the human rights laws to ensure the security of the citizens of this country. I said that habeas corpus was absolutely fundamental. All people who are accused of a crime, whether of terrorism or anything else, are entitled to a fair trial and due process. If we have those two things, and we override the Human Rights Act and the charter, we are in a position to deal with the problems, to satisfy the requirements of fair and judicial process and to ensure that the people have a proper trial.
My final thought is on this question of whether terrorists can get away with what they do. We know that there are many sleeping terrorists, so we are talking about a question not of if there is some form of terrorism, but of when. We should remember that the charter of fundamental rights, which came in under the Lisbon treaty, is much more difficult to deal with than the Human Rights Act, because of sections 2 and 3 of the European Communities Act 1972. In the context of the judicial process as a whole, it is imperative to recall that those on both Front Benches during the Lisbon treaty debates wanted to exclude that charter.
In one of his last statements to the House, Tony Blair, the then Prime Minister, said that we had an opt-out from the charter. We in the European Scrutiny Committee took evidence on that matter. Lord Goldsmith, who analysed and negotiated the arrangements in the Lisbon treaty, gave evidence. Sadly, those arrangements did not work and we are now finding that the European Court of Justice is continuously getting involved in applying the charter on a case-by-case basis. My concerns about the charter remain in relation to terrorism. Unless we resolve that, we will not be able, either under these orders or other terrorism legislation in general, to provide the security and stability that the people of this country deserve.
