Examination of Witnesses (Questions 40
WEDNESDAY 14 NOVEMBER 2001
Lord Lester of Herne Hill
40. Home Secretary, I am one of those who regard
it as entirely commendable that you have not taken the course
of denouncing the Convention or entering some new reservation
on Article 3, and I also have to say that I support the use of
SIAC which I supported when it was first set up, but given that
you are using SIAC, which bridges the normal judicial process
to some extent, it is obviously very important, is it not, that
there be really adequate safeguards against abuse in order to
ensure, in the words of Article 15 of the Convention, that the
derogation is no more than strictly required to meet the exigencies
of the situation. If that is right, if we need adequate safeguards
against abuse, I wonder whetherand you have shown yourself
to be very open-minded on several of the points which have been
raisedyou might reconsider especially the six months review
and the need for a much more regular process of review in order
to satisfy the public at large, or those who are really concerned
about this, there really are adequate safeguards against abuse
rather than safeguard the use of your own discretion?
(Mr Blunkett) We have talked quite a lot about this,
given there have been people under a variety of circumstances
who have been held for a great deal longer under our systems.
The three wise men, or women, although they tend to be men, were
adjudged to be better than the Home Secretary signing an order.
SIAC was adjudged, and I am grateful for your comments on it,
to be better than the three wise men or women. I am very happy
to look at, in terms of prolonged detention, whether there should
be a more frequent review. I think the initial stage is reasonable
and given the length of time that some residents, not nationals
but residents, of our country have been held over the years, it
is not unreasonable in that initial period, but I am very happy
to consider that point in terms of any prolongation which would
take place in relation to detention.
Lord Lester of Herne Hill: Thank you.
41. Secretary of State, when people are detained
without appearing to go through a formal trial and conviction,
they can very often be seen from the community from which they
have been drawn as martyrs or heroes. I am not saying that is
a right judgment but it is a judgment that might be taken on board.
They are often seen as beacons which encourage other people to
believe what they have done is right and they should be associated
with it, as for example when we had detention in Northern Ireland
which, along with internment, was probably one of the best recruiting
agents for the IRA. Have you and your advisers considered what
might be the possible long-term political implications of this
particular course of action on the community from which most of
these people may well be drawn?
(Mr Blunkett) Firstly, we have. Secondly, we are aware
this is a power which is used for those who are adjudged to be
engaged in the way I have described rather than because of their
cultural, religious or national backgrounds. Thirdly, we believe
that there has to be a judgment made in these cases, as there
is when people are held prior to extradition or where they have
committed a crime in this country where there is great aggrievementand
we all as constituency MPs or as Members of the House of Lords
have been aware of cases which cause great distress and sometimes
anger within particular ethnic communities in this countryand
where it is adjudged it is reasonable and acceptable for us to
take that risk, because it is right that people should be held
rather than allowing them to perpetrate the crimes of which they
were accused or suspected. The judgment is that it is fair in
these circumstances, where the security and intelligence services
believe there is a real risk and where I have to make a judgment
of putting this to the test, that we should do so. That will always
be the case in terms of balancing the action you take against
the reaction you create.
42. What has been the reaction of the communities
from which these people are drawn to the proposals contained within
your legislation? Has it been one of approval, one of regret it
has been necessary, or one of hostility?
(Mr Blunkett) I think I express the broad swathe of
opinion when I say that we ourselves are taking these measures
with regret. We regret they are necessary. We believe they are
necessary and we will only adhere to them so long as they remain
necessary. I believe, whether it is those adhering to the Islamic,
Jewish or Christian faiths, they feel exactly the same. The leadership
of all communities have asked us to balance proportionately the
need for protection against the importance of retaining human
rights, and I have sought to do that.
43. Home Secretary, granted that these are persons
who in your view will fall into the definition of participants
in terrorism, and that there is power to prosecute here for offences
committed overseas, and a developing school of jurisprudence allowing
more or less universal jurisdiction for terrorism, firstly, prosecution
must be the course of choice, I would suggest, and I would appreciate
your comments about that. Secondly, asking if you would make clear
what reasons have meant you have not pursued prosecution as the
primary course, how will the interface between prosecution and
taking these steps work? How will you protect the people you certify
against the prosecuting authorities taking this as an easier option
rather than trying to assemble the evidence to mount a case for
(Mr Blunkett) You have asked me more than one question.
I do accept that prosecution is always favourable than having
to take other routes, but I also accept there are those from countries
who would not be seeking extradition or prosecuting those who
they hosted, for the reasons we are aware of, who would arrive
in our country and seek to work with, to foster, to incite or
to carry through terrorism in or outside Great Britain in circumstances
where we therefore are not in a position to pursue with the evidence
we would need prosecution, because the base from which they came
would be such they would not be adducing the evidence to give
us to prosecute in our courts. It is that particular problem that
we are dealing with by taking this route.
44. Home Secretary, my question is about clause
35 with regard to fingerprints. I would like to know what is the
purpose of this particular provision and what is the pressing
need or threat which it is a response to?
(Mr Blunkett) We already have powers under the immigration
laws to require at the port of entry people to be able to identify
and to be prepared to accept normal identification processes,
but the police have drawn our attention to the fact that there
is no such provision that would be necessary if people were prepared
to deny their identity in the circumstances we are dealing with
at the moment. So it seemed to us it was perfectly fair, whether
this was fingerprints or facial covering, that in circumstances
which protected the cultural requirements of those concerned,
not least in ensuring any investigation for females was undertaken
by females, that it was reasonable to bring these powers to bear.
No one, we believe, has anything to fear from declaring their
identity. The only thing we ever have to fear is that people mistake
our identity for others.
45. What safeguards do you intend to have in
place, particularly in relation to private life?
(Mr Blunkett) There will always have to be a stated
site for such requests to be carried through. This is not something
which can be undertaken in the street. This is about the ability
of the law enforcement agencies to be able to do their job and
therefore we would not only specify that this would have to be
undertaken on specific sites but also in the circumstances I have
described, so that people's dignity and personal rights were respected.
Lord Campbell of Alloway: Home Secretary, could
I raise a constitutional question and the question of natural
justice and just forget for a moment the European Convention of
Human Rights and deal with this matter according to our tenets,
to our common law on natural justice? First of all, Home Secretary,
do you accept that by clause 29 excluding legal proceedings, judicial
review, habeas corpus, and the jurisdiction of the High
Court which exercises these powers, you are in breach of a fundamental
constitutional principle, the separation of powers? You are usurping
the executive, you are usurping the jurisdiction of the judiciary.
That, for a start, you will accept. Then we have a system under
which, as has been pointed out already to some extent, you are
dealing with a question of belief and suspicion, but nowhere in
this Part 4 do you find anything about the grounds for belief
or suspicion, and you cannot do justice in any shape or form,
even under a palm tree, if you do not let the person know the
grounds on which something is to be done and you give him a chance
to answer them. Leave out the palm tree, in every civilised country
you have some form of judicial determination as to whether the
grounds are right or wrong. The High Court is fully able to deal
with security matters, it does so regularly when ministers claim
public interest immunity on grounds of national security, and
a judge looks at all the documents and then rules. So there is
no problem on that ground, there is no need for any other judicial
agency. However, if you do not give the man the grounds or a court
the chance to answer them, because he does not know what they
are, I gather, all he has to deal with is belief and suspicion.
46. I am sure the Home Secretary can now answer
(Mr Blunkett) I will. I shall not enter this evening
into the issue of judicial jurisdiction, other than to draw Lord
Campbell's attention to the interesting words of Sir William Wade
in the Administrative Law publication last year about its
extension without the authorisation of the democratic Parliament
to which I belong. Let me address the main issue you have raised.
The establishment of SIAC was intended to provide just that judicial
process, overseen by a High Court judge, which provides the safeguard
which would not otherwise, and in fact did not, exist. It is the
ability to be able to use that process in circumstances not where
I would not otherwise act, but where I would otherwise have acted
to despatch someone out of the country, but I was constrained
from doing so merely because of Article 3 of the European Convention
on Human Rights, but because, even if it did not exist, I personally
would not sign a certificate that sent someone to their death,
knowing that they would not receive a trial in that third country.
47. Thank you. Home Secretary, this Committee
were very critical of the provisions on disclosure of information
when they were contained as Part 2 of the Criminal Justice and
Police Bill in January of this year. What changes have satisfied
you that these provisions contained sufficient safeguards to ensure
that their implementation will always be proportionate to a pressing
social need to act for a legitimate purpose under Article 8 of
the European Convention?
(Mr Blunkett) I think that in clause 17 of the Billand
the reason I am answering this way is because I did go through
it at some length before I arrived tonight, just because I was
aware that the Committee had concernswe have now taken
account of section 6 of the Human Rights Act and Article 8 of
the ECHR in terms of ensuring that those provisions are now made.
So I would draw attention to that, because I think that they are
dealt with. There is also a substantive issue on the third point
that was raised by the Committee under the Police and Criminal
Justice Bill. Others will correct me if I am wrong, but I think
we have taken account of all four of the concerns that were raised
at an earlier time, have we not?
(Mr Harnett) Yes. Perhaps I can add to that. First
of all, as we understood it, the Committee had a concern about
limiting this disclosure to public authorities, and we have done
that. In clause 20 we have described a "public authority"
as that which has the same meaning, as the Home Secretary was
saying, as in section 6 of the Human Rights Act. So we feel that
that not only deals with the specific point about disclosure,
but the fact that we have anchored this, if you like, to section
6 of the Human Rights Act means that any disclosure that a public
authority makes must be compatible with Article 8 of the Convention,
as the Home Secretary says, and thereby it has to meet the tests
of reasonableness and proportionality which we understand the
Committee was concerned about in January. The other protection
that we have looked at in drafting this part of the Bill is that
which the Data Protection Act will apply, so we have attempted
to address, and believe we have addressed, the Committee's concerns
in those respects. The other point that the Home Secretary was
referring to was the fact that we still think that it is necessary
that public authorities should be able to disclose information
to others in relation to whether criminal investigations or proceedings
should be initiated. We think it is extremely important that this
Act does enable us to do that. Our view is that weand when
I say "we" it is the Treasury primarily that has been
responsible for this part of the Bill that you have before youhave
sought to take account of your concerns in the way I have described.
Chairman: Thank you, Mr Harnett.
Baroness Perry of Southwark
48. Secretary of State, I wanted to turn to
Part 5 of the Bill and ask you about the offence of incitement
to religious hatred. Obviously this has raised concerns with us
about interference with freedom of expression. I wonder if you
could explain the reach of the proposed offence, because clearly
our humour and our literature have at times depended on remarks
about other religions or our own religion, and it would be a great
loss to lose that ability to do so, would it not?
(Mr Blunkett) Yes. We are using, of course, the Public
Order Acts, as with the incitement to race hatred, and including
religion places the wider community with those of other faiths
and those without faith on the same basis as those who are also
adjudged to be covered by incitement to racial hatred, threatening,
abusive or insulting behaviour or behaviour with the intentionand
this is, I think, very importantand likelihood that racial
hatred would be stirred. I think it is very important that we
do not see this in terms of people expressing views or opinions
on religion, their own or other people's, and that they are, as
has been described a few weeks ago, creating amusement, or people
who have a deeply felt antagonism. The issue is, as I have just
described, very much about that incitement to hate arising from
it, leading to public disorder.
49. Would you have liked to include the abolition
of the common-law crime of blasphemy in the Bill, to emphasise
equality of religious beliefs under the law?
(Mr Blunkett) This particular provision has, of course,
not been used. It is my own view that there will come a moment
when it will be appropriate for the blasphemy law to find its
place in history.
50. Home Secretary, you have said nothing about
religious discrimination, and there is a great deal of feeling
within the Muslim community and elsewhere that they would like
to see some kind of provision against incitement to religious
discrimination or practice of religious discrimination. Is there
any reason why you thought incitement to religious hatred is far
more important that religious discrimination?
(Mr Blunkett) Firstly, we were dealing with the provisions
within the terms of the anti-terrorism, crime and security legislation
and therefore we were endeavouring to ensure that we focussed
on the likely consequences within the terms of this legislation.
The nature internationally of how this was perceived, because
I have been on and interviewed on satellite in the major Arabic
countries, was that the incitement to hate and the use of religion
as a reason for developing hate was very important, that that
was true of protection of communities here of all religions, but
did not relate to the broader issue of which I am deeply aware,
because I was involved with discussions in Europe as a former
chair of and then participant in the Social Affairs Council, the
issues we debated around broader measures against discrimination,
which of course we are examining and have taken forward at least
in part under Article 13.
51. Home Secretary, on this question of incitement
to religious hatred, if there had been a law like this, how do
you think that would have affected Salman Rushdie's Satanic
(Mr Blunkett) I do not think it would, because his
was not an incitement to religious hate, it did not in the terms
I enunciated seek to cause that threat or disorder.
52. The Muslims say that it demeans them in
their own eyes and in the eyes of others, and you would not think
that is important enough to do something about?
(Mr Blunkett) There is a difference between doing
something about it and whether that demeaning is incitement within
the terms we are laying down here, and we are trying to deal with
threat to life and order arising out of the situation we are in
at the moment.
53. Home Secretary, if I may ask a general question,
it has been made very clear by you and other ministers that this
legislation is an emergency response to an emergency situation,
but one cannot help thinking that someone has been through a cupboard
in the Home Office and lifted a few other things off the shelf
like police powers to identify people detained in police stations,
powers to give effect to EU Third Pillar obligations by subordinate
legislation, the power of Transport and Ministry of Defence Police
to operate off-site, just to name a few. They are very familiar
because they have been part of earlier attempts to legislate,
do they not cloud the issue and, more importantly, do they not
inhibit proper parliamentary scrutiny not least by this Committee?
(Mr Blunkett) No, I do not believe they do. I do not
believe that any of the ones you have enunciated are in any way
objectionable or undesirable. I think there are measures in this
Bill which do highlight failure of previous legislation. For example,
the 1982 Aviation Act allowed people to scrutinise whether a plane
was secure or safe but not to do anything about it, if it was
not. We have acts in relation to chemical, biological, radiological
and nuclear materials which do not prevent people from being able
to transmit information about them or move them. That is crazy.
So to take action in the light of an international terrorist threat
using up-to-date organised methods, funding the ability to adduce
and be able to process and use materials against us, it seems
to me requires us to be able to act as decisively and as intelligently
and as in an organised way internationally, including across Europe,
as those who threaten us do themselves. To do otherwise makes
us pedestrian, arcane and irrelevant. If Parliament cannot lift
itself to actually deal with those circumstances, then no wonder
less than 60 per cent of people voted in the last general election.
Chairman: Thank you very much, Home Secretary.
I am sorry we have kept you slightly beyond 7 o'clock but we thank
you very much for your responses and for bringing your team with