WEDNESDAY 14 NOVEMBER 2001
Mr Chris Mullin, in the Chair
BEVERLEY HUGHES, MP, Parliamentary Under-Secretary of State for the Home Office; MR ROBERT WHALLEY and MR IAN WALSH, examined.
(Beverley Hughes) I have with me Bob Whalley from the Home Office, who will assist me with any aspect on terrorism and terrorism protection, and Ian Walsh, from the Immigration and Nationality Directorate. I have some other people behind me if I need them.
(Beverley Hughes) The whole of the Bill is a response to the events of September 11th and the result of a consequent audit right across government - in a very measured way; we have not rushed into this - as to how far our existing legislation was sufficient to deal with events of that kind, whether or not we needed to have a wholesale revision of our legislation, or whether we could plug gaps. A wholesale revision was not necessary, but what we did need to bring forward was a set of proportionate and targeted measures designed specifically to deal with gaps in our current legislation that we felt the public would reasonably expect us to fill. In that sense, I think the whole of the Bill has a direct or clear link to some of the new threats that arise from the events of September 11th.
(Beverley Hughes) Yes, I agree, and certainly we are relying on much of the power in that legislation. It is not being swept away. As I say, we are not having a wholesale revision, but what we are doing with this legislation, as you will see from the breadth of the Bill, is trying to plug gaps across a wide range of issues, but we think that they are gaps that the public need us to fill.
(Beverley Hughes) We hope to get Royal Assent on the whole of the Act when it is enacted by the end of this year. The measures to implement that, in terms of SIAC and so on, are already in place. So it could have a very speedy introduction in practice because the procedures and so on are already there. What we are introducing is a new power, not new procedures.
(Beverley Hughes) I think it could be immediate really.
(Beverley Hughes) I have not, no.
(Beverley Hughes) I would say it is a very unfortunate situation, but we are actually trying to respond to a very difficult and unfortunate situation with the proposals. To start from first principles, what the proposals on detention arise from is an attempt to prevent the abuse of our immigration and asylum procedures by people who want to stay here and use the UK as a base for engaging in terrorist activities. It is precisely to prevent that abuse.
(Beverley Hughes) Yes.
(Beverley Hughes) The problem arises when we want to take the action that we are empowered to do at the moment, which is to deport a foreign national. These provisions, as I say, are limited to foreign nationals. If in the instance that pertains we cannot deport somebody and exercise those powers, because we cannot deport them to a safe country - if we were to do that, and the Home Secretary has made it clear we would not do that because we would be in breach of Article 3 - we then have two options. This is the dilemma that people who are concerned about these powers have to face themselves. If we cannot exercise our powers to deport somebody who we suspect to be engaged in terrorist activities, we either have to release them into this country to carry on engaging in the behaviour that has caused concern in the first place, or we have to take some measures to curtail those activities pending deportation, and that really is only detention. That is the route through which we have come to the conclusion that we do need some special powers in exceptional cases, when we cannot use the existing powers we have to deport because to do so would contravene Article 3, and in any case it would not be the right thing to do, then we need powers to detain when we have serious concerns about the behaviour of certain individuals.
(Beverley Hughes) It will not apply to UK citizens.
(Beverley Hughes) Do you mean somebody who has been given indefinite or exceptional leave to remain?
(Beverley Hughes) The powers that we have at the moment to deport somebody apply to people given that status. If somebody has been given that status through the immigration procedures, and then there are concerns about their behaviour, we have power now to deport those people. If we cannot exercise that power of deportation, clearly the potential to detain people in relation to these procedures becomes a possibility.
(Beverley Hughes) They could be.
(Beverley Hughes) We can only go on our experience so far and make some best estimate on the basis of that. Please treat any numbers I give you with caution, because we obviously do not have a crystal ball, but for instance, since SIAC was established in 1998 there have been three cases. Under existing powers to detain people for shorter periods of time when we have suspicions about their behaviour, in the year for which we have figures, which is 2000, there were 39 non-Irish people detained, but 23 of those were in connection with one incident, which was the hi-jack of the Afghan airline at Stansted. Taking those figures into account, we feel that we are talking about a small number of people. It may go into double figures but we are talking about a small number of tens rather than hundreds. That is our view.
(Beverley Hughes) Absolutely not. We do not anticipate that.
(Beverley Hughes) I would say that the kind of atrocities we are trying to prevent are also odious. I do not deny for a moment that the power being proposed in the Bill is a serious power. We have not entertained the possibility of that power lightly. Having said that, we do feel that it is a necessary power in a small number of cases. We have made provision for that power to be regularly reviewed by Parliament, so it is a temporary power, unless it is reviewed by Parliament. We have also put in place through the SIAC process safeguards for six-monthly review on an individual basis of any case that goes through that process. That person will have legal representation. There is provision for the payment of that legal representation in the Bill. There is also through the SIAC process, obviously, the provision for judicial examination of that executive decision by the Home Secretary for certification in any individual case. So we have tried to put in place alongside the power measures to review it regularly on a parliamentary basis and on an individual case basis. We have also put in place safeguards for judicial examination of that executive decision-making.
(Beverley Hughes) I am not concerned so much about the past as with the present, Mr Winnick.
(Beverley Hughes) I think there are three sets of circumstances that we believe justify the view that in relation to the technical formulation required under Article 14 we can say that there is a state of public emergency. Those are the events of September 11th, the fact that the UN Security Council has resolved that Member States are facing situations in which international peace and security is threatened, and thirdly the fact that, of course, UK is one of the most prominent countries in the US-led coalition currently in conflict in Afghanistan. We think that heightens the threat to the UK. Those three factors together do justify the technical definition of public emergency as required under Article 15.
(Beverley Hughes) No, and I think a further justification and strengthening of our view that those three factors themselves justify the definition required in Article 15 was the judgment of the House of Lords in the Rehman case a month ago, in which the Lords= view about the assessment of the threat to national security made it clear that there does not have to be a specific threat against the UK for there to be a judgment, but in the context of world events, there is nonetheless a justifiable threat to national security in this country on that basis.
(Beverley Hughes) There are a number of differences between this proposal and internment, and one of the main ones is, if a person who is suspected of being engaged in terrorist activities under these procedures has a place to go to and wants to leave this country, then, of course, they are free to go. There is not the same basis as internment at all in terms of enforced detention.
(Beverley Hughes) No, not at all. I do not think it fits that description.
(Beverley Hughes) It is not the same measure at all. It is a power to detain individuals in the event that, either for reasons of international obligations under the European Convention or for practical reasons, we cannot exercise the power we already have to deport somebody. It is a response to that situation. Internment was an entirely different measure and, as I say, under these powers, if somebody whom we have detained chooses to leave this country, they are free to go at any time, provided they leave these shores.
(Beverley Hughes) I think this is an issue that you are right to raise, but, as I have said, we recognise that this is a serious power. We are not entertaining taking this power in order to exercise it in a slap-dash or shoddy way, or in a way which may lead to those kinds of eventualities. The Secretary of State will have to satisfy himself on every individual case.
(Beverley Hughes) Let me just finish. The Secretary of State will have to satisfy himself in law in every individual case that the evidence being put before him is sufficient to justify the view that a particular individual is a threat to national security, and if that person then appeals through SIAC, a group of people, headed by a High Court Judge, including in normal circumstances another judge as well as somebody from a security background, will make a judicial examination of the quality of the evidence, and they have the power either to confirm or to refute the Home Secretary=s judgment.
(Beverley Hughes) I am confident that we do not want to repeat the failures of the last Government, if I may say so, in the way in which that matter was handled. There have been lessons learned from that. We certainly expect the implementation of these procedures to be robust and, as I have said, in terms of the numbers we expect, we expect them to be used in exceptional circumstances. Clearly, in all cases where that is possible, prosecution is the preferred route of the Government. For those two reasons, because we expect this to be used in a very small number of cases, I do not think we are going to see a repeat of that. It is certainly our intention that we should not see a repeat of the kind of large numbers of detentions that we saw in response to the Gulf War.
(Beverley Hughes) Officials have tried to get you the figures for today. I hoped to be able to do that this morning, and unfortunately, because we do need to go back in the records, it has not been possible. But we are trying to get you that information as soon as possible. I have noted the deadline and I will try and ensure that we meet that.
(Beverley Hughes) That is a possibility that has been put to me, and I cannot say no, but for the reasons I have already identified, because we envisage this power being exercised in a very small number of cases, that risk is minimised. I cannot say it does not exist, but I think there is another point here, which is that with many of these issues to do with the Bill, perhaps particularly this one, we have to take a balanced view, what on balance is the right and the safest course of action, and on balance, I think it is right that we do have this power for a small number of cases.
(Beverley Hughes) What the Home Secretary will have to satisfy himself of in considering whether somebody is a threat to national security is the evidence in the round of that person=s actions and behaviour and associations. That is what these procedures in law are charging the Secretary of State to do.
(Beverley Hughes) In a sense, that is precisely the reason for the procedure. That is the first order decision the Secretary of State has to make: is this person a threat to national security? Would we ordinarily, using the powers available to us, want to deport this person? Therefore. That is the first decision. If then the advice is that the person cannot be deported because either his or her country of origin or any other third country cannot give a satisfactory assurance about treating that person in accordance with Article 3, that is the reason for these proposals. We would not then deport somebody.
(Beverley Hughes) Yes, and that is where we are. I think it would be helpful if you said a little bit more about where you are coming from. I think I know where you are coming from.
(Beverley Hughes) What we are seeing here, I think, is the beginning of an argument which I am sure we will see developed over the course of the passage of this Bill, which will become an argument for renouncing our international obligations under the European Convention on Human Rights wholesale in order that we can deport people and not have to adhere to Article 3. This, of course, is the Trojan Horse that your arguments are leading us towards.
(Beverley Hughes) As I understand it, we did not lodge any reservations at all. We have been adhering to this Convention for about 50 years now.
(Beverley Hughes) As I say, we have made it clear. Firstly, the Home Secretary has made it clear that he will not entertain the idea that we simply ship somebody out to a country where we know they may be tortured or where they may be killed.
(Beverley Hughes) The point is our commitment as a Government to human rights and to the European Convention, and the Home Secretary has made it clear that we will not entertain sending people abroad, back to countries where we feel that their individual rights in those countries in terms of Article 3 would not be respected. We do not believe that is a moral and a right option to take. That is why we have looked for another way to address the dilemma that we do face in not being able to deport somebody to such a country. We have then had to consider other powers to curtail the activities that are of concern in this country.
(Beverley Hughes) Not individually as a nation. What the Home Secretary has done at the JHA Council in September is to ask the Commission to look at the dilemma that we have identified, and that indeed other Member States will face, and how Member States can meet that dilemma in terms of wanting to ensure the rights of their population to not experience threat to their security, but on the other hand also the rights of individuals, particularly in relation to deportation and the issues that I have identified around Article 5. The Commission is looking more broadly at the dilemma that Article 5 presents in the current situation.
(Beverley Hughes) In relation to a new regime in Afghanistan, it would depend on the assurances of that regime in terms of the way in which they would treat those people under Article 3, in terms of the specifics of Article 3, that they would not be subjected to torture and so on.
(Beverley Hughes) I think in that situation, Mr Malins, there would be a very considerable international response to a circumstance in which we were able to apprehend Mr Bin Laden, and I am sure it will not come down to a process involving SIAC in deciding whether or not we can deport him or detain him in this country. There will be an international response. In relation to the US, we have had an agreement with the US in relation to their death penalty, as you know, for some considerable time now, and that is not going to change.
(Beverley Hughes) For any individual person that is the case. I understand the point you are making, but in a sense it is a hypothetical scenario that we are unlikely to face, because I think the international response were we to apprehend him would be out of the context of any individual member state.
(Mr Whalley) I think you have then to look at the wording of clause 21, and at the reference there to Ainternational terrorist@ in 21(1)(b). Then you have to look at 21(2), where you get some examples of what sort of people we are concerned with. First of all, there are those who are concerned in the commission, preparation or instigation of acts of international terrorism; secondly, there is a reference to those who are members of proscribed groups; thirdly, those who have links. That is the context in which this would operate. More specifically, it will be concerned with people who within the United Kingdom, while they are here, are engaged in these various activities, and probably some of that would come under 21(2)(a). They may, for example, be concerned in communicating with other terrorists; in preparing for acts of terrorism, whether in the UK or further afield; they may be involved in fund raising or in training or in other activities upon which terrorist organisations rely in order for their activities to be achieved. There is a whole range of activities which could be involved here, where the people concerned will be operating within the UK with comparative freedom of movement and in that sense, we would be concerned with those whose activities might not become known to the police, for example, and might therefore not generate the circumstances in which a criminal charge could be brought.
(Mr Whalley) That is the sort of circumstance which could arise. Of course, the first test would be whether or not an offence was committed under the Terrorism Act to which you referred earlier on, and that would, of course, be the preferred option in every case, because there are criminal offences there and that would be the case which would be followed. As I have just said, some of these activities may not come to the attention of the authorities in a way which might generate a criminal charge.
(Mr Whalley) Information comes to the authorities by a variety of means, and of course, the Security Service are involved in all that, and that is the circumstance in which the Home Secretary would become informed about the activities of some of these people.
(Mr Whalley) Yes. First of all, it is not my intention to try and sell this to you. I think that is for the Minister. What I am trying to do is to explain the circumstances in which this might be used. Of course, there is a debate about the use of intercept evidence and the Director General of the Security Service, among others, has commented on that. It is a longstanding debate, and intercept information is one of those things which will be available to the Home Secretary in some of these cases, I have no doubt.
(Mr Whalley) I come back to the kinds of activity that they are concerned with, and we have to relate this specifically to what is said in clause 21(2)(a). In other words, we will be looking at whether the activities which the Home Secretary is informed about are related strictly to the tests here. That could be, as I have said, someone who is organising communications, training, fund raising, a variety of activities in support of terrorism, as well as acts of terrorism themselves. Those are the sorts of activities. But the test here is whether or not they link with any of the three criteria in clause 21.
(Beverley Hughes) Not yet, no. They are under consideration in a number of European countries at the moment which have not published or concluded their consideration of the powers they need to take. As I say, we have asked the Commission to look more broadly at the issue faced by a number of Member States. I have to say in relation to that point that each individual Member State will want to consider the level of threat to national security they think they are facing. It is clear that, because of the UK=s very prominent involvement in the action in Afghanistan at the moment compared to perhaps other countries such as Denmark, the level of perceived threat will be very different, and therefore the powers that individual states feel they need to take will consequently be different too.
(Beverley Hughes) We do not yet know what Germany is going to do. As I say, those matters are still under consideration and we do not yet have any information about their conclusions about whether they want to go down this route or not.
(Beverley Hughes) As I say, we are furthest on in terms of having published our proposals, and we do not know the conclusions of the deliberations elsewhere.
(Beverley Hughes) The Americans are taking powers to detain people where they are suspected of terrorist activities. Those powers are quite wide-ranging, and could lead to detention for quite considerable times pending the ability to deport.
(Beverley Hughes) Just to be absolutely clear, those were proposals that were in their original bill. I am not yet clear if they have enacted them.
(Mr Whalley) I am not clear on the detail. I know that some measures have been authorised by the President.
(Mr Walsh) The United States Act in question was passed in October. I think the broad outline of their powers on detention are quite similar to the ones proposed in this Bill in the sense that they are something which will be reviewed every six months, which is actually the SIAC procedure. In the United States, and I think to some extent Canada, they are perhaps more in line. They have already done something which the United Kingdom is now contemplating, whereas the other EU countries are probably not as far ahead as we are.
(Beverley Hughes) That may be the perception, and it may in the past have been the reality, in the sense that the immigration and detention procedures were neither fast enough nor robust enough to identify and deal with such people. But I think the Home Secretary, and indeed the previous Home Secretary under this Government made it clear that this country will not be a safe haven for people who should not be here, and who want to be here to undertake activities that we do not approve of and which constitute a threat. That is precisely why we are improving the immigration and asylum system, why we are proposing these measures here, and why we will also be bringing forward proposals to improve and streamline the extradition process early in the New Year.
(Beverley Hughes) No.
(Mr Whalley) I think the answer to that is probably not much more than what the specific formulation says. The cases in 21(2)(b) are those where there is some kind of adherence or allegiance to a particular terrorist group. As we know, of course, membership or belonging are quite tenuous and diffuse definitions in this sense, but that is something which will probably be clear in some cases. There may be other cases where people are conspicuously in their own terms not members of an organisation but they are working with that organisation. We know that international terrorist networks do function on the basis of links between individuals in various countries, and that is the danger which the Government is trying to meet in this Bill by making sure that people who are operating perhaps across borders, in a very tenuous way but in a way which might be vital to the support of that terrorist organisation, are covered just as specifically as those who are actually members of organisations.
(Beverley Hughes) Because we do not have a crystal ball, and we do not know when the circumstances that justify taking the power in our view are going to expire. What we have provided for is, in the first instance, a review by Parliament after 15 months, and thereafter on an annual basis, a process of affirmative resolution in both Houses of Parliament, and therefore it will be for Parliament to determine, if the Secretary of State does not do so in the mean time, when the expiry date will be.
(Beverley Hughes) What would happen if we put a time limit on it and then Parliament felt it still needed those powers? It seems to me that what we have put in place, with a review process, is the right way. It gives Parliament the right to determine whether these powers should expire on a regular, annual basis, and that seems to me the right provision to meet the circumstances that we are in.
(Beverley Hughes) As I say, it would be if there were absolute certainty and you could predict when these circumstances would change. In the event that we cannot do that at this stage, looking ahead, it seems to me that the provision for Parliament to review the situation on an annual basis is the right one. I do not accept that that would be rubber-stamping, and I think there will be consideration of what we need to do to make sure that this is a proper review. I have every confidence that Parliament will make it such.
(Beverley Hughes) It is temporary in the sense that the Bill does not make it permanent. It institutes the power for 15 months and then, if Parliament does not renew that power through the process I have described, it will fall.
(Beverley Hughes) I have said three times now that I do not think we can have an expiry date because we cannot predict with certainty a date in the future when this power should fall and when the circumstances will change. But what we have provided for is a power for Parliament to look at the circumstances afresh and to decide whether the power should continue or not continue. That seems to me to be the best way to meet the situation that we are in.
(Beverley Hughes) There is not a provision for the same kind of review that was included in the Terrorism act, no. Parliament will review.
(Beverley Hughes) The actual process being put in place here does involve judicial examination on a case by case basis of the individuals coming through the SIAC process. I understand very well that that is not quite the same as what you are proposing, which is more of an overview of the way the whole thing is operating. Nonetheless, I think it is a safeguard, an assurance to people that, built into the system, on each and every case, is a judicial examination of the way that process is operating for each individual person.
(Beverley Hughes) If it is raised in the debate, we will.
(Beverley Hughes) Our current legislation requires if somebody lodges an asylum claim for that to be dealt with before consideration of the issues raised by a person=s activities and whether they are a threat to national security. What this Bill will enable the Government to do if somebody is apprehended because there is a concern about them, who then puts in an asylum claim, is that the Secretary of State will, through the certification process, be able to set aside the asylum claim and deal with the other issues first. At the moment, under our current legislation we have to deal with it the other way round, and that means that we actually cannot take actions against somebody.
(Mr Walsh) The issue is as much for the court or independent review process as for how the Secretary of State considers the claim. The provision in the Bill says that if the Secretary of State comes to the view that the person would be excluded from the protection of the Convention, either because of Article 1(F) or because of Article 33(2), if the Secretary of State makes a certificate to that effect, it requires the review body, which in this instance would be SIAC, to address that exclusion point first, and if it agrees with the Secretary of State on that, that is the end of the asylum claim. There is an asylum claim, but under this approach the whole asylum claim can be refused purely on the basis of exclusion, if that is what the Secretary of State concluded was right. If SIAC agreed, that would be the end of it. Without this provision, it might well be that SIAC, or indeed any other court, would itself wish to look at the exclusion clause and what is often termed the Ainclusion@ clause, which is Article 1(8), which is well-founded fear of persecution. What this provision is doing is putting beyond doubt that if the Secretary of State wishes to just look at the exclusion clause first and comes to the view that that applies, and therefore the 1951 Convention does not apply, the reviewing body, SIAC, and onwards to the Court of Appeal and the House of Lords, would have to focus on that, and if they agreed with it, they could not look beyond that.
(Mr Walsh) SIAC will still be able to look at the national security aspect, and it will also be looking at the asylum claim. We are not saying that a person cannot apply for asylum. What we are saying is that the 1951 Convention already has provisions in it which say that if someone comes within the scope of article 1(F), then they are not a refugee, and to some extent this is just making more clear that that provision exists and relying on it. So it is not the case under this provision that the Secretary of State is not looking at the asylum claim.
(Mr Walsh) If SIAC comes to the view that this person is to be excluded, under the terms of the 1951 Convention, that means that they cannot be a refugee. To that extent, you could argue that looking at whether or not they have a well founded fear of persecution for the purpose of the 1951 Convention is not a necessary thing to do. This provision makes that clear.
(Beverley Hughes) I think it made the situation less clear in terms of those circumstances in which we had concerns about a person=s behaviour on a national security basis. It makes it less clear what our course of action and responsibilities to that person are if we also consider at the same time the asylum claim. What the clarification of that process does is to say that if somebody is excluded by Article 1(f) or 33(2) from the refugee status the process that we are setting forward in the Bill, in terms of consequences of that assessment being confirmed by SIAC, is a valid one and the water cannot be muddied by an asylum claim.
(Beverley Hughes) It is clarity really.
(Beverley Hughes) In a sense, we have been testing out in a small way anyway since the Special Immigration Appeals Commission was established in 1998 a number of cases which deal with the same kind of issues. There have been through that process at the moment only three cases. In two of those cases where individuals entered the country who were fairly well known to be involved in terrorist activities, they entered the country clandestinely. As a result of those two people going through the SIAC process, we reached the dilemma that I outlined at a very early stage, in which assurances from the country to which we wanted to deport them were not accepted as satisfactory by SIAC, so those two people had to be released back into this country and are still here. It is partly 11 September; it is also partly the result of those experiences that raises the valid question: is it right, when we reach that point when we do have people about whom we are concerned, that the only option available to us is to release them back into the community? It is as a result of some of those cases that we have concluded that that is not satisfactory.
(Beverley Hughes) These particular proposals that we are focused on at the moment as part of the Bill are partly a result of experiences anyway through the SIAC process, but the timing in terms of bringing them forward obviously is a reflection of the fact that we did see a step change of some degree in relation to the events of 11 September and the methods that terrorists are willing to use. Creating mass casualties in a no warning suicide event such as that does mean that the need for us to be able to contain people who are a threat, the need for a much more intelligence based approach to protection and defence, is obviously very much heightened by those events. That is a combination of two things. It is certainly not the case that we are trying to do things we wanted to do anyway. There is a clear link back to 11 September and what that has taught us about the ways in which terrorists will now be able to operate and how we must respond to that. In terms of the timescale, we regard this as a serious power. We have made provision in the Bill for it to be temporary and we have enabled Parliament to take the decision on how long the international circumstances are such that we still need to keep it.
(Beverley Hughes) That is difficult to hypothesise about. There is a mechanism for review every six months. There is not a provision in the Bill for a maximum number of reviews. Alongside the fact that I have said we envisage the powers being temporary and related to the international situation, there will also clearly be a time when this power does not exist and therefore anybody detained will be released because the power to detain them will not exist. I am not trying to dodge this question.
(Beverley Hughes) That is a matter for Parliament to determine in the future. It is not something I can predict or hypothesise about now. It is difficult to answer your question precisely and I am not trying to hedge it. It is simply difficult to know how events are going to evolve over the next one or two years or more and therefore how long we will have the power in place.
(Beverley Hughes) In so far as we cannot predict now how long we will Parliament will keep the power, it is theoretically possible in terms of the course of the Bill but it is not something that we envisage.
(Beverley Hughes) We regard SIAC itself as a judicial examination. I have already outlined the membership of the Commission that will oversee and examine the evidence that si available to the Secretary of State in individual cases. The process itself builds in that judicial examination. To provide for yet another layer of judicial examination we feel is unnecessary and delays the process. People will have a right of appeal on a point of law to the Court of Appeal and, if they are given leave, onto the High Court. We think that the proposals themselves provide for sufficient judicial oversight both of the evidence and of the way the law is being applied and it does not need another layer.
(Beverley Hughes) Two things: the delay in the process and the evidence available to SIAC and to the Secretary of State is not always evidence that can be made available in an open court. This is part of a wider attempt to streamline related processes which we are not dealing with in this Bill but we will be dealing with it in later bill in terms of extradition and to make those processes consistent we do not want to have unreasonable opportunities for people to extend these processes generally. We do want to make sure that there is inbuilt judicial examination and we think we have sufficient in the proposals as we have outlined them for this particular power.
(Mr Walsh) There have not been any judicial review changes to SIAC decisions so far. There have only currently been three cases before SIAC and we would expect, for a number of reasons, many more decisions of SIAC in the future both because of the review process meaning they will have quite a few decisions to take and because the numbers concerned might grow somewhat. In that sense, it is a preventative measure in the expectation that it might happen. There is already a right of appeal to the Court of Appeal and then to the House of Lords. There is a statutory appeal rigged up and this measure puts beyond doubt that that is the route that should be taken. Also, the Secretary of State will be making various certificates under these new measures, a certificate in relation to detention or in relation to non-substantive consideration of an asylum claim. Challenges to that certificate should go to SIAC and people should at the very initial stage try and change that decision through judicial review. It is right to see this as a kind of preventative measure in case there are more changes in the future. It is not based on any specific problems in relation to SIAC so far.
(Mr Walsh) We are seeking to make it clear that judicial review is not to apply to decisions related to SIAC. It is correct that there have been, to my knowledge, no judicial review challenges to SIAC so far. There are various new procedures that have been introduced here involving two new certificates from the Secretary of State, so those procedures will be additional to the ones that currently exist. One of the aspects of this provision is to say that challenges to the Secretary of State=s certificates should go straight to SIAC and that attempts to intervene at the first stage will go to judicial review and the certificates should not apply.
(Beverley Hughes) If it is passed, this will be the law. This will be the legal process defined in statute.
(Beverley Hughes) We do feel that because of the composition of the Commission led by a High Court judge, there is not any further need for judicial review outside of that process. There is an inbuilt judicial review element within the SIAC process itself and therefore to add another layer is unnecessary.
(Beverley Hughes) I could turn that around and say that, given that there has not been any attempt to have a judicial review in the three cases we have had so far, that demonstrates the fact that there is judicial examination that appears to be working. It would be much better to clarify the detail of the process at this stage in the legislation and that is what we are doing.
(Beverley Hughes) I cannot see myself what a further judicial review would add to the process except to delay it and complicate the process. Judicial review has not been sought in the three cases we have had. That suggests that the judicial element in the process, particularly with the strengthening around the certification that Mr Walsh identified, is sufficient and I think it is preferable to be clear about the process. I think I can assure people that the people involved in the Commission will be undertaking a process that is a judicial review process and it is part and parcel of the system.
(Beverley Hughes) In terms of the forthcoming debate, we have said and the Home Secretary has reiterated that we will listen to any sensible proposals during the course of the debate. If that assists in improving the proposals that we are putting forward throughout the Bill, then we are open to argument. In general terms on this particular issue, we would have to be pretty strongly convinced that adding a second opportunity for judicial examination, when we have built one in very clearly and very strongly into the process itself, was an improvement.
(Beverley Hughes) There could be an attempt in the context of an individual case, through SIAC, to challenge but, to be quite frank, I do not think because of the legal provision that would be made in the Act that that would be a successful challenge at all.
(Mr Walsh) It is correct that if someone is wanting to challenge the derogation itself clause 30 provides the challenge to that. It should initially be through SIAC and from there, on a point of law, SIAC=s decision can go to the Court of Appeal and, if necessary, the House of Lords. That structure is the same for anything virtually that SIAC does. In terms of its decisions on a deportation order or in terms of a certificate on detention, the case would go to SIAC and, if there was a point of law challenge to that, it could go to the Court of Appeal with leave and after that the House of Lords. Clause 30 provides the same structure for challenges which are based partly or wholly on the validity of the derogation order itself.
(Mr Walsh) The fact that judicial review is being excluded is a separate thing from saying that judicial oversight has been excluded, which is certainly not the case. There are clear appeal rights set into SIAC. It is an issue about channelling where those judicial challenges come but not in any way seeking to remove them.
David Winnick: No doubt it will be argued further at the committee stage of the Bill.
Chairman: Could we turn briefly to one or two of the other measures in the Bill, starting with religious hatred?
(Beverley Hughes) It is something that we considered in the context of events after 11 September, the public order issues that have also arisen in this country in some of our towns over recent months and looking back it is also something particularly in relation to religious aggravation offences that was argued for from people on all sides of the House when the Crime and Disorder Act was being debated in 1998.
(Beverley Hughes) I think there has been an ongoing debate, has there not, that has arisen at various times over the past few years as to whether religious hatred ought to be included alongside racial hatred in the incitement provisions of the Public Order Act and the anomalies, some would argue, that some groups of people B Jewish people and Sikh people B had by dint of court decisions being embraced as racist under the existing legislation; whereas other groups of people were excluded. That has been something that has been around for some time that we have been aware of.
(Beverley Hughes) In terms of incitement?
(Beverley Hughes) Clearly, the existing law does not cover groups that are not racial groups.
(Beverley Hughes) The production of literature, for instance, that is clearly inciting people to hatred and likely to result in public disorder, the kind of propaganda that certain groups in this country would otherwise produce. There have been prosecutions, particularly in relation to literature.
(Beverley Hughes) Yes.
(Beverley Hughes) It is behaviour, as you know, likely to incite hatred and result in a situation of public order. We are simply proposing to extend the provisions where people do that in relation to a racial group to people who do that in relation to groups that are not racist but are religious or indeed people who have no religion.
(Beverley Hughes) There have been about 40 over the last decade.
(Beverley Hughes) I am not sure about the last three years. It is about four a year on average.
Mr Malins: I think it is four or five in the last three years. Is it very difficult to prosecute?
Chairman: We know of seven prosecutions and four convictions in the year 2000.
(Beverley Hughes) It is difficult to prosecute in the sense that the threshold of evidence is a fairly high threshold. Nonetheless, I do not think that the merit of the existing legislation is in terms only of the number of prosecutions. We do feel that the deterrent effect on the extent to which some of these racist groups would go otherwise without this legislation is a significant one in that, whilst they still produce propaganda, they are mindful of the chance of prosecution and that does limit to some extent the excesses to which they would otherwise go.
(Beverley Hughes) It is not only the number of prosecutions and we are not necessarily talking about lowering the threshold. It is actually the deterrent effect that having those offences on the statute book is having. We are convinced that it is having a deterrent effect in relation to racial hatred and similarly we hope for the same effect in terms of religious groups and people without religion as well.
(Beverley Hughes) There have been about 21,000 cases. That is clearly where there is a specific offence against a specific individual or set of circumstances. It is much more straightforward in the sense of the threshold of evidence and the nature of the evidence, both the offence itself and the racially aggravated component of it. In my view, you also have to see the two together. In a sense, I think the incitement provisions, albeit they are public order provisions and not specific offences, are supporting one another. They are doing different things in relation to these issues.
(Beverley Hughes) We do not think we need to. As you will notice, the Bill provides for incitement on the basis of religion or on the basis of people having no religion. We do not feel we need to get into the business of drawing up a list of beliefs that are recognised in some statutory way as religions. That would be a matter that the courts will take a view on in any individual cases that are brought forward. It is not necessary for us to do that.
(Beverley Hughes) Not in terms of the technicalities of the Bill because it simply involves extending existing provisions to include religious groups in addition to racial groups.
(Beverley Hughes) We are.
(Beverley Hughes) Representations were made during the process of our considerations about that. The reason that that is not in the Bill is because not just that provision itself but other things that would have to be alongside that are outside the scope of an anti-terrorism bill and were just too wide for us to consider and would generate a debate which is a different debate than the debate we need to have in the context of the measures of this Bill, which are about security and greater protection in relation to terrorism.
(Beverley Hughes) No. The way in which you need to see the provisions in this Bill is not about religion per se. It is about the incitement provision. It is a public order provision and the religious aggravation is about the commission of criminal activities which may or may not be linked to terrorism. It is about crime and about disorder and the kind of behaviour that can incite public disorder and crime. That is why those measures are in this Bill. Blasphemy is a completely different debate. There is read across in some ways but it takes you into a very different debate which will obviously be a very important debate for people in this country and it seems to me it would be wrong to try and sweep that issue up in a bill about terrorism and crime.
(Beverley Hughes) It would not be. That is another argument. There has been one instance of that publication.
(Beverley Hughes) I say it would not be caught because those decisions have already been made. That book has been published for some time and I am not going to get into a debate on The Satanic Verses, I am afraid.
(Beverley Hughes) Could you just expand on what you mean by that?
(Beverley Hughes) I understand. Those are issues that I am aware B because I have been talking to members of the Moslem community B that they want to see progressed. We feel these measures, whilst as part of that wider debate do have a direct link to the themes of this Bill, the wider issues about discrimination on the basis of religion are things that we are having continued dialogue with those communities about. Again, it would be too big an issue to be included in this Bill which is about a set of balanced and proportionate measures taken together which will improve our security and ability to respond to terrorism. The door is not closed on that. We are having dialogue with groups about that and I know that is of concern to them. We recognise that concern, but we have also tried to explain that these measures are the only measures that we could include in this Bill. That dialogue will go on.
(Beverley Hughes) What we have done and what we will continue to do during the passage of this Bill is make very clear and put on record that those concerns are groundless. We have no intention B and this Bill, as it has not with racial hatred B will not catch those people who either make jokes or who engage in the kind of activity you are talking about, scholarly comment and critique of the tenets of religion because what the incitement provision is about and has to be demonstrated, which is part and parcel of the law at the moment, is that the perpetrator must use threatening, abusive or insulting words or behaviour with the intention and the likelihood that, in the current law, racial hatred will be stirred up. It is very specific and it does not prevent at all the kind of debate, dialogue and critique that you are talking about. We will make that absolutely clear.
(Beverley Hughes) I do not think anybody would accuse a film like that of being likely to incite public disorder, so no.
(Beverley Hughes) I am satisfied.
Chairman: Can we turn to clauses 109 and 110, dealing with Third Pillar legislation?
(Beverley Hughes) I must take some advice on that but, as I understand it, the EU have yet to determine finally the definition of terrorism. That is something that they have not yet concluded and will be available when the framework decision document is published which will be early December, as I understand it.
(Mr Whalley) That is correct.
(Beverley Hughes) As you know, what we are providing for in the Bill is a clause which will enable those Third Pillar provisions to be implemented in the United Kingdom, not through primary legislation, which is the requirement at the moment, but through the affirmative resolution procedure in both Houses. This is to enable the decisions that come out of the framework decision particularly to be implemented on a timescale that meets the current requirements. Otherwise, we would have to find a slot in primary legislation and the ability to do that is more restricted. Similarly, other EU measures already go through the affirmative resolution procedure and we think that procedure, together with the earlier parliamentary scrutiny on the European Scrutiny Committee, will provide sufficient opportunity for Parliament to scrutinise adequately the proposals and we can get them on the statute book earlier. Where there is a legislative opportunity within a reasonable timescale, we will take it and we expect, for example, if there is a framework decision on the European arrest warrant as part of the terrorism road map that is being developed we probably can implement that within the Extradition Bill that we are going to bring forward. Where we can find a legislative slot within a reasonable timescale, we will do it, but this seems to us to be a necessary measure to make sure that all of the proposals coming through the JHA Council can be implemented within the timescale necessary to put the measures in place.
(Beverley Hughes) It is.
Bridget Prentice: It is very convenient.
(Beverley Hughes) There has been an agreement at the two meetings of the JHA Council that the Member States will work together to put forward a raft of measures. It has been called a road map because it has a range of measures of different orders and so on coming through. There will be a number of framework decisions on combating terrorism, on setting up joint investigative teams and on freezing of assets. We need a mechanism in this country to bring those measures in. As I have just explained, our normal mechanism is primary legislation but we need a process which will enable us, as we are committed to working with our European partners in these matters, to bring them in in a timescale that reflects the urgency of the situation.
(Beverley Hughes) Because in terms of bringing forward particular bills, where there is a legislative slot that is appropriate and a particular measure is within the scope of a bill that is coming along, we will do it.
(Beverley Hughes) You are not giving sufficient credence to the process of affirmative resolution. There will be parliamentary scrutiny of the proposals at an early stage on the European Scrutiny Committee and the affirmative resolution procedure itself will enable both Houses of Parliament to debate these issues in the normal way. Other EU measures go through that process already. It is not something new.
(Beverley Hughes) I think they are all linked, although we have some extradition conventions as well that are included.
(Mr Whalley) Very briefly, the framework decision and the process linked with that follow on from the events of 11 September and they are concerned with coordinating activity and response across the European Union to those events. That is the context in which this is going on. What the detail of that will be will depend upon what the Member States think of the matters which should be covered.
(Beverley Hughes) I do not accept it is a major constitutional change. As I have said and you have just agreed, this procedure is already used for other Third Pillar areas of policy. It is certainly not an exception or a major constitutional change. I understand that the Honourable Member, Mr Cameron, and his friends get very excited with anything to do with Europe, but he is portraying this in a way that does not reflect what we are proposing here. This is a perfectly proper process. It involves proper parliamentary scrutiny. It already exists for other policy areas emanating from the EU that we agreed voluntarily we want to cooperate on. His attempt to portray this as a major constitutional change is not something I accept.
(Beverley Hughes) The Bill as it is currently drafted does not contain a review or some such provision.
(Beverley Hughes) The answer is yes.
(Beverley Hughes) Yes, to seven years.
(Mr Whalley) Clause 111 is relevant.
(Beverley Hughes) The Bill makes it an offence for a hoax to be threatened in relation to noxious substances, anthrax and other types of diseases and so on. It includes those potential weapons alongside the measures that exist already in relation to bomb hoaxes, but it does increase the penalty for all hoaxes.
(Mr Whalley) Clause 112 deals with the penalty point in 3(b).
(Beverley Hughes) You are saying you think the Bill at the moment, as it is drafted, appears only to increase the penalty for hoaxes of noxious substances and not more generally for the powers we already have for hoaxes. I will certainly check that but our intention was to increase the penalty across the board. I will get some clarification on that and write to you.
(Beverley Hughes) Yes, pronto.
(Beverley Hughes) Yes, I will certainly clarify that too.
(Beverley Hughes) Disclosure of information we did not include under the previous legislation.
(Mr Whalley) The previous legislation did not maintain the earlier provision in the 1989 Act. That subject was dealt with in the report on that. The view may be now that the circumstances of the international terrorism with which we are concerned require that issue to be looked at again, in terms of people who have information should disclose it. That is what has brought about the inclusion of this power.
(Beverley Hughes) My understanding is it is not something that is on the statute book at the moment. There was an intention to include it in legislation on the prevention of terrorism but the decision at the end of the day was not to include it.
(Beverley Hughes) It is in the Bill now and the view is that there must have been people who knew what those who perpetrated 11 September might have been involved in. Given the potential for those kinds of events to cause such huge devastation and a large number of casualties, we really need to make sure that we can require people, when they do have information, to bring it forward to try and prevent those actions in the future.
(Beverley Hughes) We will be making clear during the passage of the Bill that we will be drawing up a protocol with ACPO, the Association of Chief Police Officers, to make sure that the procedures are implemented in ways that are sensitive to issues of decency and treating people respectfully. That will be a protocol that the police will be required to follow.
(Beverley Hughes) Yes. The Home Secretary did say that he was considering, as we have done right across the board, whether any additional powers were needed in relation to conspiracy. He did examine that but he has concluded that the existing laws that we have, which do include conspiracy to commit terrorist offences, are sufficient to deal with the situation and that we do not need to strengthen those any further.
(Mr Whalley) If it is part of the general terrorism law, it will be in the Terrorism Act 2000 but there may obviously be some other elements of the criminal law involved.
(Beverley Hughes) Advice to ministers is that we do have sufficient powers under existing legislation. If you would like, I will certainly clarify where those powers exist and write to you as well with that.
(Mr Whalley) Mr Prosser raised a point about the penalties for the general offence of hoaxing under the Criminal Law Act. I am advised that the 1991 Act raised that penalty to seven years, so it is already covered for the generality of offences. What this does is to align that in terms of noxious substances.
Chairman: Thank you very much, Minister, for coming along this morning. Thank you for the help you have given us in the short time we have had to examine this legislation. We look forward to meeting you in the chamber on Monday.