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Mr. Blunkett: I am mindful of the interpretation that has been made. Within the terms that we discussed at the Human Rights Committee and in the debate on Monday, lawyers advise me that, when the advocatethe person nominated from the list providedis appointed for the particular purposes of evidence that would not be admissible in other circumstances, nothing precludes the representative nominated by the person concerned from taking other aspects of the case, including appeal. That person may also decide to nominate themselves as the advocate and take the appeal to the Court of Appeal or to the Lords if leave is given.
Jean Corston: I thank my right hon. Friend; that is very helpful. We tabled the amendment because, when we took evidence from him and his officials on 14 November, my hon. Friend the Member for St. Helens, South (Mr. Woodward) raised this particular point at question 39 of the minutes of evidence. In response, Mr. Carter, an assistant legal adviser to the Home Office, said:
Mr. Letwin: I do not want to detain the House long. Much of what I want to say about this group of amendments and clauses was said on Second Reading. I certainly do not want to rehearse those arguments again.
I shall briefly touch on amendment No. 98, which was tabled jointly with Liberal Democrat Members. If we understand the issue correctly, the amendment represents a position that I would have expected the Home Secretary to hold as well. I therefore wonder whether we have made an error or whether he has. We shall perhaps see which is the case during the debate.
The current articulation of part 4 is such that it quite rightly and very specifically excludes from the indefinite detention provisions anybody who is a UK citizen. Such a person would obviously not fall to be removed, so the triggers that are available in part 4 would not apply to a UK citizen.
The provisions deal with foreign nationals. If a particular foreign national were to come to the UK with the ambitionin the Home Secretary's belief, reasonable belief or substantial grounds for beliefof aiming at the destruction of Baghdad or New York, the Home Secretary would be able, under part 4 and subject to the Special Immigration Appeals Commission, to detain that individual indefinitely. However, the oddity of the situation is that the second definition in clause 21(4) would mean that, if that same individual coming from the same foreign place had it in mindin the Home Secretary's belief, reasonable belief or whateverto blow up Belfast as part of a joint operation with the Real IRA, the Home Secretary would not be able to detain that person indefinitely.
I do not know whether the judgment of our compatriots over the ages will be that part 4 is right or wrong. However, like my right hon. Friend the Leader of the Opposition, my hon. Friend the shadow Secretary of State for Northern Ireland, the leader of the Ulster Unionist party and, I believe, the leader of the Liberal Democrats, I am clear that if part 4, however it may be amended, is justified, it should apply equally to a foreign national who has in his sights Belfast as much as if he had in his sights Baghdad.
Mr. Fisher: Will the hon. Gentleman explain the position of what I would term "hybrid cases", in which the Home Secretary can identify a group of people who are engaged in planning for a terrorist activity? Some of them will fall within the Bill's remit but the others may be English nationals and will not. How will the nationals be treated when the people with whom they are plotting will be covered by the Bill? Is not such a hybrid case a genuine problem? How would the hon. Gentleman's amendment tackle it?
Mr. Letwin: I have wrestled with that very question and that is what gave rise to my intervention on the hon. Member for Southwark, North and Bermondsey (Simon Hughes). I may be wrong, because I do not believe it will possible for some time to tell whether what any of us believes is right or wrong. However, I shall describe the conclusion that I have reached.
I believe that there is a substantial difference between the protection of civil liberty that we should feel we have a duty to accord to those who are our fellow citizens, whatever they may be doing or plotting, and the protection of civil liberty that we feel we should have a duty to accord to foreign nationals. I accept that that is a very difficult distinction to make. Both groups are human beings and it is necessary to accord respect to both. However, when someone who is not a national enters our country, there is a special obligation on that person not to use us as a base for his activities and not to attack us. If someone is a citizen of this country, however, there is a special obligation on us to treat them in a certain way. I admit all the difficulties of that distinction, and I suspect that the Home Secretary does too, but I join him in making it.
To answer the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) straight, our amendment does not deal with what he identifies, although I do not, as the problem of hybridity. That is an anomaly, an inelegance and perhaps even a problem in the long term, but in the short term the bigger problem is with a person who is a foreign national. I am willing to join the Home Secretary in agreeing that such a person should be detained in some circumstances. If that foreign national has it in mind to blow up part of our country, the provisions for detention do not apply. That is strange and I cannot find it in me to support that distinction.
Mr. Hunter: Is not the issue of hybridity more complex than that? According to media reports, seven men are held under the successor to the Prevention of Terrorism Acts, two of whom are Irish citizens, five of whom are United Kingdom citizens. If the Bill becomes law, a different legal regime will apply to the two on the assumption that they are Irish citizens and the others are UK citizens. Where do we stand on dual citizenship? Tens of thousands of UK citizens who identify themselves with a nationalist background in Northern Ireland have dual citizenship. How does one define them? If they commit a terrorist offence, are they foreign terrorists or domestic terrorists?
Mr. Letwin: The problem is that the difficulty to which my hon. Friend alludes does not arise from the Bill. In the case to which he refers, neither the Irish nationals nor the UK nationals would be caught by the provisions for indefinite detention. In that context, the Irish nationals would be concerned only with the affairs of a part of the UK, so they would be excluded from the provisions. That is the exclusion that the leader of the Ulster Unionists, my right hon. Friend the leader of the Conservative party, my hon. Friends and the hon. Member for Southwark, North and Bermondsey cannot stomach. I hope that the Home Secretary makes the change recommended in amendment No. 98, although another method of achieving that would be acceptable.
We tabled amendment No. 101 to provide for strictly limited judicial review. On Second Reading there was a fascinating exchange between the hon. and learned Member for Dudley, North (Ross Cranston), the Home Secretary, other hon. Members and me. The hon. and learned Member for Dudley, North is a former Solicitor-General and a distinguished jurist. He argued that there was no need for the limited scope of judicial review that the amendment would introduce because an appeal on a point of law could include an appeal on the question of whether SIAC had conformed to its procedures as laid down by the Lord Chancellor.
Following that debate, we again consulted juristshopefully as distinguished as the hon. and learned Gentlemanwho do not take such a clear view. I am genuinely in doubt about what the situation is, and I should like the Home Secretary to reassure us that if it turns out that the appeal on a point of law does not provide for appeals relating to the procedure of SIAC, he will amend the law immediately to ensure that such appeals are possible. If he gives that assurance, we will happily not push our amendment to a vote either here or in the House of Lords. I have no wish to saddle the Bill with an unnecessary amendment.
It is difficult to be clear on such a complex chain of argument, but I hope to set out our position on detention and deportation, which we recommend as an alternative solution. I want to stress that there is no question of the Conservative party suggesting that a Home Secretary should be compelled to remove a person to what he regards as an unacceptable fate. We accept that he should judge whether a particular fate is unacceptable in the light of the character of that fate for that person and of the risk to our national security posed by that person. We want the Home Secretary to take powers that give him the flexibility to make that judgment case by case. In many instancesfor example, in relation to India and the United Statesit would be reasonable to use the power of removal rather than to detain the individuals. That would pose a lesser risk.
It is on that basis and that basis alone that we would be reasonably comfortable with the detention powers, as modified by the amendments that we tabled with the Liberal Democrats and those tabled by the Home Secretary. We would be willing to subscribe with the gravest reservations to part 4 even if he does not accept our alternative flexible arrangements, because we accept the argument that he probably does not have sufficient powers to deal with the situation that he judges to be so serious.
I cannot say, as the debate unfolds in the House and the other place, whether we would be willing to stomach these powers if clause 29 remains intact and there is no further judicial review of the merits. We are struggling inwardly with that. If we were to vote on clause 29 today, I would ask my hon. Friends to abstain while we wrestle further with that problem. I hope that the Home Secretary will also wrestle with it, so that when the Bill eventually emerges from the other place, which has so much more time to consider it, we will have found a solution that makes the detention clauses as unobnoxious to our civil liberties as possible. They must also do as little as possible to endanger our country's reputation and safety when we consider the possibility of the friends and relations of those detained using certain methods to get them out.