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Lembit Öpik: Is the hon. Lady aware that according to that principle, in the 1940s and early 1950s, members of my family who were not British citizens could have been arrested and detained without trial, simply because they supported the liberation of a country to which they could not possibly have been repatriated—Estonia? What response, and what comfort, could she give such people concerning the principle from which she seeks a derogation?
Beverley Hughes: I just laid out three conditions that would have to be met, and the first was that the Home Secretary would have to certify that such individuals were suspected of being international terrorists. I am sure that that was not the case with the hon. Gentleman's parents. If an individual were to be suspected of being an international terrorist and removal was temporarily or indefinitely prevented—and the three conditions were met—that individual would fall within the province of the powers that we seek and the need for this order.
Mr. Oliver Letwin (West Dorset): I am sorry to make a nit-picking point, but I think that the Minister inadvertently misled the House, and I hope that she will take this opportunity to correct the point—unless I am mistaken. She said that the order would fall unless both Houses approved part 4 of the Bill, but if both Houses approve the order and the derogation, as an act of prerogative power, is made, whether the House and the other place approve part 4 of the Bill is an irrelevance. The order would stand.
Beverley Hughes: There would be no point in continuing with a derogation if we were not to get the powers in the Bill. [Interruption.] Okay, the hon. Gentleman is technically correct—[Interruption.] He is technically correct in the sense that we would have to remove the order. There would be no need for the order and we do not want to take this course of action unless we need to.
I turn now to the issue of derogation. Hon. Members will be aware that there are restrictions on the scope for derogating from an article of the convention. For some articles—such as article 3, which provides that no one shall be subject to torture or to inhuman or degrading treatment or punishment—there is no scope to derogate. For other articles, such as article 5, derogations may be made when a public emergency threatens the life of the nation, provided that the measures taken are strictly required by that emergency.
Mr. George Osborne (Tatton): Can the Minister tell me the difference between a state of public emergency, as defined by the European convention on human rights, and a state of national emergency, defined by the Emergency Powers Act 1920? Apparently, they are different.
Beverley Hughes: They are different. I shall come to the definition of a state of public emergency under article 15, but the state of national emergency as determined by the 1920 Act is one that mobilises special powers. We do not need those special powers in this case. Indeed,
the last time that the Act was used was by the Conservative Government during the miners' strike, and we shall not go down that road.
Mr. John Gummer (Suffolk, Coastal): Will the Minister give way?
Beverley Hughes: No, I wish to—[Hon. Members: "Give way."] I shall give way in a moment, but I wish to deal with the point raised by the hon. Member for Tatton (Mr. Osborne) on the first test, which is whether such a public emergency exists in the UK.
We have taken the view that the UK is currently facing a public emergency within the meaning of the convention. The attacks in the USA represent a further escalation in the scale and scope of the international terrorist threat to western interests. I am grateful that that was recognised by Opposition Front Benchers earlier this evening. Although to date no attacks have been mounted against the UK, there have been a number of public threats made by bin Laden and his supporters against western interests. The British role in the US-led coalition against international terrorism also raises the overall risk of attack. It would be wrong to conclude that the threat has been diminished by recent events in Afghanistan. In addition, there is evidence to show that international terrorist organisations have links with the UK and therefore constitute a threat.
Mr. Gummer: During the debate about the European convention on human rights, Ministers pooh-poohed any suggestion from Opposition Members that there would be any circumstances in which these derogations would be necessary for the United Kingdom. Can the hon. Lady explain why they have changed their mind and why no other European Union country thinks that the derogations are necessary?
Beverley Hughes: That was dealt with extensively in the previous debate by my right hon. Friend the Home Secretary, as he points out from a sedentary position. I do not know whether the right hon. Gentleman heard it.
Different sets of legislation in other European countries mean that the contexts are different. Each country must evaluate the risk that it perceives and make a judgment about the measures that are necessary, which is what we are doing here.
Mr. Mark Fisher (Stoke-on-Trent, Central) rose—
Beverley Hughes: I shall give way to my hon. Friend.
Mr. Fisher: I am grateful to the Minister. Is she saying that the risk that undoubtedly arises for all European countries following 11 September is the same thing as a test of proof of a threat to the life of this country? A risk is one thing, but I cannot imagine that the Minister really means that it threatens the life of this country. The test is a great deal more severe than the recognition of a risk.
Beverley Hughes: I think that the risk we face does, or could, threaten the life of the country. If we sustained
an attack of the kind sustained by the American people, that would clearly threaten the life of the nation. Acts of terrorism outside this country can also threaten the life of the nation in threatening our economy and well-being. I believe that my hon. Friend must look more broadly at the question of defining whether the risk threatens the life of the nation. We have taken the view that it does; a public emergency threatens the life of the nation and the first test of article 15 has been met.
Mr. Simon Thomas (Ceredigion): It is proposed that we review the clauses in 15 months. How many people does the Minister expect to be affected by this derogation? Knowing that will help us when we come to examine the level of risk and threat, and how matters have been dealt with, in 15 months' time.
Beverley Hughes: I will not give a figure, because I think that that would be wrong. In giving evidence to the Joint Committee on Human Rights and the Select Committee on Home Affairs, the Home Secretary and I both said—and my right hon. Friend has also said it consistently elsewhere—that we expect the powers to be used sparingly and that a relatively small number of people will have to be detained under the powers for which the order is required. However, I shall not put a figure on it tonight.
Mr. Kevin McNamara (Hull, North): I am most grateful to my hon. Friend for giving way—the moment had, in fact, almost passed. In her reply to the Liberal Democrat Northern Ireland spokesman, the hon. Member for Montgomeryshire (Lembit Öpik), she seemed to make a distinction between good and bad terrorists. She said that people who supported the liberation of Estonia, as it then was, would not be regarded as terrorists but that others would be. A distinction between good and bad terrorists would be very subjective. Many of us believe that good people engaged in legitimate aspirations to attain their freedom may well be regarded as terrorists by the Government of their country.
Beverley Hughes: I made no such distinction between good and bad terrorists, as my hon. Friend suggests. I simply pointed again to the criteria that would have to be met, including certification and action, to enable people to be brought under the powers that it is proposed to take.
In its report last week, the Joint Committee on Human Rights expressed some concerns about the lack of specifics as regards the threat that we face. As the Committee acknowledged, the specific information on which these judgments have to be based necessarily cannot be shared. However, what the public will readily be able to see, following the terrible events in the USA, is that the devastation that international terrorists can wreak is large, and that our active support of the USA's response means that we must be fully on our guard.
The second test in article 15 is whether the detention powers we propose are a necessary and proportionate response to this emergency. We believe that they are. The powers are necessary because we must do something to protect the public against individuals who contribute to the terrorist threat. If it is not possible to present sufficient admissible evidence to bring a successful criminal charge, and if legal or practical considerations prevent removal from the UK, another option needs to be found.
The extended but clearly circumscribed detention powers fill that gap. The only alternative, which has had to be used in previous cases, is to release such people back into the community. Members of the public would find that unacceptable.
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