Examination of Witnesses (Questions 20
WEDNESDAY 14 NOVEMBER 2001
20. Home Secretary, you said on 15 October that
there was no immediate intelligence pointing to a specific threat
to the United Kingdom. Is that still your assessment today?
(Mr Blunkett) The assessment today is the one I put
out in the letter to all Members of Parliament. There remains
a general threat, the security servicesMI5, the anti-terrorist
unitand our external intelligence services are assessing
that on a regular basis.
21. So the threat is the same as it was on 15
(Mr Blunkett) It varies.
22. Would you say the threat we are facing now
is a bigger threat than we faced in all the years when the IRA
were bombing London and other parts of the mainland?
(Mr Blunkett) Yes, I would, because it was very clear
and understood by our intelligence services that the IRA were
not using chemical, biological, radiological or nuclear provisions
for attack. They never threatened to do so, they did not possess
those weapons to do so, nor did they indicate that they were engaged
in an international terrorist action.
23. Are you comfortableI imagine you
are notwith the possibility that we will be detaining people
against whom there is insufficient evidence to mount a criminal
(Mr Blunkett) I am happy if people are coming to our
country and are adjudged to be a risk that we have every right
to ask them to leave.
24. Indeed, but to detain them?
(Mr Blunkett) If we do not have the ability, because
we are committed to, and remain inside the ECHR with respect to
Article 3, to send them back to either their country of origin
or the country for which we believe they are working or seek to
take terrorist acts against, then we have the right to detain
them rather than simply letting them free to continue undertaking
25. But as they will not have been subject to
a normal judicial process, how can we be sure that the persons
who are detained are in fact, as you describe them, terrorists
abusing their position rather than innocent people who have been
misjudged by the security services?
(Mr Blunkett) Because we do have a judicial process,
SIAC is a judicial process, it provides the evidence in camera,
the accused has an advocate working on their behalf, and they
have on a point of law the right to appeal to the High Court and
subsequently, if given leave, to the House of Lords.
26. Mr McNamara has covered that point. Have
you made an assessment of how many people you think will be caught
by this particular provision?
(Mr Blunkett) The security services understand the
nature of the numbers. They would be presented to me. I would
have to make a judgment as to whether there was sufficient evidence
to go forward to give a certificate that we should take them through
that process. That is what we will do. We adjudge there are very
few people, but it does not matter how many there are, if they
are organising international terror or putting people at risk,
then we should take action against them.
Chairman: We will move now to the immigration
and asylum part of the Bill.
27. Home Secretary, Part 4 of the Bill deals
with immigration and asylum and our concerns are about definitions
and avoiding arbitrariness by discrimination. First of all, in
Part 4, clause 21, the Secretary of State may issue a certificate
if a person has links with a person who is a member or belongs
to an international terrorist group. We have been unable to find
in any other legislation such a broad definition using the word
"links", and indeed in this Bill it is certainly not
defined, whereas in the Terrorism Act of 2000 certainly by offences
a definition is actually given. Could you give us a definition
of "links" and could you say whether the Bill might
actually be better improved and indeed fairer if the definition
of "links" were to be included in the Bill?
(Mr Blunkett) As we discovered, and I have the definitions
of the Terrorism Act in front of me, the narrower you make the
definition, the more difficult you make it to actually be able
to deal with a changing situation where, through the changes in
international communication, whether in fact that is communication
between people or the transmission of finance, you actually restrain
yourself from being able to take action in circumstances where
those undertaking or threatening to undertake terror, or engaged
in organising to do so, are able to use against you the tightness
of the definition you have given. "Links" in this case
entail the kind of contact, support or organisation that enable
or support those who are undertaking terror. To do otherwise would
be to allow those who are actually engaged in providing support
to actually be allowed to remain here simply because they are
not themselves directly engaged in such terrorist activity.
28. I think nobody on this Committee would wish
to see anybody being able to engage in that sort of activity,
but you do accept it is a very, very broad definition?
(Mr Blunkett) I accept it is a broad definition based
on the recognition that we are talking about links with those
who are undertaking or believed to be undertaking such actions,
but the definition itself would have to be tested through the
process that I have described.
29. The second question in relation to this,
Home Secretary, is that in relying on immigration legislation
to provide for detention, there is a concern that the Bill risks
discrimination on the grounds of nationality. If, for example,
I had a sister-in-law who lived in Bradford, whose brother, say,
was a member of al-Qaeda, and I was a foreign national, under
the links provisions I would be at risk, would I not, of falling
within the definition of a suspected international terrorist.
If, of course, I was a British citizen, under this legislation
I would not. Again, nobody here wishes to see anyone being able
to commit a terrorist act, but is there not a danger here that
it is discriminatory?
(Mr Blunkett) If someone is already resident in the
country, we would have to show the link they have with someone
who was seeking to enter the country and was being denied entry
or access to the normal immigration process because of their terrorist
activitybecause that is the crucial definition here, we
are talking about people who are coming in who are seeking to
use the immigration powers to remain here or to exploit their
position hereor the links they had with someone who was
already resident was such that they actually put at risk people
here or elsewhere. So there would have to be the evidence base
that I described earlier, the threshold of which was laid down
and has been agreed by the House of Lords.
30. Home Secretary, can I ask you three questions
about the specific legislation and start with clause 21? Your
criteria for issuing a certificate do not have what I suggest
to you is the usual caveat that they require reasonableness. May
I quote them? You may issue a certificate if you believe that
the person's presence is a risk to national security and suspect
the person is an international terrorist. I would suggest that
usually, in things like powers of arrest and so on, anyone would
be required to believe "on reasonable grounds" or suspect
"on reasonable grounds". May I add, that the test on
appeal is equally unbacked by that kind of qualification, in that
on appeal the Commission must cancel the certificate if it does
not agree with the Home Secretary's assessment.
(Mr Blunkett) Yes.
31. Would it not be better if a straightforward
objective test of reasonableness were put in at each stage, so
that everyone can understand that reasonableness and objectivity
had been applied?
(Mr Blunkett) My reasonableness and objectivity is
tested throughout. Of course, what we are talking about here is
changing the nature of the process or the rules of evidence applied
through SIAC. I just want to make this clear, because there appears
to be a public misunderstanding. We are not inventing SIAC or
its rules of process or evidential base; we are using it in order
to give people rights to be heard and to have their case heard
in circumstances where in other ways I would have removed someone
from the country, but because I am not enabled to do so, because
I am not prepared to send them to death or torture or degrading
treatment, I am not currently able to do that because they would
claim habeas corpus, and because I could not do that and
remove them to a safe country, I would have to release them. It
is that process that we are talking about here, not going back
to arguing the Terrorism Act or the 1997 Act that set up SIAC.
I think there is a grave misunderstanding about where we are starting
from. We are starting very close to the peak of this issue, not
down at base one.
32. Could I assure you that there is no misunderstanding
of that nature in this Committee.
(Mr Blunkett) I did actually say "publicly".
I understood very well that the Human Rights Committee would know
more about this than I do, so I am humbled by it.
33. Do you accept though, Home Secretary, that
it is a fair point that, on the face of these criteria, they are
not buttressed by what would be an extra element of transparency
and clarity, namely the requirement for reasonableness at all
(Mr Blunkett) I am prepared to consider the point
you are making.
34. I am very grateful. May I then pass on and
refer you to clause 27(9). I shall read it because it is slightly
unfair of me if I do not. That refers to the appellate procedure
and some supplementary provisions attached to it and provides
as follows: "Cancellation by the Commission"that
is, by SIAC"of a certificate issued under section
21" by you "shall not prevent the Secretary of State
from issuing another certificate, whether on the grounds of a
change of circumstance or otherwise." We are concerned that
the word "otherwise" would allow the re-issue of a certificate
with no real change of basis at all, and that that would render
the whole issue, the whole appellate process, redundant or capable
of becoming repetitive. What do you say about that issue?
(Mr Blunkett) I am, unusually for me, pausing because
the intention is that there would have to have been a change in
circumstance or material evidence that had not previously been
available, in circumstances where I would take the case back to
SIAC having failed. We did consider the question of whether a
certificate could be issued by any Home Secretary in circumstances
where it was necessary to override such a judgement. I adduced
that that would be a breach of human rights and would not be an
acceptable process, nor did I think that it would accord with
the terms of the derogation which were envisaged by those who
drafted the Convention. So I am prepared to look at the term "otherwise".
(Mr Carter) May I assist the Committee?
(Mr Blunkett) Yes, kindly do so.
(Mr Carter) One of the reasons for the words "or
otherwise" is to deal with the case where SIAC cancels a
certificate on appeal, but the Secretary of State appeals that
cancellation in a court of law and wins that appeal in a court
of appeal. In that type of case he might wish to issue a fresh
(Mr Blunkett) We need to make sure that we make that
absolutely clear then, because we are otherwise asking for the
appeal to go back to SIAC.
35. Thank you very much. I am promised three
questions, and I hope this is the third one.
(Mr Blunkett) I hope it is not as hard as the first
36. With respect, you seem to be coping. It
is about the review procedure. You will be aware that clause 26
allows SIAC to reviewindeed, requires SIAC to revieweach
certificate either after six months after the expiry of an appeal
if there has been one, or six months after it has been issued
if there has not been one. Bearing in mind the very serious nature
and the very, very high consequences of this power, would it not
be appropriate to have a review far more frequently than six monthly?
May we suggest monthly?
(Mr Blunkett) We felt that if SIAC was to do its job
properly and we were able to enable the security services to do
their job properly, it was very important that there was a sufficient
period between the initial judgement or adjudication and the return
to court, not least on the grounds of practicality, but also in
terms of the likelihood of circumstances having changed so quickly,
and on reasonableness grounds, I think, that the State, on behalf
of its people, has a right to ask has that time elapsed. Should
the circumstances change materially in that time, it is, of course,
open to the Secretary of State to determine that it would be fair
to return to the issue anyway. This is a maximum, not a minimum.
37. How would that be drawn to your attention?
(Mr Blunkett) By the change in national circumstances
or the domestic interface, with them having changed to the point
where, as with the renewal of the power annually, it was generally
adjudged that the position had eased. That is what we will have
to do on an annual basis to the two Houses of Parliament in terms
of whether we seek renewal.
38. Following up, Home Secretary, from Vera
Baird's questions on certification, I wish to ask you one or two
points about the appeal procedure, which are indeed concerned
with the standards of Articles 5 and 6, with the appeal on certification.
As I understand it, before the Court of Appeal, or on appeal from
the court to the House of Lords, there is a risk that the appeal
procedure could be insufficient to meet the standards of Articles
5 and 6 because there is no provision under the legislation for
the nominated representative to represent the applicant's interest
in the appeal. Obviously if, for example, new evidence were presented
on the appeal on behalf, say, of yourself, which for reasons of
national security could not be adequately tested on behalf of
the applicant, it is very understandable that that might give
very serious concern for reasonableness and fairness. So I wonder
whether or not you might consider, or indeed have considered,
extending the role of the nominated representative to include
participating in appeals from SIAC in appropriate cases under
(Mr Blunkett) I think we ought to be clear that the
appeal on a point of law is being dealt with here rather than
going through the evidential base taken by SIAC. The individual,
as I understand itI am happy to be aided by my adviserswould
be represented at the appeal if they so wished. I see no reason
why they could not be represented by the advocate, if they so
wish, who had represented them at SIAC.
(Mr Wrench) If I may, there are two stages in the
SIAC process, an open session and a closed session. It is in the
closed session, when the intelligence material is introduced,
that the appellant's interests are represented by the special
advocate, but he can have a normal lawyer, if you like, who is
representing him in the normal closed stages and can go on to
take points of law in the higher courts.
39. Whilst that is true, Home Secretary, at
the level of SIAC, once it comes before the Court of Appeal, under
this legislation, I believe, there is no provision in this legislation
for the nominated representative who was able take part at the
SIAC level to represent the applicant's interests in the appeal.
(Mr Carter) This is no different from the current
position. The Court of Appeal, as I understand it, in the Rehman
case allowed a special representative who acted before SIAC
to represent the appellant.
(Mr Blunkett) So they could if they wished.