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30 Oct 2002 : Column 890—continued

Mr. Letwin : The issues that my right hon. and learned Friend raises are worthy of debate, but does he agree that the criteria on the basis of which the Home Secretary makes the judgment are not just whether the organisation is in his view a terrorist organisation, but whether it poses a specific threat to the United Kingdom or to British nationals overseas; whether it has a significant presence in this country; and whether there is a need to ban it to support other members of the international community in the global fight against terrorism. Given that those are the criteria on the basis of which the Home Secretary is called to judge the matter, does it not follow that the proceedings will be parallel to those in the Special Immigration Appeals Commission, or judicial review on the basis of a full display of the evidence? The merits themselves cannot be questioned, but the commission will tend to ask the question that it is appropriate to ask in the light of the Wednesbury unreasonableness test. So will the commission not be investigating precisely whether the Home Secretary has sufficient evidence to be a reasonable person in making that decision? Is that not a sufficient safeguard?

Mr. Hogg: That may be true. Clearly, the commission in question determines whether the Secretary of State was acting intra vires and whether he was acting reasonably. That is different, however, from deciding whether the decision was right, and/or whether the evidence was sufficient on its merits to justify the conclusion. That is a different matter from reviewing procedure.

Mr. John Burnett (Torridge and West Devon): The right hon. and learned Gentleman is, of course, right. He has been consistent, and he is consistently right. It should be possible for the merits to be explored by a court, and that can be done without jeopardising security. I hope that he will elaborate on that point in the short time that is available.

Mr. Hogg: I was going to come to the next point, which is that there is a limited right of appeal to the Court of Appeal. In that regard, I am talking about the jurisdiction of England and Wales and not outside—the hon. Member for North Down (Lady Hermon) will forgive me if I do not refer to Northern Ireland on this point.

A right exists to appeal to the Court of Appeal in England and Wales, but only on a point of law and from the commission—there are rules in relation to getting leave for that. I return to the point that, in reality, the criminal law is being extended and civil rights curtailed without anybody outside the Home Office having the opportunity to review the evidence. I view that, as a matter of principle, with great anxiety; that is not to say that it is not right in this case, but we should be very cautious.

Simon Hughes: The right hon. and learned Gentleman will remember that when we debated the Bill, he, I and others sought to amend it to allow a review before prescription by a judicial authority that there were reasonable grounds. If the legislation were amended

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along those lines, would he be satisfied, or at least partly satisfied, that that would deal with the Executive power unqualified of which he is now critical?

Mr. Hogg: It would be better than the current position, but I will make a particular proposal, too. I have expressed my anxieties, and I now want to identify some further questions. I know that the hon. Member for North Down wants to contribute, and I shall give way in good time.

First, we need to be conscious that what are being proscribed are terrorist organisations. Terrorism is defined broadly in section 1 of the Act. Of course, that definition catches the four organisations that are the subject of the order, many of which are related to al-Qaeda. By definition, however, it also catches, for example, people who want to supplant Saddam Hussein. Distinctions exist between sheep and goats in relation to terrorism. Some terrorists are goats, and some are sheep. The interesting question is who makes that decision. In theory, of course, the House decides, as it has the right to refuse the order. As the hon. Member for Southwark, North and Bermondsey (Simon Hughes) rightly said, however, this is a rolled-up order dealing with four named organisations. It would be better by far to have single orders dealing with the four separate organisations.

David Winnick: Will the right hon. and learned Gentleman give way?

Mr. Hogg: If I may, I shall finish this point, and then I shall give way.

The point is that we need to know more definitively how the distinction between one set of terrorism, which we regard as good because it does not threaten us, and another set of terrorism, which we regard as bad because it does, is made. Nothing in the Act provides for that; it is entirely discretionary.

David Winnick: The right hon. and learned Gentleman knows as well as anybody—perhaps better, owing to his ministerial experience—how difficult it is for a liberal democracy to protect itself while protecting civil liberties, and, at the same time, to try as far as is possible to deny those who want to destroy us the opportunity of doing so. Although the right hon. and learned Gentleman says that there is no evidence—I do not expect the Home Secretary to give us all the detailed information any more than he does—I notice that he has not questioned the information supplied to us in the explanatory memorandum. Would he not be on safer ground if he said that he does not accept what the Home Secretary has stated in the memorandum, and that he therefore disputes that the named groups are terrorist organisations?

Mr. Hogg: I do not think that is fair criticism. In the first place, I have made it plain to the House that I am perfectly prepared to accept that the proscription of these four organisations is fair. The point that I wish to make is that the consequences are pretty draconian for British citizens. We therefore need to establish better ways of ensuring that the evidence is good.

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That takes me to the point that I wanted to make in response to the hon. Member for Southwark, North and Bermondsey, and which has also been raised by another hon. Member. I asked rhetorically why the Joint Intelligence and Security Committee of both Houses should not review the quality of the intelligence material on the basis of which the Home Secretary acts. It would at least be able to form a view as to the quality of that material. In a sense, that would be a review of the merits of the decision.

I have a couple of other direct questions for the Home Secretary. First, which Minister decides on proscription? I refer to the substance and not the form.

Mr. Blunkett: It would be sensible for me to reply to the right hon. and learned Gentleman's question now. The answer is I do.

Mr. Hogg: I am very glad to learn that. I recall from my time in the Home Office—and in the Foreign and Commonwealth Office—that there is a tendency to delegate decisions down to junior Ministers before the submission goes up to the Home Secretary. I hope that the right hon. Gentleman is saying that the decision is not delegated to junior Ministers or officials, but that it is taken exclusively by him.

Mr. Blunkett: The right hon. and learned Gentleman used the word Xhope". I have just said—therefore, it is a fact—that, on this and every other terrorism and security-related issue, I take the decisions personally.

Mr. Hogg: I am very glad to hear that, but I want to press the right hon. Gentleman a bit further. On what basis does he act? Is it exclusively a paper-based exercise? In other words, does he rely exclusively on a file or does he ask the relevant officials from GCHQ, the security services or whatever to come and make a presentation to him? I would like to know the answer, because I would be more cautious about a paper-based exercise than I would if the right hon. Gentleman summoned officials to a meeting and quizzed them. That is what he should do. How much consultation is held with intelligence services from other countries? That issue is important.

I have two final points. First, I very much agree with the point that the hon. Member for Southwark, North and Bermondsey made about regular reviews. They can be carried out in various ways, but I should like to think that a regular review would take place within the Home Office of whether these or any other organisations should be subject to proscription.

I know that the hon. Member for North Down has been waiting patiently, but I wish to refer to justice. Let us never lose sight of the fact that we are curtailing civil and political rights and that we are extending the criminal law to British citizens who may or may not be our constituents. It is very easy to be unjust in the context of a crisis, an emergency or terrorism. I put those arguments to the Home Secretary during the debates on the Terrorism Act 2000.

Mr. Burnett: I had hoped that my earlier intervention might tempt the right hon. and learned Gentleman into

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discussing an appeals system of the sort operated by SIAC. However, I do not want to tempt him to do so for too long.

Mr. Hogg: I have, in a sense, come to where I want to rest. I would be happy to help in the establishment of a review committee that would address the merits of proscription. The consequences of proscription are perhaps graver than we all appreciate. The fact that the House is nearly empty may be evidence of that. The fact is that we can commit serious acts of injustice in the context of a national emergency, and the House must be slow in becoming party to such a process. We must scrutinise such orders as carefully and as closely as we can within the accepted procedures.

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