The Second Deputy Chairman:
With this it will be convenient to discuss the following: Amendment No. 96, in page 10, line 36, leave out "believes" and insert—
'has substantial grounds to believe'.
Amendment No. 97, in page 10, line 38, leave out "suspects" and insert—
'has substantial grounds to suspect'.
Amendment No. 110, in page 10, line 42, leave out from "group" to end of line 2 on page 11.
Amendment No. 98, in page 11, leave out lines 12 and 13.
Amendment No. 99, in clause 22, page 12, line 9, at end insert—
'(k) giving directions for a person's physical removal (to a country of which he is a national or citizen or to which there is reason to believe he will be admitted) pursuant to section 5(5) and paragraph 1 of Schedule 3 to that Act.'.
Clauses 22 to 24 stand part.
Government amendment No. 70.
Amendment No. 100, in clause 25, page 13, line 5, leave out "does not agree with" and insert—
'is not satisfied that there are substantial grounds for'.
Clause 25 stand part.
Amendment No. 111, in clause 26, page 13, line 18, leave out from "25" to end of line 19 and insert "within three months".
Amendment No. 112, in page 13, line 21, leave out from "brought" to "months" in line 22 and insert "within three".
Amendment No. 113, in page 13, line 24, leave out from "21" to "month" in line 25 and insert "within three".
Government amendment No. 71.
Clause 26 stand part.
Amendment No. 114, in clause 27, page 14, line 37, leave out from "certificate" to end of line 38 and insert—
'(a) on grounds of change of circumstances, or
(b) where the initial certificate was cancelled because of a technical irregularity.'.
Clause 27 stand part.
Amendment No. 53, in clause 28, page 15, line 10, at end insert—
'but no order shall be made under this subsection after the expiry of the period of five years beginning with the date on which this Act was passed'.
Amendment No. 48, in page 15, line 10, at end insert—
'.( ) The power to revive or continue sections 21 to 23 by way of an order under subsection (2), may only be used once.'.
Clause 28 stand part.
Amendment No. 101, in clause 29, page 15, line 38, at end insert—
'save to review compliance with any rules made under section 5 of the Special Immigration Appeals Commission Act 1997'.
Amendment No. 115, in page 15, leave out lines 39 to 41.
Amendment No. 118, in page 15, leave out lines 42 and 43.
Clause 29 stand part.
Amendment No. 49, in clause 30, page 16, line 9, leave out subsection (2).
Amendment No. 117, in page 16, leave out lines 13 to 15.
Amendment No. 50, in page 16, line 15, leave out from "question" to end of line 17.
Clauses 30 to 32 stand part.
New clause 2—Annual review—
'28A.—(1) The appropriate Minister shall appoint an independent Commissioner for the purpose of this section.
(2) The Commissioner must review the operation of sections 21 to 23 before the end of the period—
(a) of 15 months beginning with the day on which this Act is passed;
(b) specified by an order made under section 28(2)(b) and (c), beginning with the date on which that order first came into force; and
(c) specified by an order made under section 28(4), but only if it has been approved by resolution of each House of Parliament.
(3) The Commissioner conducting a review under this section must prepare a report on the result of the review and lay a copy of it before each House of Parliament.
(4) In this section "the Commissioner" means the Commissioner appointed under subsection (1).'.
Further to my point of order, Sir Michael. I do not wish to detain the Committee, but may I take you through what you said? Apparently, we were dealing with clauses 4 to 6, schedule 3, clauses 7 to 16 and schedule 4. My colleagues and I were listening carefully, and I understand that clause 17 was not included, although a schedule relating to it was included.
The Second Deputy Chairman:
Let me repeat everything that I read out. I read out a proposal that clauses 4 to 6, schedule 3, clauses 7 to 17—[Hon. Members: "No; 16"]—schedule 4 and clauses 18 to 20 stand part of the Bill. That is what I read out. That is what I put to the Committee, and the Committee agreed to it. We must now move on.
The Second Deputy Chairman:
I do not need to take advice. I am sure that what I read out—[Interruption.] Order. I am quite clear about this, and there is no point in pursuing it further. I put clause 17 to the Committee, among other provisions, and the Committee agreed to it. We must now move on to the debate on amendment No. 69 and the proposals taken with it.
On a point of order, Sir Michael. I wonder whether we can look to the future just for a moment. As you will know, members of the Committee have followed the way in which you have put the Questions on the marshalled list, which makes plain that clause 17 gave rise to a free-standing debate. We all therefore expected to hear the Question on clause 17 put separately.
May I make a suggestion, Sir Michael? If in future you put the Question on a clause out of the marshalled-list order, so that there is a risk of our being taken unawares, will you be good enough to make that plain? I think that there has been a mistake, and that there will be some surprise about what has happened.
The Second Deputy Chairman:
The right hon. and learned Gentleman is simply repeating a point that has already been made. I did not put the Question on clause 17 out of order. I explained clearly to the Committee what the vote would concern, and it was up to the Committee to listen. As I have said, we have already dealt with clause 17, and we must now move on.
I hope that whatever disagreement has taken place will not sour the serious debate that we are about to have. [Interruption.] It has taken us until 6.35 pm to embark on a substantive discussion of the detail of the Bill, and I appeal to Members to be prepared to engage in that discussion rather than continuing to grumble from a sedentary position about the decision that has just been made.
While evidence was being given to the Joint Committee on Human Rights, a number of issues were raised with me. I promised that I would think about them, and return to them in due course. One, which I mentioned on Monday, is the issue of the "reasonableness" clause—the provision requiring that a belief and suspicion must be reasonably held by the Home Secretary of the day in respect of judgments made by SIAC on the correctness of the certificate issued by the Home Secretary. I can confirm that we will table such a clause.
I am aware that a piece of paper circulating among some Members implies that the insertion of the "reasonableness" clause will be at the expense of what was already there, in terms of SIAC's powers to overturn the certificate. That is not correct. The "reasonableness" clause is as well as, not instead of, the current position, as it were. I think it important for people not to be misled.
Having heard the discussion in the Human Rights Committee and taken cognisance of approaches made by its chair, I think it only right to look again at some of the wording of the Bill, including clause 27(9). That subsection relates to links that someone may or may not have with a terrorist or a terrorist group. I think that the issue would be best addressed in the House of Lords, but I think we should make clear the connection someone would have to have with a particular group or groups. I thank my hon. Friends the Members for Bristol, East (Jean Corston), and for Redcar (Vera Baird), who made a point of drawing that to my attention. We are happy to examine—with our lawyers—how we can clarify the position.
I must now apologise for referring to clause 27(9) in connection with links. I meant to refer to a different clause. Clause 27(9), in fact, gives rise to debate on the word "otherwise". I undertook to look at that wording too.
The Secretary of State mentioned the admirable speech of Vera Baird. When he consults the lawyers, will he ask them whether, while proceedings are on their way to Strasbourg, the provision he has mentioned could be included in the "taking action" provision in the European convention on human rights?
Having signed up to the convention, we are fully cognisant of it. I take the point, however, because there appears to have been some misunderstanding or at least misreporting of Lord Scott in relation to the interpretation of what is available to us and would be available to an appellant.
With regard to the word "otherwise", the human rights Committee feared that a certificate might be altered in circumstances other than those in which a certificate might be found to be technically at fault without the substance of the proposition being at fault. The Committee felt that SIAC should have the right to draw attention to the fact, and that it should be possible for the certificate to be drawn up again. Our lawyers believe that the formulation of that particular provision is correct. I have agreed to examine it and to take advice. Should it not be the case that what we intended is achieved, we will be prepared to look at the matter in the other place.
I am sorry to take the Home Secretary back a little. I was rather taken by surprise by what he said in relation to Government amendment No. 70—that it does not increase the test for SIAC. The amendment would leave out
"does not agree with the belief or suspicion", whereby SIAC could conclude that it did not agree with the belief and reverse it. The text now is
"considers that there are no reasonable grounds for a belief or suspicion"
In those circumstances, SIAC could conclude that the Home Secretary was wrong, but none the less be constrained by the clause because there were reasonable grounds to conclude that the detention should continue.
The provision does not take away the power of SIAC. It clarifies the terms on which it would make its judgment, again within the provisions and terms agreed in the Rehman judgment. We referred to that at considerable length on Monday in terms of the evidential threshold and the process to be followed. It is on that basis and in response to the requests made to us that we wish to clarify what is described as the reasonableness test. I will stick to that. Having gone through the matter at considerable length, I am satisfied that we are improving, not worsening, the rights that are available and the clarity with which certificates will be dealt with by SIAC.
There has been much misunderstanding all round in relation to the operation of SIAC, including by those who have great experience in the court. A letter in The Daily Telegraph—I am a great reader of The Daily Telegraph at the moment, which always enlightens me and sometimes infuriates me—from Peter Carter-Ruck of Great Hallingbury, who I understand is a renowned libel lawyer, so I am very careful to say what I am saying in the House rather than outside, accuses me of seeking to set up a Special Immigration Appeals Commission appointed by the Home Office. As I pointed out on Monday, it is already appointed through the Lord Chancellor.
I am sorry, but I do not want to leave the point that was raised by Mr. Marshall-Andrews because I think that I am now in some confusion. On Government amendment No. 70, which changes the position from one in which SIAC could agree or disagree with the belief to one in which it must judge whether there are reasonable grounds for the belief, does the Home Secretary believe that he has made it more or less difficult for SIAC to reject the Home Secretary's decision?
We may end up by agreeing about the matter on reflection. As I understand it, it is a double mirror image. The Home Secretary, or his lawyers, may think that, by changing to reasonable grounds—a move that we support and welcome—they have tightened the rule on what SIAC has to agree, but if all it is permitted to judge is whether there are reasonable grounds for the belief, the Home Secretary might make a decision—this was the point made by Mr. Marshall-Andrews—with which it profoundly disagrees, but for which it admits he had some reasonable grounds. That is to enlarge the capacity of the Home Secretary and to diminish the capacity of SIAC.
Yes, but SIAC cancels the certificate if it believes that there are no reasonable grounds for believing that the person is a threat to the United Kingdom's national security, or suspecting that the person is an international terrorist. It is whether the grounds on which that certificate was issued are reasonable that is being inserted.
If there is a genuine misunderstanding about this matter—we are desperately trying to ensure that we disagree on things—of course I will go back and look at it again, but my lawyers assure me that the measure provides the safeguards that were sought during the deliberations of the Joint Committee on Human Rights.
"considers that for some other reason the certificate should not have been issued", so SIAC is in charge. It can decide the matter in terms of both the facts and the law. I think that that is the absolute answer to my hon. and learned Friend's point.
It is. I am grateful. As I was describing, that is the broader conclusion that is still built into the Bill. We have not taken that away. That was the point that I was seeking to make.
Does not the debate over the wording of the basis on which SIAC can look at certification orders suggest that, instead of trying to re-invent rules of evidence to that ad hoc, unusual body, the simpler way to deal with the matter would be to involve the courts fully and properly in the function of the system?
I desperately tried to deal with that debate on Monday. I do not know whether the hon. Lady was here and took it in, but we dealt with the establishment of SIAC in 1997.
It is certainly a point of interest. I would like to put it on record that I wish I had been dealing with matters in my constituency as well.
The serious point is that we dealt with the nature of the establishment of SIAC in 1997, which was universally agreed by the House. We dealt with the question of the type of evidence that was to be adduced, the fact that a High Court judge or someone who had been a High Court judge should have two other people sitting with him, that there was a right of appeal on a point of law to the Appeal Court and to the House of Lords if leave were given, and that the evidential base had been established.
The issues around judicial review are being raised, particularly by the Liberal Democrats and others. When the certification process was established, and when eventually SIAC was put in place as an additional safeguard, it was seen as a review of the certification process for the Home Secretary. That is what it was established to do, with the appeal on the point of law clarifying whether the process had been properly carried through. Were judicial review to be reinstated between those processes, that could be done only on the basis of the provision of the evidence, admissibility and the rules that have been established and agreed not only by the House of Commons but by the House of Lords.
It was to deal with the ability to remove people from the country who were a threat to national security, or whose presence was adjudged not to be conducive to the public good. I do not intend to go on at length tonight because people have rightly said that they want to debate the issues and I need to allow them to do so, but that brings us back to the only central point that I want to remake. That point concerns precisely the choice addressed in part 4 of the Bill—whether to derogate, temporarily or otherwise, from the ECHR altogether.
I do not accept the suggestion that, to do that, we could use article 58 of the convention, or pull out for a second or two under article 57. I do not believe for a moment that that would work or stand up to scrutiny. However, if, for the sake of argument, we were to come out of the ECHR, I would then have to sign a certificate declaring that I was prepared to send people back to regimes and judicial systems that we did not consider to be acceptable. Those regimes and systems would not stand up to scrutiny in court under the ECHR, in this country or in Strasbourg, because they do not provide for people properly or protect them from execution, torture or degrading treatment.
That is the choice that we face. The official Opposition are at least clear that that choice exists. Members of the other main Opposition party, the Liberal Democrat party, believe that we should continue to let the people involved be free in this country if we did not have a workable extradition treaty with their home country, or if they were not able voluntarily to go to a third, safe, country. According to the Liberal Democrats, those people would go if they were able to but, if they were unable to go, they would remain free in our society, even though the judgment had been made that they put us at risk.
In those very narrow circumstances, we are seeking to take the power of temporary detention, with the safeguards that we are now building in.
Before my right hon. Friend leaves the subject of SIAC, will he clarify the definition of the word "terrorist" to which it will work? I welcome what he had to say about rethinking the use of the word "links" in clause 21(2)(c), but I find it difficult to understand what has changed since the Terrorism Act 2000 was passed. Clause 40 of that Act contains a completely different definition of the word "terrorist".
Has that definition proved inadequate and, if so, in what way? Why are we being asked to adopt two separate definitions of terrorism, and will not there be problems in reconciling two pieces of legislation that presumably should work in harness and reinforce each other but which, in this regard, appear to contradict each other?
The substantive issue of whether the definitions in the 2000 Act and in this Bill contradict each other is dealt with in schedule 2, which relates to the 2000 Act. As my hon. Friend knows, we are dealing in this Bill with the extension of the international terrorist threat. That is why we are here tonight. Therefore, the Bill and the 2000 Act are clearly compatible.
I know that all hon. Members are right to scrutinise whether lawyers—in government or outside, in the House or outside it—have got it right. On this occasion, I honestly believe that they know what they are talking about.
I do not belong to the usual suspects in this matter, as I believe that, given the circumstances, the powers that my right hon. Friend is asking for are justified. If they were not, I would not hesitate to oppose the Bill, along with some of my hon. Friends. All hon. Members reach their own judgments: that is the purpose of the House of Commons.
I spoke about a specific case when my right hon. Friend was not in the Chamber, and I believe that, if we are going to take these very special powers following the events of
I note what my hon. Friend said, but I am afraid that, when passing legislation and dealing with evidence provided by the security and intelligence service on suspected terrorists, it is not possible to have a vague view of what judicial review should achieve. Should judicial review come between certification by the Home Secretary and by SIAC? If so, it would be unable to hear the evidence that had been presented to SIAC, and I remind hon. Members that that process has been agreed by the House. The people involved would be misled and deluded into believing that they were going through a meaningful process.
If the review were to be concerned with SIAC's decision, based on the evidence provided and the circumstances in which that evidence was provided, it would come between the SIAC stage and an appeal court hearing based on a point of law—that point being whether the process had been conducted properly.
I appeal to all those hon. Members who think instinctively that we need a certain provision because it applies in other circumstances to ask, not whether that provision is a good idea, but how it might be implemented. It is precisely to achieve some accuracy in these matters that I responded as I did on the question of terrorist links, which relates to the point raised by my hon. Friend Mr. Fisher.
We have been talking about terrorists—people who are
"concerned in the commission, preparation or instigation of acts of international terrorism".
The provisions in the Bill do not replace the powers that already exist, but add to them.
My right hon. Friend is right. As a Minister, I took through the House the Special Immigration Appeals Commission Act 1997, which established SIAC. It was created with the intention of dealing with some very serious issues—among them detention, as many of the people who were to come before SIAC would be detained. The provisions also covered their removal from this country, which might be something that the people involved would greatly fear. That is why it was considered necessary to have a High Court judge, an immigration judge and a specialist in security matters to review the Home Secretary's opinion. They could direct that that opinion should be changed.
If a judicial review procedure were inserted in this Bill, it would merely replace one High Court judge with the High Court judge that we have in SIAC. It would not provide the ability to keep confidential the intelligence information that SIAC can keep confidential. The divisional court does not have the appropriate procedures—short of introducing public interest immunity certificates, and I suspect that those who advocate judicial review would not want those certificates to be introduced in these circumstances anyway.
I am very grateful to my hon. Friend. In fact, on Monday, I read the Second Reading speech that he made in connection with the 1997 Act. It was very instructive and is why I know so much about SIAC. I appeal to the House: it is perfectly justifiable for hon. Members to want to do the right thing for the right reasons, but to want to do the right thing and then find out that one has done the wrong thing is neither justifiable nor wise.
My concern is less with the appeal mechanism than with those who might be caught by the provisions in the Bill. Specifically, clause 21(2)(b) adds to those
"concerned in the commission, preparation or instigation of acts of international terrorism" any person who
"is a member of or belongs to an international terrorist group".
This afternoon, the International Sikh Youth Federation was involved in a lobby of Parliament. Members of that organisation are or have been terrorists, and the group has been proscribed as a terrorist organisation. However, I assure my right hon. Friend that it also has members who are not terrorists. I am worried that we are planning to use the very serious measures contained in the Bill against people who are merely members of a group, and who are not suspected of being actively concerned in the commission of terrorism.
I shall try to answer that question as delicately as I can, as that group, which was proscribed back in February, is appealing against the decision. I have a crucial role in the appeal, so my hon. Friend will forgive me for being circumspect. However, it must be understood that people who become members of groups that are banned in this country are subject to the law of the land. Obviously, people are free to join other organisations and democratically to make the point they wish to make. However, when the Prime Minister of India asks, as he did last week, whether we are serious about the organisations that are committing terrorists acts in terms of following up members of banned groups, the answer has to be yes.
Let me make this clear. In our democracy, people are free to be members of, or belong to, an international organisation, but not an international terrorist group. They are not free to belong to a group that has been proscribed. There would have been no point in Parliament passing the legislation or in my predecessor, my right hon. Friend the Foreign Secretary, having proscribed 21 groups if we were not going to implement it.
Further to the intervention of my hon. Friend Fiona Mactaggart, one of the proscribed organisations is the PKK, a Kurdish nationalist organisation. In Stoke Newington, hundreds of people call themselves members of the PKK and go on marches. My local superintendent of police says that he cannot pick up hundreds of such people. Yet those people, who have joined what they perceive to be a legitimate nationalist group and have no intention of bombing or murdering anyone, will be at risk of incarceration if the Bill goes through unamended.
This is a red herring; we will not pick up everyone who has been on a march or in a room with a particular group. We are talking about people who have connections with and are believed to be involved with such groups. I am clarifying the position about links precisely to avoid red herrings.
I will give way in a moment. I do not want us to get involved tonight in trying to determine who poses a risk to our national security or is engaging in international terrorism. The evidence must be adduced by the security and intelligence services and presented so that it convinces the Home Secretary of the day that a certificate should be issued. When a certificate is issued, the individual has a right to go to SIAC and to appeal. I have spelt that out—the judgment will depend not on whether people turn up to a PKK rally in Stoke Newington but on whether they pose a risk.
The House is wrestling with the fact that although the Home Secretary says that the powers would be used only as a last resort—which I accept—that is not what the Bill provides. The second issue relates directly to the right hon. Gentleman's answer to Mr. Fisher. People could be certificated by the Home Secretary and detained because they had links with a person who was a member of or belonged to an international terrorist group, yet those links are not defined anywhere in the Bill. Someone who has represented them could be caught. All sorts of people might be caught. Surely the Home Secretary accepts that legislation cannot be drawn this widely. It is dangerous.
I will give way to one of my hon. Friends in just a second when I have answered the question. Taking into account the criteria that are laid down, I have accepted that "link" was not tight enough to ensure clarity about the nature of the connection with the group. That is precisely what I was responding to in saying that the members of the Joint Committee on Human Rights have a point. Therefore, during the Bill's passage through the two Houses, we will bring back a tighter definition that will satisfy the hon. Gentleman's concerns.
Will my right hon. Friend confirm that, as I suspect, each case will be dealt with on its own terms, on the basis of the evidence and information that is available? Given that some of that information will be very sensitive, it is probably not appropriate to spell out too clearly the circumstances in which he will make those judgments.
That is true. However, let me stress—to avoid another red herring—that judgments will be made within the terms that we are laying down, the process that SIAC has to follow and the evidential base that has to be provided. Now that that has been challenged through the courts and is established as accepted, we can move forward in a sensible but sensitive way.
That comes back to my earlier point about choice. We have the choice to do nothing or to take draconian action and give the Home Secretary powers to certificate and to remove people from the country whatever the circumstances. We can also choose to take the middle route, whereby we cannot use temporary detention when extraditing people or removing them to a third safe country.
Does the Home Secretary agree that a number of the points raised recently are partially covered by the fact that my right hon. Friend will issue a certificate only if he suspects that someone is an international terrorist under the terms that we have defined and believes that person's presence in the United Kingdom to be a risk to national security? It would not sufficient for someone to be a member of the PKK, for instance. He would have to be a member of the PKK whom my right hon. Friend believed was a risk to national security.
Will my right hon. Friend take the opportunity to confirm that if a person is incarcerated under clause 23 and voluntarily chooses to leave, he will be free to do so.
I am grateful to the Home Secretary for giving way. He said a few moments ago that the law must be upheld and obeyed when he defended his right to proscribe a number of organisations, including the PKK. Does he accept, therefore, that the police will have the powers of sweep and of arrest, even if those people are subsequently released, as many were, under the prevention of terrorism legislation. If the Bill is designed to catch international terrorists individually, why is it not drafted to do so? Why is it drafted to catch people who are merely members of organisations that the Home Secretary, on advice from many sources, including the United States, believes to be international terrorist groups?
I have just dealt substantively with that point. My hon. Friend Dr. Palmer made the point that it is not a question of a single definition. I am slightly exasperated because I have said this, as have other hon. Friends, over and over again. It is a question not of a simple definition but of whether a person belongs to an organisation, as provided in the Bill. It is clear that with the exception of refining the term "links" we are specific about what is required, and SIAC would make a judgment on whether a case had been satisfactorily made when deciding whether a certificate was valid. The idea that those of us who carry that responsibility or those who sit on the appeals commission would agree to the detention of someone who did not seriously pose that risk is breathtaking and flies in the face of the process that has been undertaken in the past four and a half years, since SIAC was established, and our commitment to protecting civil and human rights. That is why we have agreed to a sunset clause and an annual review, as well as to a review by the reviewer, which lock in—as the Chancellor of the Exchequer would say, and probably will say next Tuesday—the protections that people seek to achieve.
I welcome my right hon. Friend's statement that the Government will re-examine the definition of "links", which deals with the point made by the Joint Committee about the possibility of arbitrariness in the operation of these provisions. He said that he would not send people back to another country if he felt that they would be subject to torture or the possibility of the death penalty. Will he confirm that it is not his intention therefore to deport anybody to the United States or to accept an extradition order from that country? If any person connected with bin Laden or any other terrorist is captured by British forces in Afghanistan, will he confirm that they will not be transferred to the American authorities there, because by virtue of the executive order of the President of the United States—to which, my right hon. Friend will recall, he particularly drew my attention—and the draconian powers it contains, that person would be immediately subject to a possible punishment of death?
I thank my hon. Friend for his question and I will answer the part that is relevant to the Bill and to my powers. I would not sign a certificate for any country with extradition arrangements unless it was prepared to agree to retain and maintain the extradition agreement signed by us. In any revision of the extradition agreement with Attorney General Ashcroft, which we will undoubtedly undertake because it has been in force for 27 years now, I would insist that that existing parameter remain in force. I would not transfer someone to the United States or elsewhere if I believed that that outcome would result. I hope that satisfies my hon. Friend.
The issue is one of genuine choice. Some Opposition Members believe that it would be reasonable to give the Home Secretary the power in question, by removing the restraint of the ECHR. I do not take that view, but it is a reasonable alternative, albeit an unacceptable one in terms of the powers of our Parliament.
The right hon. Gentleman overstates the position of those of us who are arguing that the Home Secretary should have greater flexibility in exercising the power to deport people from this country who may pose a threat to national security. Has he seen the recommendation in the Home Affairs Committee's report, which states:
"It would be desirable for the Home Secretary, who is accountable to Parliament, to be able to exercise his discretion within the framework of article 3."?
That is the conclusion of a paragraph that says that
"we do not, for a moment, suggest that the Government should send people back to countries where they would be at risk of torture or ill-treatment".
Is not the problem that the jurisprudence under article 3 has made it so difficult to deport anybody in any circumstances, because the Home Secretary is not allowed to take into account, according to the Chahal judgment, the risk that they may pose to the United Kingdom?
It is true that the jurisprudence on that case, to which I have referred publicly, constrained what was possible, but—and this is an interesting point for the immediate future and we will return with a substantive extradition Bill in the new year—if we cannot reach an extradition agreement, it is not right to ask the Home Secretary to certify the risk in those countries that do not have judicial systems that are acceptable according to our terms and with which we do not have an extradition agreement that locks in the safeguards that we would seek. Even if we have queries about some countries' judicial systems, we have extradition agreements that safeguard the process when someone arrives back in one of those countries.
It is not right to ask the Home Secretary to take a risk in a grey area, where an extradited person may be summarily executed or tortured. We need to be open and clear, so that we do not say one moment that we do not want to detain people, but the next moment say that we are prepared to take the risk, on the certification of the Home Secretary, that someone will not be put to death. That is why the difficult but necessary compromise that we are putting to the Committee is the right one, and why the Government will seek to gain the assent and support of both Houses of Parliament in carrying it through.
I am grateful to the Home Secretary. He has given an accurate and compelling description of the disposition of the Conservatives, the Government and the Liberal Democrats, but one element needs to be refined. He describes his choice, which is to give himself the power that he calls indefinite detention, as not being internment. He rightly says that in some technical sense the people he is interning—as I would call it—have the right to leave voluntarily. However, he has made the argument powerfully—although I disagree with it—that the choice that falls to those people is to go to countries to which he says he would not deport them. I do not understand in what meaningful sense someone could be said voluntarily to be able to leave if the circumstances of their departure are such that he would not compel them to go to that place.
That is an interesting debating point. I should warn the hon. Member that I have read chunks of his 1999 book, which relates, interestingly, to definitions of freedom and the role of politics. I happen to believe that if people wish to leave this country after they have come here voluntarily, they should be free to do so. If they choose to do so, that is very different from a Home Secretary deporting them on a certificate in the belief that they are a risk, but in circumstances in which their lives would then be at risk.
The Home Secretary is willing to allow people voluntarily to leave the country whom he has good reason to suspect are associated with international terrorism. It cannot be good to let loose into the international community people whom he believes to be international terrorists; they should be detained and prosecuted here. We would do international security no favours by allowing those people to go voluntarily to another country.
That is the dilemma we have struggled with. The obvious answer is for my hon. Friend to table an amendment on Report that the process, including the role of certification and the review by SIAC, should lead to the person being imprisoned, even though the evidence base differs from the one that would usually be used and would normally be available to commit them for a set period of time to prison.
No, I shall not give way. I want to finish the point.
There is a good debating point as to whether someone should be ejected from the country, but let me make it clear: we are using immigration powers—we are relating them to the issue of someone who has voluntarily come into our country, was hosted by this country, but whom we wish to remove on the grounds that they are a risk to our national security or that their presence is not conducive to the public good. We are challenged on that, not in terms of the fact that, historically, we can do that, because under the Immigration Act 1971—in schedule 3, I think: just for Simon Carr of The Independent, I was not referring to braille to enable me to remember that point—[Interruption.] He would not be in the Gallery because he will be having a good dinner somewhere. The biggest choice that he will have made will not have been at Sainsbury's but on the quality of the wine that he is buying on the expense account of The Independent. He cannot say anything more vile about me than he said on Tuesday morning, so he can get his own back at length, and undoubtedly, often—[Interruption.] Muesli will not be on the menu.
The serious point is that under those immigration powers, we had the ability to deport someone from this country. What has got in our way was the judgment that we were unable to ask a person to leave because their life was at risk. I rest my case.