Examination of Witnesses (Questions 40
THURSDAY 8 NOVEMBER 2001
40. Several thousand people have passed through
these camps, they have gone on to organise wars in half a dozen
other countries and some of them are ending up here.
(John Wadham) I understand but the last
point of this process is to think it through a little further.
Let us assume that we were to detain this group of people and
say we are detaining them until such time as we can find somewhere
to send them. I imagine that it is possible that a country will
say they will have all these people. This country may not support
the European Convention on Human Rights or the international comparisons
and may well say they are happy to harbour these terrorists. Then
we release them and we release them into the world and they go
on to commit offences. The Government has no solution to that
and detaining people for a period
41. But the most likely sequence of events is
that no country would want to receive such people.
(John Wadham) In general terms that may
42. No country where the rule of law applies.
(John Wadham) Absolutely, but it may
be that Afghanistan or some other country may take the view that
they are happy to accept those people. There is no mechanism I
can see which can be designed to prevent those people leaving
once these processes have been put in motion and those people
would then be free to travel round the world, subject to controls,
and commit offences. The Government has no idea what to do with
these people, except to lock them up until such time as they can
find a place to send them.
43. You are broadly right. The Government have
no idea what to do with these people. Did you have a better idea?
(Professor Gearty) Why can they not bring
criminal proceedings under section 56, directing terrorist activities,
or incitement to commit terrorist acts abroad? These provisions
were very controversial when they were introduced, they were presented
precisely to deal with the alleged problem, that there were persons
within the jurisdiction on whom you could not fix exact criminal
offences, whom you needed to deal with through the criminal process.
Those pieces of legislation were achieved. Terrorism is extremely
broadly defined. They represented a massive victory for those
who argued precisely for the need to act. Now we are being told
that even these crimes are not sufficient to underpin prosecutions,
that we need to pre-empt these persons before they engage in any
conduct within the jurisdiction and effectively intern them.
44. Let me try to humanise this point with a
theoretical example. Let us take a man in Jordan who is plotting
a terrorist offence in both Jordan and in England. We know that
from a telephone tap of a telephone conversation he has had in
Jordan. That is the only evidence the Security Services have.
This man flies from Germany and then arrives in England and does
all the things the Chairman says and applies for asylum and everything
else. Is it not the case that he would go through SIAC? You cannot
take criminal proceedings and he cannot be deported and he cannot
be detained and therefore would be at liberty and is that not
the problem we are trying to deal with?
(John Wadham) There is an issue. I do
not know whether you want to explore this. The product of telephone
taps obtained in other countries is admissible in evidence in
this country. There has been a recent case on that. Secondly,
we have no concerns in principle about the use of evidence from
telephone taps in criminal trials. We do have concerns about how
the warrants are granted and they should be by judges.
45. As head of Liberty you are always going to
accept that if the Security Services have a very small grain of
evidence which leads the Home Secretary to believe that this person
should not be allowed into the country but it is not sufficient
for criminal proceedings, under the current arrangements, and
why the Home Secretary has come up with these proposals, that
person can be at liberty in this country, we cannot deport him,
we cannot detain him, at liberty in this country plotting terrorist
outrages and under current rules there is nothing you can do.
(John Wadham) I accept that there is
a category of people who create difficulties, but within that
category of people, we are making the assumptions that all of
this category of people are in fact guilty. Our concern is that
the intelligence on some of these people will be wrong and these
individuals may be innocent. My concern is either you send them
back to a country where they are going to be tortured or killed,
or you detain them indefinitely and you do so on the basis of
intelligence which could be wrong. What we are suggesting is that
in relation to foreigners, something we cannot do to British citizens,
we will detain them on the basis of intelligence which is not
evidence and which may turn out not to be true. That is what this
Government is contemplating and I imagine that is what Parliament
is contemplating and I cannot see that can be a justified approach,
even in the circumstances you outline, in a civilised society
which supports human rights. That is fundamentally the problem.
46. Is it not even worse than has been described?
The reason I chose Germany is, am I not right in saying, that
under the Adan and Aitsegeur case you cannot actually deport
someone from England to Germany or even to France because of the
suspicion that the French or German authorities will interpret
the ECHR differently from us?
(Rick Scannell) No. The Adan and Aitsegeur
case concerned a very, very narrow question and it is extremely
narrow and it relates to the Refugee Convention and whether the
approach to non-state agents was lawful. The House of Lords in
a decision said that it was not. In the meantime, before the House
of Lords made that decision, Parliament passed what is now section
11 of the 1999 Act which deems that all EU member states who signed
up to standing arrangements, presently the Dublin convention,
deem them to be safe. So in Refugee Convention terms
47. Do you think that problem has now been solved?
(Rick Scannell) I am suggesting it is
not a problem. The problem is actually whether or not that third
state, Germany or France to take the example, would send somebody
on in breach of their human rights to a third country. A number
of cases have tried to suggest that there is evidence that that
would happen, but none has succeeded. I am simply saying that
in practical terms that is an isolated and narrow problem which
really does not have any bearing on what we are considering.
48. Do you think that the Home Secretary's plans
for indefinite detention are basically internment?
(Nicola Rogers) Yes.
(John Wadham) Yes, they are. There is no doubt that
they are because it is internment without charge or trial. They
are saying, "We suspect you. We don't think we can prove
it or we can't find the country where it could be proved. We are
going to keep you indefinitely". That seems to be the definition
of internment. I cannot think of any better.
(Professor Gearty) Governments do not usually describe
it as internment. It is usually presented in some other way.
49. Do you think that it is possible to derogate
from Article 5? Do you think this will work or will it be challenged
on other grounds?
(John Wadham) In the material we have
circulated we have circulated an article I have written with my
colleague, which outlines our concerns about derogation. If the
Government go ahead with indefinite detention then we are sure
that derogation is necessary. Moreover, we think that for them
to try to make lawful what would ordinarily be unlawful can be
challenged. There are issues about whether it can be challenged
in the domestic courts and the challenges will be the usual challenges
about ultra vires etcetera, etcetera. We are certain it
could be challenged in the European Court of Human Rights. In
the article I have set out some of the particular cases, Brannigan
and McBride and another case involving the Greek Government
from 1967. Our view is that it can be challenged because the definition
in the derogation power in Article 15 is that there must be a
war or other public emergency threatening the life of the nation.
50. Do you not think that current events qualify
as a public emergency? With several thousand people dead in New
York, 200 of which are British, is that not an emergency?
(John Wadham) Let me take you through
it. The situation in Northern Ireland was agreed by the European
Court to be a war or other public emergency threatening the life
of a nation in the 1990s because of course in Northern Ireland
substantial numbers of people were being killed. The figures were
something like 3,500 people killed over 25 years and that there
were threats not just to individuals, but to the state apparatus
itself and the IRA were determined to oust the British Government
and British soldiers. There was clearly a threat to the state
itself. It may well be that in New York, if the United States
Government were in fact a signatory of the ECHR and it wanted
to bring in these proposals, it might well have a case itself.
At the moment, however, thank God, there have not been any terrorist
outrages and as far as we can tell, the intelligence does not
suggest that there are . . . I do not know any more about the
intelligence than anyone else, but statements made by the Metropolitan
Police suggest they have no intelligence that there are active
operations which will be a threat to London at least. I am not
suggesting that they are not being planned somewhere. There is
a test. Compare that with a situation where the European Commission
of Human Rights decided that there was not a war or other public
emergency concerned: the takeover by the Greek colonels of Greece
in 1967. There was a significant number of outrages at that time
and the Commission decided that it was not. I am not suggesting
I know the answer to that, but it is challengeable and I am saying
that I think Liberty and other people will challenge it because
of concerns about the fundamental nature of this process.
51. Is not the problem here that the Home Secretary
would like to have two weapons at his disposal: detention for
those he thinks are dangerousyou disagree with that; deportation
for others. Is not the problem that deportation is almost impossible
now because of the case law? Can you tell me where in the ECHR
it mentions the word "deportation"?
(John Wadham) It does in Article 5.1F.
52. It does not in Article 3, does it?
(John Wadham) No. There is an issue but
we should not be criticising the fundamental rights in the Convention
so much as actually saying that the real problem with this, as
we all know, is the circumstances in some other countries where
people will be tortured. That is the problem. I am not suggesting
53. The Soering case said that you could
not deport someone to the US.
(Nicola Rogers) In very particular circumstances.
54. Is this not the problem, that basically the
Home Secretary has come to the conclusion that he will have to
detain people indefinitely, not just because of the ECHR itself
but the case law says that deportation really is not an option.
(John Wadham) That is true, but only
if the country to which the person is being sent is likely to
treat them in a way which violates Article 3. The issue in relation
to the Soering case and the United States was that the
European Court of Human Rights took the view that the way in which
people spent their time waiting for capital punishment, the death
row phenomenon, was a violation of Article 3. It is possible,
of course, for people to be deported or extradited to the United
States even on capital cases, provided the Government of the United
States accepts that if they are convicted they will not be subject
to capital punishment. They could be convicted and they could
be detained for life and that would not be a violation of Article
3. It is not true to say that we cannot deport people and it is
not true to say that we cannot deport people to the United States.
The issue is in those countries who do treat people in a way which
does violate Article 3, because that is a fundamental right not
just in the European Convention on Human Rights but in the United
Nations' treaties and many other treaties, and there is a problem
in those particular circumstances.
55. Would you accept that deporting people who
could pose a severe danger to this country has become, because
of the Soering case and other cases, much more difficult
in recent years?
(John Wadham) It is more difficult, but
I see nothing wrong with the case law because the case law follows
logically. If in fact this Government were to take steps which
would virtually inevitably lead to violations of Article 3, then
it is responsible and therefore it should not take those steps.
56. It is not violating Article 3, it is violating
the case law. Do you not accept that a country has a right to
exclude the people it sees as a danger to its own country?
(John Wadham) Yes, except where it is
going to be likely that those people will go to a country where
they are going to be tortured or subject to other violations of
Article 3. Otherwise it seems to me that the whole process of
the Convention has a gap in it where we cannot torture people
ourselves, but we do not care anything about whether we send people
to places where we know they are going to be tortured. I cannot
see the logic of that.
Chairman: Nobody is arguing that people should
be sent back to be tortured. That is not an issue.
57. What I am trying to say is that one of the
reasons the Home Secretary has gone for detention is because the
other avenues have been effectively closed off by case law.
(John Wadham) The case law is a logical
consequence of Article 3. The European Court of Human Rights has
not come up with some mad ideas which do not fit into the Convention.
As far as I am concerned as a lawyer and expert on human rights,
those are logical consequences of protecting people from Article
58. Does all this mean that if Mr bin Laden surrendered
himself to Scotland Yard next week we could not send him to the
United States for trial because the United States might impose
a death penalty? Does it mean that he could not be sent there?
(John Wadham) No, it means that he could
not be sent to the United States if the United States would not
promise that the court would not impose the death penalty.
59. Is it mad that we are in a position whereby
he could be shot by anybody out in Afghanistan, but if the United
States wanted him for due process, a proper trial, if they still
retained the death penalty, we would be stuck by the Convention
and could not send him?
(John Wadham) No, no. They can continue
to have the death penalty. What they have to do, which has happened
in cases where people have been extradited to the United States
since Soering, is that individuals who may be subject to
capital punishment cannot be extradited until such time as the
United States promises that even if the person is convicted and
may get a very long sentence, possibly for life, they will not
use capital punishment against them.