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Vera Baird (Redcar): Is it not the case that article 5.1(f) of the European convention on human rights authorises the detention of a person so long as

As long as that process is in place—for instance, as long as due process is being followed, appeals are being heard and the authorities are seeking a third country, if it is not possible to deport straight away—detention is in fact lawful throughout that time. If that is the case, will the hon. Lady explain why, if these dangerous people are about, they have not already been detained and why they are not undergoing that process?

Beverley Hughes: I have already explained the fact that we believe that the powers available already under article 5.1 to detain somebody, pending effecting their removal, would not be sufficient for the periods that may be involved when there is no third country to which we can deport that person. That is why we propose derogation, so that we do not risk falling foul of article 5.1 in those circumstances.

Vera Baird: Will my hon. Friend give way?

Beverley Hughes: No, I shall carry on a bit longer—[Interruption.] I have explained that point fully. We believe—[Hon. Members: "Give way."] I am going to carry on a little longer. I shall certainly give way to my hon. Friend if I have not addressed her point.

We believe that the measures are also proportionate. The powers will be targeted on a small group of individuals who nevertheless constitute a major threat to national security: suspected international terrorists. Furthermore, with all due respect to the Joint Committee on Human Rights, whose work always greatly aids discussions in the House, we do not share its conclusion that there is a lack of safeguards in the Bill.

As the Select Committee on Home Affairs accepted, albeit reluctantly, there may be a small category of persons who are suspected international terrorists but who cannot be prosecuted, extradited or deported and therefore will have to be detained. A number of important safeguards will apply to the use of these powers, as they relate to that small target group.

First, a detainee will be able to end his or her detention at any time if they find a country to take them. They can leave; they can take their freedom. Secondly, the powers exercised by the Secretary of State will be subject to full judicial scrutiny.

Mr. Hogg: Not proper review.

Beverley Hughes: I disagree with the right hon. and learned Gentleman who shouts from a sedentary position. The Special Immigration Appeals Commission is already well suited for considering such matters, having both judicial and security expertise.

Mr. Fisher: How does the Minister think we will be assisted by deporting such people to Holland, Germany or

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elsewhere, where they can plot exactly the sort of actions that we are frightened they will carry out here? She seems to think that deportation will be good, but it would be frightening to let those people loose on the wider world.

Beverley Hughes: It would be equally bad to let them loose in this country, which is the only alternative. If my hon. Friend wants to pursue that line of argument—

Mr. Hogg: Charge those people.

Beverley Hughes: Let me make it clear, as my right hon. Friend the Home Secretary has done already, that where we can prosecute, we will prosecute. That will always be the route of choice, but where the threshold of evidence or the nature of the evidence makes that difficult, that course of action may not be open to us.

Mr. McNamara: On the first point that my hon. Friend makes, she says that such people are free to go to a country that will take them. I understand that, but has she any indication of which countries are ready to take such people in those circumstances, given that the United States Government have already said that they will pursue such people wherever they go? Which country will risk being carpet bombed?

Beverley Hughes: That depends on the circumstances of the case, on the nationality of those involved, on what they are suspected of doing and on which country might offer them a haven. I cannot possibly answer that question in that general way this evening.

Secondly, as I have said, the powers exercised by the Secretary of State will be subject to full judicial scrutiny.

Simon Hughes: Will the Minister give way?

Beverley Hughes: No, I shall pursue this point because the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) interrupted me on it earlier, and I need to ensure that it is well made. The Special Immigration Appeals Commission is already well suited to consider such matters, as it has judicial and security expertise. As my right hon. Friend the Home Secretary has already made clear, the commission's decisions will be capable of appeal to the Court of Appeal and the House of Lords on a point of law.

Furthermore, the oversight of the detention powers will be on-going. There will be an immediate right of appeal against the issuing of a certificate, with six-monthly reviews thereafter and the additional safeguard of an earlier review where a change of circumstances warrants it. Finally, the continuance of the powers will be subject to renewal by Parliament, initially after 15 months and annually from then on. The order will expire after five years, unless Parliament agrees to its extension.

Simon Hughes: I obviously do not disagree with the Minister's description of the process, which is a fact, but will she explain how she can tell the House that the right to judicial review will not be removed, given that clause 29 of the Anti-terrorism, Crime and Security Bill is headed "Exclusion of legal proceedings" and states:

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How will the facts or the reasonableness of the decision be reviewed? If clause 29 were deleted from that Bill, would the Government still need to seek such a derogation from the European convention on human rights?

Beverley Hughes: As we made clear in the earlier debate, we regard the process under SIAC as the equivalent of the judicial review of an executive decision by the Home Secretary. The hon. Gentleman may disagree with that. As we have also said, no judicial review was sought in the three cases that have already gone to SIAC. It seems to us preferable to make the position absolutely clear that SIAC is that process of judicial scrutiny and that it will be the only option for judicial scrutiny of the Home Secretary's decision.

As I said in my opening remarks, this is a serious measure that addresses a very serious situation. Clearly, in the sense that we see a need for the powers that we have outlined in the Bill, there is a need for the order. The proposed derogation is necessary in view of the measures in relation to detention that we propose to take. The order is necessary, but I believe that it is a proportionate response to the situation. I hope that Members on both sides of the House will support it tonight.

Mr. Deputy Speaker (Sir Michael Lord): Before I call the next speaker, may I remind the House that the debate must finish at two minutes past midnight? An awful lot of Members are seeking to catch my eye and, unless contributions are reasonably brief, many of them will be disappointed.

Mr. Eric Forth (Bromley and Chislehurst): On a point of order, Mr. Deputy Speaker. You heard the Minister say a moment ago that she hoped that the House would support the order tonight. Can you confirm that we will be unable either to support or oppose it tonight because it is subject to the ghastly deferred Division procedure? That means that we shall not have an opportunity to give a view on it until Wednesday. Can you confirm that?

Mr. Deputy Speaker: Yes, the Question will still be put this evening but, if there are dissenting voices, a deferred vote will take place on Wednesday.

11.1 pm

Mr. James Paice (South-East Cambridgeshire): I thank the Minister for her attempts to explain and justify an order that has created such a furore both inside and outside the House. Some of my remarks will, I hope, be seen at least by the Minister as supportive of her, but I would not want her to get too carried away by that.

Perhaps the best place to start is with a quotation from the order and an issue on which the Minister has just touched. The Home Secretary has signed the order, which states that

Therefore, it is clear that we are not just discussing future arrivals in this country, but an unknown number of existing residents.

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The majority of Members on both sides of the House are debating the order, rightly, in ignorance of the security and intelligence information that has given rise to that statement in the order. Therefore, it behoves us all to accept that there must be some such information and to ensure that safeguards are properly in place.

The Opposition believe absolutely firmly that, when there is sufficient evidence that a criminal offence under British law has been or is being committed, prosecution should take place in preference to any other possibility. However, we accept that there are cases in which the evidence is strong but may not be strong enough for a conviction or in which no offence under current British law has been committed. The question therefore is how we deal with such cases. Can any responsible politician say that, despite strong evidence, the liberty of an individual is more important than the security of the vast majority of the people? That is the invidious balance that we have to strike, but it is one that a Home Secretary in any Government always has to strike in a number of ways.

In this context, the Home Secretary is proposing one weapon, namely, internment without trial subject only to appeal to SIAC and to the six-monthly reviews and the annual renewal of the provisions. The Minister referred to public opinion and, of course, all of us in the House must pay heed to that. However, almost always the public are in favour of curtailing other people's civil liberties. The problem arises when, for whatever reason, it is their own that the House proposes to curtail. That puts an onus on us all to give careful consideration to such curtailment because we know not whom it may affect.

The Government's proposal will have a draconian impact on civil liberty. Whatever one's perspective, we must agree on that. However, it is occasionally necessary to have such measures for public safety and protection. As I implied earlier, we will propose further safeguards, including an element of judicial review and a tightening of the criteria under which the Home Secretary can issue a certificate. The official Opposition reluctantly accept part 4 and, in that context, the order is necessary.

As deportation is not possible in many cases, arrest and detention with the intent of subsequent deportation does not stand as a viable option, much as we might like it to. As my hon. Friend the Member for West Dorset (Mr. Letwin) said in the Second Reading debate on the Anti-terrorism Bill, deportation should also be available and, indeed, would be preferable in many cases. Although clause 22 covers deportation, there is no provision under the convention to derogate from article 3, as we all know. First and foremost, a crime may have been committed in a friendly country with a sound legal system, such as the United States, but article 3, as interpreted by the judges in the Soering and Chahal cases, would prevent deportation because of the existence of capital punishment there.

The Home Secretary—I am sorry that he has left the Chamber—said that we have a good extradition treaty with America which could be used were bin Laden to arrive here. Is the Government's legal advice such that the treaty could continue to be used despite article 3 even if, as seems highly likely, the US refuses to set aside the death penalty for that case? Our advice is clear: article 3 overrides the extradition treaty.

The Home Secretary also interjected into the speech by my hon. Friend the Member for West Dorset that the judges have interpreted article 3 in a way that was not

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intended. We agree. In fact, the Home Secretary has for months been making speeches and writing articles bemoaning the power of judges, rather than Parliament, to make law. Although I do not in any way accept all his strictures, we will nevertheless offer him the opportunity to reassert the will of Parliament over the judges' interpretation of article 3.

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