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The Home Secretary rightly wants to know what alternative general argument my colleagues and I would put. Before I turn to the specifics, which I can do very briefly, I shall put two very simple principles to him. First, this is not a matter for lawyers and judges; it is an issue for ordinary individuals who may become swept up in a nationalist fervour or become involved with other people who are, or who may come here as students, or who may have family in this country and who find themselves suspected by the intelligence services or others of being involved in terrorism in some way.
I hope that we can get away from thinking that the concerns about judicial review are the concerns of lawyers. They are absolutely not lawyers' concerns. This country's history is one of dealing with peoplewhether British born or immigrantsand ensuring that they are treated properly, but cases have often ended up in the courts because the Executive have failed those people. Tribunals have often been involved, and judges and lawyers have often had to help them to argue their cases. They may have had no English or poor English; they may have been elderly or infirm.
Detention without trial is a citizens' issue; it is an issue of civil liberty for the ordinary, non-professional individual. I hope that the debate can continue on the assumption that this issue is not academic or esoteric; it goes to the core of whether everyone has equality before the law in this great country of ours.
Mr. Letwin: I want to be clear about the hon. Gentleman's argument in relation to part 4. Is he arguing that there is no substantial difference between a United Kingdom citizen who poses a threat and a foreign national who poses a threat and that he would prefer part 4 to be eliminated altogether? Does he want to join us and others in wanting to limit those provisions as a second-best solution? Or is he arguing, as I would, that, in some circumstances, the Home Secretary has a moral right to take action against foreign nationals who pose a threat to our security that he would not necessarily be able to take in relation to our own citizens?
Simon Hughes: Those are perfectly proper questions, as I would expect from the hon. Gentleman. It is perfectly reasonable to deal differently, as far as is required, with people who are United Kingdom citizens, who by definition have a right to live here, and people who do not have that right. We must all be permitted to accept that discrimination. The answer to the question about what we would argue should therefore happen is to be found in the improvements to the process that we and others have proposed. I can list those proposals very simply.
First, we should look for international solutions, just as we have done in the context of the International Criminal Court. That point was picked up by the hon. Member for Witney (Mr. Cameron), who serves on the Home Affairs Committee. The sooner we can find a Europe-wide solution for people who are not citizens of any given country the better. That is one route that we must pursue, but I accept that we cannot do it today.
Secondly, as suggested to the Select Committees, there are a panoply of offences under current terrorism legislation, especially the Terrorism Act 2000, which do not appear to have been considered or used but which appear to fit the bill. I shall give two examples. I served on the Committee that considered the 2000 Act and remember the long debates. People can already be arrested, charged and prosecuted for directing activities and incitement to commit terrorism abroad under that Act, in which terrorism is broadly defined. We should consider those offences before we conclude that they do not work.
The third option, which was proposed in evidence to the Select Committees, is that if the evidence is defective, we should ask the Intelligence and Security Committeewhich reports to the Prime Ministerand the Joint Committee on Human Rights to consider whether ways in which evidence is dealt with might be better adjusted in such circumstances, so that things that are currently precluded could be allowed in evidence, thus allowing trial and conviction. I do not pretend that that would necessarily allow the detention of everyone the Home Secretary has in mind, but we should try them first. We should never go down the road that ends in detention without trialpossibly for five years, as we agreed on Monday, although that is subject to reviewwithout first considering every single other option.
Mr. Hogg: I want to take the hon. Gentleman back to his second optionto consider the existing offences under the Terrorism Act 2000. We could reinforce that approach by changing the standard for proof, so that the offence could be established on the balance of probabilities, not beyond reasonable doubt. In other words, the civil rather than the criminal standard could be applied.
Simon Hughes: That proposal is controversial, but perfectly proper, and it leads us to the fact that we cannot properly get this law right unless we consider how to get to where we all agree we want to go without, by accident, getting to where many of us agree we should not go. However, we are precluded from doing so tonight. That is the problem with the process.
I want to make another point before dealing with the other amendments in the groupI am conscious that this debate is ridiculously restricted. There is a real issue about asylum seekers, but we will not have a chance to consider it again. Again, Select Committees addressed that issue. I have asked the new representative in the United Kingdom of the United Nations High Commissioner for Refugees, and my advice is that under the convention on refugees we have to allow people to put their case. Then we can say, "They are precluded from qualifying because of the exception rule"that is, because of their track record. But we cannot preclude people from having their asylum case considered by simply imposing a barrier. That is an important distinction, and international law is on the side of the UNHCR.
We welcome the Government's proposals in amendments to clause 21 to move from the test of believing to that of "reasonably" believing, but the hon. Member for West Dorset (Mr. Letwin) and I believe that there should be a higher test than that, and both main Opposition parties have tabled an amendment to that effect. We believe that the phrase "substantial grounds to believe" should be used in that test before the certification process is triggered. We have tabled a series of amendments, such as amendments Nos. 96 and 97, to deal with that issue, as well as that involving substantial grounds for suspicion.
We argue that we should at least limit the grounds for excluding judicial review, but Liberal Democrat Members and many others on both sides of the House would prefer it if clauses 21 and 29 were removed altogether.
Simon Hughes: Of course I accept that clause 23 is very important. There is a strong view in the House and in the Select Committees that those clauses should be deleted and that no qualification is appropriate because the other processes that I suggest should be tried first.
I have said that the review period must be shorter. There is an important need to tighten the grounds for issuing new certificates. The Scottish National party and others have tabled amendments that deal with improving the SIAC process, inasmuch as that process will be appropriate. In addition to the recommendations of the Select Committees, the SNP has made welcome recommendations to have a two-year maximum period.
It is crucial that we do not let things with which we are uncomfortable leave Committee. I say this carefully, but it is better to give the Executive too little power at the moment than to give them too much. Had we voted for an automatic sunset provision, we might be willing and able to err in the other direction. However, because we do not have that qualification to the extent that we would wish, I ask the Committee to be cautious.
These are just about the most serious issues that this place can debate. We do not have enough time to do them justice, but I hope that the Home Secretary will respond to all positive suggestions for improving the Bill. I hope that the Committee will vote to keep the right of the courts always to be able to make sure that the Executive are doing their job properly.
I thank the Home Secretary for giving us assurances in respect of amendment No. 126, standing in my name and that of my hon. Friend the Member for Redcar (Vera Baird). It contains what I describe as the "otherwise test." I also thank him for agreeing to reconsider the definition of "links with", because both issues were drawn to the attention of the House by the Joint Committee on Human Rights, of which my hon. Friend and I are members.
Amendment No. 127 deals with the appeal procedure. The Joint Committee was persuaded that the due process of rights and obligations was fulfilled under SIAC because it can offer a full hearing on the merits of a case, because a nominated representative can represent the interests of the applicant and because there is an opportunity to appeal on points of law. However, before the Court of Appeal or on appeal from that court to the House of Lords, there is a risk that the appeals procedure would be insufficient to meet the standards of articles 5(4) or article 6 of the European convention on human rights, because there is no provision under the legislation or under the Special Immigration Appeals Commission Act 1997 for the nominated representative to represent the applicant's interest in the appeal.
Therefore, there might be a violation of the European convention on human rights if the nature of national security considerations in the case unduly inhibited an applicant or his or her representatives from formulating a point of law or if new evidence was presented on appeal on behalf of the Secretary of State.