Select Committee on Home Affairs Minutes of Evidence

Examination of witnesses (Questions 140 - 159)



  140. Of course, it is only a year since we had a Terrorism Act, is it not?
  (Beverley Hughes) Yes, I agree, and certainly we are relying on much of the power in that legislation. It is not being swept away. As I say, we are not having a wholesale revision, but what we are doing with this legislation, as you will see from the breadth of the Bill, is trying to plug gaps across a wide range of issues, but we think that they are gaps that the public need us to fill.

  141. Going to Part 4, on asylum and immigration, what is the likely timescale for bringing that into force?
  (Beverley Hughes) We hope to get Royal Assent on the whole of the Act when it is enacted by the end of this year. The measures to implement that, in terms of SIAC and so on, are already in place. So it could have a very speedy introduction in practice because the procedures and so on are already there. What we are introducing is a new power, not new procedures.

  142. So within weeks rather than months?
  (Beverley Hughes) I think it could be immediate really.

David Winnick

  143. Minister, have you seen today's Times?
  (Beverley Hughes) I have not, no.

  144. Can I bring to your attention that Lord Donaldson, who, as you will know, was a Lord Justice of Appeal for a number of years and Master of the Rolls for ten years, is highly critical of detaining people in the manner which is being proposed. He is not perhaps the most radical of lawyers, and he has never claimed to be, but he is undoubtedly very concerned indeed. Moreover, a letter from Professor Brian Simpson, QC also says that the situation is rather unfortunate, to say the least. What would you say to such critics?
  (Beverley Hughes) I would say it is a very unfortunate situation, but we are actually trying to respond to a very difficult and unfortunate situation with the proposals. To start from first principles, what the proposals on detention arise from is an attempt to prevent the abuse of our immigration and asylum procedures by people who want to stay here and use the UK as a base for engaging in terrorist activities. It is precisely to prevent that abuse.

  145. Staying here and being involved in terrorist activities?
  (Beverley Hughes) Yes.

  146. But you have powers over that, as the Chairman has just pointed out. Anyone who is alleged to be involved in terrorism abroad but based in Britain, the powers were taken in the previous Act, passed only a year ago.
  (Beverley Hughes) The problem arises when we want to take the action that we are empowered to do at the moment, which is to deport a foreign national. These provisions, as I say, are limited to foreign nationals. If in the instance that pertains we cannot deport somebody and exercise those powers, because we cannot deport them to a safe country—if we were to do that, and the Home Secretary has made it clear we would not do that because we would be in breach of Article 3—we then have two options. This is the dilemma that people who are concerned about these powers have to face themselves. If we cannot exercise our powers to deport somebody who we suspect to be engaged in terrorist activities, we either have to release them into this country to carry on engaging in the behaviour that has caused concern in the first place, or we have to take some measures to curtail those activities pending deportation, and that really is only detention. That is the route through which we have come to the conclusion that we do need some special powers in exceptional cases, when we cannot use the existing powers we have to deport because to do so would contravene Article 3, and in any case it would not be the right thing to do, then we need powers to detain when we have serious concerns about the behaviour of certain individuals.

  147. Let us clarify the situation, Minister. These powers would not apply to anyone in the United Kingdom who has the right of abode in this country. Is that correct?
  (Beverley Hughes) It will not apply to UK citizens.

  148. When you say UK citizens, will it apply to those who, though not UK citizens, have the right of permanent residence in Britain?
  (Beverley Hughes) Do you mean somebody who has been given indefinite or exceptional leave to remain?

  149. Yes.
  (Beverley Hughes) The powers that we have at the moment to deport somebody apply to people given that status. If somebody has been given that status through the immigration procedures, and then there are concerns about their behaviour, we have power now to deport those people. If we cannot exercise that power of deportation, clearly the potential to detain people in relation to these procedures becomes a possibility.

  150. So those who have been given the right to stay here indefinitely, though not United Kingdom citizens, will in fact be in a position where they could be detained under the measures being introduced at Second Reading next Monday.
  (Beverley Hughes) They could be.

  151. Could you give me any idea at all about the likely number of people whom the Home Office believes would be detained? Are we talking about 10, 20, 200 or more?
  (Beverley Hughes) We can only go on our experience so far and make some best estimate on the basis of that. Please treat any numbers I give you with caution, because we obviously do not have a crystal ball, but for instance, since SIAC was established in 1998 there have been three cases. Under existing powers to detain people for shorter periods of time when we have suspicions about their behaviour, in the year for which we have figures, which is 2000, there were 39 non-Irish people detained, but 23 of those were in connection with one incident, which was the hi-jack of the Afghan airline at Stansted. Taking those figures into account, we feel that we are talking about a small number of people. It may go into double figures but we are talking about a small number of tens rather than hundreds. That is our view.

  152. At this stage you are certainly not considering hundreds of people, or even a hundred?
  (Beverley Hughes) Absolutely not. We do not anticipate that.

  153. Professor Simpson, whom I have quoted, quotes in turn a former Prime Minister, Winston Churchill, who said, "The power of the executive to cast a man in prison without formulating any charge known to the law and particularly to deny him the judgment of his peers is in the highest degree odious and is the foundation of all totalitarian government, whether Nazi or Communist." That was Winston Churchill—when, I do not know.
  (Beverley Hughes) I would say that the kind of atrocities we are trying to prevent are also odious. I do not deny for a moment that the power being proposed in the Bill is a serious power. We have not entertained the possibility of that power lightly. Having said that, we do feel that it is a necessary power in a small number of cases. We have made provision for that power to be regularly reviewed by Parliament, so it is a temporary power, unless it is reviewed by Parliament. We have also put in place through the SIAC process safeguards for six-monthly review on an individual basis of any case that goes through that process. That person will have legal representation. There is provision for the payment of that legal representation in the Bill. There is also through the SIAC process, obviously, the provision for judicial examination of that executive decision by the Home Secretary for certification in any individual case. So we have tried to put in place alongside the power measures to review it regularly on a parliamentary basis and on an individual case basis. We have also put in place safeguards for judicial examination of that executive decision-making.

  154. You will be pressed later by my colleagues on the question of judicial review and the rest. You might have said to me as well—without putting words into your mouth—to strengthen your case, that it was Winston Churchill who presided over people being put in detention during the last war.
  (Beverley Hughes) I am not concerned so much about the past as with the present, Mr Winnick.

  155. The quote he made could not have been between 1939-45. Is the Government confident that, if challenged, it could justify the derogation to the European Court of Human Rights, given that in public statements it has been said that there is no immediate terrorist threat to the United Kingdom itself?
  (Beverley Hughes) I think there are three sets of circumstances that we believe justify the view that in relation to the technical formulation required under Article 14 we can say that there is a state of public emergency. Those are the events of September 11th, the fact that the UN Security Council has resolved that Member States are facing situations in which international peace and security is threatened, and thirdly the fact that, of course, UK is one of the most prominent countries in the US-led coalition currently in conflict in Afghanistan. We think that heightens the threat to the UK. Those three factors together do justify the technical definition of public emergency as required under Article 15.

  156. You do not feel that present circumstances, what is happening at the moment, should lessen the reasons why the Government should go ahead with the measure on Monday?
  (Beverley Hughes) No, and I think a further justification and strengthening of our view that those three factors themselves justify the definition required in Article 15 was the judgment of the House of Lords in the Rehman case a month ago, in which the Lords' view about the assessment of the threat to national security made it clear that there does not have to be a specific threat against the UK for there to be a judgment, but in the context of world events, there is nonetheless a justifiable threat to national security in this country on that basis.

  157. People are saying, "How do we know this is not going to be a repeat of what happened with internment in Northern Ireland, where it was counter-productive, where it was found that may people should not have been interned in the first place, and one or two are now writing articles about their experience?" Is there not a danger that the information supplied by the appropriate authorities in the United Kingdom will be as faulty as it undoubtedly was when internment was introduced in the early 1970s?
  (Beverley Hughes) There are a number of differences between this proposal and internment, and one of the main ones is, if a person who is suspected of being engaged in terrorist activities under these procedures has a place to go to and wants to leave this country, then, of course, they are free to go. There is not the same basis as internment at all in terms of enforced detention.

  158. You are not describing it as internment?
  (Beverley Hughes) No, not at all. I do not think it fits that description.

  159. Is that because the Home Office is sensitive to the accusation I have just mentioned?
  (Beverley Hughes) It is not the same measure at all. It is a power to detain individuals in the event that, either for reasons of international obligations under the European Convention or for practical reasons, we cannot exercise the power we already have to deport somebody. It is a response to that situation. Internment was an entirely different measure and, as I say, under these powers, if somebody whom we have detained chooses to leave this country, they are free to go at any time, provided they leave these shores.

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