Examination of witnesses (Questions 160
WEDNESDAY 14 NOVEMBER 2001
MP, MR ROBERT
160. If it is the decision of the Home Secretary
they will be held in detention. My final question on this is:
do you not fear that if you get one or two wrong people in, when
the information comes out that they are not the sort of people
the Home Office alleges they are, the whole thing could blow up
in your face, and detention will be as discredited as internment?
I am not saying it is not going to happen; I am being the devil's
advocate. I happen to believe there is a case for the Home Secretary's
decision. But, if you are going to speak frankly to this Committee,
Minister, is it not a fear that if you get the wrong information
and if one or two people are shown to be without any involvement
in terrorism whatsoever, what is being proposed, which in itself,
of course, goes against the whole grain of British law, will blow
up in your face and will be looked upon in the same light as internment,
even thought it may well be that you will have people in detention
who have been involved in terrorism, and the thing will be discredited?
(Beverley Hughes) I think this is an issue that you
are right to raise, but, as I have said, we recognise that this
is a serious power. We are not entertaining taking this power
in order to exercise it in a slap-dash or shoddy way, or in a
way which may lead to those kinds of eventualities. The Secretary
of State will have to satisfy himself on every individual case.
161. That was so with internment, was it not?
(Beverley Hughes) Let me just finish. The Secretary
of State will have to satisfy himself in law in every individual
case that the evidence being put before him is sufficient to justify
the view that a particular individual is a threat to national
security, and if that person then appeals through SIAC, a group
of people, headed by a High Court Judge, including in normal circumstances
another judge as well as somebody from a security background,
will make a judicial examination of the quality of the evidence,
and they have the power either to confirm or to refute the Home
162. Perhaps a better parallel, Minister, would
be the Iraqi detainees ten years ago during the Gulf war, all
of whom were eventually released, and I believe some of them were
compensated. The quality of intelligence there proved very variable.
Are you confident that the intelligence information on which these
decisions are based will be less variable?
(Beverley Hughes) I am confident that we do not want
to repeat the failures of the last Government, if I may say so,
in the way in which that matter was handled. There have been lessons
learned from that. We certainly expect the implementation of these
procedures to be robust and, as I have said, in terms of the numbers
we expect, we expect them to be used in exceptional circumstances.
Clearly, in all cases where that is possible, prosecution is the
preferred route of the Government. For those two reasons, because
we expect this to be used in a very small number of cases, I do
not think we are going to see a repeat of that. It is certainly
our intention that we should not see a repeat of the kind of large
numbers of detentions that we saw in response to the Gulf War.
163. In order that we can at least recall this
little bit of history, I put down a question last week just to
flush out the figures on the Iraqi detainees and what eventually
happened. I had an advice from the Home Secretary saying, "I
will reply as soon as possible." My purpose in putting down
the question was to include the answer in our report, and the
deadline for that is about tomorrow noon. So I would be most grateful
if, when you get back to the Department, you could pull the necessary
(Beverley Hughes) Officials have tried to get you
the figures for today. I hoped to be able to do that this morning,
and unfortunately, because we do need to go back in the records,
it has not been possible. But we are trying to get you that information
as soon as possible. I have noted the deadline and I will try
and ensure that we meet that.
164. Minister, do you think that detaining without
trial people in this country who may be quite dangerous terrorists
will make this country more of a target for terrorist activity?
(Beverley Hughes) That is a possibility that has been
put to me, and I cannot say no, but for the reasons I have already
identified, because we envisage this power being exercised in
a very small number of cases, that risk is minimised. I cannot
say it does not exist, but I think there is another point here,
which is that with many of these issues to do with the Bill, perhaps
particularly this one, we have to take a balanced view, what on
balance is the right and the safest course of action, and on balance,
I think it is right that we do have this power for a small number
165. Let us look at the "on balance"
point. Do you think on balance, when the Home Secretary looks
at deportation, he should be able to balance the potential risk
to this country of the person he is trying to deport and the potential
risk to that person, that their rights under Article 3 might be
infringed? Do you think that is a balance?
(Beverley Hughes) What the Home Secretary will have
to satisfy himself of in considering whether somebody is a threat
to national security is the evidence in the round of that person's
actions and behaviour and associations. That is what these procedures
in law are charging the Secretary of State to do.
166. I am talking about deportation rather than
detention. Do you think when it is a case of deportation that
the Home Secretary should be able to balance the risk that that
person poses to this country with the risk to that person's rights
under Article 3 if they are deported?
(Beverley Hughes) In a sense, that is precisely the
reason for the procedure. That is the first order decision the
Secretary of State has to make: is this person a threat to national
security? Would we ordinarily, using the powers available to us,
want to deport this person? Therefore. That is the first decision
. If then the advice is that the person cannot be deported because
either his or her country of origin or any other third country
cannot give a satisfactory assurance about treating that person
in accordance with Article 3, that is the reason for these proposals.
We would not then deport somebody.
167. With respect, the reason we are in this
mess, the reason we are having to do something none of us wants
to do, which is detention without trial, is because we cannot
deport these people, and it is not a balance, is it? In the Chahal
case judgment from the Strasbourg court it says, "The activities
of the individual in question"that is the person being
deported"however undesirable or dangerous, cannot
be a material consideration." You simply cannot ask the Home
Secretary how dangerous this person might be. You cannot deport
them. That is what the Court says.
(Beverley Hughes) Yes, and that is where we are. I
think it would be helpful if you said a little bit more about
where you are coming from. I think I know where you are coming
168. You are moving heaven and earth to introduce
a power of detention without trial into this country. Should you
not be moving heaven and earth to try to increase our powers to
deport those who are dangerous to this country?
(Beverley Hughes) What we are seeing here, I think,
is the beginning of an argument which I am sure we will see developed
over the course of the passage of this Bill, which will become
an argument for renouncing our international obligations under
the European Convention on Human Rights wholesale in order that
we can deport people and not have to adhere to Article 3. This,
of course, is the Trojan Horse that your arguments are leading
169. Is it? I merely ask this question: if you
can derogate under Article 5, have you looked at ways of either
derogating or putting reservations under Article 3?
170. It is not possible to derogate from Article
3. If one had a wish not to adhere to Article 3, then, of course,
we would have to try and come out of those international obligations
under the European Convention on Human Rights wholesale and then
and try and negotiate our way in on the particular articles that
we are happy with. This Government is not prepared to entertain
that. We are not proposing detention because in any way we want
to weaken our commitment to human rights in general and to the
European Convention in particular. It is a power to meet a set
of circumstances that we face in derogating from Article 5, but
we have no intention whatsoever of following Mr Cameron's route
and weakening our obligations under the European Contention on
Human Rights more generally.
171. As I understand it, though, other countries,
when they entered the ECHR, entered reservations about particular
Articles, and we did not. Is that the case?
(Beverley Hughes) As I understand it, we did not lodge
any reservations at all. We have been adhering to this Convention
for about 50 years now.
172. When you were looking at these huge powers
you are taking to detain people without trial, did you look at
all the alternatives, including, as you sayand it might
be very complicatedgoing out and coming back in and entering
reservations under Article 3 to give you more powers of deportation?
(Beverley Hughes) As I say, we have made it clear.
Firstly, the Home Secretary has made it clear that he will not
entertain the idea that we simply ship somebody out to a country
where we know they may be tortured or where they may be killed.
173. It is not a question of knowing. The point
is there is no balance, is there? That is the point I was trying
(Beverley Hughes) The point is our commitment as a
Government to human rights and to the European Convention, and
the Home Secretary has made it clear that we will not entertain
sending people abroad, back to countries where we feel that their
individual rights in those countries in terms of Article 3 would
not be respected. We do not believe that is a moral and a right
option to take. That is why we have looked for another way to
address the dilemma that we do face in not being able to deport
somebody to such a country. We have then had to consider other
powers to curtail the activities that are of concern in this country.
174. Are you happy with your powers of deportation?
Are you content with what you are able to do in terms of deportation
now, even after Chahal and all the other cases? You do
not want to move any further on that front at all?
(Beverley Hughes) Not individually as a nation. What
the Home Secretary has done at the JHA Council in September is
to ask the Commission to look at the dilemma that we have identified,
and that indeed other Member States will face, and how Member
States can meet that dilemma in terms of wanting to ensure the
rights of their population to not experience threat to their security,
but on the other hand also the rights of individuals, particularly
in relation to deportation and the issues that I have identified
around Article 5. The Commission is looking more broadly at the
dilemma that Article 5 presents in the current situation.
175. On the business of deportation and so on,
am I right in saying that if in due course Mr Bin Laden and one
or two of the Taliban slipped into England, we would be unable,
because of our Convention duties, to deport them or extradite
them to the new regime in Afghanistan, or to stand trial in the
United States because of the death penalty that could be imposed.
Am I right in saying that they could not be removed in those circumstances?
(Beverley Hughes) In relation to a new regime in Afghanistan,
it would depend on the assurances of that regime in terms of the
way in which they would treat those people under Article 3, in
terms of the specifics of Article 3, that they would not be subjected
to torture and so on.
176. Assuming that we did not know, that they
might be, and we guessed that they could be, then they would be
stuck here, would they not?
(Beverley Hughes) I think in that situation, Mr Malins,
there would be a very considerable international response to a
circumstance in which we were able to apprehend Mr Bin Laden,
and I am sure it will not come down to a process involving SIAC
in deciding whether or not we can deport him or detain him in
this country. There will be an international response. In relation
to the US, we have had an agreement with the US in relation to
their death penalty, as you know, for some considerable time now,
and that is not going to change.
177. So they would have to say no death penalty
for us to be able to extradite to the US.
(Beverley Hughes) For any individual person that is
the case. I understand the point you are making, but in a sense
it is a hypothetical scenario that we are unlikely to face, because
I think the international response were we to apprehend him would
be out of the context of any individual member state.
178. Before we move on, Minister, can I press
you on what kind of people you envisage would be detained under
these new provisions. All the discussion so far has been rather
theoretical, and I wondered if you had come armed with any examples
of the likely sorts of people or their activities that you would
consider candidates for this procedure.
(Mr Whalley) I think you have then to look at the
wording of clause 21, and at the reference there to "international
terrorist" in 21(1)(b). Then you have to look at 21(2), where
you get some examples of what sort of people we are concerned
with. First of all, there are those who are concerned in the commission,
preparation or instigation of acts of international terrorism;
secondly, there is a reference to those who are members of international
terrorist groups; thirdly, those who have links. That is the context
in which this would operate. More specifically, it will be concerned
with people who within the United Kingdom, while they are here,
are engaged in these various activities, and probably some of
that would come under 21(2)(a). They may, for example, be concerned
in communicating with other terrorists; in preparing for acts
of terrorism, whether in the UK or further afield; they may be
involved in fund raising or in training or in other activities
upon which terrorist organisations rely in order for their activities
to be achieved. There is a whole range of activities which could
be involved here, where the people concerned will be operating
within the UK with comparative freedom of movement and in that
sense, we would be concerned with those whose activities might
not become known to the police, for example, and might therefore
not generate the circumstances in which a criminal charge could
179. So, for example, a Mullah who was here
on indefinite leave to remain, who was using his mosque to recruit,
is a possible candidate.
(Mr Whalley) That is the sort of circumstance which
could arise. Of course, the first test would be whether or not
an offence was committed under the Terrorism Act to which you
referred earlier on, and that would, of course, be the preferred
option in every case, because there are criminal offences there
and that would be the case which would be followed. As I have
just said, some of these activities may not come to the attention
of the authorities in a way which might generate a criminal charge.