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Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): I am one of those who opposed the Anti-Terrorism, Crime and Security Act 2001 when it was being debated on Second Reading. Having read the reports of the noble Lord Newton and the Joint Committee on Human Rights, I am bound to say that my conclusions from that time have been strongly reinforced.
Inevitably, this debate has quite rightly focused primarily on part 4 of the 2001 Act, and I shall refer to that in a moment. However, I shall begin by making two general observations. The first goes to the undesirability of emergency legislation, a point that the Newton report brought out very forcefully. There are a number of reasons for that, but the first is that because emergency legislation is rushed through, inevitably much of it is never scrutinised. We therefore make legislation that could be in place for a considerable time, but which has not been subject to parliamentary processes. My second reason, which is slightly different, is that the circumstances in which emergency legislation is pushed through—often circumstances of distress, high passion and drama—reduce the willingness of Members of Parliament properly to scrutinise it.
I am therefore very hostile indeed to emergency legislation. As my right hon. Friend the Member for North-West Cambridgeshire (Sir Brian Mawhinney) and the right hon. Member for Berwick-upon-Tweed (Mr. Beith) have stressed, the 2001 Act was also used as a vehicle for passing many other pieces of legislation that were sitting in the back cupboard of the Home Office. The Government wished to put those in place, and used this Act as a means of doing so. That was a lamentable abuse. I am very much against emergency legislation in general, and the way in which emergency legislation was used in this instance in particular.
My second general observation relates to the security services. We need to be very alert to the limitations and shortcomings of the security services. I speak as one who dealt with them for some seven years. When I was at the Foreign Office as Minister of State, one of my responsibilities, subject to the then Foreign Secretary, was to handle relations with the security services and GCHQ. In a more limited way, I had dealings with the security services when I was Under-Secretary at the Home Office, as I was responsible for the legislation on terrorism then going through the House.
I have come to some pretty clear views on the security services. I do not wish to be in any way disobliging to them, but we have to face some facts. First, inevitably, much of what they tell Ministers is uncertain, imprecise and not capable of any external verification. That is inherent in the nature of their work. Secondly, they operate in the shadows, so they are not subject to the public scrutiny to which other services are subject. For example, we would be astonished if the police service were allowed to prepare its briefs and give advice in the way in which the security services do. As it is, the police service has to produce its output to the courts, and the press, juries and lawyers can have a go at it, so its act is sharpened up as a consequence. However, the security services have none of those pressures. They just give private advice, fairly certain that no one will scrutinise carefully what they are doing, and that no one will embarrass them. Is it—I ask rhetorically—therefore surprising that they become rather set in their ways and complacent, always guard their backs and are perhaps not as robust in the quality of their work as they should be?
Moreover, the security services get things fundamentally wrong. I was one of those who voted against the war in Iraq, and one reason—although not the only one—was my absolute certainty that if the security services had advised the Government that Saddam Hussein was a serious risk to world peace, they were wrong. As it appears, I rather doubt that they did give that advice, but if they did, they were wrong. Consequently, I regard the work and activities of the security services as a pretty fragile foundation on which to deprive other people of their liberty. That is an important starting point for the House.
The Newton report, reinforced by the Joint Committee, has recommended that part 4 of the Act be replaced by permanent legislation with all possible speed. I agree with that view, and I hope that it will be replaced soon with legislation that does not involve a derogation from human rights legislation, does not rely on immigration law, and does not make a distinction between persons depending on their nationality or place of residence.
My opposition to part 4 is one of principle. When the legislation was being debated, I went to the House on Second Reading to ask the House—and, indeed, myself—about the circumstances in which a person could be detained indefinitely. That is all set out in section 21 of the Act. Such detentions do not follow a conviction or even a finding of wrongdoing or an intent to do wrong. All that has to be satisfied is section 21, which provides merely that the Secretary of State should have reasonable grounds to believe that a person constitutes a threat, and suspect that the person is a terrorist or is associated with terrorism. Having reasonable grounds to believe or suspect such a thing is wholly different from a finding that a person has indulged in wrongdoing. I find it very difficult to accept that a person can be detained for a very long period of time on such a fragile foundation.
Mr. Cash: My right hon. and learned Friend is putting forward his argument very clearly, but there is a problem. Lord Hoffmann, who is by no means backward in the matter of human rights—indeed, he is one of the foremost proponents of them—made it quite clear in the case of Rehman only about a year ago that, in the context of the issues that we are now discussing, the courts had to have regard for the decisions taken by the Home Secretary on reasonable grounds. Would my right hon. and learned Friend like to ponder that decision, or does he simply disagree with it?
Mr. Hogg: I simply disagree with it. I do not think that anyone should be detained for a long period of time unless there is a positive finding of fact made by some judicial or quasi-judicial body to the effect that the person has either infringed the law or embarked on some other relevant wrongdoing. The fact that the Secretary of State may have reasonable grounds to believe or suspect that that is the case does not strike me as a good enough reason to detain the person.
The Minister for Citizenship and Immigration (Beverley Hughes): The right hon. and learned Gentleman brings us to an essential point. Given his strong feelings about not detaining a person in any circumstances if they have not been convicted of an offence in open court and subject to our usual criminal justice processes, what does he think should happen to individuals about whom the intelligence evidence is more than highly suggestive that they are planning acts of terrorism against citizens of this country? What is his solution to that dilemma?
Mr. Hogg: I shall come to that. My view coincides largely with what Lord Newton has said. To say that we should sentence someone to a long period of imprisonment because of intelligence information that is "highly suggestive" seems to infringe almost every principle for which I have ever stood, and I am not going to start infringing them now.
The right of appeal in the Act provides that SIAC has the ability to determine whether there are reasonable grounds for the Secretary of State to come to the suspicion or belief that he harbours on the matter. There is no revisiting of the underlying facts. The question and
primary test is whether there were reasonable grounds for belief or suspicion, not whether the underlying facts were right or the individual has been guilty of wrongdoing.What does SIAC see? It sees relatively little. It sees anyway only what the Secretary of State wants it to see. That was the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews), and it is entirely right. What does a detainee see? Very often, they see almost nothing. If one looks carefully at the report, one will see that the closed evidence is often the majority evidence. The closed evidence is disclosed to the special advocate, and from the moment the special advocate gets to closed material, he has no further communication with the detainee or the detainee's legal representatives. That is not a form of appeal that I recognise. It seems thoroughly bad.
My conclusion on part 4 thus far is that it is deeply offensive. The right of a power of detention is fatally flawed because it does not reflect any independent assessment of wrongdoing—far less a conviction—and in any event, there is a wholly futile appeal process.
My anxieties are reinforced when I read paragraph 200 of the Newton report on page 55, where it is said:
- "Given the novel and contentious nature of these powers we believe that there should be a continuous proactive effort to manage the individual cases of the suspects with a view to finding alternative ways of dealing with them".
- "We were, therefore, surprised to learn that the authorities"—
- " . . . have given no thought to what change in circumstances might lead them to conclude that an individual should be released or dealt with differently".
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