Crime and Policing Bill

Committee (13th Day) (Continued)

Amendment 449

449: After Clause 185, insert the following new Clause— “Proscription process: parliamentary involvement(1) Section 3 of the Terrorism Act 2000 (proscription) is amended as follows.(2) After subsection (3), insert—“(3A) Subject to subsection (3B) the Secretary of State may not make an order under subsection (3) unless prior to making such an order, the Secretary of State has placed before the Intelligence and Security Committee (the ISC) or any committee which by statute may have replaced the ISC (the replacement committee), a statement of the reasons for making the order and the ISC or the replacement committee has published a report regarding that order.(3B) Subsection (3A) does not apply if the Secretary of State is of the opinion that by reason of urgency the requirements of subsection (3A) cannot reasonably be complied with and the Secretary of State has made a statement to Parliament to that effect.(3C) If subsection (3B) applies, the Secretary of State must within seven days of the making of the order, place before the ISC or the replacement committee, a statement of the reasons for making the order and within a reasonable period thereafter, the ISC or the replacement committee must make a report to Parliament.”.”

My Lords, in moving Amendment 449, I will speak briefly to Amendment 454. I am very grateful to the noble Baroness, Lady Chakrabarti, for her support for Amendment 449. I have a nasty feeling that I may be uniting my noble friend Lord Cameron and the Minister in opposition to my amendments; I will forgive them on this occasion. I am also extremely grateful to the noble Lord, Lord Marks, for his support on the previous group—I rather hope I might get some support from him on this occasion.

The purpose of Amendment 449 is to ensure that Parliament has as much information as possible before a decision to proscribe is made. I accept, of course, that it is not possible for Ministers to disclose in general debate all the information which they may have received in private and which, in their opinion, justifies proscription. I worked in the Home Office and the Foreign Office for around seven years, so I am under no illusions. Of course, the Minister, who has a similar track record, will be under no illusions either.

Having regard to the serious consequences of proscription, we need to do all that we reasonably can to ensure that, when a proscription order is made, Parliament is as well informed as it can be and that the justification for the order is well based. Otherwise, we are wholly reliant on the judgment of officials and Ministers. Without being unduly personal, on matters of such importance, I do not wish to be exclusively reliant on the judgments of Boris Johnson, Suella Braverman or Liz Truss—however informed and considered some may suppose them to have been.

Parliament’s Intelligence and Security Committee could provide a way forward. Amendment 449 would create a precondition to the Secretary of State’s ability to make a proscription order. Proposed new subsection (3A) would require that, if circumstances allow, before the Secretary of State makes an order, the Secretary of State must place before the Intelligence and Security Committee of Parliament

My Lords, I declare an interest as a member of your Lordships’ Delegated Powers Committee. Of course, I speak for myself only but very much with those concerns in mind.

As noble Lords have heard from my friend who is also noble—but I cannot call him a noble friend—the noble Viscount, Lord Hailsham, I will speak to his Amendment 449, which I support, and my Amendment 454. I am grateful for his support and, on the latter amendment, for that of my noble friend Lord Hain, who is very sensibly not in his place at this hour. I also thank the noble Lord, Lord Verdirame.

In contrast with the previous group—I am sad that there are not more participants from the previous group here—these are modest process amendments that are capable of uniting everyone who spoke for and against the various amendments in that group. Both these amendments are about increasing parliamentary involvement in and scrutiny of exceptional executive power—in particular, the power to proscribe an organisation as a terrorist organisation under Section 3 of the Terrorism Act.

To be clear—this may surprise some Members of the Committee—I believe that such powers are capable of being proportionate. In a democracy, no one should be allowed to organise a private army, in particular one that targets humans, and a democracy is proportionately able to respond by proscribing a terrorist organisation. It is none the less an awesome and exceptional power for the Executive to say that people will be prosecuted not just for their terrorist actions but for fairly broad and loose associations with people who may or may not be guilty of terrorist offences.

I do not say this to relitigate the proscription of Palestine Action, which came up at length in the previous group. Like the noble Viscount, Lord Hailsham, I ask Members of the Committee to think not just about past Prime Ministers who they have been sceptical of but about such powers being in the hands of future Prime Ministers, whoever they may be, as well as future Home Secretaries, because this is formally a power for the Home Secretary to prescribe guilt by association to anyone who expresses support for an organisation that may have some people in it who have committed offences of whatever kind.

I support the noble Viscount’s Amendment 449, which he expertly set out, so that the Intelligence and Security Committee, which is owned by Parliament, appointed by the Prime Minister—this is not an out-of-control democracy; it is still very tightly held—and, let us be clear, consists of people who have been vetted by the agencies and appointed by the Prime Minister, should have a role in scrutinising a proscription order, with all the consequences that were discussed. I remember the noble Baroness, Lady Fox, saying in the previous group that she was concerned about the recent proscription order. The ISC, which is underused, given its eminence and expertise, should have a role before the order is laid before both Houses of Parliament. I need not go on about that, because the noble Viscount has done it so well.

I will say a few words about my Amendment 454. It is a very short, simple and, I suggest, uncontroversial amendment that suggests that when organisations are to be proscribed—with all the consequences that may flow from that, not just for the members of that organisation but for the people who go on protests and hold up Private Eye, or whatever it is—they should be proscribed one at a time. Each order, signed by the Home Secretary and laid before both Houses of Parliament for one up-and-down, yes-or-no vote with no amendment possible—we know our parliamentary procedure—should address one organisation.

Why do I say this? It is because it would otherwise be open to any Home Secretary of whatever colour, in the past, present or future, to proscribe a number of organisations in a single order. Some of these may be pretty uncontroversial, as most of them have been in the past: al-Qaeda, Boko Haram, Combat 18, et cetera are organisations that plainly fall within any common-sense, let alone legislative, definition of terrorism because of the way they instrumentalise and target humans for violence.

However, these orders may currently also include more controversial choices, as we have heard in recent times. It should be open to Members of Parliament, in particular those in the other place, to say, “I agree with so many of these proscriptions but not with this one. Yes, this one is a direct action protest and nuisance organisation, but it does not sit with my definition of terrorism”. This is not a hypothetical, because these matters are currently before the courts. That is why I do not seek to relitigate the proscription of Palestine Action, although it came up today. The courts will deal with that, and we should remember that they have already found an arguable case around the recent proscription.

What if it is just one organisation per order? Just in case a speaking note over there with my noble friend says “Oh, but what if we need to proscribe many on the same day?” It is still possible. Just make multiple orders. But it will be one organisation per order so that no Member of Parliament or Member of your Lordships’ House can ever be told “If you vote against this order, you’ve just voted against the proscription of something like al-Qaeda”—even though it was the Women’s Institute that was included in the order. I mean no disrespect to the Women’s Institute. I think Members of the Committee take my point: one organisation per order and real scrutiny of each proscription. I really do suggest that there is no reasonable opposition to that if what we take seriously in this Committee is parliamentary scrutiny of exceptional executive action, however necessary it may sometimes be.

My Lords, I have added my name to both amendments in this group for the reasons that have been so eloquently set out by the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Chakrabarti.

The first point is that proscription is a very significant power for the Executive. The consequences are severe. Conduct that was hitherto perfectly lawful becomes not only unlawful but criminal. For that reason, we need to have proper checks and balances. The second reason, as the noble Baroness, Lady Chakrabarti, said, is that these amendments are actually quite modest. They do not try to limit or amend the scope of the criminal offences, which was the case with some of the amendments perhaps in the previous group; all they try to do is increase parliamentary scrutiny. To me, the case for doing so seems unanswerable.

The third point is that, as we know, there has been an intense debate on the proscription of Palestine Action, and views on that may differ. But my opinion is that, whichever view one takes, one should be able to support both these amendments—particularly in light of the very interesting exchange in the previous group between the noble Baroness, Lady Foster, and the noble Lord, Lord Marks, where the idea that seemed to emerge was that there might be some way forward on tightening “glorification” by reference to proscribed organisations.

But if the reference point is proscribed organisations, we must be absolutely certain that we are getting proscription right, and we must be able to interrogate fully any proscription that the Government decide. For that reason, I think there is simply no answer to Amendment 454. We need to have one order per organisation that the Government intend to proscribe. It is no answer to say that this would place an undue burden. Civil servants will obviously have to spend considerable time putting together the evidence for proscription and, as part of that, requiring them to prepare two different orders is not asking for too much. Nor is it an answer to say that this would be an increased burden for Parliament.

My Lords, I too support both amendments. I support Amendment 449 because proscription is a huge power. The noble Baroness, Lady Chakrabarti, used the word “awesome”, and it is indeed an awesome power: it can turn ordinary behaviour into crime. Parliament should not be asked to rubber-stamp those decisions without proper scrutiny. Proscription can criminalise membership, association and even everyday activity, yet at present these decisions are made almost entirely within the Executive, with very limited parliamentary oversight, and that concentration of power carries risks. It leaves decisions open to mistakes or overreach and of course it can also undermine public confidence in counterterrorism law.

Parliament and the public need assurance that proscription is based on sound reasoning, reviewed independently and grounded in evidence. One thing we did not really have when we were asked to proscribe Palestine Action was evidence. Since then, we have had hints of various kinds, telling us that we will see when the evidence comes out and we will understand why that proscription was justified. But so far, I would argue, it has not been justified. Independent scrutiny is particularly important when the intelligence underpinning a proscription is classified and supposedly cannot be shared widely. Where decisions are urgent or complex, having a committee report afterwards helps Parliament and the public understand the reasoning and reinforces the legitimacy of the action taken.

I would have also supported this going further to address the recommendation of the Independent Reviewer of Terrorism Legislation, David Anderson KC—the noble Lord, Lord Anderson—that proscriptions should be time-limited and expire after a set period, such as two years, unless Parliament is asked to proscribe yet again. As we know, once proscription has happened, in effect it lasts forever. Decisions this serious should not be made in private and left to drift. Parliament deserves a proper look at the evidence, so I hope that the Minister is going to bring us the evidence, as he keeps hinting in various speeches.

My Lords, I shall say a few words in support of Amendment 449 from the noble Viscount, Lord Hailsham, and Amendment 454 from the noble Baroness, Lady Chakrabarti. I do so on the grounds, really, that—

Apologies, I did not mean to put the noble Baroness off, I was just trying to recall whether she was here for the start of the group.

I came in just as the noble Viscount, Lord Hailsham, got up.

Apologies: please continue.