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Mr. Marshall-Andrews: Blackmail.

Mr. Blunkett: It is not blackmail. If I am asked about why we are not using public interest immunity and the potential for part of the evidence to be considered in camera, there is no point in shouting from the Back Benches when I give the answer. The security services do not believe that it is possible to hold in camera a case in which those who have not been designated under security legislation to be able to hear and take evidence would inevitably have to do so. In the past, evidence on public interest immunity has led judges to rule that those who were prepared to give evidence—such people will often have been working on behalf of the security services at tremendous risk to their lives in circumstances that none of us would ever want to experience—had to present themselves and be exposed to the accused person. In such circumstances, those people can be committed to almost certain death.

Jeremy Corbyn: Will the Home Secretary give way?

Mr. Blunkett: I shall do so, because I hear total disbelief from behind me. I do not hear that in front of me.

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Mr. Hogg: Will the Home Secretary give way?

Mr. Blunkett: I have provoked that question, but let me be provoked by my own side for a moment.

Jeremy Corbyn: There is some disbelief on the Benches behind the Home Secretary. I find it astonishing that he should tell the House that the security services are not prepared to bring forward evidence if there is any danger of it being heard in a court, even if it is in camera. It is extraordinary that the security services, which are largely unaccountable to anybody, should decide what the policies of this country should be. Apparently, they are now even deciding what its law should be.

Mr. Blunkett: First, the security services did not determine the law. They indicated to me the circumstances in which they would be able to present particular types of evidence, which is precisely why we have been debating this whole issue. We have almost gone full circle. If somebody does not accept that there are circumstances in which evidence that has been adduced cannot be presented in a court, even if it is under a public interest immunity, and if they do not accept that view in respect of the level or threshold of evidence and the way in which it is presented, in relation to what was adduced in the Rehman case that we debated previously and affirmed by the House of Lords in the middle of October, they will not believe me. They will not be committed to following that process. Some hon. Members would like to undo the result of the vote on establishing SIAC. It was established on the basis that it could take evidence in the way in which I am describing—on appeal against certification by the Home Secretary, whoever he or she may be, in relation to removal on ground of security or because a person's presence is not conducive to the public good. The evidence, to be adduced and presented in precisely the way in which I am outlining, was acceptable for those purposes. That was demonstrated by the Mullah Rehman appeal and affirmed in the House of Lords. Those who believe that all that is wrong will believe that I am wrong.

9 pm

Mr. Hogg: Will the Home Secretary give way?

Mr. Blunkett: I shall, but I want to finish the point. Let us consider the difference between what has already been agreed and carried through and my proposals. We will use the same process but the outcome is not removal in cases where the person's life would be at risk, but detention with review. The process, with the sort of evidence and advocacy that has already been established, has only one different feature. We cannot remove people because, rightly, we will not breach article 3 of the European convention on human rights, and we must therefore detain them.

Mr. Hogg: I am sorry, but I must revert to a point that genuinely troubles me. The amendment designates SIAC as a court of record. In answer to my hon. Friend the shadow Home Secretary, the Home Secretary said that that effectively gives SIAC the powers of judicial review. Clause 26 properly and fully sets out the commission's powers. They are not the same as the power of judicial review. It is therefore difficult to reconcile the statement

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that SIAC will have the powers of judicial review with the statutory powers for which the Bill explicitly provides. How does the Home Secretary reconcile those positions?

Mr. Blunkett: The process is to review the certification signed by the Home Secretary. Those who seek judicial review of SIAC are trying to review the decision of a court. The decision to designate SIAC as a superior court of record affirms that. I shall rest my case so that other hon. Members can speak because we have only one fundamental disagreement. The process is already laid down, albeit that the outcome—detention rather than removal—is different from the original intention. Our disagreement is about the process. I understand why people do not believe that it is acceptable, but I disagree with them, because it is the only way in which to deal with the current circumstances.

Mr. Burnett: Is the Home Secretary minded to extend the rights of appeal from SIAC to the Court of Appeal so that matters of fact and law can be appealed against? In such circumstances can the Court of Appeal sit in camera and use the special advocate procedure?

Mr. Blunkett: I am confining the amendment to the designation of SIAC. The right of appeal on a point of law remains, as described earlier.

Ultimately, we are debating whether hon. Members believe, in the circumstances, that it is appropriate to detain people using the evidence, the threshold and the process of SIAC in the way that was intended for removal and will now be used for detention when we cannot remove.

Simon Hughes: One of the terrible consequences of this procedure is that we have an hour in total for this debate. It is no criticism of the Home Secretary to say that 35 minutes of that hour has been taken up by his explaining the Government's view and answering questions. However, with the best will in the world, it is impossible in an hour for the House to do justice to the arguments about the fundamental issue of keeping judicial review, or to consider the alternative before us in the form of a Government amendment whose genesis lies in a proposal by a former Lord of Appeal and Master of the Rolls. One of our complaints is that, because of the speed of the process, this legislation has needed to come back so that this issue can be revisited—as the Government now accept—and many other interrelated issues as well.

This group of amendments covers three issues, the last of which is judicial review. Government amendments (a) to (f) offer an alternative to the Lords' removal of the original provisions stating that one could not go to judicial review in relation to detention without trial. In relation to amendments Nos. 9 and 13, we are grateful that the Government have accepted the amendment tabled by the Conservatives with the support of the Liberal Democrats and of Irish Members of Parliament, which defines terrorism in the same way, whether it is national or international. That concession is gratefully received. It would have been nonsense to define separately whether someone's motive was connected to activity within or outside the UK or part of it. We also welcome the improvements in the procedure relating to the timetable for review and other matters contained in amendments Nos. 14 to 20.

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The nub of this issue, however, is judicial review. I want to tell the House why we should agree to accept the Lords' decision to remove the provisions that suggest that one cannot go to judicial review, and not to accept the alternative. I do so respectfully and carefully, conscious that the amendments come from Lord Donaldson, whom I respect. This is his attempt, supported by others, to find a way through the middle, but I do not accept—I believe that hon. Members on both sides of the House share my view—that it meets the test, or that the amendments satisfy the concerns that have been voiced abroad in the House and beyond.

We would be wrong to derogate from the European convention on human rights and from the Human Rights Act 1998. Nothing that the Home Secretary has said about the issues on which we agree—for example, that there remains an international threat, which I accept without qualification—persuades me that that takes us into the criteria for qualifying for derogation.

The two tests have been set out: there has to be a public emergency threatening the life of the nation, and the resultant action has to be action strictly required by the exigencies of the situation. Like David Pannick, whom we all respect as an authority, the Liberal Democrats' view is that those tests are not met. I honestly believe that, if the Government proceed, they would be at risk of being found to have breached their qualifications for derogation, if it were tested either in a domestic court or in the European Court of Human Rights.

The Home Secretary has been both courteous and conciliatory today, as he has on almost every other occasion that I can remember. I hope that he will accept that, just because my colleagues and I have a different view, it does not mean that we are not of good will on these issues. We shall, I anticipate, reach a different conclusion, but I hope that he accepts that we do so for the same reasons that the Labour party in opposition, on many occasions, perfectly honourably reached a different conclusion on emergency legislation from the Tory Government.

So that there is no doubt, I repeat that we do not accept that detention without trial for people who are not British is a necessary step when others have not been attempted. We should first try to charge and prosecute. Secondly, if the security services cannot proceed because of the rules of evidence, we could amend those rules. Thirdly, we might consider the procedures of the court. Only when we have tried and failed with those, and they have not been considered in the context of the Bill, should we contemplate the further step. We are not persuaded.

We do not go along with the Conservative view that it would be right to have a reservation in relation to the European convention on human rights—that is one of our few disagreements on the substance of the Bill—so we offer a different solution, which we think could be achieved by procedures in the domestic courts.

One reason for believing that our case is justified is that no signatory country to the ECHR, which goes wider than the EU, has yet seen fit to say that it must go down that road. I am not privy to whether those countries might do so, but it is significant that, three months after 11 September, not one other ECHR signatory—that includes all Council of Europe member countries—has changed its position on detention without trial. For me, that is not the persuasive argument, but it is additional strong evidence that we should take into account.

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As I want to allow other colleagues to speak, I shall list my reasons for hoping that the House accepts that SIAC, even as amended by the alternative suggested in the Government amendment, will not work. If hon. Members have any doubts, I refer them to the first day of debate on Report in the House of Lords and the speeches of Lord Mayhew of Twysden, the former Secretary of State for Northern Ireland, my noble Friend Lord Goodhart and Lord Donaldson. I quote Lord Mayhew, but each speech includes such phrases:

That may apply in only one case in a hundred, which is Lord Donaldson's view, and Lord Mayhew may accept that the SIAC amendment route is the right way forward, but that does not pass the test of principle. We must not remove judicial review not only because that in itself is wrong, but because it would make for a better argument for removal in lots of other cases, at home and abroad.

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