Examination of witnesses (Questions 140
- 159)
WEDNESDAY 14 NOVEMBER 2001
BEVERLEY HUGHES,
MP, MR ROBERT
WHALLEY AND
MR IAIN
WALSH
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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