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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1142-i HOUSE OF LORDS House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE JOINT COMMITTEE ON HUMAN RIGHTS
Human Rights Issues Relating to the Home Office
Tuesday 28 October 2008 RT Evidence heard in Public Questions 1 - 106
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Joint Committee on Human Rights on Members present: Mr Andrew Dismore, in the Chair
Witness: Rt Hon Jacqui Smith MP, Home Secretary, gave evidence. Q1 Chairman: Good afternoon, everyone. We are joined by the Home Secretary, the Right Honourable Jacqui Smith, MP, for a witness session on the human rights issues relating to the Home Office. So welcome, Jacqui. Do you want to make any opening remarks? Jacqui Smith: No, thank you, Chairman. Q2 Chairman: I think, inevitably, we are going to start on counter-terrorism policy and human rights. When you withdrew the 42-day proposal, in your statement to the House of Commons you suggested that opponents of 42 days were "taking the security of Britain lightly" and "prepared to ignore the terrorist threat", preferring "simply to cross our fingers and hope for the best". Those were quite trenchant comments, which offended quite a few people. Lord West, in the House of Lords, sought to mollify people. What did you mean by those comments? Jacqui Smith: I do not know if Lord West tried or not to mollify people, and I certainly did not try to upset people, but I was completely clear in the statement that I made in the House of Commons that, as we had argued throughout this, I felt that there was, as others did, a specific potential need to have in place a legislative basis in order, in exceptional circumstances, to be able to detain somebody for longer than 28 days. However, I recognised that others had taken a different attitude but that, nevertheless, I still wanted to ensure that that threat was covered, and that was the reason for, whilst withdrawing those provisions from this counter-terror bill in order that the other important elements of it could actually go through, putting in place the potential to introduce legislation if and when the need arose. Q3 Chairman: You accept there could be a different point of view. Do you accept that those with other points of view do not take security lightly? Jacqui Smith: I accept there could be a different point of view. I accept that some of those points of view are held, and I have said publicly, by people who not only do not take security lightly but actually have got a very significant record of countering terrorism; my comments specifically were aimed at opposition parties who, despite having numerous attempts to engage in the process of bringing us to a consensus, had failed to move one jot throughout the whole of the process that we had been engaged in, and thereby made it pretty difficult to develop a consensus on an issue which, incidentally, there had been a consensus about there being a problem around. Q4 Earl of Onslow: Home Secretary, you have just said now that the opposition parties did not come to a consensus. What you mean is: "Opposition parties did not agree with me". That is not what consensus means. I would also put to you that one of the people who voted against 42 days was Lord Carrington. Lord Carrington landed at D-day, he got a Military Cross on capturing a bridge over the Rhine and he was a very distinguished Minister of Defence. Are you seriously saying that he was someone who was taking security lightly? Jacqui Smith: I think I have made clear my position about those people who have a record of countering terrorism and defending this country's security. However, to return to your original point, the reason why I was disappointed was that actually opposition parties - well, to be fair, the Conservative Party had conceded that there may well be circumstances in the future where in order to fully investigate a terrorist suspect it may be necessary to detain them for longer than 28 days. That, presumably, is why they had brought forward the proposition of using the Civil Contingencies Act in order to do that - a proposal which not just this Committee but large numbers of people felt would be inappropriate for use to solve this particular problem. What they had failed to do, however, despite several meetings and numerous opportunities, was to actually engage in a constructive way forward to solve the problem that they themselves had agreed with the Government existed. That is my contention. Q5 Lord Lester of Herne Hill: Home Secretary, I do not know whether you regard me as soft on terrorism because I am a Liberal Democrat, but I did have the privilege of working with Roy Jenkins on the first anti-terrorism legislation and in dealing with some terrible problems about terrorism. You say you are aiming at the opposition parties, but I have to put to you that that is a disappointing response from a Home Secretary. We have common aims, do we not? You accept that all the main parties in this country have a common aim of wishing to beat the barbaric scourge of terrorism. We disagree about aims. Your disagreement ---- Jacqui Smith: Means. Q6 Lord Lester of Herne Hill: ---- is with the former head of the security service, with the DPP, with this Committee - unanimous Committee - and with a vast number of people inside and outside Parliament. I do not understand why it is sensible for you then to attack the opposition parties as being soft on terrorism. Why is that in the public interest? Jacqui Smith: I think I have just outlined the reason why I was disappointed: that, given that there appeared to be - and I agree with you - a pretty common view about what the issue was that we were trying to solve here, there was not a willingness to engage in a process to determine what the means should be to solve that problem. That is my argument. That is the argument I made in the Commons; that is the argument I stand by. I am sorry if some feathers have been ruffled because of the language that I have used. My priority is not whether or not people's feathers are ruffled; it is whether or not this country has available to it all of what I might consider to be the necessary legislative protections in the future. Q7 Mr Shepherd: Home Secretary, why do you think your judgment is superior to those of others in this field: former heads of MI5, etc? Why are you more qualified than they and, therefore, so dismissive of all the political structures of this country to attack the Conservative Party, no less, for its supposed stance on this? This is the most serious issue that confronts our civil liberties and our freedoms in this country. The Chairman has just made reference to the language that you use: "take the security of Britain lightly" - to those of us who actually are very, very anxious about the way in which the Home office has careered through our civil liberties - and "are prepared to ignore the terrorist threat". I have not met anyone that is prepared to ignore the terrorist threat. So why are you even Home Secretary and making assertions like this in an important speech? Jacqui Smith: I think I said I was not willing to take this country's security lightly and I was not willing to lead ---- Q8 Mr Shepherd: You accused others of being prepared to ignore the terrorist threat. Lord Lester has just set out some of the people who, by your language, supposedly - the head of the DPP, Lady Manningham-Buller. It is an incredible position for a very new Home Secretary to launch into an attack on people that have been protecting our liberties for a very long time. Jacqui Smith: I am sorry if people feel offended. I think I have made clear my position that, actually, my concern is less people's feelings and more whether or not we have in place the necessary potential legislation. Incidentally, in response to your first point, on the advice of the most senior police officers, for example, who we tasked to investigate and to bring to the point of charge terrorist investigations in this country. So I do not accept the assertion that there was no support for my position. I have worked ---- Q9 Mr Shepherd: No one said that. Jacqui Smith: I think that was your suggestion. Q10 Mr Shepherd: You clearly have the Prime Minister's support. Jacqui Smith: I think that was your suggestion at the beginning, incidentally - that I had not taken anybody's advice. I am just pointing out that I did act on some people's advice. Secondly, that I have throughout this whole process, which, of course, has been going on over a considerable period of time, sought to both identify what I consider the potential threat to be - a threat, incidentally, which has been recognised by the Home Affairs Select Committee and by others - and to work to find a consensus in order to develop, as Lord Lester puts it, the means with which to deal with that. So I have, throughout this process (I think it has been pretty widely recognised) worked to try to develop a consensus on this. What I have been clear about is that there is an issue that needs to be dealt with and we needed to find a way to do it. I am disappointed that it has not been possible to find a way to do that. I do not know if you are suggesting that you do not believe that there are any circumstances in the future in which it is conceivable that somebody might need to be held for longer than 28 days or not - whether or not you are in that position or whether or not you think it is conceivable that there are, and in those circumstances what you think the response should be. Q11 Mr Shepherd: I am inquiring about your stance in public policy terms, not the individuals identified this way or that way. Jacqui Smith: I think I have made myself ---- Q12 Mr Shepherd: What I am saying is that the burden of opinion - no, it is the language that you use. Jacqui Smith: So, basically, you are commenting on my language not on my stance in public policy terms? Q13 Mr Shepherd: I am ---- Jacqui Smith: I think I have made my stance in public policy terms pretty clear. Q14 Mr Shepherd: No, but it is the language and the means by which you make your stance clear: "prepared to ignore the terrorist threat". I think the language is something that really angers and irritates people who have seen the retreat from a concern about defending our liberties and freedoms as well. We have those rights. Nothing that we are hearing from you - "prepared to ignore the terrorist threat"; "simply to cross our fingers and hope for the best" - I do not accept that language, obviously, and that is the tenor of the argument. It is the language that you employ to denigrate others. Jacqui Smith: The line "crossing our fingers and hope for the best" - let us remind ourselves of the process I have gone through here. First of all, those people who we task with investigating the most serious terrorist threats in this country and to bringing those people to charge have suggested to me, and have suggested in public, that there may come a time in the future where, because of the complexity and because of the nature of the plots that they are investigating, they may need to hold somebody for longer than 28 days in order to bring them to charge and through our criminal justice system. One. If that situation actually exists and it has been brought to my attention, then actually I think it is precisely my responsibility, as Home Secretary, to work through a process that will enable us to mitigate that potential future risk. My argument is that there are many people who have been willing to concede that risk but who have been unwilling to try to find a way through to actually be able to mitigate that risk in the future. Those are the people who I charge in this case with actually taking the approach that somehow or another we can just wait until that risk emerges to actually take the legislative steps that I believe are necessary. We, of course, are in that position now, but what I have been clear about, in publishing the Bill that I have, is that it would be my intention to bring forward that legislation. It remains, as it has been throughout the whole of this process, the decision of Parliament as to whether or not they actually pass that legislation. That, clearly, remains the situation. Q15 Chairman: We need to move on; we have a lot of ground to cover. I would like to explore the level of the threat with you, if I may. I would simply end that discussion by reminding you that I think I was the first MP in early 1998 to start raising concerns about the terrorist threat. I tabled some 300 Parliamentary questions before 9/11, and up until 9/11 nobody was actually interested in anything I had to say, and afterwards people started to take notice. Anyway, let us talk about the threat. In your IPPR lecture you talked about the need of the Government to be more sophisticated in how it engages openly with the public on its work and how difficult it sometimes is to explain the scale of the urgency of the threat. Can you make more information available to the public - for example, a quantitative analysis of the cases that have gone through and resulted in convictions over the last few years? The security services may be reporting more threats or plots, but that might be because they are more aware of what was there to start with, which is good, or it may mean there are more plots in absolute numbers, which is bad. So which is it, and can we try and get some more detailed analysis about what has been going on? Jacqui Smith: Okay. Firstly, of course, we now have the threat assessment that is carried out by JTAC - on the basis of intelligence, on the basis of an analysis of both the capability and the intent and on an analysis of past events - in public. Of course, that JTAC threat assessment at the moment stands at "severe". In other words, an analysis that suggests that an attack is highly likely and that an attack could well occur without further warning. That is the first way, I think, in which we are now clearer about what the potential level of the threat is and the basis on which that analysis has been made. Secondly, I think it is worthwhile as well pointing out, of course, that one of the important manifestations of the nature of the threat will clearly be the extent to which people have been brought to justice for those sorts of offences. We do now face a situation in this country where, since the beginning of 2007, 81 people have been found guilty in 33 major terrorist cases, and jail sentences handed down in those cases total over 870 years. We are now, by looking back at the nature of the threat, able to see some quite clear themes throughout that, demonstrating both the nature and the complexity of the threat: aspirations to use a dirty bomb; the targeting of shopping centres and our transport infrastructure; the desire to inflict mass casualties on the public without regard to race, creed or colour, and the aspiration to commit terrorist acts abroad. I think, Chairman, if what you are asking is whether or not there is more that we can do (and I think it would probably need to be after the event) to make clear the nature of what has been brought to justice, I think that is a fair argument and it is something that we are working on. Secondly, if there is more that we can do to explain to the public what the nature of the threat is and, therefore, what the response may well need to be, that has certainly been what I have aimed to do since I have been Home Secretary, and of course is part of the reason for the speech that I made to the IPPR. I spent some time during the course of that speech actually explaining the developing nature of the terrorist threat that we were facing and, therefore, the rationale for the response that we were making to it. Q16 Chairman: I think what we are looking to do is get beyond the broad assertions and into some of the more detailed evidence that supports those assertions. If that can be done through analysis of what has happened already and what has been detected that would be helpful, but as much as possible, I think, is what we really need to see. Inevitably, we do not expect to see the detailed security briefings - that would be ridiculous - but there must be some ground where we can move forward to try and explain to the public a little bit more about what has been going on. Jacqui Smith: That is precisely why I pointed to the 81 convictions, of which, of course, nearly half were people who pleaded guilty. We are clearly looking backwards and we can analyse the nature of the threat in relation to those. It is why I also referred to JTAC, which I hardly think people could say was simply based on assertion. This is detailed, analytical work, based on both current intelligence and an analysis of the nature of the threat, the intent, the capability and what has gone before, which comes together to form the threat assessment which is published. Q17 Chairman: I think the problem here is, perhaps, the backwash of what happened over Iraq, in that people are suspicious of assertions based on unpublished intelligence material. I think we need to try and get beyond that and try and do some of the detailed qualitative analysis which I think you have implicitly agreed needs to be done - certainly, on the cases that have gone through so far. One of the things that Lord West referred to in the House of Lords debates was a great plot which he saw as building up again. Is there specific intelligence about a particular specific threat, or is that, again, a more general assertion of what is going on? Jacqui Smith: If I refer you back, Chairman, to what I have just said about the definition of the threat level that we face at the moment, a threat level that is "severe" means that (and I quote, in terms of the threat level): "an attack is highly likely; that it may well occur without further warning." Clearly, as the Director General of the Security Service has relatively recently said, they believe that they are monitoring 30 plots, 200 networks and 2000 individuals. All of that suggests, I would argue, a pretty high - as we have described it, "a serious and sustained" - level of threat from terrorism that this country faces. Clearly, we would not talk about individual threats and plots that might be faced, but I do think that all of that evidence coming together, alongside (can I just reiterate) the 81 individuals who have been convicted of serious terrorist offences since the beginning of 2007, does not suggest that this is a threat that is being in any way "sexed-up" by the Government. I would resent any suggestion that it was being. I think it is pretty conclusive proof that we do face a serious and sustained threat from terrorism and that the action we are taking is, therefore, not only right but proportionate in relation to that threat. Q18 Chairman: So when Lord West talks about "a great plot", that is the generic; there is not a specific? Jacqui Smith: I think it would be fair to say that relates to the generic threat that we face, yes. Q19 Chairman: Last couple of questions from me - quite short ones, I think. The 42 days issue was never intended as a deterrent, as I understand it, to people engaged in terrorism. Jacqui Smith: No. Q20 Chairman: Nor was it a tool to help with pre-arrest investigation. Jacqui Smith: I am not quite sure what you mean by that question, Chairman. I would argue it is a function of the nature of the threat that we face that an investigation is likely to be carried out in a different way. The fact that you face the threat of mass casualty in suicide bombing makes it much more likely that law enforcement will intervene far earlier in an investigation than might be the case in other forms of criminal activity, and that in itself, therefore, may well necessitate a longer period of detention before charge. Q21 Lord Lester of Herne Hill: Home Secretary, I would not dream of casting any aspersions against you of the kind that I think you have cast on opposition parties. I fully respect what you have just said and I entirely accept that there is a very serious threat indeed of further terrorist activity. That is common ground. However, I wonder whether you could reflect on the point about reassuring the public? On the one hand, it would be easy to frighten the public on the basis of statements about plots and so on; on the other hand, it is very important to reassure the public by not indulging in party political games or rhetoric. Do you not, as Home Secretary, have a difficult but crucial responsibility in giving the assurance and showing your concern for civil liberty so that you do not actually alienate young British Muslims, in particular, by what you do, and, at the same time, making sure that your measures are only absolutely necessary to counter the threat? Is not all of that your responsibility and, therefore, should you not perhaps listen a bit more attentively to some of the critics you have heard round the table today? Jacqui Smith: All of those things are my responsibility. I listen and have listened - and this was part of my argument - over quite a lengthy period of time to a large number of critics, and to quite a large number of people who supported, with respect to pre-charge detention, the approach we have taken. To come back to your original point, I wholeheartedly agree with you that the public, for reassurance, needs not only a realistic assessment of what the threat is that we face but, my argument is, actually, I think the public are reassured not by a description of the threat necessarily, or by anybody trying to downplay what is a serious threat, but actually by a response from Government that is as wide-ranging in countering that threat as it is possible to be. That is why, of course, we have always taken the approach that there is a short-term response that we need to make, which, in my view (although I accept it is not shared by others in this Committee), should have included the ability to be able to have an extended period of pre-charge detention, but includes a wide range of other things as well, but alongside that, also, has a longer-term approach to how we counter terrorism, which I think has been an important element of the way in which we have developed our counter-terrorism strategy over the last year, and that is to say that in the longer term probably the most effective way in which we counter terror is the element of our CONTEST strategy that we call the prevent element, which is that work which prevents people turning to violent extremism and supporting terrorism in the first place. So, I think, in order to ensure that the public are reassured, an exposition of the wide range of activity that we are taking across the range of our counter-terror strategy is probably the best way of doing it. That, of course, is why we are engaged at the moment in a refresh of our counter-terror strategy and it is why we will be publishing details about that later on this year, in order both to inform and to engage the public in a discussion about how we are responding to the threat from terrorism. Q22 Earl of Onslow: Home Secretary, let us assume, for the sake of argument, that there may be some necessity for extending the 42 to 28 days (sic) - which, personally, I am not yet convinced of. Would it not be better to go down the derogation from the European Court of Human Rights road and set out circumstances under which you would have to derogate (because derogate you would have to if you want to increase the detention from above 28 days - or should do)? Would it not be more sensible, therefore, to ensure the necessary Parliamentary judicial safeguards are in place in the event of that emergency that the Government fears? What are the Government's reasons for not wishing to legislate now to provide such a detailed framework for derogation? Jacqui Smith: Firstly, because I disagree with one of the elements of your question. You contended that in order to hold somebody for longer than 28 days, under the sorts of provisions we have set forward, it would be necessary to derogate. Our argument is precisely the opposite: the proposals we have brought forward are fully compatible with Article 5 and any other article, in my view, you care to mention. Therefore, it is not necessary to derogate -- Earl of Onslow: Can I stop you there? You are in a minority on that view. Q23 Mr Shepherd: Yes, on the interpretation. Jacqui Smith: I do not believe that is the case, actually. There have been no ---- Q24 Earl of Onslow: You can go on saying: "You are", "You aren't", "You are", "You aren't". We are of the opinion that you are. Jacqui Smith: Okay. In this room - in this room I may well be. Q25 Lord Lester of Herne Hill: Not just in this room. In the European Court of Human Rights in the Irish state case, where I represented the Crown, we had to derogate (or, rather, the Conservatives had to derogate) for long-term internment. I do not know of any legal authority, independently, who considers that indefinite detention without trial does not require a derogation from the right to liberty under Article 5. Where does that come from? Jacqui Smith: That is because, of course, what we are not proposing is indefinite detention without trial; we are, in our view, fulfilling the requirements of Article 5, particularly with respect to judicial authorisation, which, if I understand correctly, I think, is the distinction between the Irish case that you refer to and our proposals. It is, of course, the case that judicial authorisation is needed from 48 hours onwards in the provisions that we are setting forward. It is on that basis that we believe - and others would support that contention - that we do not need to derogate, and because we do not need to derogate either for the period of extension that we have previously had, from 14 to 28 days or, in our view, because of the judicial authorisation in particular and the regular review in the process that we have brought forward, not only is it not necessary to derogate but, actually, it would not be possible to derogate because derogation, of course, implies a two-stage process: one, that you believe that there is a state of public emergency and, two, that it is necessary to derogate with respect to the specific provisions that you are bringing in place. Whilst we still believe the first is in place we do not believe that the second is. Q26 Earl of Onslow: In our report we quote quite a few people who disagree with you on the 42 days being outside the Human Rights Act. If you are prepared to legislate on what is a hypothesis, and a remote hypothesis at that, to lock people up for something that might or might not happen, why can you not simply say, just to be doubly clear with ourselves and to make absolutely certain we are following the traditions of liberty and justice: "We will derogate to make sure that everybody is clear on what we are doing" as opposed to saying: "No, we won't"? Jacqui Smith: It is a strange argument, is it not, that we will claim that we are not fulfilling our responsibilities under the ECHR by derogating when we feel that we are fulfilling our responsibilities - and, in fact, we have precisely designed the system to fulfil our responsibilities. We are not talking about belt and braces here; we are talking about a situation where the braces are precisely not needed because the belt is working. Q27 Lord Lester of Herne Hill: I think the problem is that the question is not as Lord Onslow has put it; the question is not: why not derogate (and you have answered that question and I understand what you have said); the question is: why not have in place a framework so that if in some future case it becomes necessary to derogate (and we can never tell) you have then got a framework with proper Parliamentary oversight built in so that there can be proper scrutiny at that time? That is why this Committee put down that amendment. It was not to do with what you are now, understandably, talking about, where you say you do not need now to derogate, but, given the future, would it not be better to have a proper system in place to deal with that, as we recommended? Jacqui Smith: I believe that what we have done in the Counter Terrorism (Temporary Provisions) Bill is to put in place an ECHR-compliant way of achieving our objective, which therefore would not require us to derogate. That is my view and that is the advice that we have received. I accept - and I have seen your report - that Members of this Committee believe that this is something about which we should derogate. It is a straightforward difference of view. However, I would simply say that it was a similar argument, I think, that was made, for example, about the extension from 14 to 28 days. That has been proven, when tested, to be compatible. Q28 Chairman: I do not think that is right, actually. It has never actually been checked or gone through the courts on that basis. Jacqui Smith: All right; it has not been proven to be incompatible, and it is our view ---- Q29 Chairman: It has never actually been tested because of the Catch 22 within the court system. Jacqui Smith: I, nevertheless, would argue that that is compatible and so are the proposals which are also based on precisely the same safeguards as are within that proposal for any extension beyond 28 days. Q30 Dr Harris: You have not garnered enough support, as yet, and I have to say I do not think party political comments will help in the future to support your approach. Therefore, is it not a good idea to consider compromising, as we have done because we are three parties represented on this Committee? We have come up with a report that shows a way forward which some Members of this Committee are likely to be unhappy with on both sides, and that might attract the support of other people in Parliament, and that would help you get a system through that you may feel was necessary in the event that some of your colleagues have talked about of three 9/11s. Would you look at this report that we have produced on that basis, as a constructive way forward which certainly has the potential to have a much wider consensus than your proposals and your repeat proposals? Jacqui Smith: I am not sure I necessarily agree with the last part, although I would say that I have, as with the numerous reports that you have produced during the course of both the consultation and the process of this Bill, looked at this in some detail. I think it is fair to say, if I am not wrong, that we have responded in some detail on this as well, along the lines that I have just outlined, as to why I am not convinced that this is the sort of third way compromise that Members of the Committee obviously accept it is. I come back to the fundamental point: if it is our contention that what we are proposing does not require a derogation then it is not appropriate to propose a derogation. It seems to me a strange argument ---- Q31 Dr Harris: If you can only get a majority for those who think it is requiring derogation - and the bonus is that the derogation provides the judicial safeguards and the definition of the trigger that also garners the majority - then is that not the constructive and pragmatic way forward in dealing with a real threat and, therefore, the most sensible approach for someone in your very important position with the interests of the country at heart, given that you have not got a majority for your current proposals? Jacqui Smith: We did, of course, have a majority in the House of Commons for our current proposals. I return to my original point: that if there is not incompatibility in your proposals, then suggesting that you derogate as a way to sort of suggest that there is incompatibility with something that is not incompatible in the first place is not only illogical but, as I understand it, not an avenue that is actually open to you anyway. Q32 Chairman: I think you are approaching this from the wrong perspective. We did not put forward derogation as an alternative to 42 days; 42 days we opposed and said that that was wrong. We said, however, another thing that ought to be considered is a system of statutory derogation with built-in statutory safeguards in circumstances where a derogation might become necessary. So if you did have three 9/11s on one day that clearly would be, arguably, a threat to the life of the nation for which emergency measures were needed, which could justify derogation. In those circumstances, at the moment, there is no statutory system to bring the derogation about, other than waving a magic wand. What we were proposing was that if you do get a threat to the life of the nation (put 42 days to one side - that is a separate argument), why do we not have a statutory process which would enable that to be brought into effect with the appropriate Parliamentary safeguard to check on it? It is actually a different issue to the 42 days one; it has got mixed up together. Jacqui Smith: Right. Precisely my point, which is that ---- Q33 Chairman: Then we do not have to argue about whether or not 42 days derogates - clearly you think it does not ---- Jacqui Smith: Okay. So you accept my point that ---- Q34 Chairman: No, I do not accept your point. For the sake of argument, I am saying it is irrelevant to the argument we advance on derogation. Jacqui Smith: Okay. So, basically, your argument is if there were another set of circumstances - not those that I am envisaging the use of my temporary provisions for - it might be appropriate to derogate on the basis that that was a threat to the life of the nation. Let me just conclude. It is, of course, the case that the Human Rights Act provides us with the legal basis on which, if it were necessary, to derogate. So I am not quite sure what the argument is about what this other structure is that we should set up in order to be able to derogate. We already have in place through the Human Rights Act the provisions to enable us to derogate. My argument is I have put in place, in my view, a process for achieving the objective, if necessary, of being able to detain somebody for longer than 28 days, that is not incompatible and that, therefore, does not need a derogation. Q35 Chairman: We understand that. We disagree on that point. Jacqui Smith: We disagree - you are right. Q36 Chairman: Let us just park that argument. The point about the derogation issue is this: that the Human Rights Act/European Convention permits derogation but it does not provide a Parliamentary network through the legislation to achieve that. It does not provide for Parliamentary oversight of the decision to derogate. You say three 9/11s could be covered by your existing proposals; we say three 9/11s is probably a threat to the life of the nation - that does not really matter; we are talking about a hypothetical circumstance where you do have a very, very, very serious terrorist threat that really threatens the life of the nation, so something really serious has to be done and quickly. What we are saying is, in those circumstances you may wish to derogate. We have got provision to derogate in controls (?), for example (it has not been used). Why can we not have in place a system to allow Parliamentary oversight of the Home Secretary's decision to derogate - which is what we were proposing? Jacqui Smith: To a certain extent, were we come to a situation, my argument is still that we have passed through this House the process through which it is possible for us to derogate under the Human Rights Act. You seem to have moved away from the contention that, somehow or another, it is necessary to derogate in order to solve the particular issue around -- Q37 Chairman: I have not said that. What I am saying is ---- Jacqui Smith: I thought you said you had separated out those two issues, Chairman. Chairman: We have put 42 days as a separate issue anyway. It was not advanced as an alternative; it was a separate issue raised in our report. I am saying, let us park the 42 days, because we are never going to agree on that, but the point about the derogation issue is there will be circumstances, perhaps, where you would want to derogate, which go beyond 42 days even - the most horrible things could happen. Why can we not have in place Parliamentary oversight for that process, which we do not have now? Q38 Lord Lester of Herne Hill: If I could just clarify. You are seeking, effectively, reserve powers for the future when a horror occurs and you want to have enough power to deal with it. That is your position. What we are seeking for the future is a reserve safeguard so that if you have such a power there would be adequate Parliamentary scrutiny of what you are doing. So what we are saying is we need checks and balances. If you want to have in your back pocket a Bill with future powers we want your Bill to include adequate safeguards against abuse involving derogation. So we are arguing for a systemic thing - nothing to do with 42 days - and you are not arguing about 42 days; you are arguing about some future horror where you want, maybe, 100 days, for all I know, and we are saying: "Please can you include check and balances that are not in the Human Rights Act?", because it is not dealing with a proper procedure; it is simply authorising. Could you think about that? Jacqui Smith: Quite a lot of the time that I have spent in coming forward with the proposals that I have to respond to, the particular issue of pre-charge detention, has involved thinking about what the appropriate safeguards should be. I think we went to quite some lengths, both in the Counter Terrorism Bill and, incidentally, in terms of the safeguards in the Temporary Provisions Bill, to make sure that there are appropriate safeguards in place - to the extent that, actually, in the end, people were arguing that they felt that there were too many Parliamentary safeguards, and that was one of the criticisms that was used against the process that we had come forward with. I think the argument between us is not whether or not there are any safeguards, because I would argue there are and I would be willing to listen for you, it is whether or not we believe that derogation is appropriate in these circumstances, and if it would be a safeguard at all. I just do not agree that it would be or that it is appropriate. Chairman: I think we are going to have to move on. The point we would simply make about Parliamentary safeguards is that it was not that there were too many, but that they were inappropriate. Q39 Baroness Stern: I would like to move us on, if I may, to a little bit of discussion about communications data and privacy. I thought that would cheer you up. I am sure it has come to your attention that the retiring DPP, Sir Ken Macdonald QC, said in a recent speech (and I quote): "We must take very great care not to fall into a way of life in which freedom's back is broken by the relentless pressure of a security State". I wonder if you could say a little bit to us about how you respond to the warning in that statement. Jacqui Smith: Yes, it came to my attention when I heard about the speech; it was not with respect to some of the cross-government work that we have been considering with respect to the communications data point that had ever been made more directly before that speech. How do I respond to it? Well, it is, of course, self-evidently the case that no government would want to break the back of freedoms on the objective of security. That, of course, is at the heart of what we have, certainly, aimed to do, whether or not it is through our Counter Terrorism Bill or through the provisions that we will consult on with respect to communications data. So I do not believe we were doing it and, therefore, I am not quite sure what you are expecting me to respond to. If you want me to spell out what I think the concerns are around communications data I would be very willing to do that, and also to outline, of course, the process that I have now put in place to ensure that there can be a full public discussion about what both the nature of the issue is and what some of the potential solutions to it would be. Q40 Baroness Stern: Thank you. Can I give you another quote - if you could bear it - from the same speech, which I will probably ask you to respond to as well? Sir Ken Macdonald also said: "It is in the nature of State power that decisions taken in the next few months and years about how the State may use these powers, and to what extent, are likely to be irreversible", which means once you have taken away people's privacy in respect of their emails, their 'phone calls and pictures taken of them every day when they walk about the streets, it is very hard to give that back. I wonder if you have any comment on that, and what principles you have in mind when you are reflecting which areas of privacy you feel need to be invaded in the interests of security. Jacqui Smith: It is rather difficult for me to comment on what Ken Macdonald meant by the speech that he gave; he did not clear it with me and he did not discuss it with me before he gave it. As far as I am aware, he had not made those points across government. So if what you want me to do is to spell out what I think the issue is around communications data and how we intend to take that forward, I will do it, but I am not in a position to give a commentary on what Ken Macdonald may or may not have meant by quotes that he put into a speech that I did not write. Chairman: If you can do that very briefly, because, obviously, we are under time constraints, that would be very helpful. Q41 Baroness Stern: It would be very helpful. Jacqui Smith: As I spelt out in the IPPR speech, there is currently considerable use of communications data in 95 per cent of serious organised crime convictions and in nearly all major security service operations that have been carried out since 2004, and that is (law enforcement and intelligence agencies tell me) fundamentally important for ensuring that convictions are fulfilled and that we actually keep the country safe in the way in which we would want to. We also face, at the moment, a fundamental change in the way in which technology is going with respect to communications. We also face a change in the way in which all of us are using communications, and we face, therefore, a difference in the way in which the communications service providers themselves actually keep records of communications data. Of course, it is important here that we remember that communications data is the how, the where, the when and the who of communications; it is not the what; it is not the content of the communication - your conversation or your text message or your email. All of those things, of course, are now and would remain in the future tightly controlled under the Regulation of Investigatory Powers Act, as lawful intercept. However, if we face a situation as a government where both technology and our use of technology means that some of the most important capability that law enforcement uses at the moment is likely to be eroded, then we have to consider what is the most appropriate way to deal with that technologically (number one) and what are the appropriate legal safeguards to put around the way in which we deal with that in the future to safeguard that capability. It is that issue and those options that I propose to set down in the consultation paper that I will publish in the New Year, so that we can both outline what the nature of the issue is and, also, think about what some of the potential solutions to that particular problem might be. Q42 Dr Harris: You said in response to Lady Stern that you were seeking a consensus on this Jacqui Smith: Did I? Q43 Dr Harris: Yes, you did. Jacqui Smith: You would have thought I had learnt my lesson on that, would you not? Q44 Dr Harris: I am asking you whether you have learnt your lesson. I have already said I think it was particularly stupid to make a party political comment when you failed to do that, and I would like to ask if, at the end of this exercise, you are not able to persuade civil society, Labour members, Cross-bench members, Liberal Democrat and Conservative members, whether two of those groups can expect the same lambasting that you have singled them out for when you failed to get support for your view of what consensus should be around the 42 days. In other words, do you accept ---- Jacqui Smith: It depends whether or not they have engaged seriously in the process or not. Q45 Dr Harris: You understand it could be damaging to future attempts to seek consensus if people feel they are going to be decried, in their view unfairly, and singled out - because you did not attack people like the Chairman who are Labour members who disagree with you. Do you understand ---- Jacqui Smith: The Chairman well knows that I have attacked him on numerous occasions. Q46 Dr Harris: You see the point. You understand that that might undermine your efforts to achieve future consensus on such an important issue. Jacqui Smith: To be honest with you, I think we have gone through this process and, you know, as I suggested earlier, if people are offended by what I said, well, in some cases I am sorry; in other cases I am not. Q47 Mr Shepherd: Big deal. This is absurd. Jacqui Smith: The process that I thought I went through in order to get to the point we have got to was one that was aimed at building consensus. My criticism is about those who failed to engage in trying ---- Q48 Mr Timpson: Could I ask the Home Secretary to reassure us that the capability gaps in the communications data that have been identified for this Bill, that none of that work will be done prior to the public consultation by any of the communication providers or, indeed, before the Bill is brought before the House? Jacqui Smith: It is the case, and I think we have been clear about this, that we have brought together a team to look at some of the technical solutions around what it might be necessary to do, precisely in order to be able to inform the consultation. So that work, of course, is ongoing, but one of the reasons why we need legislation would be to put in place any necessary safeguards to enable that work to come to any sort of fruition. So to that extent, yes, of course, it is right (and that is part of the reason why I think it is important that we engage in a consultation about this) that there is legislation to provide both the legal underpinning for the work that is happening and the necessary legal safeguards around that work as well. Q49 Chairman: Can I ask you about Paddington Green? The Committee visited Paddington Green and whilst I think we were all impressed by the professionalism of the police officers there, the conditions are clearly not suitable for holding people for any length of time. That is a point that, also, Lord Carlile has made and the European Committee for the Prevention of Torture has made. What progress is being made in trying to implement the various recommendations towards improving conditions at Paddington Green, or providing, indeed, an alternative? Jacqui Smith: I understand from the Met
that the refurbishment of the facilities at Paddington Green is under way. They hope to complete that work by May or
June next year. Those improvements will,
for example, deal with some of the issues that the Committee has previously
raised - for example, the enhancement to exercise and leisure facilities at the
site. Funding for that is being found
from within the MPS's budget. There are
options being considered, however, for extending the capacity of the detention
facility, both within Q50 Lord Lester of Herne Hill: Home Secretary, intercept evidence. This Committee went to Paris, Madrid and Canada, being concerned to try to find more effective means of prosecuting and convicting terrorists. We found the use of intercept evidence in those countries under common law and civil law. As you know, the Newton Committee long ago recommended the use of intercept evidence and Sir John Chilcot, a year ago, also recommended it. Given that there are safeguards in the judicial process against revealing things to defendants that ought not to be known by them, when are you going to introduce the use of intercept evidence in order that we can have more effective prosecutions and convictions? Jacqui Smith: Of course, the Chilcot Privy Council Committee actually recommended that further work be done, on the basis that they did argue that they felt it was possible to find a legal model that would enable the use of intercept as evidence, whilst being very clear that it was extremely important that the operational requirements, the tests - nine of which they set down - needed to be met in order to ensure that, particularly, the sort of strategic capability and the very important contribution that intercept as intelligence already plays in this country to achieving successful convictions as well, were all safeguarded. We responded to that by accepting that recommendation and by setting up both a programme of work led from the Home Office and a process of governance for that, including an advisory committee of Privy Councillors, which includes all of the original Chilcot Four, with one substitution of Michael Howard, as the Conservative representative, to actually have a bit of oversight of the way in which that was going. We have made progress on taking that work forward. Q51 Lord Lester of Herne Hill: The question is when? Jacqui Smith: The answer is when we can be confident, as Chilcot suggested we should be, that the nine operating requirements have actually been met in relation to the legal model that has been designed. Q52 Lord Lester of Herne Hill: Can you deal with this urgently, because it is, clearly, a very urgent matter now. Is it not? To be able to enhance prosecution to be able to secure a conviction and, at the same time, balance the needs of national security is, surely, very urgent. If it can be done in other countries like Canada or the United States, who have the same common law adversarial system, surely, if you give it high priority, you can give us something better than a very vague indication that it may happen on your watch, sometime before the next election. Jacqui Smith: The first thing to say is, of
course, you yourself identified precisely the issue that we are dealing with,
which is to make quick progress consistent with maintaining national security
and, I would argue and the Chilcot Committee argued, consistent with retaining
the operational capability that is so significant to us in terms of our ability
to be able to use intelligence. Of course,
in terms of international examples, as the Chilcot Committee themselves
identified, we have a very good conviction rate in this country using intercept
as intelligence, compared to the US, for example, which has a roughly
comparable use of interception. They
themselves identified that the highest arrest-to-conviction rate as a result of
interception between 1996 and 2006 was 56.4 per cent in the Q53 Lord Bowness: Home Secretary, the National Security Strategy. In your speech on 15 October you said that you were revising your counter-terrorism strategy known as CONTEST and you said the revised one would look very different from its predecessor. I do not suppose you are able to tell us how far you have got with that and in what respect it is going to look different, but perhaps you can tell me how you propose to ensure that within the new, revised strategy a proper respect for human rights is embedded, and what advice and expertise you are drawing upon for the benefit of the National Security Forum. Jacqui Smith: Firstly, I did, partly in response to Lord Lester, outline the work that we were undertaking to revise the CONTEST strategy. I made clear that actually, on the contrary, we will publish that, almost certainly before the end of Christmas, and I made clear that one very important area, as far as I am concerned, for example, where there would be quite fundamental differences from the previous CONTEST strategy would be in this whole area of prevent, where we have not only invested significant amounts of money but, I think, developed a much more sophisticated set of both strategic objectives and processes for delivering that. We will certainly outline that in the strategy, as well as changes in the other areas, and that we will have a much clearer idea of what some of the overarching themes and requirements would be - for example, how we use the benefit of science to deliver our counter-terrorism strategy and how we build better partnerships with industrial partners. All of those are themes that are likely to differentiate the new CONTEST strategy from the last one. With respect to your second point, about the National Security Forum, of course, the secretariat for taking forward the work on the National Security Strategy sits in the Cabinet Office. They are currently, I think, well down the route, from what I understand, to determining the membership of the interim National Security Forum that they hope to be in a position to announce quite quickly. Q54 Lord Bowness: Chairman, if I may: with respect, I am not terribly clear where we are going anyway but you have clearly got plans, but you made no reference at all to the question about human rights expertise and whether or not it is high on your priority that this should be embedded in such a strategy. If I might just say so - and I hope, Home Secretary, you will not take this as a party point because it is not meant as a party point - many people are very concerned about this issue because so many times the Government has assured us that legislation brought forward with the best possible motives (and I do not, in any way, impugn anybody's motive) will only be used in certain circumstances, and you will be well aware that it did not turn out that way. Otherwise, (and I apologise in a sense for using high-profile and, you might say, emotive cases) anti-terrorism legislation would not have been used against people reading out the names of the war dead and it would not have been used against people wearing t-shirts with messages that were thought to be inappropriate to some people. Frankly, anti-terrorist legislation, whatever the circumstances, would not have been used to freeze Icelandic company assets. Nobody would have contemplated those things out of legislation which I would freely acknowledge was probably brought forward for the best possible motives. It is quite important when you are revising this you can assure this Committee that it is high on the agenda and taken account of at the very beginning. Jacqui Smith: Perhaps I did not make it clear enough. Legislation is only one element of our counter-terrorism strategy. It is not my intention when we bring forward the refreshed CONTEST strategy that that will include legislative provisions. It is actually far broader than legislation and that is precisely the point that I was making to Lord Lester earlier on. It is the case when we are designing counter-terror legislation that our human rights obligations and international obligations are fundamental to the way in which we design that. Q55 Lord Dubs: Home Secretary, I would you to ask you a question about the Highly Skilled Migrants Programme. You will recall that there was a judgement of the High Court in April 2008 upholding the challenges to the Government's changes in the Highly Skilled Migrants Programme. Why has the Government not provided that anyone who had already entered on the programme by April 2006 qualified for settlement after four years and not five? Jacqui Smith: Our view was that there were two elements to the changes that were made in the judgement. What we did in 2006 was to tighten the criteria for those coming in on the Highly Skilled Migrants Programme and moving on from that to settlement. We believed that that was an appropriate thing to do. It was clear that the court disagreed with us. We have changed the process and reverted to the previous criteria for those moving down that path to settlement. The point about the four years to five years we believe to be separate. We would argue that that in itself does not take you off the path to settlement which the courts ruled and I can understand is a reasonable expectation that you would have had. It simply extends that path by one year in that prior period. These are fundamentally different issues. We believe that we have fulfilled the requirements in the way in which we have changed the programme now to make sure that all those who entered under the previous criteria can have their decisions for settlement determined back under those previous criteria again. Q56 Lord Dubs: What is the distinction of principle which means that the November 2006 changes to the HSMP can only take effect prospectively while the April 2006 changes, extending the qualifying period for settlement from four to five years, can apply to people who have already entered at the time of the changes? Jacqui Smith: The November 2006 changes, it could be argued and we accept, changed the criteria and fundamentally changed the path through which you could get to settlement. In other words, it is possible that you could have entered pre-November 2006 with an expectation that you would fulfil the criteria to get to settlement and then because of the changes that were made you were not able to fulfil those criteria. That is why we have reverted to the previous criteria. By simply extending the time period you do not change the criteria by which somebody travels down that path to settlement, you simply change the length of the path and that is a different order of change. It does not prevent somebody from continuing on the same criteria down that path to settlement and therefore it is fundamentally different from the criteria. Q57 Dr Harris: Did the judge say you are okay on the four to five years but not on the criteria? Jacqui Smith: That is the argument that we are making on the lengthening of the period from four to five years. Q58 Dr Harris: But there is a bit of the judgement where the judge says, "For the avoidance of doubt, you're okay on the four to five years but not on the other criteria"? Jacqui Smith: There is a difference of interpretation here, which is why we are still arguing over it and we will take whatever the final inclusion is on the four to five years. I am explaining in my view what I think the difference is between those two. Q59 Dr Harris: Would it not be better to play safe, because we are talking about people's livelihoods here, and grant them and then you can appeal on that point, rather than forcing these people to have to go back to court to seek clarification? Jacqui Smith: No. The difference here is, of course, an extended time period does not prevent somebody from finally reaching settlement in the same way potentially as a change in criteria does. Q60 Chairman: It does if you refuse them definite leave to remain and threaten to remove them, which is what has been going on. That goes right against their reasonable expectation of what was going to happen. Jacqui Smith: Which is why it is completely right that these things have been and will be, I have no doubt, tested in the courts and where we have been proven to have acted unreasonably we have, as in the case of the criteria, changed those and reinstated the previous criteria. Chairman: So will you agree not to remove anybody while this case is underway? Q61 Dr Harris: And compensate them if you are overruled again? Jacqui Smith: We would obviously need to look at the details of any judgement carefully as to whether or not we were going to do that. Q62 Dr Harris: I do not want to rehearse the long debate we had in Westminster Hall about this issue, but it has a significant impact on the individuals' lives, even if it is an extra year, in terms of their ability to get a mortgage or their children's higher education rights. Jacqui Smith: No. If you extend the time period you are saying that if you still fulfil the criteria you are on a path to settlement. You can have the expectation that you would have had when you entered about the criteria that will be necessary for you to settle. Q63 Dr Harris: The expectation when you entered was that after four years you would be allowed to settle. That was the expectation that you came on the basis of and you organised your life on the basis of. You then comply with all the rules and suddenly the goalposts are shifted. Jacqui Smith: There is still an expectation that you will be able to settle on the basis of the same criteria under which you entered. The other is a different set of criteria, which I can accept is a different scale of concern for people and is effectively a retrospective change in the conditions. Q64 Lord Lester of Herne Hill: We are asking you simply whether or not you will act to the detriment of anyone while the legal process is going on? Jacqui Smith: I am not in a position where I can give you a rundown on every single individual case that is likely to be considered. I think we have acted in good faith in response to the judgements that we have received. Q65 Lord Lester of Herne Hill: I want to know, if there is now a case pending, you will not take action which will prejudge that by sending someone away from this country while the process is going on? Jacqui Smith: Certainly it has been the case with the way in which we have changed the previous criteria that had they been removed, they would have been able to apply on the previous criteria as opposed to on the new criteria. Q66 Mr Timpson: I would like to move on to the issue of deportation and the prohibition of torture as an absolute right. Are you able to tell us how many terrorist suspects you have been unable to deport in recent years because of the prohibition of torture under Article 3, which we now know to be an absolute right? Jacqui Smith: No, I am not able to give you a number as to how many we have been unable to deport. Q67 Mr Timpson: Can we have that information? Jacqui Smith: I will certainly write to you on what our view is about that. Incidentally, of course, we do believe that the process of deportation with assurances that we have put in place, which is precisely in place in order to ensure that we can fulfil our requirements with respect to Article 3, has enabled us to deport eight people as of this moment. There are 11 others whose cases are currently undergoing consideration. Q68 Mr Timpson: In terms of the decision in Chahal v UK, which was unsuccessful from the Government's point of view, what has the Government learnt from that and what are you going to do in terms of your disseminating of that decision down to the providers of the prohibition service? Jacqui Smith: Chahal was the judgement in 1996. Q69 Mr Timpson: It was Saadi. Jacqui Smith: As to the judgement in Saadi, which was actually versus Italy, if I remember rightly, in that particular case it was ruled that the assurances were not sufficient in order to be able to be confident that Article 3 rights were not being compromised. Our reading of that judgement - and this was helpful in our view - was that a regime of deportation with assurances could be an acceptable way in order to ensure that people's Article 3 rights were assured. We believe that that enables us to continue what has to be, quite rightly, detailed work to ensure that we can be confident that if and when we need to deport people, we can do that in a way that clearly safeguards their future and safeguards their rights under Article 3. Q70 Dr Harris: Can I draw you to the main thrust of the judgement, which was not about removals with assurances but was upholding Chahal, as Mr Timpson rightly said, and that is that by a margin of 19 to zero the court rejected the case you made on behalf of this country as an intervener, stating that it should be possible to balance security against the absolute protection founded in Chahal against ill-treatment under Article 3. Do you accept that that judgement went against you, because you did not mention it before? Jacqui Smith: I accept that, but I also argue that it did not rule against the principle of diplomatic assurances as a basis on which to deport. Q71 Dr Harris: That is a separate issue. Jacqui Smith: I accept what you say. Q72 Dr Harris: I am talking in respect of that part of the judgement where the margin was 19 to zero. I think the view of the court was quite trenchant as well, that, recognising the security issues, you cannot balance Article 3 rights against security. Do you now accept and will you be providing guidance to decision-makers that Article 3 is an absolute right that cannot be diluted or held in the balance against issues of national security? Jacqui Smith: Yes, but we believe that diplomatic assurances are an appropriate route to safeguard people's Article 3 rights. Q73 Dr Harris: Do you feel that your history of trying and failing to water down the protection given by Chahal in the case law to the absolute nature of Article 3 leaves you open to accusations of being soft on torture or at least softer on torture than you might have been because of the impression you give about the UK's position? Jacqui Smith: No. Q74 Dr Harris: Do you see how it is difficult for us to argue against some of these regimes that do torture and we know they torture, which is why you feel you need to get ad personam assurances that they will not torture some of the people we are deporting? It undermines our argument that they should not torture when we are going round in a court case, unsuccessful in the end, to try and water down the absolute nature of Article 3 protection. Jacqui Smith: No. I think the effect of our approach to deportation with assurances has actually been to strengthen not only our ability to deport but, also, to strengthen the sort of monitoring arrangements and capacity development in those countries which in the long term may way well help us to be --- Q75 Dr Harris: I do not have time to go into deportation with assurances. Jacqui Smith: That is the fundamental point here. Q76 Dr Harris: The issue is the reputation of this country in seeking to undermine the absolute nature of Article 3 protection in the courts. Jacqui Smith: I do not believe that is what we were trying to do. I think what we were trying to do was to make sure that we could both deport from this country people who were potentially seriously dangerous to British people whilst upholding our commitments to Article 3. Q77 Earl of Onslow: Home Secretary, you are probably aware of the Iranian student, a Mr Mehdi Kazemi who came over here and who was a homosexual. His boyfriend was arrested in Iran, charged with sodomy and hanged. Before he was executed he identified Mr Kazemi as his boyfriend to Iranian police who sought to arrest him. The Home Office actually wished to deport him. However, thanks to a high profile public agitation they did not so do. Can you give me an undertaking that it is not Home Office policy to send homosexuals back to face trial for whatever acts they particularly wish to get up to and especially if they risk imprisonment or, above all, death, because to do that would show such total disregard for any possible form of possible human rights or ancient English liberties or any of those sorts of things? Can I please have that undertaking? Jacqui Smith: I am aware of the case of Mehdi Kazemi. That is why I asked that it be reviewed, which is why now he has --- Q78 Earl of Onslow: Home Secretary, could I just have an answer, yes or no? Jacqui Smith: To what question? Was I aware of the case? Yes. Do I think he should not be deported? No. Did I intervene to make sure he was not? Yes. Do I think if people face a serious threat to their welfare on the basis of their homosexuality or anything else they should receive the safe haven of this country? Yes, I do. Do I think we deliver that through the way in which we implement our asylum policy? Yes, I do. Will we remain careful to ensure that is the case in the future? Yes. Q79 Chairman: Let us be clear. Basically we are not going to deport gays to Iran whilst the present regime continues, are we? Jacqui Smith: No. We will look at each case
carefully on the basis of whether or not individuals will face a threat when
they return, as we did in this case, and we will certainly not deport people if
we believe that they will face danger when they return to Q80 Dr Harris: It was suggested in government argument that if people kept quiet about their sexual orientation then they probably would be okay (touch wood) and it is only if they were open about being gay in these countries that they might face a threat. Is that a line of argument that you have sympathies with? Jacqui Smith: It was not. I am hardly somebody, as my record as a Minister will show, who believes that gays should keep quiet about their sexuality. In fact, I have taken considerable efforts to safeguard the rights of gay people both in this country and abroad. Q81 Dr Harris: I certainly recognise that. I just wanted to check that it is not going to be part of individual case arguments that if the authorities do not know you are gay you will be okay if it is the case that they torture and execute gay people. Jacqui Smith: If an individual faces a threat of torture or execution on the basis of their sexuality, we are clear that they should not be returned. Q82 Dr Harris: You will recall the case of Ama Sumani in Cardiff in January 2008. She was removed from hospital and then removed from the country. Would you describe her as an immigration "health tourist"? Jacqui Smith: No. Q83 Dr Harris: Do you think it was justified to take someone who was reliant on life-sustaining dialysis and remove them given that if you have renal failure and you are not dialysed you die within days or weeks? Jacqui Smith: We ask our caseworkers to make decisions about some of the most difficult cases necessarily in some of the most difficult circumstances. It cannot be the case that simply being in receipt of NHS treatment in this country of itself is sufficient to prevent, if all other routes have been exhausted, the imposition of removal back to a country. Q84 Dr Harris: There is common ground between us. Jacqui Smith: Fine. It is the case that if you are seriously terminally ill that would be a basis on which you would not be removed. Q85 Dr Harris: If you are taken off a dialysis machine when you are in renal failure, would you take it from me you are terminally ill? Jacqui Smith: You have a much better medical background than I do! Q86 Dr Harris: Do you see the conundrum here, that if someone is on life-sustaining treatment, which is dialysis every three days for renal failure, and you take them off that, they are then going to die unless they get back on dialysis? Jacqui Smith: It must always be part of the decision about any individual case that there would be appropriate health care available in the country to which people are removed. What it cannot be a condition of, however, is that in all of those cases that health care has to be equivalent to the sort of health care you would receive in the British NHS. We lead the country, as I am sure you would agree, on some of the quality of the health care that we provide. You cannot have a condition that says you need equivalent health care in order to remove an individual. Q87 Dr Harris: You either get replacement for renal function or you do not. Does the fact that she died two months later suggest to you that there was equivalent treatment, given that was not her prognosis in this country, even though she had an underlying myeloma as well? Jacqui Smith: I would not know --- Q88 Dr Harris: Does it give you pause at least? Jacqui Smith: Of course it does because these are some of the most difficult cases that we have to deal with and that we have to ask our UKBA caseworkers to deal with. It is, of course, on the basis of issues like that that we look very carefully at whether the individual decision is right and the general guidance that we give to caseworkers is right as well. Q89 Dr Harris: Is it not a question of low hanging fruit in a sense? You have got targets to get people and if someone is there in a hospital, vulnerable and able to be removed and unlikely to put up a struggle both legally and physically, then you can reach your targets of removals by just scouring the hospitals and taking these people out rather than some of the more difficult cases. Is that not a worry? Jacqui Smith: I can give you an absolutely categorical and fundamental assurance that that is not what UKBA caseworkers do. Q90 Lord Lester of Herne Hill: Home Secretary, why do you not reply to my colleague that actually ultimately there are judicial safeguards - my wife is an asylum judge - in the case law here and the case law in Strasbourg and therefore all this is fact sensitive and it is not for you in the end to decide the question, it becomes ultimately a question of fact in a particular case which is reviewed by asylum judges. Is that not the answer? Jacqui Smith: I wish that had been my answer! Dr Harris: If only everyone had access to a judge. Q91 Lord Lester of Herne Hill: You are being asked these questions on a particular case, but in the end it is an asylum judge who has to decide these. Is that not right? Jacqui Smith: You are exactly right that none of these removals would have been made, or very rarely, without there having been a very thorough independent judicial exploration of the facts of the individual case. Q92 Chairman: I want to ask you about the overall policy in relation to health care for foreign nationals because that has been outstanding for some considerable time. Indeed the Home Office and health ministers were not able to come to our mini-conference on that issue several months ago now on the basis that the new policy announcement was imminent. Where has it got to? Jacqui Smith: It is still imminent. Q93 Chairman: Several months on? Jacqui Smith: As I am sure you identified in the conference that you held, there are some difficult issues when we are looking at the whole issue of not just health care for asylum seekers but the relationship between people coming to this country and their entitlement to health care, which go pretty broad and about which there does need to be detailed consideration of precisely the sort of impacts that we have just been talking about. That is something that is being looked at in considerable detail, including the interrelationship between the objectives we set through the immigration system and the objectives that we set for the health service as well. Q94 Chairman: It has been going on for several years now. Jacqui Smith: I do not think it has been going on for several years. Q95 Chairman: I think it is four years altogether. Jacqui Smith: It came out of a publication in the spring of 2007. Q96 Dr Harris: Could you at least publish the consultation responses you had given that that consultation finished years ago? Jacqui Smith: As is normal, we will publish the consultation responses at the point at which we come to a conclusion they are able to publish the substantive result of the consultation and the consideration. Q97 Chairman: I want to ask you about the case of the Tamils. Almost 700 applications recently have been lodged with the European Court of Human Rights against removal and, as you know, there is the case of NA v United Kingdom which has raised the need to try and put the deportations off. Have you changed your approach in relation to the deportation of Tamils, particularly in light of the significantly worsening security situation in Sri Lanka with half a million displaced people, 40,000 have been displaced five times now in recent years, and the withdrawal of the NGOs and UN aid from the Tamil areas? Jacqui Smith: Those would all be things
that would be borne in mind, but my understanding about the case of NA was it
endorsed the existing Asylum and Immigration Tribunal country guidance with
respect to Q98 Chairman: You do not accept there should be a moratorium on deportations which the European Commission for Human Rights has recommended bearing in mind what is going on? Jacqui Smith: No. The result of the NA case - and I will certainly write to you if I have got this wrong - was they endorsed the current position with respect to the country guidance, which would be that individual circumstances were considered but that there should not be a moratorium on removals. Q99 Chairman: As I understand it, in NA the court found the UK would breach the applicant's right to be free from torture, inhuman or degrading treatment if he were to be returned to Sri Lanka. Jacqui Smith: It is always possible that in an individual case that is the case but that nevertheless the country guidance against which those individual cases are tested in the first instance when the UKBA make a decision is legitimate. Therefore, it is not necessary, as you were proposing, that there should be a total moratorium, but what there should be is case guidance that bears in mind all of the circumstances in any case in the country to which people are being removed and then a detailed individual consideration of the circumstances in that particular case and then, as we discussed previously, the opportunity to be able to test that through the Asylum and Immigration Tribunal as well. Q100 Chairman: So the 1,400 cases have got to work their way through the European Court of Human Rights? Jacqui Smith: No. I would suspect that their first port of call once a decision has been made, if they do not agree with that decision, would be through the Tribunal. Chairman: The 1,400 have been lodged as I understand it. Q101 Lord Lester of Herne Hill: We get all these Rule 39 letters from the Strasbourg court to persuade us not to send someone to Sri Lanka. Since that court is already overburdened with 200,000 pending cases or something like that at the moment, should we not look systemically at this and decide whether as a matter of policy we should change our approach to the country report on Sri Lanka? Jacqui Smith: As I understand it, those Rule 39 --- Q102 Lord Lester of Herne Hill: They mainly failed. Jacqui Smith: No. In the bulk the issuing of Rule 39 with
respect to Q103 Lord Dubs: Home Secretary, I would like to ask you a little bit about two Conventions, one on the rights of the child and the other on disability. First of all, congratulations on removing the UK's immigration reservation on the UN Convention on the Rights of the Child. When will guidance be issued to the frontline decision-makers in the immigration and asylum field explaining the practical implications of removing the reservation? Jacqui Smith: I am sure we will do that. I will write to the Committee with details about when we will actually issue the guidance, but we will do that whilst building on the work that we have already done to put in place a focus on children's rights within UKBA, a specific senior official with respect to responsibility for that, but I will write to the Committee with details about when we will issue further guidance on the lifting of that reservation. Q104 Lord Dubs: Thank you very much. On the UN Disability Convention, do you propose to enter an immigration reservation when you ratify the UN Disability Convention? Jacqui Smith: This is not something which I have considered as of this moment. Q105 Lord Lester of Herne Hill: Could you also consider whether you would remove the similar reservation in the International Covenant on Civil and Political Rights that was made in 1976? Jacqui Smith: I will certainly consider it and I will revert to the Committee with my consideration. Q106 Lord Dubs: As regards the possible reservation you might have with regard to disability, that will be covered in your letter to us, will it? Jacqui Smith: I will write to you about that as well, yes. Chairman: We have run out of time. We were going to ask you some questions about trafficking, but I think we will write you with the particular points there. Thank you very much.
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