§ 6.18 p.m.
§ The Minister of State, Home Office (Baroness Scotland of Asthal)
My Lords, with the leave of the House, I shall now repeat in the form of a Statement the answer to a Private Notice Question given in another place by my right honourable friend the Home Secretary. The Statement is as follows:
§ "I refer the honourable gentleman to the Statement that I made on 16 December 2004. The only thing that I will add is that the case is about the compatibility of our domestic legislation with the European Convention on Human Rights. As the Human Rights Act 1998 makes clear, Parliament remains sovereign and it is ultimately for it to decide whether and what changes should be made to the law".
§ My Lords, that concludes the Statement.
§ Lord Kingsland
My Lords, first, I thank the noble Baroness for her Statement. I must say that I am rather surprised at its length. I think that it amounted to no more than two sentences. That is in stark contrast to the judgment of the Law Lords in a document that is at least 100 pages long.
As your Lordships are well aware, on Thursday 16 December, the Law Lords decided by a majority of eight to one to allow the appeals before them and quash the United Kingdom's order derogating from Article 5(1) of the European Convention on Human Rights.
They declared that Section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with Articles 5 and 14 of the European Convention on Human Rights. As noble Lords are well aware, Section 23 allows for the indefinite detention, without charge or trial, of foreign nationals who are suspected international terrorists. The section, of course, does not apply to United Kingdom nationals.
The noble and learned Lord, Lord Bingham, described the measures as unjustifiably discriminating against foreign nationals,on the ground of nationality or immigration status".The noble and learned Lord, Lord Nicholls, stated that,indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law".I should like to ask the Minister the following questions. First, since the Bill was passed, the Newton report has suggested a number of changes to the 1587 legislation; so far the Government have done nothing. Will they now act on the proposals of the Newton report?
Secondly, as the noble Baroness well knows, we have repeatedly pressed the Government from these Benches to introduce measures to maximise the possibility of bringing to trial those detained, by allowing the admission and use of intercept evidence against them. Are the Government now reconsidering their position on that matter?
Thirdly, do the Government have any intention of using the remedial order provisions, under the Human Rights Act 1998 to make the legislation compatible with the European Convention on Human Rights, whose provisions underlie the Act? The noble and learned Lord, Lord Irvine, the Lord Chancellor at that time, said on a number of occasions, both to your Lordships' House and in other fora, that if a declaration of incompatibility was made by the courts, swift legislative action would almost invariably follow in your Lordships' House and in another place.
Fourthly, will the Government tell us what will happen to the detainees in the mean time?
Finally, the noble Baroness will recall that the Appellate Committee also quashed the Home Secretary's order, made under the Human Rights Act 1998: the Human Rights Act 1998 (Designated Derogation) Order 2001. Unlike the ruling that Section 23 is incompatible with the European Convention on Human Rights, the quashing of the order has immediate effect. What impact will that have on the legality of the detention?
§ 6.23 p.m.
§ Lord Thomas of Gresford
My Lords, normally it is customary to thank the Minister for a Statement made in this House, but the one delivered today is wholly inadequate. It behoves us to look back to the very beginning to see what was said then and whether the judgment of the House of Lords Judicial Committee could have been anticipated.
On 15 October 2001, having heard a Statement from the noble Lord, Lord Rooker, on the proposals for legislation, I said,the Statement seems to envisage creating an arbitrary power of arrest and detention without trial and giving to the Home Secretary an arbitrary right to expel suspects, apparently without any form of judicial process or judicial examination of the merits of the case".The quality of the thinking that went into the Government's response then can be gauged from the answer that the noble Lord, Lord Rooker, gave. He said:I do not want to fall out with the legal nobles here. I assure the noble Lord that the legal industry, or legal trade, in this country will still be able to earn a living. We are not going to put them out of business, but neither are we going to let them misuse the legal process on key decisions to frustrate what we are seeking to do with our partners".—[Official Report, 15/10/01; cols. 370–71.]The noble Lord's reply seemed to suggest that I was complaining, not about a person being arrested and imprisoned without trial, but that as lawyers my 1588 colleagues and I would not get the fees for being engaged in a trial. It was the most extraordinary response, which I have never forgotten.
Subsequently, in November, the Human Rights Act 1998 (Designated Derogation) Order 2001 was debated in this House. My noble friend Lord McNally moved an amendment asking the House to decline to approve the order until the Bill had received Royal Assent. I hope that noble Lords will forgive me if I refer to what was said on that occasion. I quoted Blackstone, from the 18th century, who said:To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom".That 18th century observation was echoed and emphasised in the judgments of the Law Lords last week. My noble friend Lord McNally, in concluding his remarks on the order, said,it is not that we have short memories; we have long memories. The memory we have is that, from Fox to Aneurin Bevan, oppositions have taken their opposition seriously. Even at times of crisis and even at times of war they have defended civil liberties and human rights".—[Official Report, 19/11/01; col. 905.]The Government seemed to regard what we said then as something that could be dismissed. They seemed to think that we were not raising any serious objections to what was going on. The reverse has now been shown to be true. Given that the Statement today simply refers us to the Statement made on 19 December 2001—around the time that the statements to which I have referred were made on our side—I ask whether the Government have learnt anything at all. What are they going to do?
I am sure that a habeas corpus application has been launched already in respect of those imprisoned at Belmarsh. What response do the Government intend to make in the courts to an application for habeas corpus? Will their answer be simply that the Act is supreme and above the European Convention on Human Rights, the derogation from which has now been quashed; or will it be that they do not mind acting contrary to the obligations that they have entered into and contrary to the Act? Those are questions that I put to the Minister, and I look for answers.
§ 6.28 p.m.
§ Baroness Scotland of Asthal
My Lords, it is clear from the short debate that we have had already that this is a difficult and complex subject. There are no easy answers. We would need to be completely satisfied that we have made a better choice of those matters than we have already.
It is right to say that the appeal was about the compatibility of our domestic law with the ECHR. But it also raised some more fundamental questions: how we balance the rights of an individual with those of a nation; how we do so without undermining the fundamental principles of a democracy. My right honourable friend's role as Home Secretary is to protect this nation's security and to ensure the safety and security of this country. That is his first and primary duty. In so doing, he will need to consider with the Government how we balance the rights 1589 of individuals against those of society and how we ensure safety and security in a democracy without undermining the values that are at the very heart of it. We remain firm in our belief that there is a public emergency threatening the life of this nation.
The noble and learned Lords who sat on the matter in the Judicial Committee, with the honourable exception of the noble and learned Lord, Lord Hoffmann, agreed with the Government on that issue. But, of course, the Law Lords found that the derogation was not compatible, as the noble Lord, Lord Kingsland, made clear, with the ECHR Article 5, the right to liberty and security, and Article 14, the prohibition of discrimination.
We need to study the judgment carefully. Of course, it overturned the earlier judgment made by the Court of Appeal, which unanimously upheld our position that the provisions were compatible with our obligations under the ECHR. I do not say that to find fault with noble and learned Lords who made up the Judicial Committee but simply to illustrate the complexity and the difficulties involved in the case.
It is ultimately for Parliament to decide whether and how we should amend the law. The Part 4 provisions will remain in force until Parliament agrees the future of the law. Accordingly, we will not revoke the certificates or release detainees who we have reason to believe are a significant threat to our security—a judgment that was upheld by the Special Immigration Appeals Commission, chaired by a High Court judge.
Derogation is not something that any government—I repeat, any government—enter into lightly. We undertook when the legislation was introduced that the powers had to be used sparingly, as promised, and that Parliament would have an opportunity to scrutinise it. Noble Lords are aware that to date 16 individuals have been certified and detained under Part 4. Another individual has been certified but is detained under other powers. Of those, 12 remain in detention. Two have chosen to leave the country, as those detained under Part 4 powers are free to do at any time. So we have honoured that commitment to use the powers sparingly and, of course, the safeguards that noble Lords know only too well were put in place.
With regard to the recommendations made by the Newton committee, noble Lords will know that we made a commitment that those issues would remain under review. I am sure that noble Lords will remember the debate that we had on renewing the powers, the consideration that was given at that stage and the injunction that I remember ringing in my ears given by noble Lords on various Benches that the matter would continue to be scrutinised before any refreshment of that order next spring. Anxious consideration has continued to be given to those issues.
Those who have been certified and detained under Part 4 powers are detained because they have been certified as a threat to our security. That considered assessment is supported, as I said earlier, by the security services and has been tested through a 1590 superior court of record with access to all the relevant security and intelligence information. This could not be a more serious issue than the one with which we are now faced.
The noble Lord, Lord Kingsland, asked whether the Government had any intention to take remedial provisions to make legislation compatible. Of course, we will continue to look at those issues. I think that my right honourable friend the Home Secretary has said that we will continue to consider what provisions or alterations will arise as a result of the consideration given to the judgment.
It is right that the noble Lord, Lord Kingsland, should refer to the 100 pages of the judgment and also perhaps to the fact that it took 11 weeks for nine Law Lords to come to that decision. That is not a criticism: it is simply a demonstration of how difficult the issue is. If it was easy, we would have found a pathway through before now. The last issue relates to quashing the order regarding the derogation. Section 23 remains effective. Detention remains lawful under domestic law, as the House of Lords has recognised.
We will come back to Parliament to renew the legislation in the New Year. As I say, we are studying the judgment carefully together with the responses to the consultation exercise launched earlier this year to see whether it is possible to modify our legislation to address the concerns raised by the Judicial Committee. The ATCS Act Part 4 powers have made an important contribution to protecting this nation from terrorist threat and remain necessary. We cannot simply abandon them without having viable alternatives.
I know that the noble Lord, Lord Kingsland, has pressed us in relation to intercept evidence. The noble Lord will know well that intercept evidence is no panacea. There have always been issues about whether it is safe and proper for those who give us information to have that information disclosed because lives may be put at risk. Those are serious and anxious issues to which the Government continue to give proper consideration, but I am not in a position today to give our final view on that. Of course, we will have to bear that in mind, together with our proper and full response to the issues raised in the judgment.
To the noble Lord, Lord Thomas of Gresford, I say that these are not issues that we take lightly. We very much take into consideration all the comments that were made, not only as far back as 2001, when the legislation was first mooted, but also most recently in 2003 and the debates that we have had this year. That will continue. When we come back before the House for renewal, obviously we will have to answer for any change that we propose and justify to this House and to those in another place why we are making changes or why we have found it impossible so to do.
§ Baroness Williams of Crosby
My Lords, in her remarks on the Statement, the noble Baroness made a comparison between the rights of the nation and the rights of the individual. First, does the Minister accept that that is a false analogy? In this country, the rights 1591 of all the citizens are an implicit part of what it is to be this nation and include as their very basis a fair trial system and habeas corpus.
Secondly, the Minister referred to what she described—I wrote her words down—as "finding a pathway" through this admittedly very difficult dilemma. Can she therefore explain why the former Home Secretary dismissed almost immediately the extremely wise and thoughtful report of the Newton committee without giving it full consideration, although it included many suggestions for ways in which the trial of those who are detained today at Belmarsh prison could be dealt with through a trial system and not by indefinite detention?
Finally, as a distinguished lawyer, does the Minister agree that one of the most fundamental rules of the legal system is that which says that nobody and nothing is above the law and that, without doubt, includes governments as much as it includes individuals?
§ Baroness Scotland of Asthal
My Lords, of course I agree with the noble Baroness that no one is above the law, and that is why we have processes in place. The noble Baroness will know, for instance, that on this legislation it is the onerous duty of those who sit in this House and those who sit in another place to determine which pathway we choose on behalf of the people of our nation. The other place has a mandate from the people, but we have an equally onerous burden to discharge in relation to our public duty to make sure that individuals are kept safe. So I agree with the noble Baroness and perhaps I may say very clearly that we do not propose in any of our actions to be above the law: we are working absolutely within it.
I also agree that citizens are of course an integral part of the nation state, but there are huge issues at stake here. Whether we like it or not, the threat of terror has changed the paradigm. Most of us do not like it, but that is the reality in which we now live, and therefore we have to make difficult choices. I think that a Member of the other place said that the most important human right is that of the right to life. If one does not have that, nothing else which flows from the European Convention on Human Rights can hold true.
That is one of the things that we have grappled with, and there have been sincere differences along the way in that debate. Honourable views on both sides of the divide have been voiced, but it is important for us to recognise that, ultimately, the onerous responsibility that rests primarily on the shoulders of my right honourable friend the Home Secretary is that of keeping this nation safe. We must remember that we will not be forgiven for failing to discharge that duty. I do not suggest that this is an easy situation. If it was, we would have settled it a long time ago.
§ Lord Clinton-Davis
My Lords, does not my noble friend agree that the original answer given in another place ought to have been much more emollient because there is no future in a continuing row between the judiciary and the executive? If so, does my noble friend 1592 also agree that at this stage there is an urgent need for an olive branch to be held out by the executive in terms which the whole House would recognise—those which my noble friend has given voice to this afternoon, in marked contrast, if I may say, to the original answer?
§ Baroness Scotland of Asthal
My Lords, of course I hear what my noble friend says and I hope that both here and in the other place no attempt has been made to create any bad feeling between the executive and the judiciary. Both have to discharge their duties, and those duties are different. The judiciary is there to express its view without fear or favour, and in discharging its duty, that is what the Judicial Committee has done. It is our duty, in considering what is right and proper for the safety of this country, to look at the issues, consider them very seriously and then respond in a proportionate and proper way. That is what we intend to do.
§ Lord Mayhew of Twysden
My Lords, in the light of what the noble Baroness has just said, was it not particularly unfortunate that the Foreign Secretary was reported to say that the eight Law Lords in the majority were "simply wrong"? Is not the embarrassing position in which the Government now find themselves a direct consequence of having imported into our domestic law, when it was not necessary to do so under the terms of the convention, the convention itself? Is it the position of Her Majesty's Government that the question whether the measures taken to deal with the exigencies of emergencies that present a threat to the life of the nation should be quite unchallengeable in any court of law—not as a matter of opinion, but unchallengeable as to the route by which the Government's opinion has been reached? Is that the opinion of Her Majesty's Government? If so, the sooner we know about it, the better.
§ Baroness Scotland of Asthal
My Lords, it is not unchallengeable. Your Lordships and the noble and learned Lord, Lord Mayhew, know that the whole purpose of setting up the SIAC system was to enable proper challenge to be made. When this legislation went through both Houses of Parliament, it was clear that if it came to the point where there was a statement of incompatibility settled on by the courts, it would be Parliament which, on behalf of the people of this nation, would finally determine what we should do thereafter.
Of course I hear the argument which says that the ECHR should never have been incorporated into our legislation, but noble Lords know that that is not the view of this Government. Our view is that the ECHR was appropriately incorporated so that we could repatriate those rights home to the United Kingdom, and the UK judiciary would have the privilege of adjudicating on those matters in a manner consistent with our own jurisprudence. That has been done.
We have to accept that the Law Lords have spoken. We have to consider what they have said and look to see what, if anything, we can do in the future to take into account the pronouncements made therein. As I said earlier, these are complex and difficult issues, but the Government are absolutely committed to looking into them. If we find that there is no other way forward but 1593 that which we have already alighted upon, it will be our duty to come back to this House and to the other place and let Parliament decide where we go from there.
§ Lord Kilclooney
My Lords, I should like to think that the initial reply of the noble Baroness was correct, and she has stressed that the European Convention on Human Rights is incorporated in our legislation. Does that mean that there can be no challenge in Strasbourg to the ruling given last week?
§ Baroness Scotland of Asthal
My Lords, it does not mean that. It would be open to the applicants, if they disagreed with any part of the judgment or, indeed, if they disagreed with an action taken by the Government after the judgment, to take the matter to Strasbourg.
We do not say anything about that at this stage. As I have made plain, the Government have not settled on their response. We are giving the issue our most anxious and careful consideration. It is every part of our desire to settle on a resolution to this difficulty that is fair, transparent and workable. However, I would stress that the final decision will be taken to safeguard the people of this country. That is the first concern of my right honourable friend the Home Secretary.
§ Lord Dubs
My Lords, my noble friend is surely right to say that the threats we face from terrorism are serious and unprecedented, but those threats are also being faced by other countries that operate the rule of law and have respect for democracy and human rights. In considering their approach to the difficult dilemma in which the Government find themselves, will they take into account the fact that, with the exception of Guantanamo in the United States, no other country has taken the same approach as us in practising detention without trial? Would my noble friend care to comment on that and, as I have said, will the Government take the point into account when considering their response to the difficulties they are in?
§ Baroness Scotland of Asthal
My Lords, of course I hear what my noble friend says, but I should say to the House that one of the beauties of the 25 states forming the European Union is that we are all different. Our structures and laws differ, as do the procedures under which we operate. Therefore it would be quite difficult to compare one with the other because we are not considering like with like.
§ Lord Maclennan of Rogart
My Lords, whether inadvertently or not, the Minister did not reply to the specific question posed by my noble friend Lady Williams of Crosby. Will the Government, in reconsidering these issues and the alternatives to detention without trial, look again very closely at the seven practical and sensible suggestions advanced by the committee chaired by the noble Lord, Lord Newton?
§ Baroness Scotland of Asthal
My Lords, I thought I had answered that point. I apologise if I did not. I swept it up in the alternative issues that we were considering on the review. Noble Lords will remember 1594 that we had a quite trenchant debate on the Newton committee review, and some noble Lords raised issues in relation to the seven recommendations. As I said at the time, we shall continue to look at those issues. Clearly they deserve and will continue to have consideration in the review.
§ Lord Campbell-Savours
My Lords, is it not true that if amendments that were considered by the House on 29 November 2001 had been more sympathetically considered by Ministers and civil servants, we might not have been in the difficulty that we are in today'? I refer, in particular, to the amendments dealing with the rights of the special advocate to discuss sensitive information with appellants, recognising that special advocates are perfectly capable of understanding where national security should not be breached.
§ Baroness Scotland of Asthal
My Lords, when we had the debate on the Newton committee's report, I understood the anxiety and perhaps affront suffered by some who thought that the committee's report was simply dismissed. I said on the previous occasion that it was not dismissed; that it was taken seriously. I certainly attempted to give a full and frank answer in the debate. I hoped that we had settled it that they were issues which were going to be considered. I do not agree with my noble friend that if we had settled on an agreement on 29 November all would have been well. It would not have been because we are still struggling with the same issues. They are not easy, but the fact that we are attempting to deal with them is of great importance.
§ Lord Tebbit
My Lords, is the Minister aware that at least I on these Benches have considerable sympathy for the difficulties in which the Government find themselves? I have a great deal of understanding of the noble Baroness's replies today. For the better understanding of the public outside, will she emphasise what she has already said: that the people whose appeals were upheld recently are free at any time whatever to leave detention; that the door is wide open to them? It is just that they would not be permitted to enter the United Kingdom.
Is not the problem that the ECHR both prevents the Government deporting those people and prevents the Government detaining them in the interests of the security of the British people? Does not the Minister agree that the final arbiter of such matters will not be Parliament because there can always be an appeal to the court in Strasbourg—which, as I understand it, overrules our domestic law?
§ Baroness Scotland of Asthal
My Lords, I thank the noble Lord for his understanding. I am happy to repeat what he so rightly said: all those detained are free to go under their own steam at any moment. Indeed, two have chosen to do so and have left the country. The door is wide open for those detainees to leave at any time they wish.
The noble Lord is also right to say that the reason why we have not felt able to deport them is the breaches of human rights that may occur if they are 1595 returned back to the member state or the country from which they came. But it is right that if they could find another country which is happy to take them they could go, and go swiftly.
However, Parliament will always be the final arbiter on what our law is because it will decide which conventions we do and do not apply. I do not accept that sovereignty in that sense has been transferred to anyone other than the other place, where sovereignty and the will of the people are best expressed.
§ Lord Judd
My Lords, does my noble friend accept that the judgment not only endorses the findings of the very distinguished committee of Privy Counsellors but also the findings of the Joint Committee on Human Rights, which represents both Houses and is cross-party? Does she not therefore agree that it is very urgent and important that the Government give careful consideration to the judgment because the institutions of Parliament itself have spoken and spoken in line with what the judges have said?
Does my noble friend further accept that in protecting this country—which is a crucial, critical and central issue—the risk in pursuing current policies is that by increasing embitterment and disillusion among people in this country they increase the dangers? When the provocation is greatest is the very time that we have to demonstrate that we are resolute in standing by those institutions and principles that make our society worth defending and so different from the activities of those who act outside the law, not least through terrorism.
As to the issue of intercept, is my noble friend prepared to look at the way in which other countries have dealt with the difficult issue of security and the way in which they handle intercept material in court?
§ Baroness Scotland of Asthal
My Lords, of course we will look at how other countries handle such material. It is also important that we consider how that material can be utilised properly in our system and the dangers that may be inherent in disclosing information that would put at risk those who work very hard to keep our country safe.
We are giving the issue urgent attention. I hear what my noble friend says about protecting people and preventing embitterment and disillusionment, but I emphasise that it is for that reason that the legislation has been so judiciously and restrictively used. We are talking about its operation in only 16 cases. It has not been used in a wholesale or disproportionate way in a huge number of cases. I understand the difficulties, but we have tried to restrict its use to cases where it is absolutely necessary.
This country has a long, proud history, and we are resolute in standing by our institutions. I say it again: the detainees are able to leave under their own steam at any stage. Where the interests and safety of our 1596 nation are at risk, we will not be forgiven by the people of this country if we play fast and loose with that safety.
§ The Earl of Onslow
My Lords, if these gentlemen and the Government decided to ignore the House of Lords warning—