Examination of Witnesses (Questions 60
- 79)
THURSDAY 8 NOVEMBER 2001
JOHN WADHAM,
PROFESSOR CONOR
GEARTY, RICK
SCANNELL AND
NICOLA ROGERS
60. They would need to promise that.
(John Wadham) That is all they have to
do and that is what they have done in other cases.
61. Strange is it not?
(John Wadham) Not particularly. Not only
did we abolish the death penalty in 1965, we have now adopted
Protocol 6 of the Convention which says that we will not bring
back the death penalty in any circumstances, subject to some detailed
exceptions. There is nothing strange about that. Either you accept
that the death penalty is an acceptable punishment or you do not.
If you do not, then I cannot see the logic of saying we will not
use it here but we do not mind if we send people to other places
where in fact they will be killed judicially.
David Winnick
62. There was a case which mentioned a Mr Beghal,
who is no longer in this country so it is in no way sub judice
as far as the United Kingdom is concerned. He was described as
one of the leading terrorist people funded by the top terrorist
who is accused of being responsible for the atrocities of 11 September.
I mention this case because it was said that he had been in Britain—and
there is no dispute about this—for a period of at least
three years and he was a regular at one of the mosques at Finsbury
Park. If at the time there had been the powers the Home Secretary
wishes to take, indefinite detention, would it not in all the
circumstances have been justified for that person to have been
held if he could not be deported for the reasons we have been
into today?
(John Wadham) The right question to ask,
with respect, is not actually whether this person should have
been detained, but rather what the alternatives are for the Home
Secretary under the powers he and the police currently have.
63. Let us assume that he could not be deported
because no country would have him. He is incidentally now accused
in Dubai of trying to organise a helicopter full of explosives
into the United States embassy in Paris. Let us work on the assumption
that no country was likely to accept him and in any country which
would he could be subject to torture. It is a direct question,
right or wrong. It is my question, not your question. You are
doing the answering. What should the Home Secretary do in such
circumstances?
(John Wadham) The first question is to
look at the new terrorism legislation and ask whether this person
could be prosecuted and convicted in this country.
64. If the answer is no?
(John Wadham) Then look at the second
question which is whether this person could be extradited to another
country where they could be prosecuted.
65. Say no.
(John Wadham) The third question is whether
we can keep this country safe by keeping this person under surveillance.
Then only when you get through that process, do you then have
to answer questions about the detention process. Then I say that
the problem is not of our making it is actually where we can send
this person.
66. Yes, but this person could be safe in the
United Kingdom to the extent that it is most unlikely that he
would have involved himself in terrorism in the United Kingdom,
but obviously by the very nature of the person he would be organising
terrorism from the United Kingdom and that is precisely the accusation
which is made.
(John Wadham) That is fine. That is a
crime already.
(Professor Gearty) That is already a serious crime
under section 59 of the Terrorism Act, a very serious specific
crime.
67. If he was not organising terrorism but was
involved in terrorism before, but decided for various reasons
it would be much safer while he was here to keep quiet and keep
under cover, would it be wrong to keep him in indefinite detention
if no other options were available?
(John Wadham) Yes, because there is another
person, where the intelligence will be wrong, who will also be
detained indefinitely and who will be innocent. That is our concern.
Lastly I suppose the issue is that if you painted the same scenario
of a British citizen, you could not detain them indefinitely and
the reason you could not detain them indefinitely was because
that is a fundamental principle not just of the ECHR but our constitution.
The presumption of innocence and the ability only to detain people
if there is evidence, is not just Eurospeak or international law,
it is actually a fundamental provision. That is why internment
was so controversial in the 1970s and before and that is why we
are opposed to it now. It is not just about technical rules in
Strasbourg, it is actually something fundamental. I am shocked
that this Government should be going ahead with proposals which
contradict our traditions so fundamentally.
(Nicola Rogers) One also has to look at the evidence
of the past. When internment has been used in the past, the evidence
demonstrates that many, many people were detained and very, very
few were eventually prosecuted or were the sort of people who
needed to be detained. Indefinite detention gives a green light
to security forces who have less than good intelligence information
about a person to lock them up and throw away the key. When we
are in a situation where the UK is trying to export its values
in a war against terrorism, its libertarian values, values we
should strongly hold onto, this is not the time to be attacking
those values.
68. May I put a point to you? I hope the Chairman
will not say this is all past history, because it has already
been mentioned by one of the witnesses, namely what happened in
1939: indefinite detention took place for reasons described in
general terms as the 18B regulations. No-one has suggested, as
far as I know, that Britain became almost a dictatorship because
people were held when there was no evidence which could take them
to court,—Mosley is the most obvious example. In view of
all the circumstances was it not absolutely essential for our
national security?
(Professor Gearty) It is an interesting
lesson for us. In September 1939 Parliament insisted on a formula
that "The Minister should have reasonable cause to believe
that these people would be of hostile origin or association",
forcing an alteration in the executive's proposals and that acted
as a great discipline on the executive for the first two years
or so until the judicial branch re-conceived it in a subjective
way. There is an interesting lesson from 1939 which is about the
extent to which the legislative branch was able to exercise a
control on the use of that executive power which definitely focused
it and rendered it more disciplined and did reduce the temptation
to use it as a coverall for overall internment.
69. For two years of operation.
(Professor Gearty) In the first two years
of operation.
Chairman
70. Are you saying that it is possible then to
do this in a disciplined way on the model of what happened in
1939?
(Professor Gearty) There are two separate
issues, yes, you are right.
71. We are not talking about blanket detention
of the sort —
(Professor Gearty) No. There is the principled
anxiety about the misuse of internment and the alienating consequences
for example from Northern Ireland in August 1971. Then there is
a fallback position about accountability and control which manages
to change, which provides that it should only exist in so far
as it is absolutely required, which provides for some oversight.
There is a whole secondary layer of concerns that one would have,
given that the principle has been conceded.
David Winnick
72. The 1939 regulations did not come anywhere
near what Ms Rogers has suggested would become almost a dictatorship,
where the security forces would lock people up, throw away the
key and the rest of it. It worked well in view of all the circumstances.
(Professor Gearty) There is an interesting
historical analogy which is that it worked well when there was
not that much pressure on this state. In the first year or two
it was applied very timidly and with great restraint. However,
when panic set in and when there was great anxiety and there was
an escalation in the number of people held, it did become a matter
of immense civil libertarian concern in the summer of 1940 through
to 1941. I would say that the potential would be similar here.
There would be some very few initially, then perhaps there would
be an escalation of public anxiety and the executive would have
the temptation of a blank cheque, a judgement about national security,
which is not questioned in a court, then a quick check that no
other country will take them and then hey presto, internment.
That is a temptation the executive would have which would not
be circumscribed as at present constructed by any parliamentary
or judicial —
73. Our democracy survived.
(John Wadham) In the United States, they
interned thousands upon thousands of Japanese citizens and have
recently —
74. That was the United States.
(John Wadham) I accept that. —
had to apologise because of the way they interned those individuals.
Many people were of course interned in this country who should
not have been interned.
David Winnick: I think the United States has
learnt the lesson.
Chairman
75. We all understand that once the executive
gets powers it finds it hard to kick the habit. That is why we
are holding hearings such as this. Let us talk now about restraints
which can be put upon it, assuming it has these powers. Judicial
review. As you know, the Government are talking about removing
judicial review from decisions made by SIAC. Do you think that
could be done? Would the court allow that?
(Rick Scannell) The present SIAC regime
provides a right of appeal from a decision of SIAC to the court
of appeal on a point of law. There is no scope therefore for judicial
review and ILPA's position is that it is a misconceived proposal
which is simply unnecessary because it does not engage with any
current problem. There have actually been only two substantive
cases looked at by SIAC in the last four years so we are only
talking two substantive decisions. Other SIAC cases have considered
bail applications and matters of that kind but only two cases
have actually gone to SIAC: one of them went on appeal and ended
up in the House of Lords and was the Rehman case. It was
the Home Secretary's appeal to seek the vindication of his view
of what national security should be.
76. The Home Secretary is very generously agreeing
to forfeit his right to appeal.
(Rick Scannell) That was not a judicial
review. I did not understand the proposals to include the cutting
out of an appeal on a point of law to the court of appeal. I may
be wrong. We shall have to wait and see the detail. If the discussion
is truly correctly about judicial review, then it is a purely
superfluous proposed measure. The only circumstance in which judicial
review might conceivably be relevant in connection with SIAC,
would be in relation to some sort of interlocutory order. If you
use the normal immigration appeal system—and the anticipated
number of decisions which the normal immigration appeal system
is due to take is going to go up to some 6,500 a month; we are
talking about that sort of scale of decision making—even
with the potential of making interlocutory judicial review applications
one has seen virtually none; numbers reaching perhaps half a dozen
in many, many years. It does not seem to me to be a real problem.
77. You do not think it is an issue which needs
addressing.
(Rick Scannell) Manifestly not.
78. You do not think there will be, even if the
Government gets these powers which you do not want them to get.
(Rick Scannell) In the SIAC context I
see no scope for it. It simply is not a live issue. I am confused
by the context for the proposal for that reason.
(John Wadham) Unless of course they were to take away
the right of appeal from SIAC itself, in which case it would be
different. We have set out our views that probably if they took
away the rights of appeal, in fact it would be very difficult
to exclude the right of judicial review because of the way the
courts preserve their own position in deciding the lawfulness
or the vires of other issues and that is set out in page
6 of our evidence.
79. You think, no matter what they hope to achieve,
they are not going to get away with it anyway.
(John Wadham) With the greatest respect
to the proposal, the answer was that if they were to take away
all appeals from SIAC, both the current appeal on a point of law
to the court of appeal and attempt to take away judicial review,
then because of the fundamental nature of the human rights involved
in these cases it is likely the courts will find a way of checking
the executive decisions in relation to that.
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