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Vera Baird: It cannot be right that no more attention is paid to detainees once they are in detention, because we have learned this afternoon that two have been prosecuted on criminal charges and that, as I understand it, the evidence for that was found by the authorities after they had been detained. So they are not completely abandoned.
Mr. Hogg: The detainees are kept in the bag, and I have no doubt that some prosecution authorities review their cases, but they are different from the Home Office authorities. The Home Office is quite happy to leave them in the bag. That is what Lord Newton and his committee say. I regard that as a scandal, as I am sure, to be fair, does the hon. and learned Lady.
Mr. Cash: I am sorry to trouble my right hon. and learned Friend a second time.
Mr. Hogg: My hon. Friend never troubles me.
Mr. Cash: I am glad to hear it; I will put my question a bit more sharply. I was going to be a little more
temperate. He has just said that there would be no review when the person was in the bag and left there indefinitely. How does he equate that with section 26 of the Anti-terrorism, Crime and Security Act 2001, which specifically provides that
- "The Special Immigration Appeals Commission must hold a first review of each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the certificate is issued"?
Mr. Hogg: That is on the basis of information supplied by Home Office officials, in respect of whom Lord Newton made the precise criticisms to which I have drawn my hon. Friend's attention. That is one reason why the process is so perverse—and no doubt one reason why Lord Newton was so concerned about it.
Vera Baird: At each of the reviews, the detainee is entitled to be represented. I have seen and know well many of the representatives who feature in appeals on behalf of such detainees. I assure the right hon. and learned Gentleman that it would be unbelievable if they were not putting forward every change of circumstance so that SIAC could take it into account. Admittedly, it will judge that against the intelligence, but he is quite wrong to call such a form of appeal futile.
Mr. Hogg: The hon. and learned Lady must face up to two points. First, Lord Newton's committee and all the Privy Councillors unanimously concluded that there was a failure on the part of the Home Office properly to discharge its duties in this regard. That is set out clearly in paragraph 200, and I commend it to her. Secondly and quite differently, as regards the appeal, she will find it comprehensively described at paragraph 176 of the report. In particular, serious criticism should be directed at the fact that much of the evidence is closed evidence of which the detainee will be wholly ignorant. If she finds that a satisfactory process, I do not, and to be fair to her, I doubt whether she does either.
On one further point before I look to the future, I have a strong suspicion that the existence of part 4 powers, so that the person is in the bag, means that not very serious attention is given to whether that person can be prosecuted for substantive offences. Indeed, I suspect strongly that the fact that there are part 4 powers acts as a powerful disincentive to the Crown Prosecution Service and others when they come to consider whether or not they wish to prosecute, having regard to the uncertainties involved.
Mr. Marshall-Andrews: May I ask the corollary of the question that has just been put to the right hon. and learned Gentleman? Given that there are 17 people against whom it is perceived that there is so much evidence that it warrants their detention without trial over two years, is it not extraordinary and singular that only two of them have been prosecuted during that period?
Mr. Hogg: Yes, it is. I think that that makes the point that I have tried to make: once somebody is in the bag, why bother any further? It is a strong supporting piece
of evidence to the effect that these part 4 powers are having a perverse effect and are themselves preventing prosecutions for substantive offences.I want to look forward a little. I hope very much that there will be an implementation of the broad Newton recommendations. As a general proposition, I want these emergency provisions to be replaced by permanent legislation. I want terrorist offences for the most part to be dealt with in the mainstream of criminal law. I want to ensure that there is no further derogation from the human rights legislation, and, furthermore, that no distinction is made between defendants on the grounds of nationality or place of residence. The legislation should deal with terrorism qua terrorism and should not rely on the immigration laws.
Next, I believe that detention should only follow conviction for a substantive offence. Under no circumstances should long-term detention or any significant period of detention follow security-led information. I accept that there may well have to be changes to the law as to the admissibility of evidence—the points made about intercepts seemed entirely right. The practice may also have to change. The points about the juge d'instruction made in the Newton committee report are perfectly sensible, and we could no doubt expand on the use of special advocates. I further accept that there may be a residue of cases in which it is not possible to prosecute but there is some degree of risk. The House must wrestle with that.
I welcome the proposals in the Newton report that there may be restrictions falling short of detention that can properly be imposed: tagging, restrictions on banking transactions, surveillance and so on. I want to make two points, however. If those are to be invoked, it should be after a judicial or quasi-judicial process on the basis of statutory criteria that must be proved to the satisfaction of the tribunal. In those circumstances, I would be prepared to accept further restrictions, albeit falling short of detention. At the end of the day, I do not think that there are any circumstances in which I would support a policy that results effectively in internment without proper criminal process and above all without a proper conviction or judicial hearing.
Finally, let me say something about the Henry VIII clause, section 124. The Newton committee was rightly critical of it, because the Home Secretary is giving himself powers to amend both the Act and any pre-existing legislation to the extent that he thinks "necessary or expedient". Moreover, he can do so by means of the negative procedure, which is subject to annulment. In other words, we have given the Home Secretary power to amend any piece of legislation that he sees fit to amend, and he can do it without primary legislation—on the back of a short debate upstairs, if such a debate is secured. That is simply not worthy of this place.
5.25 pm
Mr. Andrew Dismore (Hendon) (Lab): This debate reminds me of last week's television series about Dunkirk. We lost that campaign because our generals had prepared for the previous war rather than the one that they were there to fight. They did not know our enemies: they did not know how ruthless they were, or what techniques they would use. I think that today,
especially in the context of some of the comparisons with IRA terrorism, we too run the risk of fighting the last rather than the current war. We should be considering the nature of al-Qaeda, its aims and how it operates. We should bear in mind how different all that is from everything that we have experienced before in our fight against terrorism, whether it involves the IRA or other more recently identified terrorist organisations.Al-Qaeda's world view is completely different from ours. It is not about dealing with developing world issues, or about the middle east; it is about overthrowing our way of life completely. I have read al-Qaeda's manifesto—I do not know how many other Members have; it was sent to me by a journalist—and it is clear that there is no room for compromise. These people's objective is to turn our country, the United States and the western world as a whole into a Taliban-style dictatorship, a theocracy under Islam. We cannot compromise or negotiate with them. Theirs is not like IRA terrorism, which had a political objective.
Moreover, members of al-Qaeda operate very differently from the IRA. They aim at soft targets, not high-profile targets. Their aim is to cause the maximum number of civilian casualties, as we saw on 11 September, and they are careless of their own lives: they go out deliberately to kill themselves by means of suicide bombing.
Mr. Gregory Campbell (East Londonderry) (DUP): I do not think a distinction should be drawn between the terrorism manifested by al-Qaeda and that of, for example, the IRA. Surely we should all expose terrorism, wherever it may originate—be it the "soft" terrorism that we see closer to home or the more ruthless, hard, rooted terrorism that we see internationally. We should expose and oppose all of it, to ensure that it is brought to an end.
Mr. Dismore: I hope the hon. Gentleman does not think that I am soft on IRA terrorism—far from it. My point is that we cannot fight old wars. We are fighting a new war against al-Qaeda, a different organisation with different aims over which we cannot compromise or negotiate, using entirely different techniques. If we do not recognise that, we have no prospect of winning this war.
I think that the report's recommendation on tagging is somewhat naive, and also rather dangerous. Part of the problem is that we do not know the identities of those in detention, save one who has allowed himself to be named: Abu Qatada. If anyone thinks that Abu Qatada could have been tagged and had his finances controlled in such a way, they have another think coming. Let us not forget that even though he was under surveillance, when the new law was introduced he managed to give the security services the slip, and went on the run for nine months before he was tracked down. So the idea that he would somehow be tagged or brought to a police station, or confined to using only approved bank accounts, is complete nonsense.
There is a risk associated with this development. I fully accept the Home Secretary's word—indeed, I have had it independently confirmed elsewhere—that an
extremely high threshold is applied before anybody is put into detention. But if there were the alternative further down the chain of tagging or reporting to a police station, the inevitable temptation would be to use that power more widely. In effect, that would lead to a greater infringement of the civil liberties of a wider group of people for whom detention may not be appropriate, but whom we would like to keep under surveillance through a cheaper method. That would be wrong. If certain people are so dangerous to our society that action needs to be taken, detention is the appropriate course. We should not try to widen the net, which could happen if we have these wider powers.Nor is there any need to extend the powers beyond the exemption relating to al-Qaeda. The police would seem to agree with that view. A senior police officer told me that they have no desire, should the law be extended, for what they call a "Casablanca moment", in order to round up the usual suspects. They are quite satisfied with the current position.
The report contains a lot of common sense about intercepts, but we must recognise that they are not a panacea in themselves. They have, however, certainly helped in other jurisdictions. From what I have read about the case of Abu Qatada, for example, if intercepts had been admissible evidence he could well have been charged. But we must also recognise that simply having intercepts as admissible evidence is not the end of the story. The police would still have to prove their context—who was speaking to whom—which can often be extremely difficult evidentially. One way to do so might be to have a rebuttable presumption: a presumption, rebuttable by the suspect, that the person on the phone line is the owner or subscriber; otherwise, it could be extremely difficult to make use of the full evidential effect of that intercept.
We must also ask whether this law is going to be retrospective. I know that the House is very reluctant to consider retrospective legislation, but if we are contemplating allowing intercepts to be used as evidence, there is a lot to be said for allowing the law to be retrospective, so that it can be used on previously obtained intercept evidence. That could well provide us with the evidence that we need to prosecute those who are currently detained in Belmarsh. The intercept evidence on which they are probably detained could then be used for a criminal prosecution against them.
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