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Local Government Bill

6.48 p.m.

Brought from the Commons; read a first time, and to be printed.

Anti-terrorism, Crime and Security Act 2001 (Continuance in force of sections 21 to 23) Order 2003

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin) rose to move, That the draft order laid before the House on 23rd January be approved [9th Report from the Joint Committee].

The noble Lord said: My Lords, I beg to move. Before September 11th, the UK had already built up 30 years' experience of dealing with terrorism and terrorists. This meant that there were proven counter-terrorism measures and legislation in place. However, the September 11th attacks in New York, Washington and Pennsylvania were on an unprecedented scale and of a different nature to what we had so far faced. We needed to address that difference swiftly and effectively. We introduced the Anti-terrorism, Crime and Security Act 2001, including the Part 4 immigration and asylum powers.

The 2001 Act built on and updated as necessary the tough counter-terrorism provisions already in place. It was designed to ensure that the Government had the necessary powers to counter all forms of terrorist threat while ensuring the protection of individual rights and consistency with our international commitments.

The detention powers in Sections 21 to 23 of Part 4 of the Act were considered essential in the light of the particular public emergency facing the life of the nation, and proportionate to that threat. They address the very specific threat from suspected international terrorists present in the UK who are further suspected of involvement in terrorism of the sort which led to the events of September 11th. In short, it involves individuals who would not normally be permitted to remain in this country but who cannot be deported for legal or practical reasons.

Those measures required a derogation from Article 5 of the European Convention on Human Rights (ECHR). This was not something that was undertaken lightly, but we believed—and continue to believe—that, based on the mass of evidence available to the Government, there is a public emergency threatening

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the life of the nation within the meaning of Article 15 of ECHR and that the measures we have taken are strictly required by the exigencies of the situation and are proportionate.

Having reviewed the open and the closed evidence, in its judgment in July 2002, the Special Immigration Appeals Commission (SIAC) agreed that there was a public emergency facing the life of the nation and that the measures were strictly required by the exigencies of the situation. However, the SIAC found that the powers were discriminatory, as they applied only to foreign nationals. The subsequent Court of Appeal judgment in October 2002 held, unanimously, that the derogation was lawful.

I can confirm that in my view the provisions of the order are compatible with the convention rights.

The detention powers that we took under Part 4 of the ATCS Act, in response to the public emergency, closed a very specific loophole. There are present in the UK a number of foreign nationals who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism of the kind which resulted in events of 11th September 2001; being members of organisations or groups so concerned, or having links with members of such organisations or groups; and who are a threat to our national security.

Where it is possible to remove or deport from the UK a foreign national suspected of terrorism, we make every effort to do so. But removal is precluded for some of these foreign national suspected terrorists because of the important safeguard in Article 3 of the ECHR to prevent removal if they might face torture, inhuman or degrading treatment or punishment.

Of course if it is possible to prosecute we will do so, and that would always be the preferred course of action. But it is not always possible to prosecute.

The Government have to achieve a difficult balance between our international commitments and our duty to safeguard the security of this country. The Government have reviewed closely and regularly the need for the detention powers and ECHR Article 5(1) derogation, as well as the feasibility of other possible options. We concluded that there was no responsible or indeed effective alternative but to maintain powers to detain, and the ECHR derogation. That view was upheld in the Court of Appeal in October.

The Government have also reviewed closely the application of detention powers to foreign and not UK nationals. We believe they are entirely justified, for the following reasons. The threat comes predominantly, though not exclusively, from foreign nationals present in the UK who we are not able to remove. The preferred course of prosecution may not be possible because the evidence needed for successful prosecution may be unavailable or not usable. It would be deeply damaging if the UK was seen to be unable to take action and consequently as providing safe haven, weakening the international fight against terrorism.

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Finally, unlike UK nationals, who have the right to be in the UK, foreign nationals are ordinarily subject to removal if they represent a threat to national security.

The Court of Appeal upheld our position on the need for these powers in its judgment in October last year, and agreed that they were not discriminatory and comply with ECHR.

To date, 15 foreign nationals have been detained under Sections 21 to 23 of the Act. Of those, two have voluntarily left the UK. The other 13 remain in detention. The decisions to certify and detain these individuals were based on detailed and compelling intelligence and other material. That material will be examined by the SIAC, as provided under ATCS Act.

All those detained have had access to legal advice throughout the detention period and there is no limit on the number of legal visits that detainees may receive. Those detained have immediate right of appeal to the Special Immigration Appeals Commission against the certificate. All but one of the detainees have already exercised that right. The ATCS Act provides for the SIAC regularly to review certificates, and it may overturn them. Detainees also have the right to apply for bail to the commission at any time and several have done so. This is not internment. It is open to the detainees to leave the United Kingdom, and two have done so.

Individual detainee appeals will be heard by the SIAC, starting in May. We believe these would have been heard much sooner had it not been for the legal challenge mounted by defendants to the detention powers—powers which the Court of Appeal upheld in October. We are clear that they must proceed as early as possible without any necessity to await the final outcome of the derogation challenge to the House of Lords, if leave is granted.

The Home Secretary stated in the House of Commons:

    "I do not think that there has ever been an Act or part of an Act that has been subject to as much review, scrutiny, renewal and cancellation as this—and rightly so".—[Official Report, Commons, 3/3/03; col. 586.]

The noble Lord, Lord Carlile of Berriew, is the independent reviewer of the Part 4 powers. His report on the workings of Sections 21 to 23 of the ATCS Act was laid before the House on 12th February. We are most grateful to the noble Lord for his detailed, thorough and challenging work. We are pleased to note that the noble Lord, Lord Carlile, is satisfied that the Home Secretary has certified persons under the Act only in appropriate cases and that he has exercised his independent judgment in each case, having given due regard to advice from officials.

We welcome the noble Lord's recommendations. We are considering his points in detail and will reply to him shortly. The Home Secretary has already agreed in principle to the noble Lord's recommendation for detainees to be held in a separate facility within the Prison Service and scoping work is proceeding on this. I should emphasise that the decision to go to a separate unit, when it exists, on the part of the detainees will be voluntary; there will not be, and must not be, any sense of compulsion over this.

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The order extends for a further 12-month period the powers in Sections 21 to 23 of the Act. Those powers will then lapse, unless we propose renewal for a further period of up to 12 months, and if that proposal is then approved by both Houses of Parliament. In summary, the effect of the order is to continue in force, until 13th March 2004, the powers under Sections 21 to 23.

In the light of the events of the last 18 months, including recent weeks, we are absolutely convinced that the public emergency continues. For so long as it does so, when a foreign national suspected of terrorism of the kind which resulted in the events of September 11th and of being a threat to national security, and when we want to remove or deport them but removal is not possible, we believe it is necessary and proportionate to continue to provide for extended detention under immigration powers pending eventual removal. That is why I am seeking this House's approval to extend the powers in sections 21 to 23. I commend the order to the House.

Moved, That the draft order laid before the House on 23rd January be approved [9th Report from the Joint Committee].—(Lord Filkin.)

Viscount Bridgeman: My Lords, as the Home Secretary said in another place, Part 4 of the Anti-terrorism, Crime and Security Act 2001 is surrounded by a great raft of reviews and sunset clauses. My right honourable friend Mr Oliver Letwin pointed out that they are largely in place thanks to the persistence of the opposition parties in both Houses, who insisted on them during the passage of the Bill.

Having made that point, we are here to give general support to the order. I join the Minister in paying tribute to the excellent report produced by the noble Lord, Lord Carlile of Berriew, whom I am pleased to see in his place. The main points flagged by the noble Lord on Part 4 were the removal of the word "links" from Section 21; the implementation of the SIAC procedural rules and substantive hearings by SIAC before the final determination of the challenge to derogation from the ECHR; the question of special advocates; the provision of facilities more suitable to persons who after all have not been charged with any terrorist offence; and, finally, the particular sensitivities of the Muslim community to the fact that, as it happens, all those detained so far have been Muslims. I shall briefly speak to each of those.

On the question of "links", we are pleased to note that Ms Beverley Hughes stated that the Government are prepared to reconsider the clause. I would draw the Minister's attention to the excellent wording in an amendment suggested to Section 23(2). My right honourable friend Oliver Letwin said that he was surprised that he had not thought of it during the passage of the Bill. However, he also pointed out that the noble Lord, Lord Carlile, was employed by the Home Secretary, and my right honourable friend would not have been able to afford his fees.

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The noble Lord, Lord Carlile, referred to the equivocal position posed by the question of special advocates. We note that he gives it as his opinion that there is,

    "a reasonable balance between fair proceedings and the reality of life-threatening risks to the public and to the law enforcement agencies".

I should like the Minister's assurance that the noble Lord's recommendation that these statutory inhibitions be kept under review will at all times be fully before them.

We are grateful for the Government's confirmation that the SIAC may proceed as at present pending the derogation hearing and also for the Home Secretary's decision that the special status of these detainees should be recognised in the conditions in which they are detained.

The noble Lord, Lord Carlile, also made reference to the fact that, as I stated, it so happens that all the detainees so far have been Muslim. I draw noble Lords' attention to the noble Lord's comments in his report, which states:

    "There is a sense that it causes real resentment among parts of the Muslim community who are both residents and nationals of the United Kingdom and possibly makes some aspects of policing more difficult".

With commendable frankness and honesty, he goes on to say:

    "One could not sensibly claim that the balance is easy or the solution is clear".

That is a challenge ever before us. I would suggest to noble Lords that the quality of Muslim Peers in this House makes this place a particular forum for continually addressing that very sensitive issue.

Finally, I should like briefly to refer to the application of this order to Northern Ireland. Let us be thankful that the main provisions of the Act have not to date had to be applied there. However, while my party has demonstrably supported the Prime Minister in the immensely difficult decisions he is required to make with regard to Iraq, I would suggest that he and his Government should be aware that in the matter of delaying tactics, Saddam Hussein has picked up a trick or two from the IRA.

We support the Government in their reasonable endeavour to give effect to the effective operation of the 2001 Act.

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