Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 20 - 39)



Norman Baker

  20. Home Secretary, you said on 15 October that there was no immediate intelligence pointing to a specific threat to the United Kingdom. Is that still your assessment today?
  (Mr Blunkett) The assessment today is the one I put out in the letter to all Members of Parliament. There remains a general threat, the security services—MI5, the anti-terrorist unit—and our external intelligence services are assessing that on a regular basis.

  21. So the threat is the same as it was on 15 October?
  (Mr Blunkett) It varies.

  22. Would you say the threat we are facing now is a bigger threat than we faced in all the years when the IRA were bombing London and other parts of the mainland?
  (Mr Blunkett) Yes, I would, because it was very clear and understood by our intelligence services that the IRA were not using chemical, biological, radiological or nuclear provisions for attack. They never threatened to do so, they did not possess those weapons to do so, nor did they indicate that they were engaged in an international terrorist action.

  23. Are you comfortable—I imagine you are not—with the possibility that we will be detaining people against whom there is insufficient evidence to mount a criminal prosecution?
  (Mr Blunkett) I am happy if people are coming to our country and are adjudged to be a risk that we have every right to ask them to leave.

  24. Indeed, but to detain them?
  (Mr Blunkett) If we do not have the ability, because we are committed to, and remain inside the ECHR with respect to Article 3, to send them back to either their country of origin or the country for which we believe they are working or seek to take terrorist acts against, then we have the right to detain them rather than simply letting them free to continue undertaking that organisation.

  25. But as they will not have been subject to a normal judicial process, how can we be sure that the persons who are detained are in fact, as you describe them, terrorists abusing their position rather than innocent people who have been misjudged by the security services?
  (Mr Blunkett) Because we do have a judicial process, SIAC is a judicial process, it provides the evidence in camera, the accused has an advocate working on their behalf, and they have on a point of law the right to appeal to the High Court and subsequently, if given leave, to the House of Lords.

  26. Mr McNamara has covered that point. Have you made an assessment of how many people you think will be caught by this particular provision?
  (Mr Blunkett) The security services understand the nature of the numbers. They would be presented to me. I would have to make a judgment as to whether there was sufficient evidence to go forward to give a certificate that we should take them through that process. That is what we will do. We adjudge there are very few people, but it does not matter how many there are, if they are organising international terror or putting people at risk, then we should take action against them.

  Chairman: We will move now to the immigration and asylum part of the Bill.

Mr Woodward

  27. Home Secretary, Part 4 of the Bill deals with immigration and asylum and our concerns are about definitions and avoiding arbitrariness by discrimination. First of all, in Part 4, clause 21, the Secretary of State may issue a certificate if a person has links with a person who is a member or belongs to an international terrorist group. We have been unable to find in any other legislation such a broad definition using the word "links", and indeed in this Bill it is certainly not defined, whereas in the Terrorism Act of 2000 certainly by offences a definition is actually given. Could you give us a definition of "links" and could you say whether the Bill might actually be better improved and indeed fairer if the definition of "links" were to be included in the Bill?
  (Mr Blunkett) As we discovered, and I have the definitions of the Terrorism Act in front of me, the narrower you make the definition, the more difficult you make it to actually be able to deal with a changing situation where, through the changes in international communication, whether in fact that is communication between people or the transmission of finance, you actually restrain yourself from being able to take action in circumstances where those undertaking or threatening to undertake terror, or engaged in organising to do so, are able to use against you the tightness of the definition you have given. "Links" in this case entail the kind of contact, support or organisation that enable or support those who are undertaking terror. To do otherwise would be to allow those who are actually engaged in providing support to actually be allowed to remain here simply because they are not themselves directly engaged in such terrorist activity.

  28. I think nobody on this Committee would wish to see anybody being able to engage in that sort of activity, but you do accept it is a very, very broad definition?
  (Mr Blunkett) I accept it is a broad definition based on the recognition that we are talking about links with those who are undertaking or believed to be undertaking such actions, but the definition itself would have to be tested through the process that I have described.

  29. The second question in relation to this, Home Secretary, is that in relying on immigration legislation to provide for detention, there is a concern that the Bill risks discrimination on the grounds of nationality. If, for example, I had a sister-in-law who lived in Bradford, whose brother, say, was a member of al-Qaeda, and I was a foreign national, under the links provisions I would be at risk, would I not, of falling within the definition of a suspected international terrorist. If, of course, I was a British citizen, under this legislation I would not. Again, nobody here wishes to see anyone being able to commit a terrorist act, but is there not a danger here that it is discriminatory?
  (Mr Blunkett) If someone is already resident in the country, we would have to show the link they have with someone who was seeking to enter the country and was being denied entry or access to the normal immigration process because of their terrorist activity—because that is the crucial definition here, we are talking about people who are coming in who are seeking to use the immigration powers to remain here or to exploit their position here—or the links they had with someone who was already resident was such that they actually put at risk people here or elsewhere. So there would have to be the evidence base that I described earlier, the threshold of which was laid down and has been agreed by the House of Lords.

Vera Baird

  30. Home Secretary, can I ask you three questions about the specific legislation and start with clause 21? Your criteria for issuing a certificate do not have what I suggest to you is the usual caveat that they require reasonableness. May I quote them? You may issue a certificate if you believe that the person's presence is a risk to national security and suspect the person is an international terrorist. I would suggest that usually, in things like powers of arrest and so on, anyone would be required to believe "on reasonable grounds" or suspect "on reasonable grounds". May I add, that the test on appeal is equally unbacked by that kind of qualification, in that on appeal the Commission must cancel the certificate if it does not agree with the Home Secretary's assessment.
  (Mr Blunkett) Yes.

  31. Would it not be better if a straightforward objective test of reasonableness were put in at each stage, so that everyone can understand that reasonableness and objectivity had been applied?
  (Mr Blunkett) My reasonableness and objectivity is tested throughout. Of course, what we are talking about here is changing the nature of the process or the rules of evidence applied through SIAC. I just want to make this clear, because there appears to be a public misunderstanding. We are not inventing SIAC or its rules of process or evidential base; we are using it in order to give people rights to be heard and to have their case heard in circumstances where in other ways I would have removed someone from the country, but because I am not enabled to do so, because I am not prepared to send them to death or torture or degrading treatment, I am not currently able to do that because they would claim habeas corpus, and because I could not do that and remove them to a safe country, I would have to release them. It is that process that we are talking about here, not going back to arguing the Terrorism Act or the 1997 Act that set up SIAC. I think there is a grave misunderstanding about where we are starting from. We are starting very close to the peak of this issue, not down at base one.

  32. Could I assure you that there is no misunderstanding of that nature in this Committee.
  (Mr Blunkett) I did actually say "publicly". I understood very well that the Human Rights Committee would know more about this than I do, so I am humbled by it.

  33. Do you accept though, Home Secretary, that it is a fair point that, on the face of these criteria, they are not buttressed by what would be an extra element of transparency and clarity, namely the requirement for reasonableness at all stages?
  (Mr Blunkett) I am prepared to consider the point you are making.

  34. I am very grateful. May I then pass on and refer you to clause 27(9). I shall read it because it is slightly unfair of me if I do not. That refers to the appellate procedure and some supplementary provisions attached to it and provides as follows: "Cancellation by the Commission"—that is, by SIAC—"of a certificate issued under section 21" by you "shall not prevent the Secretary of State from issuing another certificate, whether on the grounds of a change of circumstance or otherwise." We are concerned that the word "otherwise" would allow the re-issue of a certificate with no real change of basis at all, and that that would render the whole issue, the whole appellate process, redundant or capable of becoming repetitive. What do you say about that issue?
  (Mr Blunkett) I am, unusually for me, pausing because the intention is that there would have to have been a change in circumstance or material evidence that had not previously been available, in circumstances where I would take the case back to SIAC having failed. We did consider the question of whether a certificate could be issued by any Home Secretary in circumstances where it was necessary to override such a judgement. I adduced that that would be a breach of human rights and would not be an acceptable process, nor did I think that it would accord with the terms of the derogation which were envisaged by those who drafted the Convention. So I am prepared to look at the term "otherwise".
  (Mr Carter) May I assist the Committee?
  (Mr Blunkett) Yes, kindly do so.
  (Mr Carter) One of the reasons for the words "or otherwise" is to deal with the case where SIAC cancels a certificate on appeal, but the Secretary of State appeals that cancellation in a court of law and wins that appeal in a court of appeal. In that type of case he might wish to issue a fresh certificate.
  (Mr Blunkett) We need to make sure that we make that absolutely clear then, because we are otherwise asking for the appeal to go back to SIAC.

  35. Thank you very much. I am promised three questions, and I hope this is the third one.
  (Mr Blunkett) I hope it is not as hard as the first two.

  36. With respect, you seem to be coping. It is about the review procedure. You will be aware that clause 26 allows SIAC to review—indeed, requires SIAC to review—each certificate either after six months after the expiry of an appeal if there has been one, or six months after it has been issued if there has not been one. Bearing in mind the very serious nature and the very, very high consequences of this power, would it not be appropriate to have a review far more frequently than six monthly? May we suggest monthly?
  (Mr Blunkett) We felt that if SIAC was to do its job properly and we were able to enable the security services to do their job properly, it was very important that there was a sufficient period between the initial judgement or adjudication and the return to court, not least on the grounds of practicality, but also in terms of the likelihood of circumstances having changed so quickly, and on reasonableness grounds, I think, that the State, on behalf of its people, has a right to ask has that time elapsed. Should the circumstances change materially in that time, it is, of course, open to the Secretary of State to determine that it would be fair to return to the issue anyway. This is a maximum, not a minimum.

  37. How would that be drawn to your attention?
  (Mr Blunkett) By the change in national circumstances or the domestic interface, with them having changed to the point where, as with the renewal of the power annually, it was generally adjudged that the position had eased. That is what we will have to do on an annual basis to the two Houses of Parliament in terms of whether we seek renewal.

Mr Woodward

  38. Following up, Home Secretary, from Vera Baird's questions on certification, I wish to ask you one or two points about the appeal procedure, which are indeed concerned with the standards of Articles 5 and 6, with the appeal on certification. As I understand it, before the Court of Appeal, or on appeal from the court to the House of Lords, there is a risk that the appeal procedure could be insufficient to meet the standards of Articles 5 and 6 because there is no provision under the legislation for the nominated representative to represent the applicant's interest in the appeal. Obviously if, for example, new evidence were presented on the appeal on behalf, say, of yourself, which for reasons of national security could not be adequately tested on behalf of the applicant, it is very understandable that that might give very serious concern for reasonableness and fairness. So I wonder whether or not you might consider, or indeed have considered, extending the role of the nominated representative to include participating in appeals from SIAC in appropriate cases under this Bill?
  (Mr Blunkett) I think we ought to be clear that the appeal on a point of law is being dealt with here rather than going through the evidential base taken by SIAC. The individual, as I understand it—I am happy to be aided by my advisers—would be represented at the appeal if they so wished. I see no reason why they could not be represented by the advocate, if they so wish, who had represented them at SIAC.
  (Mr Wrench) If I may, there are two stages in the SIAC process, an open session and a closed session. It is in the closed session, when the intelligence material is introduced, that the appellant's interests are represented by the special advocate, but he can have a normal lawyer, if you like, who is representing him in the normal closed stages and can go on to take points of law in the higher courts.

  39. Whilst that is true, Home Secretary, at the level of SIAC, once it comes before the Court of Appeal, under this legislation, I believe, there is no provision in this legislation for the nominated representative who was able take part at the SIAC level to represent the applicant's interests in the appeal.
  (Mr Carter) This is no different from the current position. The Court of Appeal, as I understand it, in the Rehman case allowed a special representative who acted before SIAC to represent the appellant.
  (Mr Blunkett) So they could if they wished.

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