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6.45 pm
If there is a genuine misunderstanding about this matter—we are desperately trying to ensure that we disagree on things—of course I will go back and look at it again, but my lawyers assure me that the measure provides the safeguards that were sought during the deliberations of the Joint Committee on Human Rights.
Ross Cranston (Dudley, North): Even if my hon. and learned Friend the Member for Medway
(Mr. Marshall-Andrews) is right, and I do not accept that he is, clause 25(2)(b) says that SIAC can cancel the certificate if it
- "considers that for some other reason the certificate should not have been issued",
Mr. Blunkett: It is. I am grateful. As I was describing, that is the broader conclusion that is still built into the Bill. We have not taken that away. That was the point that I was seeking to make.
Annabelle Ewing: Does not the debate over the wording of the basis on which SIAC can look at certification orders suggest that, instead of trying to re-invent rules of evidence to that ad hoc, unusual body, the simpler way to deal with the matter would be to involve the courts fully and properly in the function of the system?
Mr. Blunkett: I desperately tried to deal with that debate on Monday. I do not know whether the hon. Lady was here and took it in, but we dealt with the establishment of SIAC in 1997.
Annabelle Ewing: On a point of order, Sir Michael. Unfortunately, I was not here on Monday because I was dealing with matters in my constituency.
The Second Deputy Chairman: That is hardly a point of order.
Mr. Blunkett: It is certainly a point of interest. I would like to put it on record that I wish I had been dealing with matters in my constituency as well.
The serious point is that we dealt with the nature of the establishment of SIAC in 1997, which was universally agreed by the House. We dealt with the question of the type of evidence that was to be adduced, the fact that a High Court judge or someone who had been a High Court judge should have two other people sitting with him, that there was a right of appeal on a point of law to the Appeal Court and to the House of Lords if leave were given, and that the evidential base had been established.
The issues around judicial review are being raised, particularly by the Liberal Democrats and others. When the certification process was established, and when eventually SIAC was put in place as an additional safeguard, it was seen as a review of the certification process for the Home Secretary. That is what it was established to do, with the appeal on the point of law clarifying whether the process had been properly carried through. Were judicial review to be reinstated between those processes, that could be done only on the basis of the provision of the evidence, admissibility and the rules that have been established and agreed not only by the House of Commons but by the House of Lords.
Norman Baker: Does the Home Secretary accept that, when SIAC was established, it was for a very different purpose—it was to deal with deportation, not incarceration?
Mr. Blunkett: It was to deal with the ability to remove people from the country who were a threat to national
security, or whose presence was adjudged not to be conducive to the public good. I do not intend to go on at length tonight because people have rightly said that they want to debate the issues and I need to allow them to do so, but that brings us back to the only central point that I want to remake. That point concerns precisely the choice addressed in part 4 of the Bill—whether to derogate, temporarily or otherwise, from the ECHR altogether.I do not accept the suggestion that, to do that, we could use article 58 of the convention, or pull out for a second or two under article 57. I do not believe for a moment that that would work or stand up to scrutiny. However, if, for the sake of argument, we were to come out of the ECHR, I would then have to sign a certificate declaring that I was prepared to send people back to regimes and judicial systems that we did not consider to be acceptable. Those regimes and systems would not stand up to scrutiny in court under the ECHR, in this country or in Strasbourg, because they do not provide for people properly or protect them from execution, torture or degrading treatment.
That is the choice that we face. The official Opposition are at least clear that that choice exists. Members of the other main Opposition party, the Liberal Democrat party, believe that we should continue to let the people involved be free in this country if we did not have a workable extradition treaty with their home country, or if they were not able voluntarily to go to a third, safe, country. According to the Liberal Democrats, those people would go if they were able to but, if they were unable to go, they would remain free in our society, even though the judgment had been made that they put us at risk.
In those very narrow circumstances, we are seeking to take the power of temporary detention, with the safeguards that we are now building in.
Mr. Fisher: Before my right hon. Friend leaves the subject of SIAC, will he clarify the definition of the word "terrorist" to which it will work? I welcome what he had to say about rethinking the use of the word "links" in clause 21(2)(c), but I find it difficult to understand what has changed since the Terrorism Act 2000 was passed. Clause 40 of that Act contains a completely different definition of the word "terrorist".
Has that definition proved inadequate and, if so, in what way? Why are we being asked to adopt two separate definitions of terrorism, and will not there be problems in reconciling two pieces of legislation that presumably should work in harness and reinforce each other but which, in this regard, appear to contradict each other?
Mr. Blunkett: The substantive issue of whether the definitions in the 2000 Act and in this Bill contradict each other is dealt with in schedule 2, which relates to the 2000 Act. As my hon. Friend knows, we are dealing in this Bill with the extension of the international terrorist threat. That is why we are here tonight. Therefore, the Bill and the 2000 Act are clearly compatible.
I know that all hon. Members are right to scrutinise whether lawyers—in government or outside, in the House or outside it—have got it right. On this occasion, I honestly believe that they know what they are talking about.
David Winnick: I do not belong to the usual suspects in this matter, as I believe that, given the circumstances,
the powers that my right hon. Friend is asking for are justified. If they were not, I would not hesitate to oppose the Bill, along with some of my hon. Friends. All hon. Members reach their own judgments: that is the purpose of the House of Commons.I spoke about a specific case when my right hon. Friend was not in the Chamber, and I believe that, if we are going to take these very special powers following the events of 11 September, legal safeguards are necessary. I have noted everything that my right hon. Friend has said about SIAC, but I am afraid that I am not satisfied that the Bill can be passed without provisions for judicial review. It is absolutely essential that legal safeguards should exist, and that they are seen to exist. That is why I must support some form of judicial review.
Mr. Blunkett: I note what my hon. Friend said, but I am afraid that, when passing legislation and dealing with evidence provided by the security and intelligence service on suspected terrorists, it is not possible to have a vague view of what judicial review should achieve. Should judicial review come between certification by the Home Secretary and by SIAC? If so, it would be unable to hear the evidence that had been presented to SIAC, and I remind hon. Members that that process has been agreed by the House. The people involved would be misled and deluded into believing that they were going through a meaningful process.
If the review were to be concerned with SIAC's decision, based on the evidence provided and the circumstances in which that evidence was provided, it would come between the SIAC stage and an appeal court hearing based on a point of law—that point being whether the process had been conducted properly.
I appeal to all those hon. Members who think instinctively that we need a certain provision because it applies in other circumstances to ask, not whether that provision is a good idea, but how it might be implemented. It is precisely to achieve some accuracy in these matters that I responded as I did on the question of terrorist links, which relates to the point raised by my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher).
We have been talking about terrorists—people who are
- "concerned in the commission, preparation or instigation of acts of international terrorism".
Mr. Mike O'Brien (North Warwickshire): My right hon. Friend is right. As a Minister, I took through the House the Special Immigration Appeals Commission Act 1997, which established SIAC. It was created with the intention of dealing with some very serious issues—among them detention, as many of the people who were to come before SIAC would be detained. The provisions also covered their removal from this country, which might be something that the people involved would greatly fear. That is why it was considered necessary to have a High Court judge, an immigration judge and a specialist in security matters to review the Home Secretary's opinion. They could direct that that opinion should be changed.
If a judicial review procedure were inserted in this Bill, it would merely replace one High Court judge with the High Court judge that we have in SIAC. It would not provide the ability to keep confidential the intelligence information that SIAC can keep confidential. The divisional court does not have the appropriate procedures—short of introducing public interest immunity certificates, and I suspect that those who advocate judicial review would not want those certificates to be introduced in these circumstances anyway.
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