Examination of Witnesses (Questions 20
- 39)
THURSDAY 8 NOVEMBER 2001
JOHN WADHAM,
PROFESSOR CONOR
GEARTY, RICK
SCANNELL AND
NICOLA ROGERS
Chairman
20. What was put to us the other day was that
there are people seeking entry to the country upon whom there
is intelligence information that they have been involved in one
way or another with terrorism. The port authorities use the right
to say no, they will not admit the person, at which point they
are trumped by that individual claiming asylum. That is the problem
they are seeking to address.
(John Wadham) I am sure that happens,
but we say that there is a mechanism and the mechanism is that
they will then have to claim their right in SIAC and SIAC can
make a decision and then they can be sent out of the country,
subject to Article 3 provision.
21. The problem is that they cannot be sent out
of the country because they are liable to go back to a place where
they face torture or even death. That is the problem they are
trying to address.
(John Wadham) If we are identifying that
problem, the first thing I say is that the first condition must
be that regardless of the allegations against them it cannot be
right to send them to a country where they are likely to be killed,
tortured or subject to inhuman treatment.
22. No, everybody is agreed about that.
(John Wadham) The next question is what
you do with this group of people. The first solution seems to
me that if there is sufficient evidence, then they should be prosecuted
in this country, or prosecuted in another country.
23. There is not sufficient evidence for that,
that is the suggestion.
(John Wadham) If there is not sufficient
evidence for that —
24. Or they may have committed a crime in another
country but not this one.
(John Wadham) Obviously if that other
country protects their fair trial rights then they could be extradited
to that other country. Assuming there is a small group of people
who cannot be extradited to countries where they can have a fair
trial, then what seems to be being suggested by the Government
and in this Bill is that we can somehow avoid the usual presumption
of innocence which will apply to British citizens and that because
these people are foreigners we can lock them up for indefinite
periods. The reason that the Government can get away with that
is because of the procedures which exist in the Immigration Act.
We say that the foreigners who are in this country should be treated
no differently from British citizens in the context of indefinite
detention, in the context of internment, in the context of a presumption
of innocence. Otherwise it seems to me that we are suggesting
that somehow people who just do not happen to have obtained British
citizenship have fundamentally fewer rights than others.
25. You would let that category of people in.
(John Wadham) We have to let them in.
There are questions as to what other mechanisms there might be
to ensure that they do not commit atrocities here. The answer
to that seems to be supervision, intelligence and all of the panoply
the Security Services have. Otherwise I would ask the question
of the Government: what do you do if somebody has been involved
in terrorism in the past and it is suspected is going to be involved
in terrorism in the future and has foreign origins but happens
to have got British citizenship. You cannot use these mechanisms.
The next debate we are going to have is what to do about British
citizens in those circumstances. The idea that we are going to
detain people without trial, on the basis of mere suspicion, and
that suspicion might not turn out to be true, is a problem. Some
of these people—who knows whether it is going to be one
or ten—may be innocent and that is our problem.
26. It could be better than mere suspicion. It
may be people known to have been involved in terrorism in countries
you do not want to send them back to and you would not wish to
send them back to because they face death or torture there.
(John Wadham) It could be.
27. There are such people, are there not?
(John Wadham) I accept that there are
such people, but I also say to this Committee and to the Government
that there are people in this country that the Security Services
and the police know are going to commit other offences. Some of
those offences may be horrific and some of those offences may
be terrorist related offences. Because those people are British
citizens, they cannot take steps. To say we can treat foreigners
in a completely different way from the way we treat British citizens,
in the context of the presumption of innocence, is fundamentally
wrong.
(Nicola Rogers) One very short point on committing
offences outside. It is also within the realms of the Terrorism
Act 2000 for a person to be convicted for inciting terrorist offences
outside the UK. So we are not just dealing with people who have
committed offences within the UK, it is also people who have incited
violence outside the UK. That category of person is already covered.
Mr Malins
28. How would you deal with this problem or how
would you advise the Government to deal with this problem? A foreign
national arrives at a port, claims asylum, is thought by the authorities
to be involved in plotting terrorism either abroad or here. One
foreign national arrives or 41 or 141. Our procedures put them
through the Special Immigration Appeal. They then lose all the
way but then bring into play Article 3; all of them. Sri Lanka
is a country where nobody has been removed to. They have all been
granted exceptional leave. Is Article 3 not the killer point?
How do you deal with it?
(Rick Scannell) Article 3 is pivotal.
May I correct one thing? The Article 3 claim would have to be
made as part of the asylum claim, when the person says he wants
to claim asylum. The idea that this trumps it, is not strictly
true. It does not prevent them being treated within the present
regime in the context of SIAC.
29. How do you deal with it though?
(Rick Scannell) You have to determine
and assess the claim. Since everyone accepts that you do not return
somebody to face treatment contrary to Article 3 and that is not
in issue between us at all, since that is the —
30. May I query that? I do not say it is an issue
between us but I leave the question open. Are you actually saying
that when anybody comes from Sri Lanka, Somalia, Afghanistan,
wherever, if the Article 3 point is thought to be good, namely
that they will return to some sort of inhuman treatment, it follows
as a matter of practice that they must stay here?
(Rick Scannell) It follows that they
cannot be removed indeed to face treatment which would put us
in breach of Article 3. That of course follows.
31. Can the Government overcome that?
(Rick Scannell) That is the principle.
It cannot. I would say that in principle it cannot and should
not, nor is it seeking to do because it is committed to the protection
of people's fundamental human rights. One of the most fundamental
human rights is that enshrined in Article 3.
(Nicola Rogers) It has to be looked at in the context
of the Convention as a whole and the European Convention on Human
Rights as a whole requires that contracting states secure the
rights of all persons on their territory. That means neither can
they torture nor subject them to inhuman or degrading treatment
here, nor can they send them somewhere else.
32. Do we lock them up then or let them plot?
(Nicola Rogers) We use surveillance mechanisms,
if that is what is required, to find the information we need in
order to prosecute them under the very wide ranging powers under
the Terrorism Act.
Chairman
33. If there is already evidence that they have
been involved in terrorism abroad, they may come here and actually,
since they know they are being looked at, not get involved in
organising terrorism here for a considerable time.
(Nicola Rogers) I am not sure I am following.
34. You are saying use surveillance methods and
you will pick up the evidence sooner or later to put them away.
I am saying that since these people will know they are being watched,
they will be very cautious. In fact we can think of one or two
examples who have got very cautious in recent years.
(Nicola Rogers) If there is sufficient
evidence on which to expel subject to the Article 3 point, there
surely ought to be sufficient evidence on which to prosecute under
the powers of the Terrorism Act which allows not just for activities
here—you do not have to commit any activities here—but
it can be in respect of activities you carried out abroad.
35. Right. You are an Algerian. Intelligence
tells us and perhaps you even accept that you have been in a training
camp in Afghanistan. You arrive here and ask for entry. What should
the British authorities do?
(Rick Scannell) There will likely be
a certification excluding the person.
36. At which point you play your next card. You
claim asylum.
(Rick Scannell) That claim would have
to be considered. The same material would be considered whether
it was a refugee convention claim or whether it was an Article
3 claim. The claim would be considered and an assessment would
have to be made as to whether removal should take place.
37. In the meantime where is this individual?
Do we allow him to wander the country?
(Rick Scannell) There are ample powers
to detain people in respect of whom it is thought that not to
do so would put the UK at danger in any shape or form. There are
very, very wide detention powers under the Immigration Act.
(John Wadham) Nobody here is suggesting that in those
circumstances the individuals you have mentioned should necessarily
obtain bail. There may be a good case in any particular case for
them to be detained while these investigations are going on, while
the process is going on.
38. Okay. The asylum case is rejected. Then what?
You cannot deport them to Algeria or Afghanistan. What do you
do next?
(John Wadham) The answer is that certain
groups of these people can be prosecuted for offences they have
committed in this country. A second group of people can be prosecuted
in this country for offences they committed in other countries.
That is what the Terrorism Act says and that is what the previous
1998 measures did. Lastly, there does remain a category of people
who cannot be prosecuted for offences. If they are released, we
say they can be watched, so at least the British public is protected
from them, so they will not be able to commit offences. The question
is —
39. Do you see the problem the authorities are
trying to deal with?
(John Wadham) I do see this, but the
problem —
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