Examination of Witnesses (Questions 1
THURSDAY 8 NOVEMBER 2001
1. Good morning, ladies and gentlemen and thank
you to our witnesses for coming at such short notice. As you will
know, we are attempting a little pre-legislation scrutiny here
in rather difficult circumstances, that is to say we do not yet
have a copy of the Bill in public and we are feeling our way slightly
in the dark. The timetable is a very tight one since the Bill
will be published next week and it is due its second reading on
Monday 19 November, therefore we have to do the best we can in
the circumstances. May I welcome each of the witnesses? John Wadham,
Director of Liberty, we know. Professor Conor Gearty is Professor
of Human Rights Law at King's College London. Rick Scannell is
Chairman of the Immigration Law Practitioners' Association and
Nicola Rogers from the Aire Centre. Can you tell us what the Aire
Centre is please?
(Nicola Rogers) Yes; certainly. Advice
on Individual Rights in Europe.
2. How are you funded?
(Nicola Rogers) We are funded from a
variety of sources but mainly the London boroughs' grants and
by membership and European Community funding as well.
3. May I start the ball rolling? I should say
one thing. As far as possible we like to avoid getting four answers
to every question. As you can see, there are about ten of us and
four of you and the permutations are fairly awesome, although
we appreciate that sometimes other people will want to add to
what one witness has said. It would be helpful if a witness wanted
to come in, if you could indicate and then I can try to impose
some kind of order.
(John Wadham) We did meet yesterday and
we have tried to divide up the areas, so hopefully there will
not be as much duplication as you might be fearing.
4. That is very helpful, thank you. Thank you
also for providing your written evidence at such short notice.
Is the Bill necessary and proportionate in the current situation?
(Professor Gearty) It is difficult to
judge a Bill which is yet to emerge on grounds of necessity and
proportionality but it is a terrific idea to do so in advance.
Instead of reacting to an agenda set by others, we can to some
extent anticipate and set down our own principles. It is a terrific
idea to do this, so that should not in the least concern us. As
to necessity: vigilance is called for in my judgement. There is
always a risk where a government feels the need, for perfectly
valid political reasons, to act and to be seen to act that that
perception of a need to act coincides with the desires among some
of the executive to achieve certain legislative change to their
advantage. History points in the direction of this coalition of
interest producing legislation which afterwards can be seen from
an historic perspective to have been wrong headed. It happened
in 1939, 1974 and I would say 1996 and 1998 as well. There are
grounds for concern.
5. Just remind us about each of those cases.
Was it the Public Order Act in 1939?
(Professor Gearty) No, Prevention of
Violence Temporary Provisions Act against IRA action during 1939.
6. The other ones?
(Professor Gearty) It is the well-known
prevention of terrorism legislation in 1974 and then there were
two extra pieces of terrorism law passed in 1996 and 1998, each
said to be concerned with Republican violence and each published
at very short notice, very little time to debate and each producing
quite dramatic alterations in the balance of power between the
individual and the state on the basis of the perceived need to
7. What are you arguing? That none of those four
pieces of legislation was necessary in retrospect?
(Professor Gearty) I am thinking that
the damage done, in particular by the first and second, was out
of proportion to the advantages that they secured.
8. Would you accept that the events of 11 September
necessitate any change in the law?
(Professor Gearty) They necessitate careful
consideration of whether there are gaps in the law which need
to be filled. The anxiety I have is that the natural tendency
is not to see whether we can execute current law better in order
to prevent such atrocities here but is replaced by the desire
to have new law because it is in a sense apparently more pro-active;
a kind of alibi for failures elsewhere.
(John Wadham) Taking the 1974 prevention of terrorism
provisions, what we are seeing with those measures, apart from
the fact that it was suggested they would last for six months
and they have lasted ever since that time and now we have permanent
anti-terrorism legislation, is that thousands of Irish people,
particularly in Britain, have been arrested and detained and questioned
without, as far as one can tell, any appreciable difference from
those same groups of people being arrested and detained and questioned
under ordinary criminal law. You have a two-tier system of criminal
law where those people who are involved in criminal acts for political
motives have fewer rights than those suspected of criminal acts
for non-political motives. I cannot see the logic of that. Secondly
of course, anecdotal evidence suggests that the Guildford Four
were one of the first groups of people arrested under the Prevention
of Terrorism Act; the Birmingham Six were not because the Birmingham
pub bombings led to the 1974 Act. There are real issues about
that. What we have is a slippage whereby the rules in the terrorism
provisions have been expanded to be adopted in the general criminal
law and then we have a process where in the 2000 Terrorism Act
the expansion has gone even further. So we are not just talking
about particular acts relating to Northern Ireland but any kind
of political crime almost. There are real problems with that.
I suppose that leads to my last point which is that we probably
have the most comprehensive and we would say draconian anti-terrorism
law anywhere in western Europe and perhaps wider. Therefore there
is a question about how much further we should be going in relation
to that direction when those provisions themselves have been condemned
by human rights experts and others as they are. To go further
than that raises real questions and it raises the question about
whether the Government has to be seen to be doing something rather
than actually taking the steps which may be necessary. The steps
which are necessary are obviously better intelligence and better
information about who is going to be, or is likely to be committing
these atrocities rather than eroding the rights of individuals
whether they are asylum seekers or others.
9. The Security Service would probably argue
that they have the intelligence in some cases but for whatever
reason the law does not allow them to prosecute or to take action.
Would you accept that is a possibility?
(John Wadham) The difficulty in this
process is not just that we do not have a copy of the Bill, it
is actually that we do not have any policy basis or White Paper
or anything else. Although there are lots of suggestions being
made by people and some of those surface in the newspapers, the
Government so far has not made out a case for what needs to be
changed and whether those provisions would have made any difference
had those provisions been in existence in relation to any of the
terrorist activities in this country or particularly in relation
to 11 September. That is a real question because it is for the
Government to demonstrate why these particular measures might
have made a difference or would have made a difference. To suggest
merely because of the atrocities on 11 September we should do
anything or everything we can is mistaken. Finally, as I mentioned
in relation to the Irish community in this country, there was
an alienation of those people and in Northern Ireland with the
measures there, it did in fact push a number of people as far
as one can tell into the arms of the terrorists. If the rule of
law is being bent, if not broken, then people are more likely
to adopt a violent approach to their political ideals rather than
an approach where they accept that there is a democratic process
and there is a legal process which protects them. There are real
problems with that.
10. In a moment we are going to come to dealing
with each of the specific suggestions but we are on general points
(Nicola Rogers) It is not merely our
assertion that the terrorism legislation of 2000 is extensive
in comparison with other western European countries and indeed
the world. That is what the European Commission said when it was
itself proposing legislation in this field. It observed that the
terrorism legislation is very, very extensive. I would point out
that in respect of the offences under the terrorism legislation,
one can be committing an offence even when one is collecting information
or training. The extent to which those kinds of offences are offences
under the terrorism legislation requires very hard questions to
be asked around who it is and what it is that they are doing that
cannot be dealt with under this already very extensive legislation.
(Rick Scannell) I endorse what has been said but would
echo also the words of Lord Lloyd when he said that one should
instinctively dislike the proposal of legislation under the pressure
of events. The Terrorism Act has been mentioned and I say nothing
more about that. So far as the immigration and asylum regimes
are concerned, we shall look at the detail. Sufficient to say
now that in the 1997 Special Immigration Appeals Commission Act,
which established SIAC, which considers national security cases,
and in the 1999 Immigration and Asylum Act, the whole of the immigration
and asylum regimes in the context of terrorism were completely
overhauled in a very major way. It is certainly ILPA's view that
any change is unnecessary.
11. If I may summarise your position, it is that
you are not ruling out some changes being necessary, you are saying
that the Government has to make the case, not the other way round.
Is that a fair summary of your position? You need only nod.
(John Wadham) Absolutely.
(Professor Gearty) I do not consider it a defect that
intelligence is not sufficient in itself to procure conviction.
The need for evidence is not something which is an irrelevant
procedural requirement. There may be reasons why intelligence
does not translate into convictions, which are reasons which protect
(John Wadham) It may be that that intelligence is
in fact wrong. That is why we have quality controls in relation
to evidence and criminal procedures.
12. Do you accept that to some extent at least
the current asylum system is capable of being abused by people
involved in terrorism?
(Rick Scannell) I would not accept that
there are gaps able to be exposed by people suspected of being
terrorists in the present legislative regime. For every position
or for every occasion on which someone might be suspected of being
involved in terrorism, the present 1999 Immigration and Asylum
Act gives power to the Home Secretary to certifyif you
are talking about a port case when the person arrives at Heathrowif
he has reason to believe that a person is involved in terrorism,
that his exclusion would be conducive to public good. If you then
go to the position in country, somebody applies in the immigration
system to vary a leave and the Secretary of State considers that
person's leave should not be varied, he can certify that the person's
departure would be conducive to the public good as being in the
interests of national security. If you move forward to deportation,
he can take a decision to deport on the grounds that deportation
is conducive to the public good as being in the interests of national
security. At every single immigration step there is the power
in the Home Secretary already to make a certification that national
security is engaged. The consequence at the moment is that that
person within the immigration framework has no appeal right. The
person has to have his or her case considered by the special commission
established to consider national security cases, the Special Immigration
Appeals Commission. That is in place and properly so as a result
of our international obligations under the European Convention
of Human Rights and as a result of the Chahal case. It
was a procedure which was applied and brought into effect in 1997
following Chahal and it provides for the necessary balance
between the interests of the individual and the state, it enables
people as special advocates to represent the interests of the
people suspected of being involved in very broad terms in terrorism
in the absence of the appellant. I have been appointed by the
Attorney General as a special advocate and have done some of that
work. You may come to look in more detail at the provisions but
the short answer to your question is that there is not in my view
the scope for abuse, precisely because at every respective junctureI
do not bother with chapter and versethe Secretary of State
does have the certification power that is apparently that contemplated.
13. We all know that the Secretary of State has
had powers for a long time, like his predecessors, to exclude
people on the grounds you have mentioned. Yet when the massacre
took place in Egypt in November 1997 at Luxor in which British
citizens as well were amongst the victims, the President of Egypt,
who after all is quite an expert on terrorism, bearing in mind
that his predecessor was murdered by a terrorist, said that Britain
had become a safe haven for militants, allowing them to plan violent
activities from bases in the United Kingdom. I would put it to
you that many people believe that Britain is one of the safest
havens in Europe for terrorists. Do I take it that there is disagreement
(Rick Scannell) I am not in a position,
I have no experience in terms of what information the Security
Services might have about the number of people who are in the
United Kingdom planning terrorism. I am not equipped to comment
14. Would that not demonstrate that though these
powers have existed in excluding people on the grounds that it
is against Britain's interest that they should be here, they have
not in fact in many instances been used and therefore you have
a situation where in more recent times, since the atrocities of
11 September, you have had various people proclaiming in this
country that what was done was right, preaching along those lines,
inciting hatred against the United States of America, instead
of course of condemning the atrocities. How is it that such people
were allowed into this country in the first place?
(Rick Scannell) In a sense the premise
of the question appears to be that it is a flaw in the immigration
and asylum regime that has led to people being able to establish
themselves and use the UK or any other country as a base for terrorism.
15. The powers have not been used.
(Rick Scannell) It is that premise that
I doubt the accuracy of, with the greatest respect. If one looks
at the people who trained in America as pilots to fly the plane
to cause the dreadful events of 11 September, they were not, so
far as I am aware, people who were in any respect using an immigration
and asylum systemobviously we are talking about America.
They were settled and had probably been settled in that country
for a long time, in a cell and probably obtained such ability
to plan for those horrific events in the context of a status that
had nothing to do with immigration or asylum.
16. That is a matter for the Americans and they
talk about British immigration law but Americans would say that
indeed there was a flaw as such people were allowed into the United
States without the immigration authorities taking up all the investigations
which were needed. No doubt the Americans have learnt the lesson.
One would say in the interest of the security of all of us that
one hopes they have. Do I take it that none of the four witnesses
before us accepts that people have come into this country in the
last few years involved in terrorism, involved in terrorism though
not in the United Kingdom, but perhaps planning from the United
Kingdom, been allowed into this country when they should not have
been? You do not accept any of that.
(John Wadham) Of course there are bound
to be examples of people.
17. You do accept that.
(John Wadham) I do accept that but the
consequences are not as perhaps you may think they are, which
is firstly, whether or not these people have been allowed into
the country or not is a question of intelligence. If the authorities
had information that they were in fact involved in terrorism,
then the mechanisms my colleague has demonstrated would have allowed
the Government to detain them and would have allowed them to be
thrown out of the country, subject to the test that exists with
the appeal to SIAC. That is the first thing. It is not an issue
about the lack of procedure, it is an issue about whether the
Government and the Security Services have intelligence and secondly
whether they have evidence. In relation to the issue of Egypt,
it seems to me that there are key problems: for instance the extent
to which it is possible to send people back to Egypt because of
the factors of whether they would get a fair trial in Egypt and
whether they would be subject to torture, inhuman and degrading
treatment or punishment. Those are obviously issues which a civilised
country has to consider before it sends people back. I am not
sure of the logic from your assertion that there are people, which
I accept there must be, is that we therefore need stronger controls.
We say we have adequate controls to deal with exactly those circumstances.
18. If I preface it by saying that I have the
highest respect for your organisation, you will probably say I
am going to be critical, which I am, but I have genuine respect
and have had so all my political life. As I have said elsewhere,
if your organisation did not exist it should come into existence.
Having said that, there is a feelingand I am going to be
brutally frankthat a number of people have been allowed
into this country with a great deal of controversy; other people
in my view have been allowed in without the immigration authorities
exploring their terrorist background, but some people have been
allowed in where there have been allegations and your organisation
has been to the fore in defending them. I know for instance of
one particular casethe name does not come to mefrom
Saudi Arabia where the Saudi Arabians were saying he was involved
in terrorism and he was allowed in and I believe your organisation
took a prominent role in defending that particular person. Do
you feel that your organisation is such that it really has little
alternative? By the very nature of your activities, where these
people say they should be allowed in and the British Government
says no and there is a court case and they call on your organisation,
have you no alternative but to defend them?
(John Wadham) Inevitably any human rights
and civil liberties organisation anywhere in the world will have
to be involved in defending and supporting those people who have
very little respect within the general political, government and
support of the people. If in fact human rights violations were
only directed to respectable parliamentarians, then the situation
would be very different. In every single country all around the
world, human rights are most at risk with those people who are
actually being targeted by the authorities. Sometimes that targeting
is justified and sometimes it is not. Our concern is that innocent
people are caught up within these mechanisms. If I had been giving
evidence in 1974 about our concern about the arrest of the Guildford
Four, the Birmingham Six, members of this Committeeobviously
not you, David, but otherswould have criticised us for
saying in fact there is a real issue about doing something about
IRA terrorism. What we should not be doing is supporting these
individuals where there is dubious evidence. We should be making
sure they are convicted to stop further terrorist activities.
That is why we are here today, because we are concerned that in
ten years or 25 years' time people's rights will have been violated
and perhaps there may have been miscarriages of justice as a result
or people will have been sent back to countries where they were
killed or tortured and that those people were innocent of any
involvement in terrorism. That is the key issue and those are
the groups of people we are here to protect.
David Winnick: Of course we know about the Birmingham
Six and that was a disgraceful case, as indeed was that of the
Guildford Four. We all remember the Birmingham 21 which I mentioned
on the floor of the House yesterday.
Chairman: We do want to stick to the legislation
and we are getting very far wide of the legislation at the moment.
19. Mr Scannell and Mr Wadham have given the
impression that all the necessary mechanisms are in place with
the existing law and there is no need to go outside the present
arrangements. Last week the Committee heard evidence from the
Security Servicesnot in publicand we were given
some very clear examples of cases where people had come through
the ports or the airports, there was very clear intelligence information
available on them, sometimes there were fake papers, sometimes
other ways of entering the country. They were initially detained,
then they sought asylum at entry, went through the whole process
of appeal and JC. All of the efforts of the Security Services
and the police were frustrated by the system. They made a very
clear case which convinced me at the timeand perhaps you
should all get togetherthat there was very much a need
for new remedies and new procedures.
(John Wadham) Firstly I have to say that
when I see that material where they suggest there are problems,
and hopefully this will be part of the debate when the Bill is
published, then we can debate those issues, but your private meetings
with people suggesting why things should be changed without any
details are very difficult to deal with. I would say that if people
are getting through the net and they know they should not do so,
and we say the mechanisms seem to be adequate, if they have particular
examples of what mechanisms need to be changed, then we can have
the debate. In general it is quite hard to deal with those issues.