Guantanamo Bay: UK Nationals (Hansard, 7 July 2003)

§ Baroness Symons of Vernham Dean
My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my honourable friend Mr Mullin on the imprisonment and trial of two UK nationals in Guantanamo Bay. The Statement is as follows:
"On 3rd July, the United States designated six detainees, including two British nationals held at Guantanamo Bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised and will continue to raise these reservations energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about this over the weekend and will speak to him again in a few days.
"So far, neither of the detainees has been charged. However, we have made clear to the US that we expect the process to meet internationally accepted standards for a fair trial. We will follow the process very carefully. The US is aware of our fundamental opposition to the use of the death penalty in all circumstances. If there is any suggestion that the death penalty might be sought in these cases, we would raise the strongest possible objections with the US".
My Lords, that completes the Statement.

§ Lord Howell of Guildford
My Lords, I am grateful to the Minister for repeating the Statement from another place. I did not see the text in advance, which I understand. This is an answer to an urgent Question in the other place. However, I am aware of how strongly the Minister feels about the matter. I know that she feels concern that we all share about what is now proposed.
28 We understand why prisoners have been taken to Guantanamo Bay and why their rights have been suspended for a time. These are people who are suspected of revolting and evil acts and I have no doubt that it was hoped—it may still be hoped—that they could reveal details about other atrocities both in the past and to be completed, which would save many human lives.
That time has now passed, however, and there is talk about trials before a military commission or tribunal. It is right for us to pursue questions now that this talk has arisen. What has actually been agreed with the American Government about the procedures to be adopted? How will they work? When will they start? What sort of legal representation will the detainees have and what are the charges? Are they to be charged with treason or something different?
Will we remind our American allies, who fought bravely and understandably in Afghanistan and suffered the most dreadful injuries two years ago, that they need to work together with their coalition partners? They should not be surprised if things go wrong when they do not work closely together. The Americans are refreshingly outspoken about our affairs, which I welcome. However, why should we not be equally firm and outspoken about theirs—although always, of course, in the friendliest possible way?

§ Baroness Williams of Crosby
My Lords, my understanding has always been that one of the pillars of the attitudes and civil rights of this country is that people are innocent until they are found guilty. That is a fundamental principle and many of us are delighted that the Minister has made that clear. However, first, is the House aware that these men do not know what charges they face? They have not been told. Secondly, is the House aware that, if they are found guilty, they may face the death penalty, which this country has decided no longer to accept? Thirdly, is the House aware that, if these men are found not guilty, they will not be acquitted and released but will be retained as enemy combatants for whatever length of time the US chooses to detain them?
Finally, is the House aware that the UK and the US are both signatories to United Nations conventions that absolutely guarantee the right to a fair trial, the right to defence and the right to access to lawyers by any country that is a signatory? Will the Minister tell us whether, given what good allies we have been to the US, the Prime Minister will raise this matter at the highest level, with the President of the US?

§ Baroness Symons of Vernham Dean
My Lords, I thank the noble Lord, Lord Howell of Guildford, and the noble Baroness, Lady Williams of Crosby, for their interventions. I am sorry that there was no advance text. However, the Statement that I repeated to your Lordships was very simple and straightforward. As the noble Lord, Lord Howell of Guildford, was kind enough to acknowledge, it was made in response to an urgent Question in another place.
29 We must be clear on one point: there are no charges laid against either of the British nationals at the moment. There has been a designation by the United States that has cleared the way to possible charges against the six named individuals. There must be a separate decision about whether any charges will be laid and go forward to a trial. I do not want to mislead any of your Lordships. It is probably logical to believe that such charges will be laid, but I stress to your Lordships that part of the reason why they do not know what the charges are is that they have not been laid at the moment.
I agree absolutely with the noble Lord's points about terrorism. Some appalling and terrible atrocities have been committed in several countries. We should never forget that people have suffered. We must do what we can to expunge it from the international arsenal of what is available to people who do not want to conform to the ways in which most of us are able to do business with each other. However, it is important to come back to the fundamental point made by the noble Baroness, Lady Williams of Crosby: those individuals are innocent until they are proved guilty before a court of law.
The individuals concerned have been a long time in a legal limbo in Guantanamo Bay. My right honourable friend the Prime Minister said that it would be unsatisfactory to go on not being clear about how anybody would be brought to trial. What can, at least, be said about the events of last Thursday and Friday is that some clarity has been brought to bear on the situation, but it is difficult not to have strong reservations about the way in which the United States proposes to proceed with the trials.
The noble Lord asked me what had been agreed. Little has been agreed about the trials. The United States has published its proposals and has said that it will engage with us on the matter. We propose to engage rigorously with it. We shall press the United States authorities for the internationally recognised remit over a fair trial and such things as the right to defence lawyers, the right to see the evidence that will be adduced against those who are to go before a court, the right to an appeals system and the right to have as open a trial as possible. I readily acknowledge that it is not easy to have an absolutely open trial, if matters relating to national or international security have to be dealt with in some detail. We are familiar with procedures under which a court can sit in camera to hear matters of great sensitivity that may impinge on national security.
I agree that we must be firm with the United States and friendly with the United States. I believe that putting our points vigorously to the United States is important for the United States itself. It is enormously important that, in a procedure in which, we are told, the death penalty may be available—that is a matter for the military commission—the United States leaves no stone unturned in ensuring that the trials are recognised as being as fair and open and as much in conformity with internationally recognised standards for fair trials as is humanly possible.
30 The noble Baroness raised the question of the death penalty. I regret to say that that penalty is still open to the commission. We have made our views on that abundantly clear, and we shall go on doing so.

§ Lord Dubs
My Lords, can my noble friend say whether the Government have pressed the United States Government to accept that lawyers chosen by the individuals, in the event of a trial, should be allowed to represent them, rather than lawyers allocated by the US military? Have the Government pressed for international observers—British observers, certainly—at any such trial? If not, will they do so? Has my noble friend any idea whether there are any rights of appeal against a decision by such a military tribunal?

§ Baroness Symons of Vernham Dean
My Lords, we have raised and are raising the issue of legal representation. As it stands, the legal representation has been selected by the United States Government from Department of Defense lawyers. As I understand it, it may be possible for other lawyers to be retained by anybody who goes to trial, but, again as I understand the current proposals, such other lawyers would have to be United States citizens. That might be a question of how United States lawyers deal with United States courts, which may be consonant with the way in which the United States operates in respect of criminal trials. In addition, any such lawyers would need heavy security clearance, and there are some questions that we would want to raise about the ways in which they would communicate. There are quite a number of issues relating to legal representation.
The question of having international observers has been discussed. The United States Government have agreed that there should be some international observers, but we need to explore further with the United States authorities how that might work. At the moment, I understand that the rights of appeal that are being suggested are ones within the Department of Defense.

§ Lord Thomas of Gresford
My Lords, is the noble Baroness aware that the proceedings of the military tribunals have been condemned by the American Bar Association, the National Institute of Military Justice and the National Association of Criminal Defense Lawyers? Is she also aware that military tribunals have a disgraceful history, having been used to suppress the Sioux in the Indian wars of the 19th century? Many were condemned to death then, and they were reprieved only by the intervention of President Lincoln.
Will the noble Baroness confirm that the Government will press as hard as possible to ensure that the tribunals are opened up to the public and are held in public as far as is possible; that there are independent observers; and that the requirements of 31 Article 14 of the International Covenant on Civil and Political Rights, which demands an independent and impartial tribunal at the first instance, are fulfilled?

§ Baroness Symons of Vernham Dean
My Lords, I am aware that some strong reservations have been expressed by the United States legal associations that the noble Lord mentioned. I am also aware that military tribunals are, in many countries, regarded as not being sufficiently cognisant of the separation of powers between the military authorities and the judicial authorities.
When I dealt with defence matters as a Minister in your Lordships' House, your Lordships spent a lot of time on the question of where the authority of military power ended and where judicial powers had to be invoked in our laws. I am bound to say that our justice system would not allow us to engage in a trial such as is proposed for anybody suspected of much less serious crimes.
All those issues are being raised by my right honourable friend. I was able to tell your Lordships in the Statement that I repeated that my right honourable friend had spoken this weekend to his opposite number in Washington. I assure your Lordships that he proposes to do so again later this week. I have seen a lawyer representing one of the British people who have been designated, and I shall be happy to see anybody representing the other individual concerned. All that is being fed to my right honourable friend for his discussions with Colin Powell.

Lord Morris of Aberavon
My Lords, I regret that I was not here for the beginning of the Minister's Statement. Does she know of any precedent for the proposals being put forward by the United States Government? How long did it take us to get consular access to the British citizens concerned?

§ Baroness Symons of Vernham Dean
My Lords, I do not know the direct precedent. We had some particular arrangements for the Lockerbie trial, but that is not a precedent. From time to time, in a world in which international terrorism is such that crimes are committed against a country's nationals right the way around the world by individuals from different jurisdictions, there may be one-off arrangements. It is not surprising that there is no precedent for what is being discussed here, but that does not relieve any country of the capacity or the responsibility for dealing with a trial as fairly as possible. On the issue of precedent, it is not surprising that we do not have anything direct.

A noble Lord
My Lords—

§ Baroness Symons of Vernham Dean
My Lords, I beg your Lordships' pardon. I did not answer the second point raised by my noble and learned friend as regards consular access. There has been no consular access because these are unlawful combatants. They were not in the position of nationals who might find themselves 32 in prison on ordinary criminal charges. However, they have been seen by British officials five times since becoming inmates at Guantanamo Bay.

§ Lord Williams of Mostyn
My Lords, the noble and learned Lord, Lord Ackner, first.

§ Lord Ackner
My Lords, can the noble Baroness tell us, knowing how unsatisfactory this position has been for a long time, why we were prepared to ease the restrictions on extraditing in favour of the United States—a subject which was recently raised in this House? Why was that not used, for instance, as a bargaining position in order to achieve some helpful resolution of the current problem?

§ Baroness Symons of Vernham Dean
My Lords, as I understand it, those two issues are very different. These individuals were not extradited from the United Kingdom. They are individuals who were taken into custody by the United States outside the United Kingdom's jurisdiction from various parts of the world. Now, possibly, they are to be charged with terrorism. They have not been extradited from the United Kingdom.

§ The Earl of Onslow
My Lords, is it not true that the whole of the Guantanamo Bay issue brings United States' justice into disrepute? Does she not agree that military tribunals without the right of access—locking up for years and years—go against the whole tradition of Anglo-American justice? Would she muse a tiny moment on the prospect of peradventure the noble and learned Lord, Lord Williams of Mostyn, was in Opposition? I can hear his mellifluous Welsh tones thundering against the injustice of these cases; I would have been in complete and utter agreement with him. This brings the whole of United States defence of democracy, defence of liberty and defence of justice into disrepute.

§ Baroness Symons of Vernham Dean
My Lords, I made the point a moment ago that it is in the interests of the United States to listen very carefully to what its friends are saying. It is in the interests of the US because if it is not able so to do, I fear that many individuals and perhaps some Governments around the world will draw the conclusions that the noble Earl, Lord Onslow, is drawing. It is sometimes possible to thunder about these issues and at other times to speak in a measured but, none the less, forceful tone about what we now expect to happen. There is a great deal of work to be done. I suspect that there will be many conversations about this. It is the measured calmness of diplomatic and ministerial representations that are likely to get us closer to the types of measures that constitute a fair trial.

§ Lord Richard
My Lords, I think that I can assure my noble friend that the Government will have the support of almost everyone in this House for the actions that they take. Clearly, it is an appalling state of affairs. Those of us who have looked at the situation 33 have come to the conclusion that it reflects badly on the United States, on its history and, indeed, on its traditions. I have one factual question: how many other British subjects are there in Guantanamo Bay who may find themselves in a similar position?

§ Baroness Symons of Vernham Dean
My Lords, I am grateful for what my noble friend said. Altogether, there are nine British subjects housed at Guantanamo Bay; that is, seven in addition to the two designated in this process.

§ Lord Avebury
My Lords, is not the best way of ensuring that our citizens get a fair trial to demand that they he handed over to British authorities for trial in our courts under the Terrorism Act 2000? If they have to be tried in the United States, would the Government ensure that the final rule—the regulations—which will govern the military tribunals are subjected to British legal experts for their comments? Particular issues are that the lawyer who will be defending not just our citizens but others too is a former military aide to President George Bush Senior; that the defendants, apparently, are to be offered the choice between pleading guilty and receiving a 20-year prison sentence, or the death sentence; and that the conversations between defence lawyers and their clients are to be monitored. Does she think that all those provisions are in accordance with the international standards that we are demanding?

§ Baroness Symons of Vernham Dean
My Lords, that is why the Government are voicing such strong reservations. I find it hard to disagree with many of the points raised by the noble Lord, Lord. Avebury. The monitoring of conversations is certainly something that we would find unacceptable. The plea bargaining process in the United States applies to its criminal law; that is being applied now to these cases, very much in the way described by the noble Lord. It might be argued that it puts undue pressure on individuals to own up to crimes for fear of finding themselves exposed to the death penalty if they do not do so. I absolutely understand the point made by the noble Lord. It is a point that would strike anyone who looks at these papers.
On the question of demanding that the individuals be handed over, in the preliminary discussions we examined a number of different options with the United States, including the one mentioned by the noble Lord. Indeed, my right honourable friend the Foreign Secretary made that clear some months ago in another place. The United States has been clear back to us that that was not an option.

§ Lord Lester of Herne Hill
My Lords, has the Minister or her colleagues made it clear to the United States' authorities that the way in which a trial would take place in this country, under the Terrorism Act, would ensure a fair balance between open justice and the need to protect the security of the intelligence and security sources—that being Option A? Option B would involve the United States' federal courts, with 34 their fine reputation for the due process of law, conducting a trial according to their ordinary procedures. Option C would be an international tribunal that was independent and impartial, established under international law to satisfy the requirements of the International Covenant on Civil and Political Rights. Have those three options been—or will they be—put forward as possible options to the United States?

§ Baroness Symons of Vernham Dean
My Lords, I am tempted to say, "Yes, of course all these options have been discussed". I am pleased to hear what the noble Lord said about the balance in our Terrorism Act. Of course, there is an issue here. The noble Lord, Lord Howell of Guildford, was right to remind us of the seriousness of the crimes. Let us not forget that some of the crimes at the root of this are heinous and horrendous crimes. It is enormously important that we do everything we can to ensure that the people responsible are brought to justice.
That said, the whole system loses credibility unless there is a fair trial process. When so much of what we are arguing about is fairness and justice in the world, it is enormously important that the system we use to bring people to justice is self-evidently as fair as possible—that is, balancing the rights of the individual on trial against the rights of the rest of the world to security. The issue of federal courts is very interesting. So far, United States' citizens have gone through a quite different court procedure—a point which I am sure will not have escaped many of your Lordships. Again, this is a point on which one is tempted to argue that a system that is not quite right for United States' citizens might not be quite right for a great number of other citizens too.
The noble Lord makes the important point about international tribunals. Of course, he knows that the United States has not signed up to the International Criminal Court, much as we have urged it to do so. I take the point of the three options; the fact is that none of those three options is on offer. We have quite simple choices. We either stay in the room and argue for fair trials—or as fair as we can obtain—or we leave the room. I am for staying in the room.

§ Lord Hylton
My Lords, I am grateful for the Statement and for what the Minister has said about a fair trial being essential. Will the Government continue to press for the remaining seven British prisoners to be either charged or released? Secondly, would the noble Baroness use all her influence to secure adequate exercise facilities for these people?

§ Baroness Symons of Vernham Dean
My Lords, on the first point, yes. The noble Lord made a very important point about these other individuals. There are terrible choices here. These individuals can either have a lengthy stay without knowing what will happen to them or they can go forward to a trial process which may have many shortcomings and about which we have reservations. It is very important that the issue of the other seven is resolved. On the second point raised by the noble Lord 35 of adequate exercise, we have pressed for that. It is not just a question of exercise, there should also be more contact through family letters. There is some evidence that family correspondence is not getting through. That has been the cause of quite a lot of distress. On both issues of family letters and exercise, we shall continue to make representations.

§ Lord Mayhew of Twysden
My Lords, it is impossible not to sympathise with the position the Government find themselves in. The Minister will have a clear idea of the concern and anger in all parts of your Lordships' House. Will she use her best endeavours to come back to the House when we resume in September with a progress report?

§ Baroness Symons of Vernham Dean
My Lords, indeed I will. Your Lordships may be interested to know that this issue falls into my ministerial portfolio as the Minister for counter-terrorism. Therefore I am well placed to return to your Lordships on this issue.

§ Baroness Kennedy of The Shaws
My Lords, the Minister says that it is important to bring influence to bear on a Government with which we have very close relations. We saw that in the run-up to the war in Iraq where it was publicly argued that we played a very important role by being in the room. At what point do we say we are going to leave the room and make it clear that we find something wholly unacceptable and that there is a fault line in our relationship?

§ Baroness Symons of Vernham Dean
My Lords, I find it difficult to speculate. I shall tell my noble friend why. I am not sure how that helps the individuals about whom I am most concerned—those who may stand trial. My noble friend talks about what might be some wholly unacceptable arrangement. It is also unacceptable to leave British citizens abandoned to their fate. Saying that we find it impossible to go on does not serve any useful purpose. We should continue to hold our nerve and continue to argue as vigorously as we can. My right honourable friend has arranged to have further discussions with Colin Powell later this week.

§ Lord Maclennan of Rogart
My Lords, the Minister has the whole-hearted support of this House in making clear to our friends in the United States that the British public will find baffling the refusal of the US authorities to consider the reasonable options advanced by my noble friend Lord Lester of Herne Hill. This refusal comes from a country which has had a close relationship with us, both in the conduct of the war against terrorism in the aftermath of 9/11 and more recently over Iraq. The failure to accept the handing over of British nationals to the British authorities suggests a lack of trust in our own ability to handle terrorism threats. This is simply not consonant with the close alliance of which we are a part.

§ Baroness Symons of Vernham Dean
My Lords, I agree with the noble Lord. The reaction of the British media has been very clear. In recent days many people have said to me that they find what is being proposed unacceptable. The Government have strong reservations. We must engage with the United States about this. They have indicated that they are still open to suggestions about the way trials are conducted. They have said they wish them to be open. I do not believe it is a lack of trust in the United Kingdom that lies at the root of this. It is the belief of the United States that they, as the retaining power, have the right to put these individuals on trial. However much we find that a difficult notion, we have to deal with the situation as we find it. It is enormously important that we engage as friends and use our not inconsiderable powers of persuasion.