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Mr. Hogg: Will the right hon. Gentleman give way?
Mr. Blunkett: I shall give way in a moment, but I should like first to deal with what I consider to be a fundamental misunderstanding of our proposals.
The question for hon. Members is, what did they think that the Special Immigration Appeals Commission and the judicial process would do? What cases was the commission to hear? Was it to hear cases in which there was judged to be a risk, or cases in which the presence of an individual was not conducive to the public good and the Home Secretary had heard evidence from the security and intelligence services and was prepared to act? The answer is yes; the commission was established to consider precisely those types of case. Nevertheless, the very judgment that led to the commission's establishment was the one that held that article 3 precluded us from sending people back to their death, to torture or to degrading treatment.
The current situation, therefore, is that evidence may be adduced by the security and intelligence services, the Home Secretary may believe that he or she is correct to issue a certificate and the Special Immigration Appeals Commission—SIAC—may judge that that belief is correct, but the Home Secretary cannot deport that person because of the risk to the person's life. That is, and has
been, the situation. The difference now is that we want to ensure that people cannot continue to conduct or organise terrorism from this country.
Mr. Hogg: Will the right hon. Gentleman give way?
Mr. Blunkett: I shall give way in a moment, when I have finished making this point.
The issue for me to decide is whether I should seek an opt-out from the European convention, and then to opt-in again by using, I think, article 58; to say that individuals should be released although we have evidence which SIAC is prepared to uphold that warrants detention; or to seek to hold those individuals.
It is the third choice that we are putting before the House this afternoon. If we were prepared to derogate, or if I were prepared to sign a certificate to send someone to their death because no third safe country was available, we would not be introducing the measure in this form. We are doing so precisely to avoid that eventuality. That is why—you will forgive me for mentioning this, Mr. Speaker—I have been slightly depressed over the past day or two about how the case has been put, and how some in the media who know better have sought to mislead those who have no reason to know better because they were not present, did not see and could not read about the steps that led to the establishment of SIAC precisely to deal with the circumstances that I described.
Mr. Hogg: The right hon. Gentleman places great weight on the Special Immigration Appeals Commission. Surely he should remind the House that under the Act that established that commission, it is entitled to withhold from the detained person particulars of the reason why he is detained. Furthermore, the Law Officers of the Crown can appoint a representative for that person who is expressly stated not to be responsible to the persons whose interests he is appointed to represent. That is not a very good safeguard of rights.
Mr. Blunkett: The right hon. and learned Gentleman may make a judgment about whether that is acceptable to him, but it was acceptable to the whole House in 1997. Following a challenge in the courts in the case of Mullah Rehman, the Lords judged five weeks ago that both the process and the threshold of evidential base were acceptable and in line with what the House intended when it passed the Act unanimously in the first place.
David Winnick (Walsall, North): Will my right hon. Friend give way?
Mr. Blunkett: I shall in two seconds—but first I shall answer the second element of the question.
The person who is adjudged to be a risk has the right to take on a legal advocate of his own. When the case reaches the point at which evidence is presented by the security and intelligence services the delivery of which—this is why SIAC was established—would put at risk the operation of the security services, and those working with them and for them, often covertly, an advocate from a list of advocates is provided, as in 1997 the House judged should happen, to allow evidence to be presented and the
case on behalf of the person charged to be heard and properly dealt with legally. Then a right of appeal on a point of law to both the Court of Appeal and the House of Lords is provided in similar circumstances and with similar rights.
David Winnick: I take the view that in all circumstances the powers that my right hon. Friend is taking are necessary. I am not happy—no one could be—about what is happening, and I work on the assumption that several people have been allowed in who should never have been allowed in. Does my right hon. Friend accept that some of us who take that view are, despite his comments, worried about the lack of judicial review? If we introduce measures that no one likes, and people are to be locked up for reasons that we believe are justified, some form of judicial review—apart from what my right hon. Friend has been explaining—is all the more necessary, and its existence would make me much happier.
Mr. Blunkett: We would have to return to anything that the House decides about extradition or asylum issues more generally. All that we seek to do in the Bill is to make clear what SIAC and the Lords believe to be the case. In the cases that have gone to SIAC since the Act was passed four years ago, judicial review has not been sought, because the operation of SIAC has been judged to constitute a judicial review of the Home Secretary's certification. That is the issue that we are dealing with and that is why SIAC was seen as a substantial improvement on what existed previously.
The issue this afternoon is whether it is right that we should hold people in circumstances where we cannot transfer them to a third safe country, where the country to which we originally sought to transfer them does not have extradition agreements and therefore where their lives would be at risk, or whether we should release them into the community. At issue is an enhanced risk, post-11 September, which we believe warrants our taking that difficult but balanced and proportionate step. In doing so, we will ensure that the House will annually reaffirm or otherwise the measure on detention. In any case, the derogation has a five-year life and is automatically a sunset clause.
I also wish to make it clear that we do not think that a debate of one and a half hours would be adequate should we have to seek reaffirmation of the provision under the affirmative procedure and, with the agreement of the Leader of the House, we would seek to provide a more extensive opportunity for debate.
Mr. Robert Marshall-Andrews (Medway): My question is not intended to be pejorative, because I am genuinely interested in the answer. Does the Home Secretary accept that there is a sea of difference between SIAC being used to deal with issues of deportation—with all the problems that SIAC has as a review body—and its being used to review decisions to incarcerate and imprison, indefinitely, without trial and, indeed, without charge? If evidence exists against the people about whom we have heard, why are they not being charged and tried in this country?
Mr. Blunkett: If the evidence that would be adduced and presented in a normal court were available, of course we would use it, as we have done in the past. We are
talking today about those who are adjudged to have committed, organised and supported and helped those involved in terrorism worldwide in the circumstances of 11 September. Those who drew up the European convention and the refugee convention could not have dreamt of the act that took place on 11 September, but they did envisage some act of that kind that would at some point require us to be able to take the necessary steps. That is why I am using article 15 to derogate from article 5, rather than seeking to withdraw altogether. If evidence could be presented that is not subject to the parameters that I laid out a moment ago, it would be used. I know that my hon. and learned Friend is a barrister and, as a non-lawyer, I always listen carefully to those who are—[Hon. Members: "Airy-fairy ones?"] I listen carefully whether they are airy-fairy or not.
Mr. Marshall-Andrews: What about SIAC?
Mr. Blunkett: I am coming to SIAC. It was the establishment of SIAC and the judgment in the Rehman case that upheld the threshold required and the nature of the way in which the evidence should be presented that answer my hon. and learned Friend's question. The House accepted, and the House of Lords agreed, that in some cases the nature of the evidence from the security and intelligence services will be such that it would put at risk the operation of those services and the lives of those who act clandestinely to help them if that evidence were presented in normal open court. That is the measure of the proposals this afternoon.
Mr. Neil Gerrard (Walthamstow): Can my right hon. Friend explain more about the way in which SIAC will operate in cases where he is making a certificate relating to articles 1(f) and 33.2 of the refugee convention, which do not simply cover people suspected of international terrorism? How do his comments about article 3 and returning people who may face the death penalty relate to clause 34, which the Home Office's explanatory notes say provides that, in considering whether those articles apply, there is no requirement to consider the threat to life or freedom of someone who is removed from the UK?
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