Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




1.  Good morning, ladies and gentlemen and thank you to our witnesses for coming at such short notice. As you will know, we are attempting a little pre-legislation scrutiny here in rather difficult circumstances, that is to say we do not yet have a copy of the Bill in public and we are feeling our way slightly in the dark. The timetable is a very tight one since the Bill will be published next week and it is due its second reading on Monday 19 November, therefore we have to do the best we can in the circumstances. May I welcome each of the witnesses? John Wadham, Director of Liberty, we know. Professor Conor Gearty is Professor of Human Rights Law at King's College London. Rick Scannell is Chairman of the Immigration Law Practitioners' Association and Nicola Rogers from the Aire Centre. Can you tell us what the Aire Centre is please?

  (Nicola Rogers) Yes; certainly. Advice on Individual Rights in Europe.

2.  How are you funded?

  (Nicola Rogers) We are funded from a variety of sources but mainly the London boroughs' grants and by membership and European Community funding as well.

3.  May I start the ball rolling? I should say one thing. As far as possible we like to avoid getting four answers to every question. As you can see, there are about ten of us and four of you and the permutations are fairly awesome, although we appreciate that sometimes other people will want to add to what one witness has said. It would be helpful if a witness wanted to come in, if you could indicate and then I can try to impose some kind of order.

  (John Wadham) We did meet yesterday and we have tried to divide up the areas, so hopefully there will not be as much duplication as you might be fearing.

4.  That is very helpful, thank you. Thank you also for providing your written evidence at such short notice. Is the Bill necessary and proportionate in the current situation?

  (Professor Gearty) It is difficult to judge a Bill which is yet to emerge on grounds of necessity and proportionality but it is a terrific idea to do so in advance. Instead of reacting to an agenda set by others, we can to some extent anticipate and set down our own principles. It is a terrific idea to do this, so that should not in the least concern us. As to necessity: vigilance is called for in my judgement. There is always a risk where a government feels the need, for perfectly valid political reasons, to act and to be seen to act that that perception of a need to act coincides with the desires among some of the executive to achieve certain legislative change to their advantage. History points in the direction of this coalition of interest producing legislation which afterwards can be seen from an historic perspective to have been wrong headed. It happened in 1939, 1974 and I would say 1996 and 1998 as well. There are grounds for concern.

5.  Just remind us about each of those cases. Was it the Public Order Act in 1939?

  (Professor Gearty) No, Prevention of Violence Temporary Provisions Act against IRA action during 1939.

6.  The other ones?

  (Professor Gearty) It is the well-known prevention of terrorism legislation in 1974 and then there were two extra pieces of terrorism law passed in 1996 and 1998, each said to be concerned with Republican violence and each published at very short notice, very little time to debate and each producing quite dramatic alterations in the balance of power between the individual and the state on the basis of the perceived need to act.

7.  What are you arguing? That none of those four pieces of legislation was necessary in retrospect?

  (Professor Gearty) I am thinking that the damage done, in particular by the first and second, was out of proportion to the advantages that they secured.

8.  Would you accept that the events of 11 September necessitate any change in the law?

  (Professor Gearty) They necessitate careful consideration of whether there are gaps in the law which need to be filled. The anxiety I have is that the natural tendency is not to see whether we can execute current law better in order to prevent such atrocities here but is replaced by the desire to have new law because it is in a sense apparently more pro-active; a kind of alibi for failures elsewhere.
  (John Wadham) Taking the 1974 prevention of terrorism provisions, what we are seeing with those measures, apart from the fact that it was suggested they would last for six months and they have lasted ever since that time and now we have permanent anti-terrorism legislation, is that thousands of Irish people, particularly in Britain, have been arrested and detained and questioned without, as far as one can tell, any appreciable difference from those same groups of people being arrested and detained and questioned under ordinary criminal law. You have a two-tier system of criminal law where those people who are involved in criminal acts for political motives have fewer rights than those suspected of criminal acts for non-political motives. I cannot see the logic of that. Secondly of course, anecdotal evidence suggests that the Guildford Four were one of the first groups of people arrested under the Prevention of Terrorism Act; the Birmingham Six were not because the Birmingham pub bombings led to the 1974 Act. There are real issues about that. What we have is a slippage whereby the rules in the terrorism provisions have been expanded to be adopted in the general criminal law and then we have a process where in the 2000 Terrorism Act the expansion has gone even further. So we are not just talking about particular acts relating to Northern Ireland but any kind of political crime almost. There are real problems with that. I suppose that leads to my last point which is that we probably have the most comprehensive and we would say draconian anti-terrorism law anywhere in western Europe and perhaps wider. Therefore there is a question about how much further we should be going in relation to that direction when those provisions themselves have been condemned by human rights experts and others as they are. To go further than that raises real questions and it raises the question about whether the Government has to be seen to be doing something rather than actually taking the steps which may be necessary. The steps which are necessary are obviously better intelligence and better information about who is going to be, or is likely to be committing these atrocities rather than eroding the rights of individuals whether they are asylum seekers or others.

9.  The Security Service would probably argue that they have the intelligence in some cases but for whatever reason the law does not allow them to prosecute or to take action. Would you accept that is a possibility?

  (John Wadham) The difficulty in this process is not just that we do not have a copy of the Bill, it is actually that we do not have any policy basis or White Paper or anything else. Although there are lots of suggestions being made by people and some of those surface in the newspapers, the Government so far has not made out a case for what needs to be changed and whether those provisions would have made any difference had those provisions been in existence in relation to any of the terrorist activities in this country or particularly in relation to 11 September. That is a real question because it is for the Government to demonstrate why these particular measures might have made a difference or would have made a difference. To suggest merely because of the atrocities on 11 September we should do anything or everything we can is mistaken. Finally, as I mentioned in relation to the Irish community in this country, there was an alienation of those people and in Northern Ireland with the measures there, it did in fact push a number of people as far as one can tell into the arms of the terrorists. If the rule of law is being bent, if not broken, then people are more likely to adopt a violent approach to their political ideals rather than an approach where they accept that there is a democratic process and there is a legal process which protects them. There are real problems with that.

10.  In a moment we are going to come to dealing with each of the specific suggestions but we are on general points here.

  (Nicola Rogers) It is not merely our assertion that the terrorism legislation of 2000 is extensive in comparison with other western European countries and indeed the world. That is what the European Commission said when it was itself proposing legislation in this field. It observed that the terrorism legislation is very, very extensive. I would point out that in respect of the offences under the terrorism legislation, one can be committing an offence even when one is collecting information or training. The extent to which those kinds of offences are offences under the terrorism legislation requires very hard questions to be asked around who it is and what it is that they are doing that cannot be dealt with under this already very extensive legislation.
  (Rick Scannell) I endorse what has been said but would echo also the words of Lord Lloyd when he said that one should instinctively dislike the proposal of legislation under the pressure of events. The Terrorism Act has been mentioned and I say nothing more about that. So far as the immigration and asylum regimes are concerned, we shall look at the detail. Sufficient to say now that in the 1997 Special Immigration Appeals Commission Act, which established SIAC, which considers national security cases, and in the 1999 Immigration and Asylum Act, the whole of the immigration and asylum regimes in the context of terrorism were completely overhauled in a very major way. It is certainly ILPA's view that any change is unnecessary.

11.  If I may summarise your position, it is that you are not ruling out some changes being necessary, you are saying that the Government has to make the case, not the other way round. Is that a fair summary of your position? You need only nod.

  (John Wadham) Absolutely.
  (Professor Gearty) I do not consider it a defect that intelligence is not sufficient in itself to procure conviction. The need for evidence is not something which is an irrelevant procedural requirement. There may be reasons why intelligence does not translate into convictions, which are reasons which protect the citizen.
  (John Wadham) It may be that that intelligence is in fact wrong. That is why we have quality controls in relation to evidence and criminal procedures.

David Winnick

12.  Do you accept that to some extent at least the current asylum system is capable of being abused by people involved in terrorism?

  (Rick Scannell) I would not accept that there are gaps able to be exposed by people suspected of being terrorists in the present legislative regime. For every position or for every occasion on which someone might be suspected of being involved in terrorism, the present 1999 Immigration and Asylum Act gives power to the Home Secretary to certify—if you are talking about a port case when the person arrives at Heathrow—if he has reason to believe that a person is involved in terrorism, that his exclusion would be conducive to public good. If you then go to the position in country, somebody applies in the immigration system to vary a leave and the Secretary of State considers that person's leave should not be varied, he can certify that the person's departure would be conducive to the public good as being in the interests of national security. If you move forward to deportation, he can take a decision to deport on the grounds that deportation is conducive to the public good as being in the interests of national security. At every single immigration step there is the power in the Home Secretary already to make a certification that national security is engaged. The consequence at the moment is that that person within the immigration framework has no appeal right. The person has to have his or her case considered by the special commission established to consider national security cases, the Special Immigration Appeals Commission. That is in place and properly so as a result of our international obligations under the European Convention of Human Rights and as a result of the Chahal case. It was a procedure which was applied and brought into effect in 1997 following Chahal and it provides for the necessary balance between the interests of the individual and the state, it enables people as special advocates to represent the interests of the people suspected of being involved in very broad terms in terrorism in the absence of the appellant. I have been appointed by the Attorney General as a special advocate and have done some of that work. You may come to look in more detail at the provisions but the short answer to your question is that there is not in my view the scope for abuse, precisely because at every respective juncture—I do not bother with chapter and verse—the Secretary of State does have the certification power that is apparently that contemplated.

13.  We all know that the Secretary of State has had powers for a long time, like his predecessors, to exclude people on the grounds you have mentioned. Yet when the massacre took place in Egypt in November 1997 at Luxor in which British citizens as well were amongst the victims, the President of Egypt, who after all is quite an expert on terrorism, bearing in mind that his predecessor was murdered by a terrorist, said that Britain had become a safe haven for militants, allowing them to plan violent activities from bases in the United Kingdom. I would put it to you that many people believe that Britain is one of the safest havens in Europe for terrorists. Do I take it that there is disagreement there?

  (Rick Scannell) I am not in a position, I have no experience in terms of what information the Security Services might have about the number of people who are in the United Kingdom planning terrorism. I am not equipped to comment on that.

14.  Would that not demonstrate that though these powers have existed in excluding people on the grounds that it is against Britain's interest that they should be here, they have not in fact in many instances been used and therefore you have a situation where in more recent times, since the atrocities of 11 September, you have had various people proclaiming in this country that what was done was right, preaching along those lines, inciting hatred against the United States of America, instead of course of condemning the atrocities. How is it that such people were allowed into this country in the first place?

  (Rick Scannell) In a sense the premise of the question appears to be that it is a flaw in the immigration and asylum regime that has led to people being able to establish themselves and use the UK or any other country as a base for terrorism.

15.  The powers have not been used.

  (Rick Scannell) It is that premise that I doubt the accuracy of, with the greatest respect. If one looks at the people who trained in America as pilots to fly the plane to cause the dreadful events of 11 September, they were not, so far as I am aware, people who were in any respect using an immigration and asylum system—obviously we are talking about America. They were settled and had probably been settled in that country for a long time, in a cell and probably obtained such ability to plan for those horrific events in the context of a status that had nothing to do with immigration or asylum.

16.  That is a matter for the Americans and they talk about British immigration law but Americans would say that indeed there was a flaw as such people were allowed into the United States without the immigration authorities taking up all the investigations which were needed. No doubt the Americans have learnt the lesson. One would say in the interest of the security of all of us that one hopes they have. Do I take it that none of the four witnesses before us accepts that people have come into this country in the last few years involved in terrorism, involved in terrorism though not in the United Kingdom, but perhaps planning from the United Kingdom, been allowed into this country when they should not have been? You do not accept any of that.

  (John Wadham) Of course there are bound to be examples of people.

17.  You do accept that.

  (John Wadham) I do accept that but the consequences are not as perhaps you may think they are, which is firstly, whether or not these people have been allowed into the country or not is a question of intelligence. If the authorities had information that they were in fact involved in terrorism, then the mechanisms my colleague has demonstrated would have allowed the Government to detain them and would have allowed them to be thrown out of the country, subject to the test that exists with the appeal to SIAC. That is the first thing. It is not an issue about the lack of procedure, it is an issue about whether the Government and the Security Services have intelligence and secondly whether they have evidence. In relation to the issue of Egypt, it seems to me that there are key problems: for instance the extent to which it is possible to send people back to Egypt because of the factors of whether they would get a fair trial in Egypt and whether they would be subject to torture, inhuman and degrading treatment or punishment. Those are obviously issues which a civilised country has to consider before it sends people back. I am not sure of the logic from your assertion that there are people, which I accept there must be, is that we therefore need stronger controls. We say we have adequate controls to deal with exactly those circumstances.

18.  If I preface it by saying that I have the highest respect for your organisation, you will probably say I am going to be critical, which I am, but I have genuine respect and have had so all my political life. As I have said elsewhere, if your organisation did not exist it should come into existence. Having said that, there is a feeling—and I am going to be brutally frank—that a number of people have been allowed into this country with a great deal of controversy; other people in my view have been allowed in without the immigration authorities exploring their terrorist background, but some people have been allowed in where there have been allegations and your organisation has been to the fore in defending them. I know for instance of one particular case—the name does not come to me—from Saudi Arabia where the Saudi Arabians were saying he was involved in terrorism and he was allowed in and I believe your organisation took a prominent role in defending that particular person. Do you feel that your organisation is such that it really has little alternative? By the very nature of your activities, where these people say they should be allowed in and the British Government says no and there is a court case and they call on your organisation, have you no alternative but to defend them?

  (John Wadham) Inevitably any human rights and civil liberties organisation anywhere in the world will have to be involved in defending and supporting those people who have very little respect within the general political, government and support of the people. If in fact human rights violations were only directed to respectable parliamentarians, then the situation would be very different. In every single country all around the world, human rights are most at risk with those people who are actually being targeted by the authorities. Sometimes that targeting is justified and sometimes it is not. Our concern is that innocent people are caught up within these mechanisms. If I had been giving evidence in 1974 about our concern about the arrest of the Guildford Four, the Birmingham Six, members of this Committee—obviously not you, David, but others—would have criticised us for saying in fact there is a real issue about doing something about IRA terrorism. What we should not be doing is supporting these individuals where there is dubious evidence. We should be making sure they are convicted to stop further terrorist activities. That is why we are here today, because we are concerned that in ten years or 25 years' time people's rights will have been violated and perhaps there may have been miscarriages of justice as a result or people will have been sent back to countries where they were killed or tortured and that those people were innocent of any involvement in terrorism. That is the key issue and those are the groups of people we are here to protect.

  David Winnick: Of course we know about the Birmingham Six and that was a disgraceful case, as indeed was that of the Guildford Four. We all remember the Birmingham 21 which I mentioned on the floor of the House yesterday.

  Chairman: We do want to stick to the legislation and we are getting very far wide of the legislation at the moment.

Mr Prosser

19.  Mr Scannell and Mr Wadham have given the impression that all the necessary mechanisms are in place with the existing law and there is no need to go outside the present arrangements. Last week the Committee heard evidence from the Security Services—not in public—and we were given some very clear examples of cases where people had come through the ports or the airports, there was very clear intelligence information available on them, sometimes there were fake papers, sometimes other ways of entering the country. They were initially detained, then they sought asylum at entry, went through the whole process of appeal and JC. All of the efforts of the Security Services and the police were frustrated by the system. They made a very clear case which convinced me at the time—and perhaps you should all get together—that there was very much a need for new remedies and new procedures.

  (John Wadham) Firstly I have to say that when I see that material where they suggest there are problems, and hopefully this will be part of the debate when the Bill is published, then we can debate those issues, but your private meetings with people suggesting why things should be changed without any details are very difficult to deal with. I would say that if people are getting through the net and they know they should not do so, and we say the mechanisms seem to be adequate, if they have particular examples of what mechanisms need to be changed, then we can have the debate. In general it is quite hard to deal with those issues.

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