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11.50 pm

Mr. David Cameron (Witney): The Select Committee on Home Affairs grudgingly accepted the need for this derogation, stating that

I accept that the Government's answer deals with that problem. As the hon. Member for Bethnal Green and Bow (Ms King) has just pointed out, the Home Secretary will be able to lock up those who pose a risk. That is why the Government are opting out of article 5 and why we are debating this order. In the few minutes that I have to speak, however, I should like to consider whether that is the right answer.

Surely we have to ask why we are in this mess in the first place. The answer is that, in very many cases, because of article 3 and the jurisprudence under article 3, the Home Secretary cannot deport those who are potentially a danger to this country. The limitation, however, is not caused by article 3 itself—which is the shortest article in the European convention on human rights and simply states:

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Nowhere does article 3 mention deportation. What has happened is that, over many years, jurisprudence has been developed that has prevented deportation. The problem, therefore, is jurisprudence under article 3, whereas the solution that we are being offered is derogation under article 5. It is a bit like having mumps but taking a treatment for measles. We are not treating the long-term problem. I profoundly believe that the long-term problem will get worse.

In the Chahal case, the Home Secretary stated that he should be able to balance the risk of deporting someone to a third country and the risk that that individual poses to this country. The Strasbourg court found that

The Home Secretary cannot simply think of the individual in such a case. Consequently, the Home Affairs Committee has said that the Home Secretary should be given greater discretion.

The problem will become much worse in two respects. First, after the Soering case, article 3 applies to every country regardless of whether that country has signed the convention. The Soering case involved a German who was wanted for murder in the United States but could not be deported. Secondly, our courts discriminate against other signatories to the ECHR in relation to article 3. In the Adan case, for example, which involved two asylum seekers whom we were trying to return to Germany, the British courts feared that the Germans would more narrowly interpret the ECHR. The problem will therefore become far worse unless we consider the ingenious solution proposed by my hon. Friend the Member for West Dorset (Mr. Letwin).

D v. United Kingdom is the last case that I shall cite in the remaining time that I have allotted myself. That case involved not a terrorist but a drug dealer whom we were trying to deport back to the West Indies. The court thought that deportation would infringe his article 3 rights because he was HIV positive and would not receive the right treatment in the West Indies. Such treatment is nothing to do with article 3. It is not inhuman or degrading treatment or punishment, or torture. That was a very wide interpretation.

My conclusion is that the Government's answer will not work in the long term. They have to deal with the problem, which is that the Home Secretary cannot deport those whom he believes are a danger to this country. The option of opting out and suspending habeas corpus is the wrong answer to the question. In many ways, the Government had a choice between this country's ancient rights of habeas corpus and the right not to be detained without charge or trial: between Magna Carta and the ECHR. They have taken wholly the wrong decision. They should very carefully reconsider the suggestion of my hon. Friend the Member for West Dorset.

11.54 pm

Beverley Hughes: With the leave of the House, I shall try to address some of the more substantive points that have been made by hon. Members tonight. My hon. Friend the Member for Nottingham, North (Mr. Allen) raised several points, and asked how many people we

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expected the powers that we seek to be applied to. A number of people have already been arrested since 11 September under the Terrorism Act 2000. As I said earlier, I do not want to cite an actual number of people against whom the powers would be used immediately, but I can say that we expect the number to be small.

In response to my hon. Friend's points about other Governments and the Prime Minister, I can say that we are in frequent contact with other Governments who share information, and share our abhorrence of terrorist activities. Where we receive information alleging the presence of terrorists in the UK, we investigate those allegations. We believe that there are people here who are involved in international terrorism. Indeed, we have set that out in the schedule to the order. That is part of the basis for the evidence which, taken in the round, we feel meets the first test of article 15—that there must be a public emergency.

The hon. Member for Lewes (Norman Baker) asked, "Where is the public emergency?" In current circumstances, I find that an extraordinary question. Again, the evidence that we cite for the existence of a public emergency is set out in the schedule—but to reiterate what has already been said, the answer is: the events of 11 September; the two UN Security Council resolutions that pointed to the threat to international security and gave permission, as it were, for states to take measures to protect themselves; engagement in conflict in Afghanistan as a close ally of the United States; the presence of suspected terrorists here; further threats by Osama bin Laden and his supporters; and their preparedness to use nuclear, chemical and biological weapons; and the material found during the conflict in Kabul. I think that in view of all those circumstances, any reasonable person would conclude that there was a state of public emergency threatening the life of the nation.

Norman Baker: Does the Minister recall that on 15 October, over a month after the terrible attack on New York, the Home Secretary said that there was no immediate threat to this country's security? Can she say what has changed since then to justify the claim that the very essence of this nation is now under threat?

Beverley Hughes: The fact that there is no specific and immediate threat to this country of which we are aware does not mean that there is not a state of public emergency in the sense outlined by the UN Security Council resolutions and endorsed a few weeks ago by the House of Lords, which clarified both the threshold of evidence and the nature of the assessment that the Home Secretary was entitled to make, in the round, of the threat to national security and the extent to which that constituted a public emergency—

Several hon. Members rose

Beverley Hughes: I have only a short time left, and I want to deal with what my hon. Friend the Member for Redcar (Vera Baird) said. While accepting the need for detention in the circumstances that we have outlined, she and several other Members questioned the need for derogation.

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I have two further points to make to my hon. Friend, in addition to those that I made earlier in the debate. First, current arrangements as they stand, and article 5.1, have inhibited the use of removal. Secondly, and more substantively, case law subsequent to the Chahal case, concerning two other people who have been through the Special Immigration Appeals Commission process, has made it clear that article 3 is an absolute bar to removal if a person is likely to face torture, or inhuman or degrading treatment. Currently, if a person is detained pending removal and article 3 is relevant to the case, that person would be able to challenge detention immediately and be released, because there would be no realistic prospect of removal at that time. Therefore, to ensure that we are not inconsistent with article 5 in the detention powers we seek, we have to make sure that our position is regularised. That means that we have to derogate from article 5.1.

The official Opposition have argued that a better course of action—what they would have done were they in government—would have been to renounce the ECHR in its entirety and then rejoin immediately. We take the view that that is a much more extreme measure than we propose—even if rejoining the convention with reservations would be allowed—both in terms of our international obligations and in terms of the subsequent ability to send people back to torture or death. Derogation from article 5.1 is a more measured and proportionate approach and it preserves unequivocally—this is an important point—our international obligations under the ECHR, while enabling us to implement the detention measures that we feel are necessary in the event that we cannot deport a person consistent with the provisions of article 3. It is precisely because the Government—

It being one and a half hours after the commencement of proceedings on the motion, Mr. Deputy Speaker put the Question, pursuant to Standing Order No. 16 (Proceedings under an Act or on European Union documents).

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