Examination of Witnesses (Questions 1
WEDNESDAY 14 NOVEMBER 2001
1. Welcome, Home Secretary. We are very grateful
to you for appearing before the Joint Committee on Human Rights.
We have just been informed through the usual method that a vote
is imminent and, given the fact you have only an hour, I would
propose we do not attend to vote, unless you feel there is any
particular issue why we should.
(Mr Blunkett) I agree.
2. Thank you. As you know, the Joint Committee
on Human Rights is committed to considering all legislation that
comes before Parliament to assess whether it has been properly
declared by the responsible minister to comply with the provisions
of the Human Rights Act. The proposed anti-terrorism legislation
which you have introduced to the House of Commons in the form
of the Anti-terrorism, Crime and Security Bill, is of course likely
to raise questions of human rights' compliance. We are very grateful
to you for having made yourself available to give evidence to
the Committee at this time, so that we have an opportunity to
consider the Bill before Second Reading in the Commons. I would
also like to place on record our grateful thanks to you and your
officials for the assistance you have already given us in this
process of scrutiny. The Bill is, of course, accompanied by the
Order in Council proposing a derogation by the UK from the provisions
of Article 5 of the European Convention of Human Rights in respect
of some of its provisions. That derogation is of critical importance
to this Committee, and is likely to form the basis of a considerable
part of our questioning this evening. In addition to the derogation,
we hope to examine four particular areas in which human rights'
considerations seem to us to arise. They are: the proposals to
take powers to detain indefinitely certain foreign nationals who
cannot be deported; the provisions relating to asylum seekers
who are suspected of being international terrorists and the due
process safeguards provided by the Special Immigration Appeals
Commission process; the provisions relating to the disclosure
of certain types of sensitive personal information; and the proposals
for a new offence relating to incitement to hatred on religious
grounds. There are other concerns we have, not all of which we
may be able to cover this evening. In view of the limited time
we have, if it is all right with you, I propose we should move
straight to the first question.
(Mr Blunkett) Of course. Thank you very much.
3. As I understand it, you have said that there
is no heightened threat to the United Kingdom beyond that which
was evident on 11 September. If that is the case, what is the
need for the derogation or for the legislation at all?
(Mr Blunkett) As spelt out in the House of Lords in
the Rehman case five weeks ago, the definition of "threat"
which exists from or in this country by people who are currently
resident here was adjudged to show that in the current world conditions,
an attack does not have to be targeted specifically against the
United Kingdom or its interests to be regarded as a danger to
our national security. They were making that judgment on the grounds
of the challenge that was made which your members will be aware
of in respect of both the threshold that had to be achieved in
terms of the evidential base and the appropriateness of the use
of the Special Immigration Appeals Commission. Our view, and the
security services and the intelligence services are doing daily
assessments, is that since 11 September the global threat and
the activities of those who may be based here has increased and
that from to time that threat is enhanced within the United Kingdom.
But our case rests on the fact, and we have seen it from both
other governments and from those commentating, that there is a
very real consideration about those who are using the United Kingdom
as a base for aiding, abetting, supporting, helping to finance
organised terrorism across the world. It is in the circumstances
where, on other occasions, I would be able to adjudge as Home
Secretary that someone's presence was not conducive to the public
good, but because I cannot remove them to a third country, I should
either leave them alone or seek to detain them, that we are moving
to detain them.
4. But in view of the fact that some of the
people who are alleged to have been involved in the events on
11 September had links with Germany, with France, and in view
of the fact that Spain and Italy are no strangers to such problems,
and they have not seen fit to introduce such legislation, why
is it necessary for the United Kingdom to do so?
(Mr Blunkett) Where people are adjudged to have been
involved or engaged directly with the terrorist acts against the
World Trade Centre or the Pentagon, then of course we can use
existing laws, including our terrorist laws, we can use our extradition
laws and we can negotiate removal, and that is what we have been
doing already in terms of those who have or are currently held
on charges which would enable us to remove them, just as that
would be the case in Germany or Italy. But where we have people
who use the United Kingdom as a base but have not been adjudged
or are not believed to have sufficient evidence to show they committed
a crime here but our security and intelligence services believe
they are a threat here or in the rest of the world, we have an
obligation to ensure we do not act as a host, as a haven, for
those people who are not British nationals, who are here as guests
in our country but are abusing that hospitality. They have the
opportunity of leaving the country but if we are not to send them
to torture, death or degrading treatment, we cannot under Article
3 of the ECHR, as you are aware, actually send them abroad. If
I just give you the scenario: someone is adjudged by our security
and intelligence services to be a risk, we do not have an extradition
arrangement with a particular country or we believe that individual
would be in danger, as I have just described, I adjudge they are
not conducive to the public good and I want to remove them. If
they go for habeas corpus, and I cannot show I can remove
them to a third safe country, then they have to be released, and
that has been of course the case in the past. There are times
when through the appeals process people have not used habeas
corpus but there has been a direct appeal through the courts,
and people have been held for a very long time. In the Chahal
case which became notorious because of its relevance to Article
3 and the jurisprudence which was made of it, he was held for
Lord Lester of Herne Hill
5. Home Secretary, I want to try, if I may,
to see the size and nature of the practical problem which the
derogation is said to be necessary to solve. As I understand it,
we are not concerned with internment in the sense of preventative
detention, you are not seeking a detaining power to hold undesirable
people indefinitely because you cannot prove a case against them
but you are satisfied that they are undesirable. We are concerned
with a rather narrow problem, as I understand the Derogation Order,
which is that Article 5 of the European Convention on the Right
to Liberty only allows detention against someone against whom
action is being taken with a view to deportation or extradition,
and the practical problem is, as I understand it, that if you
cannot send such a person to a country where they face torture
or the death penalty, if there is no extradition arrangement and
if you cannot find a safe country, then you need a power to hold
that person until you find a country or they do, am I right?
(Mr Blunkett) You are right, yes.
6. So we are dealing with that situation. That
problem is a problem that has always existed, is it not, since
before 11 September? There has always been that kind of a problem.
It is a very small problem, it affects very few people, but it
is a problem which is longstanding, is it not?
(Mr Blunkett) That kind of a problem has been longstanding,
but the problem we have faced since 11 September, precisely because
there has not been the specific threat, is much greater because
we do not know at any time what people who are organising, supporting,
funding or aiding those terrorists will do here or across the
world, and one of the accusations that has been made about the
United Kingdom is that because of the way in which it has been
possible for people to be hosted here whilst planning such attacks,
we ought to protect both ourselves and the rest of the world from
being able to do so.
7. If that is the only problem we are concerned
with, what I do not understand is why we are the only European
country that is taking these powers and going to the unusual lengths
of derogation to tackle it?
(Mr Blunkett) Other countries have considered, and
are in the process of still considering, what changes they wish
to make to their domestic law. If you take a country like Denmark,
which has been changing its domestic law, their adjudgment is
that the particular threat that they are facing can be dealt with
by supervision of people who are hosted in their community. We
are not in that position. We are adjudged internationally to be
more at risk than the Danes or other smaller European countries,
we know that we are, and the steps we have taken since 11 September,
in terms of civil contingencies and security protection, have
reflected that heightened concern. Our position internationally
and our support for the United States have increased that danger.
Also, as the Germans and French are often pointing out, we have
a larger host community of those who the Germans and French allege
are organising for international terror.
8. But in respect of that host community, if
they are British nationals these proposals will not bite, but
for the rest, as I understand it, if you have a Mr Khan, hypothetically,
who you suspect to be a terrorist, if Mr Khan says, "Well,
I can go to Iraq, or to Syria, or to Libya" or some other
country, you will let him out straightaway to go there. That is
under the scheme as I understand it, is that not right?
(Mr Blunkett) If a country is prepared to take someone,
then we would release them under these particular powers, because
we are talking about immigration powers here, in circumstances
where, to pick up madam Chairman's original question, we could
also be dealing with people who then claim asylum once they are
9. Home Secretary, in a document which was published
by the Parliamentary Labour Party, by you and your colleagues,
you said that the Government's declaration of a state of emergency
is a purely technical one to allow suspected terrorists to be
detained. So do we or do we not have a public state of emergency?
(Mr Blunkett) Yes, we do in terms of Article 15 in
order to derogate from Article 5. It was precisely because those
drafting the European Convention on Human Rights envisaged such
circumstances, it was precisely because those drafting the 1951
Refugee Convention foresaw such circumstances in Article 1(f),
that these provisions were actually put in place. Now I would
challenge anyone to tell me, post 11 September and the threats
that have been made by bin Laden and the al-Qaeda group, whether
there have been, or whether there are likely to be, circumstances
which are greater than those we face at the moment which would
justify under Article 15 the derogation from Article 5; because
if people cannot, then they really need to accept that we have
tried to take a middle road, a middle road that does not de-ratify
or withdraw from the ECHR because of the Article 3 provisions,
but respects that we have a right as a nation not to host those
who are not our nationals but are here for nefarious purposes.
10. So it was not a purely technical one, then?
(Mr Blunkett) Article 15 technically allows us to
derogate from Article 5, and that is what that means.
11. I see. You have cited on several occasions
the position of the Danes, but what about the position of the
Germans, the Spaniards, the Italians and the French? Is there
any evidence that those governments have produced legislation
to go before their parliaments, of a similar nature to the legislation
that we have here?
(Mr Blunkett) There are interesting ways in which
those nations, since the Convention on Human Rights was developed
and within the Refugee Convention, have sought to use their own
domestic powers, the French in relation to Algeria, for instance,
which I suggest that members of the Committee might wish to examine,
but might prefer not to this evening.
12. So in fact no other country has sought a
(Mr Blunkett) Not at this moment, no.
13. Nor are there any indications that they
(Mr Blunkett) No, some countries are examining the
position as to whether they feel that they need to derogate in
order to remove people who are non-nationals from their soil.
14. Thank you. I have one last question. You
mentioned our support of the United States in this time, following
the terrible tragedy, but the United States Government have similar
proposals, and the United States Congress was only prepared to
accept a four-week detention period and then, if there were not
specific charges laid, the person involved should be released.
Why is it necessary for us to have an indefinite period, when
the United States only has four weeks?
(Mr Blunkett) They are using a power, though they
are not, of course, part of the European Convention. They are
currently holding 1,000 people following 11 September. Some of
those are held on immigration grounds, some on military grounds,
some on normal public order grounds. Again, it would be quite
instructive to examine the nature of the different powers that
have been used in the US to hold those 1,000 people for the last
four, six or eight weeks.
15. But each of those persons has the right
of access to the courts to see the evidence produced against them
upon which they will be convicted one way or the other?
(Mr Blunkett) The edict signed by the President this
week indicates, of course, that there is evidence, as there is
through SIAC, which has to be presented in private, because of
the nature of the security services' risk if that was presented
publicly. It is precisely because the three-wise-man tribunal
was adjudged in this country not to be satisfactory that SIAC
was created, prior, of course, to 11 September, dealing with cases
which do not fall into the category that we are dealing with with
the emergency anti-terrorist action, but precisely the same problem
of being able to present, whilst still protecting the security
services, a case that can be heard by that Commission which, of
course, is a tribunal and has rights of appeal on points of law
for those who have gone through that.
16. Yes, but that is precisely the point: that
in the United States and in SIAC the person accused does not see,
or does not necessarily see, the evidence which is presented to
SIAC, nor does his own lawyer.
(Mr Blunkett) The appointed advocate on his behalf
17. The person appointed on his behalf, however,
does see it, but is not able to communicate what he has seen to
the person who is accused of an offence and therefore the person
who is a suspect is not put in a position to be able to rebut
(Mr Blunkett) I am sure many times, as long as I remain
Home Secretary, I shall be proud to be able to adduce the House
of Lords in protection for myself, Madam Chairman. On this occasion,
I would simply go back to the Rehman case because that
was precisely the issue that was being debated, that has been
taken through the Appeal Court to the Lords over the last five
years in relation to both the process which was undertaken, the
evidence base which had to be adduced and why it was necessary
in protecting our democracy for the security and anti-terrorist
services to be able to do so in camera. They found in our favour.
18. That was not the point.
(Mr Blunkett) I am sorry, it is very much the point.
19. The point which has been made is that the
person accused is not going to know the evidence upon which the
decision was reached.
(Mr Blunkett) Yes, and Mullah Rehman actually was
making those points and lost.
Mr McNamara: That may be so, but it does not
alter the fact.