Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 40 - 59)



40.  Several thousand people have passed through these camps, they have gone on to organise wars in half a dozen other countries and some of them are ending up here.

  (John Wadham) I understand but the last point of this process is to think it through a little further. Let us assume that we were to detain this group of people and say we are detaining them until such time as we can find somewhere to send them. I imagine that it is possible that a country will say they will have all these people. This country may not support the European Convention on Human Rights or the international comparisons and may well say they are happy to harbour these terrorists. Then we release them and we release them into the world and they go on to commit offences. The Government has no solution to that and detaining people for a period —

41.  But the most likely sequence of events is that no country would want to receive such people.

  (John Wadham) In general terms that may be right.

42.  No country where the rule of law applies.

  (John Wadham) Absolutely, but it may be that Afghanistan or some other country may take the view that they are happy to accept those people. There is no mechanism I can see which can be designed to prevent those people leaving once these processes have been put in motion and those people would then be free to travel round the world, subject to controls, and commit offences. The Government has no idea what to do with these people, except to lock them up until such time as they can find a place to send them.

43.  You are broadly right. The Government have no idea what to do with these people. Did you have a better idea?

  (Professor Gearty) Why can they not bring criminal proceedings under section 56, directing terrorist activities, or incitement to commit terrorist acts abroad? These provisions were very controversial when they were introduced, they were presented precisely to deal with the alleged problem, that there were persons within the jurisdiction on whom you could not fix exact criminal offences, whom you needed to deal with through the criminal process. Those pieces of legislation were achieved. Terrorism is extremely broadly defined. They represented a massive victory for those who argued precisely for the need to act. Now we are being told that even these crimes are not sufficient to underpin prosecutions, that we need to pre-empt these persons before they engage in any conduct within the jurisdiction and effectively intern them.

Mr Cameron

44.  Let me try to humanise this point with a theoretical example. Let us take a man in Jordan who is plotting a terrorist offence in both Jordan and in England. We know that from a telephone tap of a telephone conversation he has had in Jordan. That is the only evidence the Security Services have. This man flies from Germany and then arrives in England and does all the things the Chairman says and applies for asylum and everything else. Is it not the case that he would go through SIAC? You cannot take criminal proceedings and he cannot be deported and he cannot be detained and therefore would be at liberty and is that not the problem we are trying to deal with?

  (John Wadham) There is an issue. I do not know whether you want to explore this. The product of telephone taps obtained in other countries is admissible in evidence in this country. There has been a recent case on that. Secondly, we have no concerns in principle about the use of evidence from telephone taps in criminal trials. We do have concerns about how the warrants are granted and they should be by judges.

45.  As head of Liberty you are always going to accept that if the Security Services have a very small grain of evidence which leads the Home Secretary to believe that this person should not be allowed into the country but it is not sufficient for criminal proceedings, under the current arrangements, and why the Home Secretary has come up with these proposals, that person can be at liberty in this country, we cannot deport him, we cannot detain him, at liberty in this country plotting terrorist outrages and under current rules there is nothing you can do.

  (John Wadham) I accept that there is a category of people who create difficulties, but within that category of people, we are making the assumptions that all of this category of people are in fact guilty. Our concern is that the intelligence on some of these people will be wrong and these individuals may be innocent. My concern is either you send them back to a country where they are going to be tortured or killed, or you detain them indefinitely and you do so on the basis of intelligence which could be wrong. What we are suggesting is that in relation to foreigners, something we cannot do to British citizens, we will detain them on the basis of intelligence which is not evidence and which may turn out not to be true. That is what this Government is contemplating and I imagine that is what Parliament is contemplating and I cannot see that can be a justified approach, even in the circumstances you outline, in a civilised society which supports human rights. That is fundamentally the problem.

46.  Is it not even worse than has been described? The reason I chose Germany is, am I not right in saying, that under the Adan and Aitsegeur case you cannot actually deport someone from England to Germany or even to France because of the suspicion that the French or German authorities will interpret the ECHR differently from us?

  (Rick Scannell) No. The Adan and Aitsegeur case concerned a very, very narrow question and it is extremely narrow and it relates to the Refugee Convention and whether the approach to non-state agents was lawful. The House of Lords in a decision said that it was not. In the meantime, before the House of Lords made that decision, Parliament passed what is now section 11 of the 1999 Act which deems that all EU member states who signed up to standing arrangements, presently the Dublin convention, deem them to be safe. So in Refugee Convention terms —

47.  Do you think that problem has now been solved?

  (Rick Scannell) I am suggesting it is not a problem. The problem is actually whether or not that third state, Germany or France to take the example, would send somebody on in breach of their human rights to a third country. A number of cases have tried to suggest that there is evidence that that would happen, but none has succeeded. I am simply saying that in practical terms that is an isolated and narrow problem which really does not have any bearing on what we are considering.

48.  Do you think that the Home Secretary's plans for indefinite detention are basically internment?

  (Nicola Rogers) Yes.
  (John Wadham) Yes, they are. There is no doubt that they are because it is internment without charge or trial. They are saying, "We suspect you. We don't think we can prove it or we can't find the country where it could be proved. We are going to keep you indefinitely". That seems to be the definition of internment. I cannot think of any better.
  (Professor Gearty) Governments do not usually describe it as internment. It is usually presented in some other way.

49.  Do you think that it is possible to derogate from Article 5? Do you think this will work or will it be challenged on other grounds?

  (John Wadham) In the material we have circulated we have circulated an article I have written with my colleague, which outlines our concerns about derogation. If the Government go ahead with indefinite detention then we are sure that derogation is necessary. Moreover, we think that for them to try to make lawful what would ordinarily be unlawful can be challenged. There are issues about whether it can be challenged in the domestic courts and the challenges will be the usual challenges about ultra vires etcetera, etcetera. We are certain it could be challenged in the European Court of Human Rights. In the article I have set out some of the particular cases, Brannigan and McBride and another case involving the Greek Government from 1967. Our view is that it can be challenged because the definition in the derogation power in Article 15 is that there must be a war or other public emergency threatening the life of the nation.

50.  Do you not think that current events qualify as a public emergency? With several thousand people dead in New York, 200 of which are British, is that not an emergency?

  (John Wadham) Let me take you through it. The situation in Northern Ireland was agreed by the European Court to be a war or other public emergency threatening the life of a nation in the 1990s because of course in Northern Ireland substantial numbers of people were being killed. The figures were something like 3,500 people killed over 25 years and that there were threats not just to individuals, but to the state apparatus itself and the IRA were determined to oust the British Government and British soldiers. There was clearly a threat to the state itself. It may well be that in New York, if the United States Government were in fact a signatory of the ECHR and it wanted to bring in these proposals, it might well have a case itself. At the moment, however, thank God, there have not been any terrorist outrages and as far as we can tell, the intelligence does not suggest that there are . . . I do not know any more about the intelligence than anyone else, but statements made by the Metropolitan Police suggest they have no intelligence that there are active operations which will be a threat to London at least. I am not suggesting that they are not being planned somewhere. There is a test. Compare that with a situation where the European Commission of Human Rights decided that there was not a war or other public emergency concerned: the takeover by the Greek colonels of Greece in 1967. There was a significant number of outrages at that time and the Commission decided that it was not. I am not suggesting I know the answer to that, but it is challengeable and I am saying that I think Liberty and other people will challenge it because of concerns about the fundamental nature of this process.

51.  Is not the problem here that the Home Secretary would like to have two weapons at his disposal: detention for those he thinks are dangerous—you disagree with that; deportation for others. Is not the problem that deportation is almost impossible now because of the case law? Can you tell me where in the ECHR it mentions the word "deportation"?

  (John Wadham) It does in Article 5.1F.

52.  It does not in Article 3, does it?

  (John Wadham) No. There is an issue but we should not be criticising the fundamental rights in the Convention so much as actually saying that the real problem with this, as we all know, is the circumstances in some other countries where people will be tortured. That is the problem. I am not suggesting —

53.  The Soering case said that you could not deport someone to the US.

  (Nicola Rogers) In very particular circumstances.

54.  Is this not the problem, that basically the Home Secretary has come to the conclusion that he will have to detain people indefinitely, not just because of the ECHR itself but the case law says that deportation really is not an option.

  (John Wadham) That is true, but only if the country to which the person is being sent is likely to treat them in a way which violates Article 3. The issue in relation to the Soering case and the United States was that the European Court of Human Rights took the view that the way in which people spent their time waiting for capital punishment, the death row phenomenon, was a violation of Article 3. It is possible, of course, for people to be deported or extradited to the United States even on capital cases, provided the Government of the United States accepts that if they are convicted they will not be subject to capital punishment. They could be convicted and they could be detained for life and that would not be a violation of Article 3. It is not true to say that we cannot deport people and it is not true to say that we cannot deport people to the United States. The issue is in those countries who do treat people in a way which does violate Article 3, because that is a fundamental right not just in the European Convention on Human Rights but in the United Nations' treaties and many other treaties, and there is a problem in those particular circumstances.

55.  Would you accept that deporting people who could pose a severe danger to this country has become, because of the Soering case and other cases, much more difficult in recent years?

  (John Wadham) It is more difficult, but I see nothing wrong with the case law because the case law follows logically. If in fact this Government were to take steps which would virtually inevitably lead to violations of Article 3, then it is responsible and therefore it should not take those steps.

56.  It is not violating Article 3, it is violating the case law. Do you not accept that a country has a right to exclude the people it sees as a danger to its own country?

  (John Wadham) Yes, except where it is going to be likely that those people will go to a country where they are going to be tortured or subject to other violations of Article 3. Otherwise it seems to me that the whole process of the Convention has a gap in it where we cannot torture people ourselves, but we do not care anything about whether we send people to places where we know they are going to be tortured. I cannot see the logic of that.

  Chairman: Nobody is arguing that people should be sent back to be tortured. That is not an issue.

Mr Cameron

57.  What I am trying to say is that one of the reasons the Home Secretary has gone for detention is because the other avenues have been effectively closed off by case law.

  (John Wadham) The case law is a logical consequence of Article 3. The European Court of Human Rights has not come up with some mad ideas which do not fit into the Convention. As far as I am concerned as a lawyer and expert on human rights, those are logical consequences of protecting people from Article 3 violations.

Mr Malins

58.  Does all this mean that if Mr bin Laden surrendered himself to Scotland Yard next week we could not send him to the United States for trial because the United States might impose a death penalty? Does it mean that he could not be sent there?

  (John Wadham) No, it means that he could not be sent to the United States if the United States would not promise that the court would not impose the death penalty.

59.  Is it mad that we are in a position whereby he could be shot by anybody out in Afghanistan, but if the United States wanted him for due process, a proper trial, if they still retained the death penalty, we would be stuck by the Convention and could not send him?

  (John Wadham) No, no. They can continue to have the death penalty. What they have to do, which has happened in cases where people have been extradited to the United States since Soering, is that individuals who may be subject to capital punishment cannot be extradited until such time as the United States promises that even if the person is convicted and may get a very long sentence, possibly for life, they will not use capital punishment against them.

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