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Foreign Fighters and the Death Penalty

Volume 647: debated on Thursday 11 October 2018

(Urgent Question): To ask the Home Secretary to make a statement on foreign fighters and the death penalty.

Thank you for your patience, Mr Speaker; I apologise. You were even more efficient in the conduct of the previous urgent question than normal, so I have had to run to the House to answer the hon. Gentleman’s question.

The management of Syria travellers is not a new or emerging issue. Since the conflict began, approximately 900 people have travelled from the UK to take part, of whom 40% have returned and 20% are thought to have been killed. There have been several high-profile convictions in this country for terrorist activity linked to travel to Syria.

The Government take seriously their responsibility to protect the public. We have been consistently clear that where there is evidence that crimes have been committed, foreign fighters should be brought to justice in accordance with due legal process, regardless of their nationality. The appropriate process will always depend on the individual circumstances. Everyone who returns from Syria or Iraq can expect to be the subject of an investigation to determine whether they pose a threat, and they should be in no doubt that we will take the strongest possible action to protect our national security.

We have planned and prepared for the risk posed by British returnees as Daesh is defeated in Iraq and Syria, and we are using a range of tools to disrupt and diminish that threat, including prosecution under the full range of existing counter-terrorism legislation and the use of other powers such as terrorism prevention and investigation measures or temporary exclusion orders to help to manage the risk posed. We are going further by introducing new measures in the Counter-Terrorism and Border Security Bill that will help to deal with the scourge of foreign fighters.

Our long-standing policy on the death penalty has not changed. We oppose the death penalty in all circumstances as a matter of principle, regardless of nationality. Decisions to provide assistance are taken in accordance with the Government’s overseas security and justice assistance, or OSJA, guidance, introduced in 2011. The guidance clearly sets out the UK Government’s policy in respect of the death penalty.

I like the Minister, but that was a load of sententious guff that has nothing to do with the question in hand. Yesterday, the Government marked World Day Against the Death Penalty by declaring, as the Minister has again today, that they are committed

“to oppose the use of the death penalty in all circumstances as a matter of principle.”

In the past, that has always meant that before co-operating with a foreign judicial system where the death penalty is in operation, we seek assurances in every case that the suspects will not face the death penalty; yet, as the Minister admitted on 23 July, the Government secretly decided earlier this year not to seek such assurances in the case of two foreign fighters. I want to see those fighters face justice, but the people who lost family members to those people do not want them to face the death penalty.

The Minister claimed on 23 July that there was precedent for not seeking such assurances and he undertook to write to us; his precise words were that that would be our “summer reading”. I got his letter late this Tuesday afternoon. He clearly does not understand the word “summer”, but does he actually understand the word “precedent”? His letter says that this has happened on two previous occasions since 2001, but it point blank refuses to give any details whatever. According to the dictionary, a precedent is meant to be

“an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.”

So we cannot cite a precedent without citing any of the details, because we cannot consider whether it is a precedent unless we know what actually happened on the previous occasion.

Will the Minister give us any details of the two cases that he says happened since 2001? Can he confirm that one relates to a case in Thailand in 2014? If so, it is exactly the opposite of a precedent—it is an anti-precedent—because the courts then decided that the police had acted unlawfully and failed to have regard for public policy, and the Government’s decision was struck down. The Minister also told the House in July:

“There was no request from the US Administration for us to vary our assurances.”—[Official Report, 23 July 2018; Vol. 645, c. 728.]

I am sorry, but I do not think that that is true. Can the Minister confirm that, when the Home Secretary met the US Attorney General in May, Jeff Sessions made it absolutely clear that any request from the UK for the customary assurances was likely to result in political outrage in the Trump Administration and that is why the Home Secretary decided not to seek any assurances?

Will the Minister also confirm that the then Foreign Secretary wrote to the Home Secretary to say that this case was “unprecedented”? The truth is that the only thing that was unprecedented about this case was that the US Government barked and the UK cowed.

Mr Speaker, you know what I think really happened? The Government got the collywobbles. Jeff Sessions huffed and puffed and blew the Home Secretary down. The Prime Minister decided to kowtow to Trump, and the Government changed the policy secretly without telling this House.

I am old enough to remember “Jackanory” and I think that I have just heard a “Jackanory” narrative from the hon. Gentleman. Let me deal with his questions. He asserted that, in every case previously, we have always sought assurances. That has not been the case. I apologise for not getting back to him in time for his summer reading. We did have to go back into the previous Labour Government to find a number of cases; I am talking about a Government in which the hon. Gentleman was a Minister in the very Department where this was taking place. We discovered that one of the cases took place in a Labour Government after 2001.

Secondly, the details of mutual legal assistance arrangements, as the hon. Gentleman will know, are subject to strict confidentiality, because they are often about individuals involved in an investigation. However, I can help him in his “Jackanory” story: the 2014 Thailand example that he has cited is not a case where this has happened; it has not been brought to my attention. Perhaps he has raised another case, but, certainly, the two of which I am aware do not relate to that case.

Furthermore, when the hon. Gentleman comes to talk about the policy of successor Governments, he should know that, in 2011, this Government brought forward, for the first time, through the OSJA, written guidance. It was very clear in paragraph 9 that, on some occasions, there were strong reasons for not seeking assurances in such cases. The policy before 2011, including the time when the hon. Gentleman was a member of the Government, was that a Government could exchange evidence without seeking assurances on the death penalty in “exceptional circumstances”—[Interruption.] I think that the hon. Gentleman knows that his Government did do it. Certainly, he was a member of the Government when one of these cases took place.

The reality is that the two individuals in question, who are suspects and innocent until proven guilty, are charged, or effectively viewed, as having been part of very, very dangerous and heinous crimes, including torture and beheading, against many, many people, and that they are held in a place of detention, effectively in a war zone in north Syria, by non-state actors. That means that the choices are stark for any Government charged with keeping people safe and trying to deliver justice for the victims.

We are guided by the overseas security and justice assistance. The Home Secretary and the Foreign Secretary considered this guidance strongly, found that there were strong reasons and took the necessary decision that in this case we would share with the United States evidence on the condition that Guantanamo was not part of the process, but in this case we did not seek death penalty assurances.

Some of us, and most of our constituents, are a lot less squeamish about this than the Minister and the hon. Member for Rhondda (Chris Bryant). Indeed, they take the view that these people had it coming, didn’t they?

What these individuals who are suspected of an offence and many others have coming is justice. We will do everything we can to work with our allies to see that justice is administered in a way that follows due process and that takes place in a court of law, where there is a separation between the judiciary and the Executive, where people have a right to defence and to make an argument, and where the rule of law prevails. That is what they and anybody else who involves themselves in that type of terrorism has coming to them, and that is what we are trying to uphold.

May I also apologise for not being here at the start of the urgent question?

Wednesday was World Day Against the Death Penalty. The Foreign Office Minister in the other place spoke about the Government’s absolute opposition to the death penalty. The Labour party also opposes the death penalty. It is barbaric and was rightly abolished in this country more than half a century go. Yet, at the same time, the Government have agreed to help the US in prosecuting El Shafee Elsheikh and Alexanda Kotey, who could ultimately face the death penalty. I will say no more on this specific case, as it is subject to a High Court challenge.

The Labour party makes it absolutely clear that those who commit abhorrent crimes should face the full force of the law, but in bringing people to justice we should never sacrifice the very values that those who wish us harm seek to attack. We are therefore rightly concerned following the Government’s revelation that, on two previous occasions going back some years, the UK has co-operated with foreign states in cases involving the death penalty. Does the Minister agree that if the Government oppose the death penalty in principle, they must oppose it in every case without exception?

It was revealed in the court earlier this week that the Home Secretary had written to the former Foreign Secretary stating that

“significant attempts having been made to seek a full assurance, it is now right to accede to the mutual legal assistance request without an assurance”.

Can the Minister explain what “significant” means in this context? Also, what response was received from the US authorities when these requests for full assurance were made? Furthermore, what new material factor caused the Secretaries of State to conclude that assurance was no longer necessary, in contravention of the long-standing policy of successive British Governments and their commitments to opposing the death penalty in all circumstances? Why did the Government not renew the death penalty strategy in 2016? Is that an oversight? If not, when do they intend to come to the House to explain the matter? Finally, does the Minister agree that making exceptions undermines our own credibility on human rights issues around the world?

I think both the hon. Gentleman and I were slightly caught short by the speed of the previous urgent question. I will do my best to answer his questions. Our guidance for upholding our principled position on the death penalty and following MLA requests is contained in the OSJA, published in 2011. Paragraph 9(b) on the death penalty clearly states:

“Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed ‘High Risk’ and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance.”

It was our view that there were strong reasons not to seek assurances.

This case has no easy solutions. It is easy for everyone to say, “We want justice for the victims”, but the options before this Government, our security forces and our citizens do not include a magic wand to get people miraculously into a UK court or provide evidence that matches the statute book that we happen to have. The strong reasons that, we would say, mean that the rights of those individuals detained are better served by a judicial trial in the United States are that they have a better chance of proper representation in a court of law than if they were left in detention by non-state actors in a war zone in north Syria, sent to Guantanamo Bay—something that the Government oppose fully—or allowed to go back into the battlefield and wreak murder and death in the same way that they have been accused of doing in the past. Those were the options on the table that we as Ministers, charged with keeping people safe and balancing our obligations, and implementing the Government’s policy as set out in the OSJA, have to weigh up. We felt that there were strong reasons not to seek death penalty assurances when sharing the evidence for a criminal trial in the United States.

My constituents in Kettering are as outraged as I am that 900 British citizens should have decided to go abroad and become foreign fighters engaged in armed conflict against members of Her Majesty’s armed forces; 180 have been killed in theatre, 360 have returned and 360 remain at large. Why on earth are we not stripping these people of their British citizenship, not allowing them back into the country or, if they are allowed back in, trying them for treason?

My hon. Friend makes an important point and reminds us that we have to balance everyone’s rights—the rights of my constituents to go about their business securely and safely and their right to life against the rights of other people to a fair trial and not to be subject to torture and other conditions. There are no easy solutions. Where we find we have the powers to deal with individuals we explore all of them, including deprivation of citizenship, royal prerogatives to prevent people travelling and prosecuting people in a United Kingdom court, as we have done in some cases where we have the evidence to do so. We recognise that over many decades there has been a deficiency in offences on the statute book such as in extra-territorial legislation; sometimes we might have evidence of travel but the intelligence cannot be submitted in court. That is why in the Counter-Terrorism and Border Security Bill, which I am pleased to say the Opposition support, we have sought to improve the statute book so that we do not face problems like this in the future.

The Government are tying themselves in knots over this. If it is the Government’s position, as the FCO reaffirmed yesterday on World Day Against the Death Penalty, that they oppose the use of the death penalty in all circumstances as a matter of principle, it stands to reason that, no matter how heinous and barbaric the alleged crimes are—and they are—if individuals are brought to justice, they should be not subject to the death penalty.

If that is the Government’s position, why are they not willing to state that clearly and seek the assurances from the US Government that others suggest we should ask for? What is the point of the special relationship if we cannot speak clearly and honestly to what is supposed to be our closest ally?

Can the Minister confirm whether the US or other allied countries were the subject of the two other cases that have been raised in which assurances were not sought?

It is the policy of this Government to seek justice for the victims, in accordance with not only our principles but the OSJA guidance, which is the published policy of this Government, introduced under the coalition Government in 2011. I asked whether I had received any representations from any Member of the House on the OSJA guidance while I have been Security Minister or whether my predecessor had. I have not seen anybody take issue with that guidance.

Our key aim is to seek justice. Our preference for Mr Elsheikh, for example, would have been to seek justice in this country if we had the evidence. The CPS was clear that it did not have the evidence to try them in this country. That was a challenge for us. Opposition Members say, “We want to see justice for everyone,” but I have yet to hear a solution from them or what they would do in this type of case, other than to just let these people go who would ultimately wreak havoc and death on the streets of Syria, Iraq or the United Kingdom.

I congratulate my right hon. Friend on his answers so far. Can he give us an assurance that under this Government, Britain will not be a safe haven for terrorists or those suspected of terrorism? What further action can he take to exclude people seeking admission to this country who are suspected of terrorist offences?

Every week, I see cases of exclusions. We exclude people in line with the legislation. If they are from the EU, we have some powers to exclude, and if they are from outside the EEA, we have more powers to exclude. We exclude people and, as I said, deprive people of their citizenship where the intelligence evidence points to the fact that either there is no alternative or they pose a considerable threat.

The biggest challenge for the future is safe spaces—people’s ability to communicate through end-to-end encryption, go online or go to a warzone such as north Syria, where they can play a part in planning and directing attacks. We, as a country, have very little reach into those places, either to affect behaviour or indeed get justice delivered. One of the biggest challenges in this case is that the detention of these individuals is not by a state; it is by a non-state actor in a prison in north Syria, which is a warzone. That is a real barrier to what we can do in the pursuit of justice for the victims of the crimes that these people are accused of.

May I remind the House that this urgent question is about the death penalty? People are against the death penalty either because it is inhumane or because there could be a miscarriage of justice, and we should remember that. We either believe in the death penalty or we do not. We do not have the death penalty in this country, which means that whenever we deal with these issues, we must at all times seek assurance that there will be no death penalty. That is the question here.

As I said earlier, this Government, the coalition Government and the Labour Government before it have, in exceptional circumstances or where there are strong reasons, not sought death penalty assurances. That has been the long-standing position of successive Governments under the OSJA. That is partly because, while we oppose the death penalty in principle, we have to balance the options on the table.

These two individuals are not United Kingdom citizens in this country; they are in a country where there is a war. People seem to forget that. If they were in this country, the courts would have much more power to gather evidence, put them on trial and so on, but they are not, and therefore we are guided by the OSJA, published in 2011 under the coalition Government. It seems, having looked through previous records, that other Governments have on occasions viewed something as exceptional or having strong reasons not to seek death penalty assurances.

It seems to me that what bedevils this extraordinarily difficult issue is establishing a dividing line between the powers of Ministers and the proper role of this Parliament, by which I mean the role of parliamentary oversight. Will the Minister undertake to consider that point and bring to the House suggestions as to how parliamentary oversight could be increased—if nothing else, to give the public genuine faith in the mechanism?

The hon. Gentleman makes a valid point. MLAs, which are often operational and judicial processes, are incredibly sensitive until they are aired, such as in a case or a hearing, as we saw at the beginning of the week with the case of the two individuals in Syria. That is partly because to publicly air the details of an investigation or an MLA request and our police asking for that information, which could be about someone in the hon. Gentleman’s constituency who is under investigation, could expose the fact that there was an investigation into that individual.

It is a delicate balance. However, I will agree to look at this, and I am happy to meet the hon. Gentleman to discuss whether there is a way in which we can give details of cases once they have passed and it is felt that there is no risk, and to see what more we can do to scrutinise the practice of MLAs. To put them in context, there are hundreds of them every year.

I thank the Minister for his firm response to the urgent question. He stated that the Government are monitoring all those who have been involved in terrorist attacks in Syria and Iraq, and that they will be detained and held accountable for their activities. Can he assure the House that any foreign fighters guilty of any heinous crime will not be able to access the land border between Northern Ireland and the Republic of Ireland, or any back door to the UK mainland?

One of the biggest challenges we face in our free and open democracy, where international travel is common and affordable for many people, is that that makes us vulnerable. The 900-odd people who travelled to Syria did so predominantly on scheduled flights from this country, and a number of those who have returned came via, for example, Turkey, often using flights from holiday resorts. We do our best to analyse passenger records, to prevent people from leaving this country or to stop them when they return, to examine their digital material and question them, and if possible to prosecute them.

The hon. Gentleman is right: the land border of Northern Ireland is a challenge. We work with the Irish Government to keep the island of Ireland’s border safe; we share intelligence and data where we can. The free travel area is exactly that, and in the past some individuals have used the Northern Ireland border to return to the United Kingdom. That is why we have always had some forms of control on the Northern Ireland border. He will know better than anyone in this House that it has never been the case that nothing has gone on at that border. The controls may have varied and been less solid, but there have always been checks on and around the border, and we have used those powers in the past.

Many of these fighters seek to undermine our democratic values by the most evil and despicable of means. Does the Minister understand the essential importance of not outsourcing our moral and ethical base by helping in the execution of the death penalty, against those democratic values?

I understand the hon. Lady’s point about our values. As a former soldier, I have stood and upheld those values in pressing times, when the enemy or indeed the local population are very hostile; it is about us being better than them. In this specific case, however, the two individuals are not in our control; we cannot extradite them, move them or control them. This is about evidence—could we share evidence with another country, with an independent judiciary and the rule of law, that sought justice for its victims? The decision was made, based on our guidance, that in this case there was strong reason to do so without seeking a death penalty assurance.

On 23 July, the Minister told the House:

“On Guantanamo Bay, again our position has not changed. The UK Government’s long-standing position is that the detention facility at Guantanamo Bay should close. Where we share evidence with the US, it must be for the express purpose of progressing a criminal prosecution, and we have made that clear to the United States.”—[Official Report, 23 July 2018; Vol. 645, c. 725.]

Can the Minister confirm that, contrary to that statement, the Home Secretary decided in this case not to ask for any assurances that the men will not be sent to Guantanamo Bay detention centre?

I have to disappoint the hon. Gentleman. When the agreement on the MLA was made, it was stated clearly that if any other use of the evidence was requested, they would have to come back here to get permission for that use. The Government’s stated policy is to oppose Guantanamo Bay detention—[Interruption.] Hang on. “Any other use” covers every use they would like to make of the evidence other than a judicial trial. It was clear that for every use other than a judicial trial, they would have to come back and seek permission, and our position on Guantanamo Bay is clear. I made it clear in my meeting with the Department of Justice in April or May, that if they were to come back and their request was to do with Guantanamo Bay, permission would not be given. One can argue about whether we could have written back saying, “Not for Guantanamo Bay,” but we said “any other reason”, which could be Guantanamo Bay or going on holiday.

When I have made foreign visits to countries that still apply the death penalty, I have been proud to say that the British Government categorically oppose its use. Can I say that now?

Yes, the hon. Gentleman can say that. This case is obviously before the courts, but it was an evidential request for a criminal trial and we followed OSJA guidance back in 2011, which is better guidance than the non-existent guidance of the previous Labour Government.