Anti-terrorism, Crime and Security Bill

– in the House of Commons at 7:15 pm on 21st November 2001.

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Question again proposed, That the amendment be made.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

It is an indication of the huge importance of this debate that the Committee is very full. I hope that the Home Secretary will accept that we have listened to him with great attention, and that colleagues on both sides of the House are trying to deal with a set of complex matters that have greatly preoccupied many hon. Members and many people outside this place.

Two parliamentary Committees, the Select Committee on Home Affairs and the Joint Committee on Human Rights, have attentively deliberated and given helpful advice. When we began the debate, I was conscious of the fact that we had about one-and-three-quarter hours to discuss 15 clauses, 22 amendments and one new clause to do with what the letter column of The Times—not The Guardian—in a headline above letters from Lord Donaldson, Lord Russell and Professor Brian Simpson described as

"Inherent dangers in plan to intern terrorist suspects".

The House accepts that the Home Secretary has a duty to try to think of ways of dealing with the issue. We all understand. There is no dissent about that. The Home Secretary has not only the opportunity but the duty to do that, and we do not criticise him at all.

The right hon. Gentleman is right to say that three different types of conclusion have been reached. The Government's conclusion is in the proposal that we are discussing. The Conservatives' conclusion relates to other articles of the human rights convention and would allow people to be sent back to countries to which the Home Secretary and I agree we would not want them sent. We believe that it is better to uphold our international obligations not to send people to such countries—and that view is confirmed by the all-party Home Affairs Committee.

The third conclusion is that expressed by my colleagues and me. I shall summarise it in a moment, because it is important that the Home Secretary and I do not disagree about what the different positions are.

This debate is hugely important for all us. I shall try to explain objectively why that is so, by reading one paragraph from the report of the Home Affairs Committee, published last Monday. Paragraph 32 states:

"One ground for concern is the quality of the intelligence information on which detention was based. We note that in 1991, some 176 Iraqis and other Arabs were detained during the Gulf war. We understand that many of those, if not all, were eventually released without charge and some were subsequently awarded compensation."

We are debating proposed laws that risk doing injustice to people, so it is hugely important that the House, collectively, should try not to do that. Those people would not by definition be British but that does not reduce our obligations, as I am sure the Home Secretary agrees.

From the two Select Committee reports, I have drawn seven suggestions that would make the legislation more specific and targeted. The first is that we should define more tightly the term "international terrorists". The Home Secretary has helpfully acknowledged that he is willing to consider that, so I shall not pursue the point. I remind him that the Human Rights Committee noted that no other legislation authorises detention on the basis of criteria so vague as the current measure.

Secondly, the Select Committee makes the serious point that the legislation could be held to discriminate on grounds of nationality. We are proposing to detain people who are not British nationals and do not have the right to indefinite residence. We would not propose so to detain British nationals, so such provisions might be illegal under human rights and other international law. The Select Committee was not persuaded by the Home Secretary's evidence.

The third suggestion relates to an important point in clause 27—it would be easy to become technical at this stage, but I shall try not to be. That point is addressed in an amendment tabled by Jean Corston, as a result of the Select Committee's considerations, and in amendment No. 114, tabled by my hon. Friends and me. The provisions deal with circumstances in which, when a certificate has been cancelled, another certificate can be issued. They deal with the criticism that has been properly made of the clause. The clause states that a certificate can be reissued

"on the grounds of a change of circumstance or otherwise".

That is too wide. Will the Home Secretary consider amendment No. 114, which seeks to be even more specific than the amendment tabled by the hon. Lady?

The Home Secretary has dealt in part with my fourth point. The initial issue of the certificate should be subject to a test of reasonableness. I shall return to that point. The Home Secretary has accepted that the measure should include such a proposal.

I hope that the right hon. Gentleman is also minded to accept my fifth suggestion, which is also based on Select Committee advice: it is far better that the right to be represented—even in the unusual circumstances of an appeal hearing—should continue through each stage of the hearing, even if it goes to appeal at the Court of Appeal and the House of Lords. The reason is obvious: there may be new evidence that the representative of the detained person might not otherwise see and about which they could not argue before the commission.

The sixth point relates to the length of detention. To summarise one of the amendments, it would be much more acceptable if the length of detention without automatic review were shorter. We have proposed that the intervals should be no longer than three months. After that, detention should be reviewed.

The seventh point is that the police should not, as proposed, hold the fingerprints of asylum seekers indefinitely, as though they were in the same category as people who were being held in relation to other crimes, but that there should be a limitation. It is most unfair to group together people who have been suspected of a crime and those who are only in this country because they are seeking asylum.

So there are seven specific proposals for improvement, and I hope that they will all find favour with the Government today or, at worst, next week when the Bill is considered in the House of Lords. They have all-party support, although they have been proposed in different ways.

The Home Secretary rightly wants to know what alternative general argument my colleagues and I would put. Before I turn to the specifics, which I can do very briefly, I shall put two very simple principles to him. First, this is not a matter for lawyers and judges; it is an issue for ordinary individuals who may become swept up in a nationalist fervour or become involved with other people who are, or who may come here as students, or who may have family in this country and who find themselves suspected by the intelligence services or others of being involved in terrorism in some way.

I hope that we can get away from thinking that the concerns about judicial review are the concerns of lawyers. They are absolutely not lawyers' concerns. This country's history is one of dealing with people—whether British born or immigrants—and ensuring that they are treated properly, but cases have often ended up in the courts because the Executive have failed those people. Tribunals have often been involved, and judges and lawyers have often had to help them to argue their cases. They may have had no English or poor English; they may have been elderly or infirm.

Detention without trial is a citizens' issue; it is an issue of civil liberty for the ordinary, non-professional individual. I hope that the debate can continue on the assumption that this issue is not academic or esoteric; it goes to the core of whether everyone has equality before the law in this great country of ours.

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office) 7:30 pm, 21st November 2001

I want to be clear about the hon. Gentleman's argument in relation to part 4. Is he arguing that there is no substantial difference between a United Kingdom citizen who poses a threat and a foreign national who poses a threat and that he would prefer part 4 to be eliminated altogether? Does he want to join us and others in wanting to limit those provisions as a second-best solution? Or is he arguing, as I would, that, in some circumstances, the Home Secretary has a moral right to take action against foreign nationals who pose a threat to our security that he would not necessarily be able to take in relation to our own citizens?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Those are perfectly proper questions, as I would expect from the hon. Gentleman. It is perfectly reasonable to deal differently, as far as is required, with people who are United Kingdom citizens, who by definition have a right to live here, and people who do not have that right. We must all be permitted to accept that discrimination. The answer to the question about what we would argue should therefore happen is to be found in the improvements to the process that we and others have proposed. I can list those proposals very simply.

First, we should look for international solutions, just as we have done in the context of the International Criminal Court. That point was picked up by Mr. Cameron, who serves on the Home Affairs Committee. The sooner we can find a Europe-wide solution for people who are not citizens of any given country the better. That is one route that we must pursue, but I accept that we cannot do it today.

Secondly, as suggested to the Select Committees, there are a panoply of offences under current terrorism legislation, especially the Terrorism Act 2000, which do not appear to have been considered or used but which appear to fit the bill. I shall give two examples. I served on the Committee that considered the 2000 Act and remember the long debates. People can already be arrested, charged and prosecuted for directing activities and incitement to commit terrorism abroad under that Act, in which terrorism is broadly defined. We should consider those offences before we conclude that they do not work.

The third option, which was proposed in evidence to the Select Committees, is that if the evidence is defective, we should ask the Intelligence and Security Committee—which reports to the Prime Minister—and the Joint Committee on Human Rights to consider whether ways in which evidence is dealt with might be better adjusted in such circumstances, so that things that are currently precluded could be allowed in evidence, thus allowing trial and conviction. I do not pretend that that would necessarily allow the detention of everyone the Home Secretary has in mind, but we should try them first. We should never go down the road that ends in detention without trial—possibly for five years, as we agreed on Monday, although that is subject to review—without first considering every single other option.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I want to take the hon. Gentleman back to his second option—to consider the existing offences under the Terrorism Act 2000. We could reinforce that approach by changing the standard for proof, so that the offence could be established on the balance of probabilities, not beyond reasonable doubt. In other words, the civil rather than the criminal standard could be applied.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

That proposal is controversial, but perfectly proper, and it leads us to the fact that we cannot properly get this law right unless we consider how to get to where we all agree we want to go without, by accident, getting to where many of us agree we should not go. However, we are precluded from doing so tonight. That is the problem with the process.

I want to make another point before dealing with the other amendments in the group—I am conscious that this debate is ridiculously restricted. There is a real issue about asylum seekers, but we will not have a chance to consider it again. Again, Select Committees addressed that issue. I have asked the new representative in the United Kingdom of the United Nations High Commissioner for Refugees, and my advice is that under the convention on refugees we have to allow people to put their case. Then we can say, "They are precluded from qualifying because of the exception rule"—that is, because of their track record. But we cannot preclude people from having their asylum case considered by simply imposing a barrier. That is an important distinction, and international law is on the side of the UNHCR.

We welcome the Government's proposals in amendments to clause 21 to move from the test of believing to that of "reasonably" believing, but Mr. Letwin and I believe that there should be a higher test than that, and both main Opposition parties have tabled an amendment to that effect. We believe that the phrase "substantial grounds to believe" should be used in that test before the certification process is triggered. We have tabled a series of amendments, such as amendments Nos. 96 and 97, to deal with that issue, as well as that involving substantial grounds for suspicion.

We argue that we should at least limit the grounds for excluding judicial review, but Liberal Democrat Members and many others on both sides of the House would prefer it if clauses 21 and 29 were removed altogether.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I think that the hon. Gentleman would accept that clauses 21 and 29 are the key ones.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Of course I accept that clause 23 is very important. There is a strong view in the House and in the Select Committees that those clauses should be deleted and that no qualification is appropriate because the other processes that I suggest should be tried first.

I have said that the review period must be shorter. There is an important need to tighten the grounds for issuing new certificates. The Scottish National party and others have tabled amendments that deal with improving the SIAC process, inasmuch as that process will be appropriate. In addition to the recommendations of the Select Committees, the SNP has made welcome recommendations to have a two-year maximum period.

It is crucial that we do not let things with which we are uncomfortable leave Committee. I say this carefully, but it is better to give the Executive too little power at the moment than to give them too much. Had we voted for an automatic sunset provision, we might be willing and able to err in the other direction. However, because we do not have that qualification to the extent that we would wish, I ask the Committee to be cautious.

These are just about the most serious issues that this place can debate. We do not have enough time to do them justice, but I hope that the Home Secretary will respond to all positive suggestions for improving the Bill. I hope that the Committee will vote to keep the right of the courts always to be able to make sure that the Executive are doing their job properly.

Photo of Ms Jean Corston Ms Jean Corston Chair, Human Rights (Joint Committee), Chair, Parliamentary Labour Party, Chair, Human Rights (Joint Committee)

I shall be as brief as I possibly can in view of the number of Members who wish to speak.

I thank the Home Secretary for giving us assurances in respect of amendment No. 126, standing in my name and that of my hon. Friend Vera Baird. It contains what I describe as the "otherwise test." I also thank him for agreeing to reconsider the definition of "links with", because both issues were drawn to the attention of the House by the Joint Committee on Human Rights, of which my hon. Friend and I are members.

Amendment No. 127 deals with the appeal procedure. The Joint Committee was persuaded that the due process of rights and obligations was fulfilled under SIAC because it can offer a full hearing on the merits of a case, because a nominated representative can represent the interests of the applicant and because there is an opportunity to appeal on points of law. However, before the Court of Appeal or on appeal from that court to the House of Lords, there is a risk that the appeals procedure would be insufficient to meet the standards of articles 5(4) or article 6 of the European convention on human rights, because there is no provision under the legislation or under the Special Immigration Appeals Commission Act 1997 for the nominated representative to represent the applicant's interest in the appeal.

Therefore, there might be a violation of the European convention on human rights if the nature of national security considerations in the case unduly inhibited an applicant or his or her representatives from formulating a point of law or if new evidence was presented on appeal on behalf of the Secretary of State.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I am mindful of the interpretation that has been made. Within the terms that we discussed at the Human Rights Committee and in the debate on Monday, lawyers advise me that, when the advocate—the person nominated from the list provided—is appointed for the particular purposes of evidence that would not be admissible in other circumstances, nothing precludes the representative nominated by the person concerned from taking other aspects of the case, including appeal. That person may also decide to nominate themselves as the advocate and take the appeal to the Court of Appeal or to the Lords if leave is given.

Photo of Ms Jean Corston Ms Jean Corston Chair, Human Rights (Joint Committee), Chair, Parliamentary Labour Party, Chair, Human Rights (Joint Committee)

I thank my right hon. Friend; that is very helpful. We tabled the amendment because, when we took evidence from him and his officials on 14 November, my hon. Friend Mr. Woodward raised this particular point at question 39 of the minutes of evidence. In response, Mr. Carter, an assistant legal adviser to the Home Office, said:

"The Court of Appeal, as I understand it, in the Rehman case allowed a special representative who acted before SIAC".

My right hon. Friend added:

"So they could if they wished."

Bearing in mind the fact that amendment No. 127 refers to the "avoidance of doubt", it seems to me and to my hon. Friend the Member for Redcar that it would be entirely sensible for the Bill to make it clear that such representation is a matter of right.

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office) 7:45 pm, 21st November 2001

I do not want to detain the House long. Much of what I want to say about this group of amendments and clauses was said on Second Reading. I certainly do not want to rehearse those arguments again.

I shall briefly touch on amendment No. 98, which was tabled jointly with Liberal Democrat Members. If we understand the issue correctly, the amendment represents a position that I would have expected the Home Secretary to hold as well. I therefore wonder whether we have made an error or whether he has. We shall perhaps see which is the case during the debate.

The current articulation of part 4 is such that it quite rightly and very specifically excludes from the indefinite detention provisions anybody who is a UK citizen. Such a person would obviously not fall to be removed, so the triggers that are available in part 4 would not apply to a UK citizen.

The provisions deal with foreign nationals. If a particular foreign national were to come to the UK with the ambition—in the Home Secretary's belief, reasonable belief or substantial grounds for belief—of aiming at the destruction of Baghdad or New York, the Home Secretary would be able, under part 4 and subject to the Special Immigration Appeals Commission, to detain that individual indefinitely. However, the oddity of the situation is that the second definition in clause 21(4) would mean that, if that same individual coming from the same foreign place had it in mind—in the Home Secretary's belief, reasonable belief or whatever—to blow up Belfast as part of a joint operation with the Real IRA, the Home Secretary would not be able to detain that person indefinitely.

I do not know whether the judgment of our compatriots over the ages will be that part 4 is right or wrong. However, like my right hon. Friend the Leader of the Opposition, my hon. Friend the shadow Secretary of State for Northern Ireland, the leader of the Ulster Unionist party and, I believe, the leader of the Liberal Democrats, I am clear that if part 4, however it may be amended, is justified, it should apply equally to a foreign national who has in his sights Belfast as much as if he had in his sights Baghdad.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

Will the hon. Gentleman explain the position of what I would term "hybrid cases", in which the Home Secretary can identify a group of people who are engaged in planning for a terrorist activity? Some of them will fall within the Bill's remit but the others may be English nationals and will not. How will the nationals be treated when the people with whom they are plotting will be covered by the Bill? Is not such a hybrid case a genuine problem? How would the hon. Gentleman's amendment tackle it?

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office)

I have wrestled with that very question and that is what gave rise to my intervention on Simon Hughes. I may be wrong, because I do not believe it will possible for some time to tell whether what any of us believes is right or wrong. However, I shall describe the conclusion that I have reached.

I believe that there is a substantial difference between the protection of civil liberty that we should feel we have a duty to accord to those who are our fellow citizens, whatever they may be doing or plotting, and the protection of civil liberty that we feel we should have a duty to accord to foreign nationals. I accept that that is a very difficult distinction to make. Both groups are human beings and it is necessary to accord respect to both. However, when someone who is not a national enters our country, there is a special obligation on that person not to use us as a base for his activities and not to attack us. If someone is a citizen of this country, however, there is a special obligation on us to treat them in a certain way. I admit all the difficulties of that distinction, and I suspect that the Home Secretary does too, but I join him in making it.

To answer Mr. Fisher straight, our amendment does not deal with what he identifies, although I do not, as the problem of hybridity. That is an anomaly, an inelegance and perhaps even a problem in the long term, but in the short term the bigger problem is with a person who is a foreign national. I am willing to join the Home Secretary in agreeing that such a person should be detained in some circumstances. If that foreign national has it in mind to blow up part of our country, the provisions for detention do not apply. That is strange and I cannot find it in me to support that distinction.

Photo of Mr Andrew Hunter Mr Andrew Hunter Conservative, Basingstoke

Is not the issue of hybridity more complex than that? According to media reports, seven men are held under the successor to the Prevention of Terrorism Acts, two of whom are Irish citizens, five of whom are United Kingdom citizens. If the Bill becomes law, a different legal regime will apply to the two on the assumption that they are Irish citizens and the others are UK citizens. Where do we stand on dual citizenship? Tens of thousands of UK citizens who identify themselves with a nationalist background in Northern Ireland have dual citizenship. How does one define them? If they commit a terrorist offence, are they foreign terrorists or domestic terrorists?

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office)

The problem is that the difficulty to which my hon. Friend alludes does not arise from the Bill. In the case to which he refers, neither the Irish nationals nor the UK nationals would be caught by the provisions for indefinite detention. In that context, the Irish nationals would be concerned only with the affairs of a part of the UK, so they would be excluded from the provisions. That is the exclusion that the leader of the Ulster Unionists, my right hon. Friend the leader of the Conservative party, my hon. Friends and the hon. Member for Southwark, North and Bermondsey cannot stomach. I hope that the Home Secretary makes the change recommended in amendment No. 98, although another method of achieving that would be acceptable.

We tabled amendment No. 101 to provide for strictly limited judicial review. On Second Reading there was a fascinating exchange between Ross Cranston, the Home Secretary, other hon. Members and me. The hon. and learned Member for Dudley, North is a former Solicitor-General and a distinguished jurist. He argued that there was no need for the limited scope of judicial review that the amendment would introduce because an appeal on a point of law could include an appeal on the question of whether SIAC had conformed to its procedures as laid down by the Lord Chancellor.

Following that debate, we again consulted jurists—hopefully as distinguished as the hon. and learned Gentleman—who do not take such a clear view. I am genuinely in doubt about what the situation is, and I should like the Home Secretary to reassure us that if it turns out that the appeal on a point of law does not provide for appeals relating to the procedure of SIAC, he will amend the law immediately to ensure that such appeals are possible. If he gives that assurance, we will happily not push our amendment to a vote either here or in the House of Lords. I have no wish to saddle the Bill with an unnecessary amendment.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I will not saddle myself with an immediate answer. Instead, in the spirit of the hon. Gentleman's comments, I agree to examine that matter for the purpose of clarification between now and the Bill's entry into the House of Lords.

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office)

I am grateful to the Home Secretary for that. We await his considered view. I accept that we cannot expect him to give an immediate decision.

It is difficult to be clear on such a complex chain of argument, but I hope to set out our position on detention and deportation, which we recommend as an alternative solution. I want to stress that there is no question of the Conservative party suggesting that a Home Secretary should be compelled to remove a person to what he regards as an unacceptable fate. We accept that he should judge whether a particular fate is unacceptable in the light of the character of that fate for that person and of the risk to our national security posed by that person. We want the Home Secretary to take powers that give him the flexibility to make that judgment case by case. In many instances—for example, in relation to India and the United States—it would be reasonable to use the power of removal rather than to detain the individuals. That would pose a lesser risk.

It is on that basis and that basis alone that we would be reasonably comfortable with the detention powers, as modified by the amendments that we tabled with the Liberal Democrats and those tabled by the Home Secretary. We would be willing to subscribe with the gravest reservations to part 4 even if he does not accept our alternative flexible arrangements, because we accept the argument that he probably does not have sufficient powers to deal with the situation that he judges to be so serious.

I cannot say, as the debate unfolds in the House and the other place, whether we would be willing to stomach these powers if clause 29 remains intact and there is no further judicial review of the merits. We are struggling inwardly with that. If we were to vote on clause 29 today, I would ask my hon. Friends to abstain while we wrestle further with that problem. I hope that the Home Secretary will also wrestle with it, so that when the Bill eventually emerges from the other place, which has so much more time to consider it, we will have found a solution that makes the detention clauses as unobnoxious to our civil liberties as possible. They must also do as little as possible to endanger our country's reputation and safety when we consider the possibility of the friends and relations of those detained using certain methods to get them out.

With those provisos and reservations we give a highly qualified backing to the clauses that cause so many hon. Members on both sides of the House such concern.

Photo of Mr Denzil Davies Mr Denzil Davies Labour, Llanelli

I shall briefly raise what may appear to be a somewhat technical point concerning clause 25.

Amendments have been tabled to clause 25, but I do not wish to discuss them. The only question that I have for the Home Secretary relates to the primary legislation, if I may refer to it in that way—the Special Immigration Appeals Commission Act 1997. My right hon. Friend said that he had read the Hansard of the Second Reading debate of that legislation. I do not know whether he has had a chance to read the Act, but that Act sets out in section 2 the jurisdiction of the commission, and the jurisdiction relates to the various Acts—mainly immigration Acts—that are set out in subsection (2).

Of course subsection (2) does not refer to clause 25 of the Bill before us, because it was a 1997 Act. Clause 25 says:

"A suspected . . . terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21."

There may be something else in the legislation that I have missed—there may be an amendment of the 1997 Act somewhere in the legislation—but merely to state that fact does not confer on the Special Immigration Appeals Commission the power to hear appeals under clause 21. There may be a catch-all clause somewhere in the 1997 Act, but I have not found that either.

It has been argued in previous debates on the Bill that SIAC, or whatever it is called, is not appropriate. The Home Secretary says that of course it is because it is about immigration and we are talking about immigration, but I believe that one has to look at the specific areas of jurisdiction in relation to legislation for which SIAC was established; and it is established under section 2 of the 1997 Act.

My simple question, which does not go to the heart of the Bill but is necessary in the interests of clarity—after all, we are in Committee—is: is my right hon. Friend satisfied that merely stating that SIAC can hear appeals under clause 21 gives it a jurisdiction to do so? The parent Act, the 1997 Act, obviously cannot relate to this present legislation.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department 8:00 pm, 21st November 2001

I wish to be helpful. I believe that it does have jurisdiction, because it is dealing with the powers that were granted, long before SIAC was created, in terms of certification. The role of SIAC, agreed in 1997, was hence to deal with that certification process. I am happy to provide the necessary legal evidence to my right hon. Friend and to other Members if that will help—over the next two weeks—them to be fully satisfied that what we are saying is the case.

Photo of Mr Denzil Davies Mr Denzil Davies Labour, Llanelli

I am grateful to my right hon. Friend. I am not criticising him when I say that I do not really understand. Apparently there were some powers that were there before SIAC was established, and we are now taking those from the air, or somewhere, and bringing them back. That may be the case, but I will avail myself of my right hon. Friend's kind offer, and if his lawyers, who I am sure are worthy gentlemen, and obviously better than some lawyers in private practice, are prepared to supply him with chapter and verse, which I am sure that he will sign, we shall all be very happy.

Photo of George Osborne George Osborne Conservative, Tatton

I want to speak briefly on the clauses. I welcome the limited sunset clause that has been agreed to. My good and hon. Friend Mr. Cameron, who is not in his place, put his name to that amendment. It was the first amendment that he had ever put his name to, and he is in deep shock because the Government have accepted it.

Photo of George Osborne George Osborne Conservative, Tatton

He is not here because, I believe, he has a dinner; we dealt with that earlier in Committee. [Hon. Members: "Oh."] Well, I am here, so I should like to say that, in my view, the sunset clause only makes part 4 less bad than it was. We are undermining the basic, historical liberties that have been established over hundreds of years of common law—basic liberties such as the right to a writ of habeas corpus, the right to normal legal proceedings, the right to know what a person is accused of and the right to challenge that evidence in a court of law. I notice that, in the report of the Select Committee on Home Affairs, which it did extremely well to produce in such a short time, Lord Donaldson, the former Master of the Rolls, is quoted as follows:

"The right of an individual to apply to the courts by judicial review for a writ of habeas corpus . . . is one of the foundations of the rule of law and . . . previous attempts by Parliament and others to exclude the supervisory jurisdiction of the courts in various contexts . . . have" all

"been held to be ineffective."

We know where the Government are coming from on this, because in recent weeks the Home Secretary has made no secret of the disdain in which he holds lawyers. He expressed it in his speech to the Labour party conference. He expressed it in his article in The Times after his conference speech, in which he said that

"British democracy was not created by lawyers and judges"— which I believe to be a misunderstanding of the history of this country, because we cannot point to a single—

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Scottish National Party, Perth

The hon. Gentleman is not the only guilty party, because this confusion has been a feature of our discussions in Committee tonight. There are various legal systems in the United Kingdom and it is wholly inaccurate to refer to British law in the various circumstances covered by the Bill.

Photo of George Osborne George Osborne Conservative, Tatton

I am happy to confine myself to English law, which has a long history of liberty established by the rule of common law and by decisions of judges and jurists over many centuries, which are in many cases as important as acts of revolution or Acts passed in the House over the centuries.

Today we find ourselves contorting our long tradition of domestic liberty. We are jumping through legal hoops. We are going through legal fictions, such as declaring ourselves to be in a state of public emergency, because we—by that I mean Governments who have acted in our name and that of the House—have signed themselves up to international agreements that have been interpreted far more widely than was expected when they were signed up to.

We have already gone through the steps of derogating from article 5 of the European convention on human rights, and I have yet to hear a convincing explanation from a Minister of why we cannot go through the process suggested by my hon. Friend Mr. Letwin, which is to withdraw from the European convention for a split second and rejoin with reservations, which are exactly what France has. By doing so, we would be dealing with the root cause of all the problems that we have been discussing today and on Monday—the conventions that we have signed up to and the way in which they are interpreted by lawyers—and we would have no need to twist our domestic laws and liberties.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

We are now, happily, moving from the choreography of carefully calibrated concessions on to the substance of the Bill, and the substance of the set of clauses before us is the notion of internment without trial. I have heard Ministers say that it is not internment because people can always leave the country, but I point out to colleagues that anyone who knows anything about the workings of the immigration system knows that it is highly unlikely that any other European Union or American state would accept someone whom we had just interned, so in reality the only place they could go would be the country in which they were at risk of torture or worse—so it will feel, and look, very much like internment without trial.

Much has been made of the suddenness with which this issue has been blown up and the importance of moving speedily, but it has long been the wish of some of the most gruesome, most barbaric, most undemocratic regimes in the world to get the Government to act against people whom they deem to be terrorists. Finally, and fortuitously for them, they have got their wish in these clauses on internment.

As other hon. Members have pointed out, these clauses potentially have a very wide ambit. It is no good Ministers briefing people privately that only half a dozen individuals will be affected. Thousands of people in this country are card-carrying members of organisations that we, perhaps rightly, have proscribed, but which they consider to be nationalist groups of a somewhat robust nature. I know that membership of the PKK or of certain Sikh organisations will not, on its own, bring people within the ambit of certification, but the Bill is potentially wide ranging, and that is why it is unfortunate that we have so little time to debate it.

Let me remind the House that it has long been accepted, certainly by most Labour Members, that internment was one of the best recruitment sergeants that the IRA ever had. We are supposed to be acting against terrorism and reassuring young people, whether they are Muslim or Catholic, about the fairness of British society and the things that we stand for, but the notion of internment without trial runs clean contrary to the idea of an effective war against terrorism. Even if it were possible to persuade some of us that in certain limited circumstances—much more prescribed than those in the Bill—internment was the only practical option, the notion of internment without judicial review would be completely unacceptable.

I know that I will see colleagues marching through the Lobby to vote for internment without trial whom, many years ago, I would never have dreamt of seeing voting for such a thing. The Government, with the size of their majority, can pass these clauses any which way they like, but many hon. Members on both sides of the House look to the Lords to make this legislation acceptable both to the course of an effective war on terrorism and to this country's traditions of liberty and justice.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Scottish National Party, Perth

I shall be brief because I know that many hon. Members wish to speak. It goes without saying that many of the Bill's provisions are welcome and do not cause concern, but I am afraid that part 4 does not fall into that category. I join the many hon. Members on both sides of the House who lament the extremely limited time that we have been given to examine these fundamental provisions.

As a lawyer—one of that popular breed—and a Scottish Member, I must point out that many of the provisions will have a significant impact on Scots criminal law. It is a great shame that we are debating them in a Committee of the whole House in proceedings that will last only three days. Only one Scottish Labour Member has seen fit to participate and, when one considers that the Scottish Executive happily proposed in a Sewel motion that the matter be passed to Westminster to be dealt with, that is a great shame for all those who have an interest in the integrity of Scots law.

The SNP cannot support a measure to introduce detention without trial. We believe that the right to trial following detention is a fundamental tenet of the legal systems in Scotland and elsewhere in the United Kingdom. If the Government are to depart from that, they will have to make a much better case. That is why my hon. Friends and I voted against the motion to invoke the derogation from the European convention on human rights. It is notable that no other contracting party to the convention has sought that derogation, and the UK Government have failed to make a case for their desire to do so.

I find it staggering that the Government seek not only to invoke a derogation but, in clause 30, to preclude the jurisdiction of our supreme courts to test the validity of that derogation by way of judicial review. That is why my hon. Friends and I have tabled an amendment to the clause.

Many comments have been made about SIAC, and I made an intervention on the nature of that strange body. One hon. Gentleman made the point that if we involved the courts fully, it would be like substituting one High Court judge for another. With respect, that shows a fundamental misunderstanding of the nature of the legal systems in this country. To say that SIAC is a court could not be further from the truth. It bears no resemblance to a court, and if we want to bestow on that body significant powers on the right to appeal and to a trial following detention, we should come out and say so, instead of pretending that SIAC is a court of law.

It is not helpful to say that there is an appeal on a point of law which may or may not involve certain procedural matters. We are talking about the right to appeal, on a point of fact or law, to the court of first instance about the decision of the court of first instance. Which court would then determine the merits of the initial decision? The answer is no court. Surely we cannot sign up to such a fundamental breach of our civil liberties without due cause being shown, which it has not been.

My colleagues and I will be unable to support the clauses. The Home Secretary pointed out that choices had to be made, and he is correct. In any measure to be adopted, there is always a balance to be struck between the interests of security and respect for fundamental civil liberties. The Government have not struck that balance in part 4.

Photo of Mike O'Brien Mike O'Brien Labour, North Warwickshire 8:15 pm, 21st November 2001

I rise to support the provisions that the Home Secretary has brought to the House, but also to say how pleased I am with his agreement to make concessions. Like many Members, I am uncomfortable with some of the provisions, particularly those on detention and human rights legislation. I helped to get that legislation through the House, and I feel distinctly uncomfortable about circumstances in which it may be undermined. The sunset clause agreed by the Home Secretary is therefore very welcome, and I congratulate members of the Home Affairs Committee on their efforts to secure that.

The circumstances facing this country after 11 September mean that there is a serious threat to the people of this country, which means that we should take the necessary steps to protect them. There are people in the United Kingdom who are wanted for terrorism in other countries; they may have committed no offence in this country for which we can arrest them, but we cannot return them to their country of origin. In the current international crisis, we must be able to deal with such situations.

When the Human Rights Act 1998 was being discussed, we were well aware that this problem might present itself. At that stage, however, it did not look as if the threat from such individuals would be great. After 11 September, the situation changed. I hope that in due course we will be able to overturn our derogation from part of the European convention on human rights and fully comply with it. That may well be some time in the future, but the sooner the better. What is required now is a balanced response, and that is what the Government seek.

Photo of Mike O'Brien Mike O'Brien Labour, North Warwickshire

I am conscious that I have limited time, but I will give way.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

I am interested in the observation that we are going to imprison people who have committed no offence in this country. As I understand it, even the Home Secretary does not go that far, as he says that there are people who have committed offences, but who, for some reason or other, we cannot bring to trial.

Photo of Mike O'Brien Mike O'Brien Labour, North Warwickshire

As I understand it, my right hon. Friend the Home Secretary is saying that we have good cause for believing that the people in question are involved in activities that might lead to terrorist offences or are supportive of such offences. That is a somewhat different prospect. Of course, if those involved had committed offences in this country, we would be able to deal with them in our courts. That is the way in which we should deal with them, but we are facing circumstances that are somewhat different. I am afraid, therefore, that my hon. and learned Friend, who is usually very good on these matters, is not quite right on the point that he made.

I want to deal briefly with a number of issues. First, the decision to be taken by any Home Secretary in these circumstances will be difficult. He will have to make a judgment based on the evidence, some of which will come from confidential and high-security sources. That is a difficult decision for him to make, but once it is made, it is right that it should be subject to a review. SIAC has been established for the purpose of reviewing very difficult decisions made by the Home Secretary. I have heard some nonsense from the Opposition about SIAC being a mere immigration commission that is of little importance. It deals with fundamental issues about returning people to countries when they will not necessarily wish to return there.

Photo of Mike O'Brien Mike O'Brien Labour, North Warwickshire

No, I shall not do so.

Decisions may be made and referred to SIAC about returning people to their countries. Of course, they may be in some fear about doing so, so SIAC deals with serious situations. That is why it is a high-powered commission on which a High Court judge, an immigration judge and a specialist in security matters sit. This is indeed a very serious body. I believe that the question whether it qualifies as a court of record is immaterial. It is a serious and high-powered body that is presided over by a High Court judge and deals with serious issues. It has a special procedure that enables intelligence information to be dealt with by the special counsel procedure set up under the legislation.

Photo of Bridget Prentice Bridget Prentice Labour, Lewisham East

On the information from security services, will my hon. Friend make a quick comment about why it is important for the cases to be dealt with by SIAC and not judicial review, because of the potential effect on our intelligence services?

Photo of Mike O'Brien Mike O'Brien Labour, North Warwickshire

That was the very point with which I was about to deal. Under SIAC procedures, the defendant does not get to know the source of the intelligence information that is provided to the Home Secretary. If we were to deal with these matters by judicial review, they would be referred to the divisional court. There is not currently a procedure that could enable the defendant to put his case properly before the divisional court by way of judicial review and in which he would have access to all the information about which the decision is made, other than by using certificates of public interest immunity. I suspect that my hon. and learned Friend Mr. Marshall-Andrews will be seeking to intervene on that point. We know about the problems that have arisen in relation to certificates of public interest immunity in the past. There is a great reluctance to apply them, but that would seem to be the only way in which we could get these matters before the divisional court. We would be creating an entirely artificial situation that would not enable the defendant properly to examine the case against him in any event and would not involve the sort of the protections that hon. Members on both sides of the House have been seeking to claim too much in respect of judicial review.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

That point is simply wrong. The divisional court has the powers to receive whatever evidence it wants, in whichever form it wants. It does not have to reveal material from security sources to somebody who appeals to it. I am afraid that my hon. Friend is simply wrong.

Photo of Mike O'Brien Mike O'Brien Labour, North Warwickshire

My hon. and learned Friend misses my point. If he is suggesting that judicial review would enable the Home Secretary's decision to be reviewed by the court in its fullest context, including the intelligence information that is supplied to him, I must point out that that is not the case. In effect, he is agreeing with me that such a procedure would not provide the level of judicial review that most people—who are not lawyers in this House—would expect those who favour proper protection to want. The only protection that they expect is that provided by ensuring that the Home Secretary's decision is fully reviewed in a process that includes the intelligence information. The only context in which the intelligence information and all the other facts of the case can be properly reviewed is SIAC, which has proper procedures, a senior High Court judge and circumstances in which all the facts can be examined. The special counsel can examine the security matters and the defendant's own counsel can examine the other matters before SIAC, and a judgment can then be made. It is unnecessary to have first, a High Court judge, an immigration judge and others review the Home Secretary's decision, and then also to go off to the High Court for another few judges to review it once again, without even the benefit of the defendant putting the full case, as he is unable to have before him all the facts that will be before SIAC.

Thus, judicial review would create a wholly unnecessary, virtually spurious and messy new procedure. The Home Secretary's decision can be properly reviewed and it is necessary for that review to take place, but once the decision has been made, there is sufficient protection in the sort of procedures that we are undertaking for a very small number of people. It seems to me that the Home Secretary has shown that he is prepared to listen and to consider the concerns of hon. Members. However, I do not think that he needs to listen to the arguments that have been advanced in relation to judicial review. He can do so, but I do not think that he should accede to them, as the result would be a situation that would not protect the defendant in the way in which some of those who advocate it suggest.

The objective for the Home Secretary should be to protect the citizens of this country and to ensure that we also protect their liberties. He is seeking to create the right balance in doing that and I support him on the plans that he is proposing.

Photo of Quentin Davies Quentin Davies Shadow Secretary of State, Shadow Secretary of State for Northern Ireland

I am conscious that we have very little time left and that we have not had an opportunity to hear back from the Government about the all-important matter of amendment No. 98. I remind the House that that amendment seeks to remove the lines in clause 21(4) that state:

"'international terrorism' does not include terrorism concerned only with the affairs of a part of the United Kingdom."

The provision has caused the greatest consternation and anxiety in Northern Ireland. When others of our countrymen realise what the Government have in mind, they will share that concern.

Two big issues are at stake: the practical issue and the issue of principle. My hon. Friend Mr. Letwin set out the practical issue very clearly. If someone who is a terrorist or is connected with a terrorist organisation and whose purposes are not at all friendly—indeed, they will be very hostile—comes to this country with the objective of getting involved in terrorism in a part of the United Kingdom, perhaps in Northern Ireland, the powers that the Home Secretary is rightly taking to deal with an emergency would not apply. In that respect, there is a major lacuna and a big practical problem that has been left unresolved.

The whole House will notice that the Home Secretary and his colleagues on the Treasury Bench did not take the opportunity that was open to them either to intervene on my hon. Friend the shadow Home Secretary or to seek to respond to the point. There is a fundamental matter of principle as to whether we should allow into the law of the land an invidious distinction that implies that different regimes can be applied to those involved in international terrorism and those involved in terrorism within our shores. There must be an absolute principle—and I would have thought that the House of Commons would accept it unanimously—that we must be at least as rigorous in pursuing threats to our own people as we are in defending other countries around the world against the threat of terrorism.

We expect other countries to show the same solidarity when we face terrorist threats as we have shown when such threats have been directed against them. Equally, we must ensure that our laws are even-handed and do not distinguish between the two. The last thing that we must do is to leave gaps in our laws that can be exploited by terrorists who might be targeting the United Kingdom when we are trying to close those gaps as regards terrorists who operate elsewhere.

It being half-past eight o'clock,The Chairman, pursuant to Order [this day], put forthwith the Question already proposed from the Chair.

Amendment agreed to.

Amendment proposed: No. 98, in clause 21, page 11, leave out lines 12 and 13.—[Mr. Letwin.]

Question put, That the amendment be made:—

The Committee divided: Ayes 177, Noes 361.

Division number 74 Anti-terrorism, Crime and Security Bill — Amendment to Clause 21 — Definition of "International Terrorism"

Aye: 177 MPs

No: 361 MPs

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Nos: A-Z by last name


Absent: 116 MPs

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Question accordingly negatived.

Question put, That the clause, as amended, stand part of the Bill.

The Committee divided: Ayes 341, Noes 77.

Division number 75 Anti-terrorism, Crime and Security Bill — Terrorist certification by Home Secretary

Aye: 342 MPs

No: 77 MPs

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Absent: 235 MPs

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Question accordingly agreed to.

Clause 21, as amended, ordered to stand part of the Bill.

Question put, That clauses 22 to 24 stand part of the Bill:—

The Committee divided: Ayes 347, Noes 70.

Division number 76 Anti-terrorism, Crime and Security Bill — Indefinite detention of suspected terrorists

Aye: 346 MPs

No: 70 MPs

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Nos: A-Z by last name


Absent: 238 MPs

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Question accordingly agreed to.

Clauses 22 to 24 ordered to stand part of the Bill.