Select Committee on Home Affairs Minutes of Evidence

Examination of witnesses (Questions 180 - 199)



  180. For example, it could have come to the attention of the authorities through intercept evidence.
  (Mr Whalley) Information comes to the authorities by a variety of means, and of course, the Security Service are involved in all that, and that is the circumstance in which the Home Secretary would become informed about the activities of some of these people.

  181. If you want to sell these relatively Draconian powers to the public, as I am sure you do, you are going to have to be a little mor specific than using phrases like "a variety of means". I wonder if we can try and put some flesh on the bones. You are not doing badly, but sticking with intercept evidence for the moment, there has been a discussion within the Security Services and the police about making it available in court, which would solve this problem, would it not?
  (Mr Whalley) Yes. First of all, it is not my intention to try and sell this to you. I think that is for the Minister. What I am trying to do is to explain the circumstances in which this might be used. Of course, there is a debate about the use of intercept evidence and the Director General of the Security Service, among others, has commented on that. It is a longstanding debate, and intercept information is one of those things which will be available to the Home Secretary in some of these cases, I have no doubt.

  182. Give us another example. Yo have talked so far about people here. What about somebody coming in from abroad? Give us an example of somebody likely to fall foul of this.
  (Mr Whalley) I come back to the kinds of activity that they are concerned with, and we have to relate this specifically to what is said in clause 21(2)(a). In other words, we will be looking at whether the activities which the Home Secretary is informed about are related strictly to the tests here. That could be, as I have said, someone who is organising communications, training, fund raising, a variety of activities in support of terrorism, as well as acts of terrorism themselves. Those are the sorts of activities. But the test here is whether or not they link with any of the three criteria in clause 21.

  183. Has any other European country got these powers?
  (Beverley Hughes) Not yet, no. They are under consideration in a number of European countries at the moment which have not published or concluded their consideration of the powers they need to take. As I say, we have asked the Commission to look more broadly at the issue faced by a number of Member States. I have to say in relation to that point that each individual Member State will want to consider the level of threat to national security they think they are facing. It is clear that, because of the UK's very prominent involvement in the action in Afghanistan at the moment compared to perhaps other countries such as Denmark, the level of perceived threat will be very different, and therefore the powers that individual states feel they need to take will consequently be different too.

  184. There are countries, Germany for example, that seem to contain a lot more of these kinds of people than we do.
  (Beverley Hughes) We do not yet know what Germany is going to do. As I say, those matters are still under consideration and we do not yet have any information about their conclusions about whether they want to go down this route or not.

  185. Do you know of any other Europan country that is going down this route?
  (Beverley Hughes) As I say, we are furthest on in terms of having published our proposals, and we do not know the conclusions of the deliberations elsewhere.

  186. What about the Americans?
  (Beverley Hughes) The Americans are taking powers to detain people where they are suspected of terrorist activities. Those powers are quite wide-ranging, and could lead to detention for quite considerable times pending the ability to deport.

  187. Do they have them already or are they still working on them?
  (Beverley Hughes) Just to be absolutely clear, those were proposals that were in their original bill. I am not yet clear if they have enacted them.
  (Mr Whalley) I am not clear on the detail. I know that some measures have been authorised by the President.
  (Mr Walsh) The United States Act in question was passed in October. I think the broad outline of their powers on detention are quite similar to the ones proposed in this Bill in the sense that they are something which will be reviewed every six months, which is actually the SIAC procedure. In the United States, and I think to some extent Canada, they are perhaps more in line. The USA have already done something which the United Kingdom is now contemplating, whereas the other EU countries are probably not as far ahead as we are.

David Winnick

  188. I have a list from the library of persons who have been named in press reports as allegedly involved in terrorist activities, which I am obviously not going to go through in any shape or form, but is it not of interest, that, leaving aside the Middle East for the moment, a person and five others suspected of involvement in bombing in Italy were allowed into the United Kingdom a long time ago, in the 1990s, and despite all the allegations which have been made, they have been allowed to stay in the United Kingdom? That therefore gives one the impression that they and perhaps others have seen Britain as a kind of haven, escaping from places where they would be charged with terrorist offences.
  (Beverley Hughes) That may be the perception, and it may in the past have been the reality, in the sense that the immigration and detention procedures were neither fast enough nor robust enough to identify and deal with such people. But I think the Home Secretary, and indeed the previous Home Secretary under this Government made it clear that this country will not be a safe haven for people who should not be here, and who want to be here to undertake activities that we do not approve of and which constitute a threat. That is precisely why we are improving the immigration and asylum system, why we are proposing these measures here, and why we will also be bringing forward proposals to improve and streamline the extradition process early in the New Year.

  189. Are you familiar with the case I have mentioned of the Italians?
  (Beverley Hughes) No.

Bridget Prentice

  190. Mr Whalley was talking about Part 4, clause 21(2)(c). I wonder if you would explain what you mean by "has links with a person who is a member of or belongs to an international terrorist group" and what the difference is between the two phrases, "member of" and "belonging to".
  (Mr Whalley) I think the answer to that is probably not much more than what the specific formulation says. The cases in 21(2)(b) are those where there is some kind of adherence or allegiance to a particular terrorist group. As we know, of course, membership or belonging are quite tenuous and diffuse definitions in this sense, but that is something which will probably be clear in some cases. There may be other cases where people are conspicuously in their own terms not members of an organisation but they are working with that organisation. We know that international terrorist networks do function on the basis of links between individuals in various countries, and that is the danger which the Government is trying to meet in this Bill by making sure that people who are operating perhaps across borders, in a very tenuous way but in a way which might be vital to the support of that terrorist organisation, are covered just as specifically as those who are actually members of organisations.

Bob Russell

  191. Minister, earlier on this morning you said, "We recognise that this is a serious power, not taken lightly." That being the case, why does the Bill not contain an absolute expiry clause similar to that contained in the 1984 Prevention of Terrorism Act?
  (Beverley Hughes) Because we do not have a crystal ball, and we do not know when the circumstances that justify taking the power in our view are going to expire. What we have provided for is, in the first instance, a review by Parliament after 15 months, and thereafter on an annual basis, a process of affirmative resolution in both Houses of Parliament, and therefore it will be for Parliament to determine, if the Secretary of State does not do so in the mean time, when the expiry date will be.

  192. Would you not agree though that for some of those who feel very uncomfortable about this proposed Act, if there were a time limit put on it, that would ease some of their concerns?
  (Beverley Hughes) What would happen if we put a time limit on it and then Parliament felt it still needed those powers? It seems to me that what we have put in place, with a review process, is the right way. It gives Parliament the right to determine whether these powers should expire on a regular, annual basis, and that seems to me the right provision to meet the circumstances that we are in.

  193. Surely what would then happen is each year, each 15 months, whatever the time limit, there will be little more than a rubber-stamping. Surely if there were an expiry date, Parliament, the next Parliament or whenever would then have to look at everything afresh. Would that not be a better way of proceeding?
  (Beverley Hughes) As I say, it would be if there were absolute certainty and you could predict when these circumstances would change. In the event that we cannot do that at this stage, looking ahead, it seems to me that the provision for Parliament to review the situation on an annual basis is the right one. I do not accept that that would be rubber-stamping, and I think there will be consideration of what we need to do to make sure that this is a proper review. I have every confidence that Parliament will make it such.

  194. In reply to one of my colleagues earlier you also said this would be a temporary power. What is your definition of "temporary"?
  (Beverley Hughes) It is temporary in the sense that the Bill does not make it permanent. It institutes the power for 15 months and then, if Parliament does not renew that power through the process I have described, it will fall.

  195. So why can we not have an expiry date on the Bill? Your answers to me in effect say it does not have to be permanent, so why can we not just have an expiry date, and then Parliament can look at it totally afresh?
  (Beverley Hughes) I have said three times now that I do not think we can have an expiry date because we cannot predict with certainty a date in the future when this power should fall and when the circumstances will change. But what we have provided for is a power for Parliament to look at the circumstances afresh and to decide whether the power should continue or not continue. That seems to me to be the best way to meet the situation that we are in.

  196. Parliament will every now and again look at it afresh, as you say, not in the way I would like but in the way you are saying. Therefore, does the Government propose to make arrangements for the periodic review of the operation of the Act by an independent person or body, as happened under the Prevention of Terrorism legislation?
  (Beverley Hughes) There is not a provision for the same kind of review that was included in the Terrorism act, no. Parliament will review.

  197. Would you agree with me that, again, it might ease the concerns of those who are very worried about the ramifications of this Act if there were such an independent review of the operation of the Act?
  (Beverley Hughes) The actual process being put in place here does involve judicial examination on a case by case basis of the individuals coming through the SIAC process. I understand very well that that is not quite the same as what you are proposing, which is more of an overview of the way the whole thing is operating. Nonetheless, I think it is a safeguard, an assurance to people that, built into the system, on each and every case, is a judicial examination of the way that process is operating for each individual person.

  198. I would just conclude by asking whether you and your officials could at least look at that possibility.
  (Beverley Hughes) If it is raised in the debate, we will.

Bridget Prentice

  199. I am going to turn to asylum claims. Why are the present powers for rejecting asylum claims of people who come within Article 1(F) of the Convention inadequate?
  (Beverley Hughes) Our current legislation requires if somebody lodges an asylum claim for that to be dealt with before consideration of the issues raised by a person's activities and whether they are a threat to national security. What this Bill will enable the Government to do if somebody is apprehended because there is a concern about them, who then puts in an asylum claim, is that the Secretary of State will, through the certification process, be able to set aside the asylum claim and deal with the other issues first. At the moment, under our current legislation we have to deal with it the other way round, and that means that we actually cannot take actions against somebody.
  (Mr Walsh) The issue is as much for the court or independent review process as for how the Secretary of State considers the claim. The provision in the Bill says that if the Secretary of State comes to the view that the person would be excluded from the protection of the Convention, either because of Article 1(F) or because of Article 33(2), if the Secretary of State makes a certificate to that effect, it requires the review body, which in this instance would be SIAC, to address that exclusion point first, and if it agrees with the Secretary of State on that, that is the end of the asylum claim. There is an asylum claim, but under this approach the whole asylum claim can be refused purely on the basis of exclusion, if that is what the Secretary of State concluded was right. If SIAC agreed, that would be the end of it. Without this provision, it might well be that SIAC, or indeed any other court, would itself wish to look at the exclusion clause and what is often termed the "inclusion" clause, which is Article 1(A), which is well-founded fear of persecution. What this provision is doing is putting beyond doubt that if the Secretary of State wishes to just look at the exclusion clause first and comes to the view that that applies, and therefore the 1951 Convention does not apply, the reviewing body, SIAC, and onwards to the Court of Appeal and the House of Lords, would have to focus on that, and if they agreed with it, they could not look beyond that.

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