Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 40 - 53)



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 whether—and you have shown yourself to be very open-minded on several of the points which have been raised—you 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.

Mr McNamara

  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 aggrievement—and 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 country—and 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.

Vera Baird

  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 trial?
  (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.

Baroness Prashar

  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 that.
  (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 Bill—and 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 concerns—we 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 we—and when I say "we" it is the Treasury primarily that has been responsible for this part of the Bill that you have before you—have 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 intention—and this is, I think, very important—and 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.

Lord Parekh

  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 Verses?
  (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 you.

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