WEDNESDAY 14 NOVEMBER 2001
Campbell of Alloway, L. Jean Corston (Chairman)
RT HON MR DAVID BLUNKETT, a Member of the House, Secretary of State for the Home Department, MR COLIN HARNETT, Head of Bill Team, Emergency Anti-Terrorism, MR PETER WRENCH, Deputy Director General, Immigration and Nationality Directorate, MR BOB WHALLEY, Head of Terrorism and Protection Unit and MR HARRY CARTER, Assistant Legal Adviser, examined.
(Mr Blunkett) I agree.
(Mr Blunkett) Of course. Thank you very much.
(Mr Blunkett) As spelt out in the House of Lords in the Rehman case five weeks ago, the definition of Athreat@ which exists from or in this country by people who are currently resident here was adjudged to show that in the current world conditions, an attack does not have to be targeted specifically against the United Kingdom or its interests to be regarded as a danger to our national security. They were making that judgment on the grounds of the challenge that was made which your members will be aware of in respect of both the threshold that had to be achieved in terms of the evidential base and the appropriateness of the use of the Special Immigration Appeals Commission. Our view, and the security services and the intelligence services are doing daily assessments, is that since 11 September the global threat and the activities of those who may be based here has increased and that from to time that threat is enhanced within the United Kingdom. But our case rests on the fact, and we have seen it from both other governments and from those commentating, that there is a very real consideration about those who are using the United Kingdom as a base for aiding, abetting, supporting, helping to finance organised terrorism across the world. It is in the circumstances where, on other occasions, I would be able to adjudge as Home Secretary that someone=s presence was not conducive to the public good, but because I cannot remove them to a third country, I should either leave them alone or seek to detain them, that we are moving to detain them.
(Mr Blunkett) Where people are adjudged to have been involved or engaged directly with the terrorist acts against the World Trade Centre or the Pentagon, then of course we can use existing laws, including our terrorist laws, we can use our extradition laws and we can negotiate removal, and that is what we have been doing already in terms of those who have or are currently held on charges which would enable us to remove them, just as that would be the case in Germany or Italy. But where we have people who use the United Kingdom as a base but have not been adjudged or are not believed to have sufficient evidence to show they committed a crime here but our security and intelligence services believe they are a threat here or in the rest of the world, we have an obligation to ensure we do not act as a host, as a haven, for those people who are not British nationals, who are here as guests in our country but are abusing that hospitality. They have the opportunity of leaving the country but if we are not to send them to torture, death or degrading treatment, we cannot under Article 3 of the ECHR, as you are aware, actually send them abroad. If I just give you the scenario: someone is adjudged by our security and intelligence services to be a risk, we do not have an extradition arrangement with a particular country or we believe that individual would be in danger, as I have just described, I adjudge they are not conducive to the public good and I want to remove them. If they go for habeas corpus, and I cannot show I can remove them to a third safe country, then they have to be released, and that has been of course the case in the past. There are times when through the appeals process people have not used habeas corpus but there has been a direct appeal through the courts, and people have been held for a very long time. In the Chahal case which became notorious because of its relevance to Article 3 and the jurisprudence which was made of it, he was held for five years.
Lord Lester of Herne Hill
(Mr Blunkett) You are right, yes.
(Mr Blunkett) That kind of a problem has been longstanding, but the problem we have faced since 11 September, precisely because there has not been the specific threat, is much greater because we do not know at any time what people who are organising, supporting, funding or aiding those terrorists will do here or across the world, and one of the accusations that has been made about the United Kingdom is that because of the way in which it has been possible for people to be hosted here whilst planning such attacks, we ought to protect both ourselves and the rest of the world from being able to do so.
(Mr Blunkett) Other countries have considered, and are in the process of still considering, what changes they wish to make to their domestic law. If you take a country like Denmark, which has been changing its domestic law, their adjudgment is that the particular threat that they are facing can be dealt with by supervision of people who are hosted in their community. We are not in that position. We are adjudged internationally to be more at risk than the Danes or other smaller European countries, we know that we are, and the steps we have taken since 11 September, in terms of civil contingencies and security protection, have reflected that heightened concern. Our position internationally and our support for the United States have increased that danger. Also, as the Germans and French are often pointing out, we have a larger host community of those who the Germans and French allege are organising for international terror.
(Mr Blunkett) If a country is prepared to take someone, then we would release them under these particular powers, because we are talking about immigration powers here, in circumstances where, to pick up madam Chairman=s original question, we could also be dealing with people who then claim asylum once they are actually charged.
(Mr Blunkett) Yes, we do in terms of Article 15 in order to derogate from Article 5. It was precisely because those drafting the European Convention on Human Rights envisaged such circumstances, it was precisely because those drafting the 1951 Refugee Convention foresaw such circumstances in Article 1(f), that these provisions were actually put in place. Now I would challenge anyone to tell me, post 11 September and the threats that have been made by bin Laden and the al-Qaeda group, whether there have been, or whether there are likely to be, circumstances which are greater than those we face at the moment which would justify under Article 15 the derogation from Article 5; because if people cannot, then they really need to accept that we have tried to take a middle road, a middle road that does not de-ratify or withdraw from the ECHR because of the Article 3 provisions, but respects that we have a right as a nation not to host those who are not our nationals but are here for nefarious purposes.
(Mr Blunkett) Article 15 technically allows us to derogate from Article 5, and that is what that means.
(Mr Blunkett) There are interesting ways in which those nations, since the Convention on Human Rights was developed and within the Refugee Convention, have sought to use their own domestic powers, the French in relation to Algeria, for instance, which I suggest that members of the Committee might wish to examine, but might prefer not to this evening.
(Mr Blunkett) Not at this moment, no.
(Mr Blunkett) No, some countries are examining the position as to whether they feel that they need to derogate in order to remove people who are non-nationals from their soil.
(Mr Blunkett) They are using a power, though they are not, of course, part of the European Convention. They are currently holding 1,000 people following 11 September. Some of those are held on immigration grounds, some on military grounds, some on normal public order grounds. Again, it would be quite instructive to examine the nature of the different powers that have been used in the US to hold those 1,000 people for the last four, six or eight weeks.
(Mr Blunkett) The edict signed by the President this week indicates, of course, that there is evidence, as there is through SIAC, which has to be presented in private, because of the nature of the security services= risk if that was presented publicly. It is precisely because the three-wise-man tribunal was adjudged in this country not to be satisfactory that SIAC was created, prior, of course, to 11 September, dealing with cases which do not fall into the category that we are dealing with with the emergency anti-terrorist action, but precisely the same problem of being able to present, whilst still protecting the security services, a case that can be heard by that Commission which, of course, is a tribunal and has rights of appeal on points of law for those who have gone through that.
(Mr Blunkett) The appointed advocate on his behalf does.
(Mr Blunkett) I am sure many times, as long as I remain Home Secretary, I shall be proud to be able to adduce the House of Lords in protection for myself, Madam Chairman. On this occasion, I would simply go back to the Rehman case because that was precisely the issue that was being debated, that has been taken through the Appeal Court to the Lords over the last five years in relation to both the process which was undertaken, the evidence base which had to be adduced and why it was necessary in protecting our democracy for the security and anti-terrorist services to be able to do so in camera. They found in our favour.
(Mr Blunkett) I am sorry, it is very much the point.
(Mr Blunkett) Yes, and Mullah Rehman actually was making those points and lost.
Mr McNamara: That may be so, but it does not alter the fact.
(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 services - MI5, the anti-terrorist unit - and our external intelligence services are assessing that on a regular basis.
(Mr Blunkett) It varies.
(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.
(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.
(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 that organisation.
(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.
(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.
(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. ALinks@ 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.
(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.
(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 activity - because 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 here - or 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.
(Mr Blunkett) Yes.
(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.
(Mr Blunkett) I did actually say Apublicly@. I understood very well that the Human Rights Committee would know more about this than I do, so I am humbled by it.
(Mr Blunkett) I am prepared to consider the point you are making.
(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 Aotherwise@.
(Mr Carter) May I assist the Committee?
(Mr Blunkett) Yes, kindly do so.
(Mr Carter) One of the reasons for the words Aor 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 certificate.
(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.
(Mr Blunkett) I hope it is not as hard as the first two.
(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.
(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.
(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 it - I am happy to be aided by my advisers - would 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.
(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.
Lord Lester of Herne Hill
(Mr Blunkett) We have talked quite a lot about this, given there have been people under a variety of circumstances who have been held for a great deal longer under our systems. The three wise men, or women, although they tend to be men, were adjudged to be better than the Home Secretary signing an order. SIAC was adjudged, and I am grateful for your comments on it, to be better than the three wise men or women. I am very happy to look at, in terms of prolonged detention, whether there should be a more frequent review. I think the initial stage is reasonable and given the length of time that some residents, not nationals but residents, of our country have been held over the years, it is not unreasonable in that initial period, but I am very happy to consider that point in terms of any prolongation which would take place in relation to detention.
Lord Lester of Herne Hill: Thank you.
(Mr Blunkett) Firstly, we have. Secondly, we are aware this is a power which is used for those who are adjudged to be engaged in the way I have described rather than because of their cultural, religious or national backgrounds. Thirdly, we believe that there has to be a judgment made in these cases, as there is when people are held prior to extradition or where they have committed a crime in this country where there is great aggrievement - and we all as constituency MPs or as Members of the House of Lords have been aware of cases which cause great distress and sometimes anger within particular ethnic communities in this country - and where it is adjudged it is reasonable and acceptable for us to take that risk, because it is right that people should be held rather than allowing them to perpetrate the crimes of which they were accused or suspected. The judgment is that it is fair in these circumstances, where the security and intelligence services believe there is a real risk and where I have to make a judgment of putting this to the test, that we should do so. That will always be the case in terms of balancing the action you take against the reaction you create.
(Mr Blunkett) I think I express the broad swathe of opinion when I say that we ourselves are taking these measures with regret. We regret they are necessary. We believe they are necessary and we will only adhere to them so long as they remain necessary. I believe, whether it is those adhering to the Islamic, Jewish or Christian faiths, they feel exactly the same. The leadership of all communities have asked us to balance proportionately the need for protection against the importance of retaining human rights, and I have sought to do that.
(Mr Blunkett) You have asked me more than one question. I do accept that prosecution is always favourable than having to take other routes, but I also accept there are those from countries who would not be seeking extradition or prosecuting those who they hosted, for the reasons we are aware of, who would arrive in our country and seek to work with, to foster, to incite or to carry through terrorism in or outside Great Britain in circumstances where we therefore are not in a position to pursue with the evidence we would need prosecution, because the base from which they came would be such they would not be adducing the evidence to give us to prosecute in our courts. It is that particular problem that we are dealing with by taking this route.
(Mr Blunkett) We already have powers under the immigration laws to require at the port of entry people to be able to identify and to be prepared to accept normal identification processes, but the police have drawn our attention to the fact that there is no such provision that would be necessary if people were prepared to deny their identity in the circumstances we are dealing with at the moment. So it seemed to us it was perfectly fair, whether this was fingerprints or facial covering, that in circumstances which protected the cultural requirements of those concerned, not least in ensuring any investigation for females was undertaken by females, that it was reasonable to bring these powers to bear. No one, we believe, has anything to fear from declaring their identity. The only thing we ever have to fear is that people mistake our identity for others.
(Mr Blunkett) There will always have to be a stated site for such requests to be carried through. This is not something which can be undertaken in the street. This is about the ability of the law enforcement agencies to be able to do their job and therefore we would not only specify that this would have to be undertaken on specific sites but also in the circumstances I have described, so that people=s dignity and personal rights were respected.
Lord Campbell of Alloway: Home Secretary, could I raise a constitutional question and the question of natural justice and just forget for a moment the European Convention of Human Rights and deal with this matter according to our tenets, to our common law on natural justice? First of all, Home Secretary, do you accept that by clause 29 excluding legal proceedings, judicial review, habeas corpus, and the jurisdiction of the High Court which exercises these powers, you are in breach of a fundamental constitutional principle, the separation of powers? You are usurping the executive, you are usurping the jurisdiction of the judiciary. That, for a start, you will accept. Then we have a system under which, as has been pointed out already to some extent, you are dealing with a question of belief and suspicion, but nowhere in this Part 4 do you find anything about the grounds for belief or suspicion, and you cannot do justice in any shape or form, even under a palm tree, if you do not let the person know the grounds on which something is to be done and you give him a chance to answer them. Leave out the palm tree, in every civilised country you have some form of judicial determination as to whether the grounds are right or wrong. The High Court is fully able to deal with security matters, it does so regularly when ministers claim public interest immunity on grounds of national security, and a judge looks at all the documents and then rules. So there is no problem on that ground, there is no need for any other judicial agency. However, if you do not give the man the grounds or a court the chance to answer them, because he does not know what they are, I gather, all he has to deal with is belief and suspicion.
(Mr Blunkett) I will. I shall not enter this evening into the issue of judicial jurisdiction, other than to draw Lord Campbell=s attention to the interesting words of Sir William Wade in the Administrative Law publication last year about its extension without the authorisation of the democratic Parliament to which I belong. Let me address the main issue you have raised. The establishment of SIAC was intended to provide just that judicial process, overseen by a High Court judge, which provides the safeguard which would not otherwise, and in fact did not, exist. It is the ability to be able to use that process in circumstances not where I would not otherwise act, but where I would otherwise have acted to despatch someone out of the country, but I was constrained from doing so merely because of Article 3 of the European Convention on Human Rights, but because, even if it did not exist, I personally would not sign a certificate that sent someone to their death, knowing that they would not receive a trial in that third country.
(Mr Blunkett) I think that in clause 17 of the Bill - and the reason I am answering this way is because I did go through it at some length before I arrived tonight, just because I was aware that the Committee had concerns - we have now taken account of section 6 of the Human Rights Act and Article 8 of the ECHR in terms of ensuring that those provisions are now made. So I would draw attention to that, because I think that they are dealt with. There is also a substantive issue on the third point that was raised by the Committee under the Police and Criminal Justice Bill. Others will correct me if I am wrong, but I think we have taken account of all four of the concerns that were raised at an earlier time, have we not?
(Mr Harnett) Yes. Perhaps I can add to that. First of all, as we understood it, the Committee had a concern about limiting this disclosure to public authorities, and we have done that. In clause 20 we have described a Apublic authority@ as that which has the same meaning, as the Home Secretary was saying, as in section 6 of the Human Rights Act. So we feel that that not only deals with the specific point about disclosure, but the fact that we have anchored this, if you like, to section 6 of the Human Rights Act means that any disclosure that a public authority makes must be compatible with Article 8 of the Convention, as the Home Secretary says, and thereby it has to meet the tests of reasonableness and proportionality which we understand the Committee was concerned about in January. The other protection that we have looked at in drafting this part of the Bill is that which the Data Protection Act will apply, so we have attempted to address, and believe we have addressed, the Committee=s concerns in those respects. The other point that the Home Secretary was referring to was the fact that we still think that it is necessary that public authorities should be able to disclose information to others in relation to whether criminal investigations or proceedings should be initiated. We think it is extremely important that this Act does enable us to do that. Our view is that we - and when I say Awe@ it is the Treasury primarily that has been responsible for this part of the Bill that you have before you - have sought to take account of your concerns in the way I have described.
Chairman: Thank you, Mr Harnett.
Baroness Perry of Southwark
(Mr Blunkett) Yes. We are using, of course, the Public Order Acts, as with the incitement to race hatred, and including religion places the wider community with those of other faiths and those without faith on the same basis as those who are also adjudged to be covered by incitement to racial hatred, threatening, abusive or insulting behaviour or behaviour with the intention - and this is, I think, very important - and likelihood that racial hatred would be stirred. I think it is very important that we do not see this in terms of people expressing views or opinions on religion, their own or other people=s, and that they are, as has been described a few weeks ago, creating amusement, or people who have a deeply felt antagonism. The issue is, as I have just described, very much about that incitement to hate arising from it, leading to public disorder.
(Mr Blunkett) This particular provision has, of course, not been used. It is my own view that there will come a moment when it will be appropriate for the blasphemy law to find its place in history.
(Mr Blunkett) Firstly, we were dealing with the provisions within the terms of the anti-terrorism, crime and security legislation and therefore we were endeavouring to ensure that we focussed on the likely consequences within the terms of this legislation. The nature internationally of how this was perceived, because I have been on and interviewed on satellite in the major Arabic countries, was that the incitement to hate and the use of religion as a reason for developing hate was very important, that that was true of protection of communities here of all religions, but did not relate to the broader issue of which I am deeply aware, because I was involved with discussions in Europe as a former chair of and then participant in the Social Affairs Council, the issues we debated around broader measures against discrimination, which of course we are examining and have taken forward at least in part under Article 13.
(Mr Blunkett) I do not think it would, because his was not an incitement to religious hate, it did not in the terms I enunciated seek to cause that threat or disorder.
(Mr Blunkett) There is a difference between doing something about it and whether that demeaning is incitement within the terms we are laying down here, and we are trying to deal with threat to life and order arising out of the situation we are in at the moment.
(Mr Blunkett) No, I do not believe they do. I do not believe that any of the ones you have enunciated are in any way objectionable or undesirable. I think there are measures in this Bill which do highlight failure of previous legislation. For example, the 1982 Aviation Act allowed people to scrutinise whether a plane was secure or safe but not to do anything about it, if it was not. We have acts in relation to chemical, biological, radiological and nuclear materials which do not prevent people from being able to transmit information about them or move them. That is crazy. So to take action in the light of an international terrorist threat using up-to-date organised methods, funding the ability to adduce and be able to process and use materials against us, it seems to me requires us to be able to act as decisively and as intelligently and as in an organised way internationally, including across Europe, as those who threaten us do themselves. To do otherwise makes us pedestrian, arcane and irrelevant. If Parliament cannot lift itself to actually deal with those circumstances, then no wonder less than 60 per cent of people voted in the last general election.
Chairman: Thank you very much, Home Secretary. I am sorry we have kept you slightly beyond 7 o=clock but we thank you very much for your responses and for bringing your team with you.