Guantanamo Bay (Hansard, 11 January 2005)

§ The Attorney-General (Lord Goldsmith)
My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a Statement concerning the return to the United Kingdom of the four British citizens detained at Guantanamo Bay.
"Let me first recall the context.
"The attacks of 11 September 2001 were the worst terrorist atrocity which the United States, the United Kingdom and, indeed, the world have ever suffered. In response to those attacks a coalition of countries came together to launch a military campaign against Al'Qaeda and its Taleban supporters to remove them from their strongholds in Afghanistan and elsewhere. In those operations thousands of individuals believed to be A1'Qaeda or Taleban fighters or their supporters were detained by coalition forces.
"The vast majority of those individuals were released, but those who were deemed to pose a substantial risk of returning to the conflict were sent by the United States to its naval base in Guantanamo Bay, there to be detained and questioned about their knowledge of Al'Qaeda's activity. As a result, valuable information has been gained, which has helped to protect the international community from further A1'Qaeda and related terrorist attacks.
"Approximately 200 individuals have been released from Guantanamo Bay since their original detention. However, the United States Government believe that a number of detainees so released have returned to terrorism, demonstrating the dilemma faced by the US in considering such releases
138 "Nine British citizens were among those originally detained at Guantanamo Bay. I, and the Government as a whole, have taken our consular responsibilities to those detained very seriously. British officials have visited them regularly, delivered messages and mail from their families and secured improvements in the physical conditions of their detention. I have made a Written Statement to the House following each of those visits.
"I have set out to the House on many occasions the British Government's consistent position in relation to those detainees. As the House will recall, discussions took place in 2003, led by the Attorney-General on the United Kingdom side. The Government then requested the return of all the British detainees held at Guantanamo Bay. Five of the nine British detainees were returned to the United Kingdom last March.
"In announcing their return to the House, I said that the Government would continue to work to resolve the position of the remaining four British detainees: Feroz Abbasi, Moazzam Begg, Jamaal Belmar and Martin Mubanga. Since last March, the Government have been in regular discussion with the United States authorities about this. Foreign Office Ministers and I have also held meetings with the families and lawyers of the four men, and with their Members of Parliament. Officials have been in regular contact.
"Following contacts between the United Kingdom and the United States, involving in particular my right honourable friend the Prime Minister and his office, and between the United States Secretary of State, Colin Powell, and me, the United States Government have now agreed to the return of all four men to the United Kingdom. That decision follows intensive and complex discussions to address US security concerns. All the families have been informed of the decision this morning.
"The four men will be returned in the next few weeks. Once they are back in the UK, the police will consider whether to arrest them under the Terrorism Act 2000 for questioning in connection with possible terrorist activity. Any subsequent action will be a matter for the police and the Crown Prosecution Service. The House will understand that it would not therefore be right for me to comment on this aspect of the matter.
"I should like to assure the House that every practical step will be taken by the relevant United Kingdom authorities to maintain national security and to protect public safety.
"Throughout the period of detention of British nationals in Guantanamo Bay, the Government have sought to balance the need to safeguard the interests of Britons detained overseas with our duty to meet the threat from international terrorism.
"Terrorism is opposed to the values of every faith and religion, and seeks to deny the most basic of human rights—to life, to security, and the right to go about our daily business free from harm. Working with our allies, we will continue resolutely 139 to defend these rights through a robust and determined approach to combating terrorism and its networks of support wherever it is to be found".
My Lords, that concludes the Statement.

§ Lord Howell of Guildford
My Lords, I am sure that we are all extremely grateful to the noble and learned Lord the Attorney-General for repeating the Statement. I should make clear that we welcome the announcement. We recognise that some of those still detained at Guantanamo Bay may have committed the foulest deeds, and that there has been genuine ambiguity over the status of individuals there who have acted with unparalleled violence, outside all the rules of war—in particular, whether they are prisoners of war or illegal combatants, or simply charged with criminal offences.
Nevertheless, the three-year history of Guantanamo Bay and its detainees leaves a nasty taste. Disputes continue, not least in the United States, about how its inmates have been handled, are being handled or should be handled. At least all the British citizens are now clear of Camp Delta.
Have we established the true circumstances in which the four remaining detainees were originally arrested, and does that satisfy the noble and learned Lord that there can be a clear basis on which to decide whether they should be re arrested here? Will the police and the Crown Prosecution Service, which the noble and learned Lord mentioned, be in a position to proceed with full investigations as soon as they return? If it should happen that charges are preferred under current anti-terrorism legislation, can we be assured that the four remaining detainees, or any one of them, will be subject to law by due process, meaning a free and fair trial? Can we assume that these four, having been held longer than the earlier five, are considered less straightforward cases than the previous batch? Is there some sort of differentiation here that led to the delay of their release or return to this country? Above all, can we be assured that nothing in this process will in any way involve a further danger to national security and public safety, beyond the permanent threat that terrorism offers every day to open societies such as ours, which is always with us now, whether we like it or not.
On the wider context of all the Guantanamo detainees, which obviously must concern us as allies of the United States, is it now the position that the military commissions set up by the US Administration have been suspended by order of a federal judge? Has the Supreme Court ruled on those matters? What exactly is the commission law under which the US Government want the trials to take place, and do they, as appears to be the case, exclude the calling of all expert legal witnesses? Have we raised these broader but important issues with Washington? Is it correct that an inquiry about prisoner abuse at Guantanamo Bay is now under way? Were we consulted about that, and are we being kept informed about its progress?
140 We are fighting for a world of law and civilised behaviour against enemies who respect no laws and rules, and who believe in pitiless barbarity and contempt for civilian life. Guantanamo undoubtedly contained, and may still contain, some deeply dangerous men. There must be no weakness in defending our values against such people, but there must be no weakness either in adhering, ourselves, to the values for which we are fighting.

§ Lord Goodhart
My Lords, what has happened in Guantanamo Bay in the past three years has been a matter of very great concern to all of us concerned with the rule of law, due process and human rights It was described by the noble and learned Lord, Lord Steyn, in a public lecture that he gave in November 2003, as a "legal black hole" and a "monstrous failure of justice". We were encouraged by the decision last summer of the Supreme Court of the United States that Guantanamo Bay was subject to the jurisdiction of the American courts. But serious concerns remained, and still remain, about the treatment of the prisoners in Guantanamo Bay and the validity of the process in the tribunals set up to try them.
We must now congratulate the noble and learned Lord the Attorney-General most warmly on his part in the successful conclusion of the obviously very long and difficult process of negotiating the release of all British prisoners. I fully understand why he cannot comment on whether any of the four may be prosecuted when they return here, but I have some other questions.
First, can the noble and learned Lord confirm that the return of the four is unconditional—that the United Kingdom has given no undertakings to the USA about what will happen to them when they are returned? Secondly, can he confirm that, unless they are arrested and charged with offences, the four will be subject to no special restrictions; for example, on their contacts with the media or their movements? If that is not the case, what are the restrictions and under what authority are they to be imposed? Thirdly, can the noble and learned Lord the Attorney-General give an assurance that Her Majesty's Government will not take the view that, since all Britons have now been released, we can forget about Guantanamo Bay? As America's strongest and most influential ally, we should continue to monitor what happens at Guantanamo Bay and to make our criticisms plain if there are any further abuses.
Finally, if no special restrictions are to be imposed on the four former Guantanamo Bay prisoners, does that not emphasise the difference between the treatment of the British citizens—for whose release from Guantanamo Bay the Attorney-General and others have fought tirelessly—and the continued detention of non-British prisoners detained under Part 4 of the Anti-terrorism, Crime and Security Act 2001, in spite of the recent decision of the Law Lords? Belmarsh has been described as Britain's Guantanamo Bay. While that is certainly not an exact comparison, 141 it is close enough to be disturbing. When will the Government decide what they are going to do about these detainees?

§ Lord Goldsmith
My Lords, I start by thanking both noble Lords for welcoming the Statement, and I have noted the opening remarks of the noble Lord, Lord Goodhart.
I shall turn straightaway to the questions posed by the noble Lord, Lord Howell. What will happen on the return of the four men will be, in the first instance, for the police to determine. As I said when repeating the Statement, it is for the police to consider whether, from the information available to them, they should arrest any or all of these men in order to question them under the terms of the terrorism Act. It is then for the police and subsequently the Crown Prosecution Service to determine whether or not proceedings ought to be taken. In the circumstances and at this point in time it would be quite wrong of me to predict in any way what will take place.
In response to the noble Lord's second question, the important point to be made is that it will be done in accordance with due process of British law in all respects, and that is precisely what will be applied to the four returning men.
The noble Lord asked about the position as regards security. Perhaps I may repeat what my right honourable friend the Foreign Secretary said this morning and which I repeated in the Statement; that is, to seek to reassure the House, as did my right honourable friend, that every practical step will be taken by the relevant United Kingdom authorities to maintain national security and to protect public safety. We have of course always regarded that as a very important consideration.
The noble Lord asked me about the status of the United States military commissions. He will understand that that is not really a matter for me, but both he and other noble Lords will be aware that the United States courts are currently engaged in considering some of the aspects in relation to those commissions. It will be for them and ultimately, perhaps, the United States Supreme Court, to rule in due course. In answer to his question, it is right to say that we have ourselves raised broader issues in relation to these matters. It is also plain that the negotiations I led which looked in detail at the terms of the military commissions will obviously have given the United States our view of those commissions overall. Having said that, the Statement sets out what the Foreign Secretary was anxious to emphasise when he spoke in another place; namely, the context in which the United States authorities took the action that they did.
Finally, the noble Lord asked whether, so far as we know, an investigation by the United States authorities is taking place into recent allegations about treatment in Guantanamo Bay. The answer to that is yes, the United States has announced a new investigation into the allegations, which is being led by US Army Brigadier General John T Furlow.
142 I turn to the questions put to me by the noble Lord, Lord Goodhart. As I said in answer to the noble Lord, Lord Howell, what will happen as regards the men will be in accordance with existing British law in all respects. If they are arrested, plainly that will give rise to restrictions; but no restrictions are imposed on their travel within the United Kingdom, or on matters of that sort.
I can also tell the noble Lord that, as my right honourable friend also said in another place, while our involvement directly on a consular basis will cease once all British nationals have returned, that does not mean that these are not matters which we will continue to raise with our very close allies as circumstances require.
The one note of discordance that I must make relates to the noble Lord's final observation. I have to say that I regard the comparison with the provisions under Part 4 of the anti-terrorism Act as not only an inexact analogy, but one that is totally misconceived. The circumstances of detention have been entirely different; the fact is that, at all stages, there has been access to full, independent civil lawyers. The most important consideration is that, at all stages, those who have been detained under the anti-terrorism Act have been free to leave if they can find a country to go to. If the same conditions had been applied to Guantanamo Bay, I would not be here today because all the British nationals—and, indeed, many others— would have left a long time ago. So I do not accept the analogy at all.
As the House will know, before Christmas my right honourable friend the Home Secretary indicated that the Government are actively considering, in the light of the Law Lords' judgment, whether conditions can be adjusted so as to meet the concerns of the Law Lords. That consideration is taking place at the moment. I have no doubt that my right honourable friend will make a Statement as soon as he can once that consideration has been concluded.

Lord Morris of Aberavon
My Lords, while recognising fully, and not for the first time, the dangers of terrorism and paying tribute to the patient efforts of the noble and learned Lord the Attorney-General over many, many months, perhaps I may ask one simple question. Among the representations made by Her Majesty's Government, was it made clear that they regarded the detention of British prisoners in Guantanamo Bay as contrary to the rule of law?

§ Lord Goldsmith
My Lords, as I and other Members of the Government have said on a number of occasions, we made plain that we saw only two alternatives: either the men detained should be tried in accordance with standards we regard as fair and in accordance with international standards, or they should be returned to this country. I think that explains our position.

§ Lord Lloyd of Berwick
My Lords, I should like to echo the remarks made by the noble Lord, Lord Goodhart, at the beginning of his speech, in 143 particular his congratulations to the noble and learned Lord the Attorney-General personally, and the Government generally, on securing the return of these four detainees. That is excellent news.
Could the noble and learned Lord tell us a little more about what has happened to the five who were returned last March? What is their present position and what has been their history since they were returned?

§ Lord Goldsmith
My Lords, I cannot give a detailed history, but the principal planks are that the police did decide to arrest four of the five under the terrorism Act. That was done and the men were asked certain questions. Having given answers, the men were released and no further proceedings have been taken. Since the men returned, some have made allegations about their treatment.

§ Lord Elton
My Lords, perhaps I may ask a layman's question. It is clear that any government must have power to detain those who have committed crimes and to charge them when they are in their territory and that time must be available for them to decide whether to bring charges. That, I think, is agreed. However, what is puzzling is the convention under which a foreign government, ally or not, are able to detain without charge a citizen of this country for an indefinite period—until it is concluded by the noble and learned Lord's own great exertions, for which we are grateful.
Is the result of this sorry episode going to be an international convention under which an international law is established which determines when a country may and may not detain a foreign national?

§ Lord Goldsmith
My Lords, as a result of many of the episodes that have taken place, I cannot say whether any of the bright and expert minds involved in international law will consider that there is good reason to come together and talk about how the law might be brought up to date, amended and so forth. However, I note the point made by the noble Lord.

§ Lord Borrie
My Lords, to what extent have Her Majesty's Government been given explanations by the United States authorities about the conditions in which the total of nine British people have been held— explanations as to what led to the remaining four being held for a longer period than the original five, and questions of that sort? In so far as explanations have been given by the United States authorities to our Government, will there be a point in time when it is possible to give such explanations to the public in this country?

§ Lord Goldsmith
My Lords, if there are concerns about the conditions in which British nationals are being held, it has always been the Government's position to raise those matters with the foreign government or power that is holding them. Allegations have certainly been made in relation to one of these people, and that matter has been raised. In addition, British consular officials have visited on nine occasions to consider the welfare of the men 144 involved. These are difficult conditions and one therefore has to be careful about comparison, but it is fair to say that the Government have done more than any other government to look to the welfare of their nationals. So far as the noble Lord's first question is concerned, we have been concerned to ensure that the conditions are satisfactory and have raised such issues as seem appropriate to us.
In answer to the noble Lord's second, broader question, many questions have arisen in the course of the negotiations and those have informed the discussions that have taken place. I can add that each time a consular visit has taken place, my right honourable friend the Foreign Secretary has made a statement and reported to Parliament, so Parliament has also been kept fully informed of these matters.

§ Lord Avebury
My Lords, the noble and learned Lord said that all consular involvement would cease the moment the detainees were released. Does that mean that no further assistance will be given to any of them in pursuing their remedies against the authorities in Guantanamo Bay for any ill treatment that they may have received there?

§ Lord Goldsmith
My Lords, that is a different matter from that to which I referred when I talked about consular activity in relation to people present in another country. If they require assistance, it will be a matter for individuals to make representations to the Government. I am sure that all those representations will be studied very carefully and considered on their merits.

§ The Lord Bishop of Worcester
My Lords, I add my words to those who have congratulated the noble and learned Lord on what is, in part, a very personal achievement but also on the Government's achievement in bringing about such very good news. I also appreciate the way in which he expressed, in very stark and simple terms, the alternatives available in relation to the people held at Guantanamo Bay.
However, I ask him to reflect on the last paragraph of the Foreign Secretary's Statement. It seems to me that the Statement ends on a note of robust determination to defend "these rights" against terrorism—what he calls the right, to life, to security, and the right to go about our daily business free from harm". In combating terrorism, will the Minister confirm that the Government agree that it is essential that we do not give terrorists the power to cause us to depart in any way from our standards governing the rule of law and the rights of individuals to due process and fair trial?

§ Lord Goldsmith
My Lords, throughout this process the Government have sought to meet the twin objectives of protecting the United Kingdom and its citizens from international terrorism while playing their role on behalf of British citizens detained abroad, and indeed our commitment to the rule of law and the principles that it contains. Some might say that it is the challenge of 145 democracies today to meet the very important objective of protecting citizens against potentially the most atrocious outrages while at the same time defending the values that the Government continue to hold dear.

Lord Acton
My Lords, in answer to my noble friend Lord Borrie, my noble and learned friend the Attorney-General said that certain matters had been raised with the United States Administration. Were satisfactory answers received?

§ Lord Goldsmith
My Lords, it is not our practice to give blow-by-blow accounts of any discussions with foreign governments. I am very grateful to the number of noble Lords who have so far spoken unanimously in welcoming the development. The satisfactory answer that we have had is that we have reached a resolution of this problem on which both countries have been able to agree. That is, indeed, a satisfactory answer.

§ Lord Mackay of Clashfern
My Lords, I would like to add my voice to what has been said in appreciation of the work of the noble and learned Lord the Attorney-General and also of his colleagues in the Government in securing this outcome. I should particularly like to say how much I appreciate the discretion with which the Attorney-General spoke as these discussions went ahead. It is easy to envisage that someone incensed about what was going on could have used language that in the end would have made resolution more difficult than it has been.
I would also ask the noble and learned Lord to confirm what I understood him to say in answer to the noble Lord, Lord Goodhart. Can he confirm that the handing over by the United States of the British nationals to the United Kingdom is unconditional?

§ Lord Goldsmith
My Lords, I can confirm that. As I said, the Statement makes it clear that we must take every practical step to protect national security and the citizens of this country. We shall do that in accordance with the law of the United Kingdom, and I am sure that the United States are aware of the content of that law. I note with appreciation what the noble and learned Lord said, particularly about the Government as a whole.

§ The Earl of Sandwich
My Lords, has the noble and learned Lord detected any change in the reporting restrictions at Guantanamo Bay, which are exceptional? In addition, did he notice the article featured in the Financial Times recently, which shows that there may be some window of change?

§ Lord Goldsmith
My Lords, I am afraid that I cannot give the noble Earl any information on that.

§ The Duke of Montrose
My Lords, I thought that I had understood my noble friend Lord Howell of Guildford to ask whether the Government are aware of the evidence being held against these men. First, is 146 the Minister satisfied that it has all been passed on to the Government; and, secondly, and will be passed on to the police?

§ Lord Goldsmith
My Lords, we have very good bilateral relations with the United States, as we have with other countries, in relation to matters of justice. I have no doubt at all that our law enforcement authorities will be in a position to make the judgments that they need to make, informed by information from their counterparts in the United States.

§ Lord Ackner
My Lords, the noble and learned Attorney-General has very rightly referred to the obligation to take every practical step to protect the citizens of this country from terrorist attacks. With particular reference to what is said to occur in Belmarsh Prison, could he tell us what steps other major European countries, such as Germany, France, Italy and Spain, take to provide the same protection?

§ Lord Goldsmith
My Lords, standing at the Dispatch Box, I cannot give a detailed reply along those lines. However, I shall do my best to provide a Written Answer to the noble and learned Lord and will place a copy in the Library of the House.

§ Lord Elton
My Lords, further to the noble and learned Lord's answer to my original question, is it not extraordinary that there was no convention or document that our representatives could point to and say, "You have had these people for the agreed maximum length of time without charge. Under this convention it is now for you to return them"—and then for them to argue against that case rather than the other way round? As I said, I am a layman, but it seems an extraordinary state of affairs. If the noble and learned Lord agrees with me, can he say what steps the Government will take to initiate discussions about this?

§ Lord Goldsmith
My Lords, I do not agree with the noble Lord—at least not quite in the way in which he has put his question. The issues involved are legally complex. That, no doubt, is one of the reasons why cases are proceeding at the highest level through the United States courts. Indeed, there was some litigation in this country as well. I can only repeat my previous answer and not add anything to it.