Belmarsh Judgment
3:31 pm
Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)
To ask the Secretary of State for the Home Department if he will make a statement on the legislative consequences of the House of Lords judgment that the detention without trial of aliens held in HMP Belmarsh under the anti-terrorism laws is unlawful.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I refer the hon. Gentleman to the statement that I made last
Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)
I think I welcome the Home Secretary's rather brief and complacent reply. The judgment of the Law Lords was in terms of unprecedented condemnation and could not have been more unequivocal. Lord Hoffmann said that the case called into question
"the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention."
That has now been reinforced by the resignation of Mr. Ian MacDonald as special advocate, in response to what he termed an "odious" law. He is not alone in that opinion.
Will the Home Secretary accept that the Liberal Democrats fully understand the difficult balance between ensuring the safety of the public and the security of the nation on the one hand, and rights under law on the other? We did not expect the Home Secretary precipitately to set aside the judgment of his predecessor as to the national interest, but can it really be the case that his Department has made no contingency plans for the present circumstances? What work, if any, has been done to explore the eminently sensible suggestions of the Newton committee and the Joint Committee on Human Rights? Specifically, when will he introduce legislation on the use of intercept evidence, and why are the Bills currently before the House not suitable for that purpose?
Those detainees should be prosecuted and tried. Clearly there are difficulties, but should we not now seek consensus in this House on a proper solution? Certainly we would be happy to work with the Home Secretary and with others to develop an appropriate solution to the problem. However, simply renewing the present deeply unsatisfactory legislation is not an option.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
My answer was brief, but not complacent. The fact is that a committee of nine Law Lords has spent the last 11 weeks considering the issues raised by this case in great detail. It would have been discourteous and wrong to respond instantaneously to such consideration. It was and is my duty to examine very carefully the judgments of those Law Lords and to come to conclusions. In making my assessment, my duty is to look first to the security of this country, and in that context I welcome the hon. Gentleman's remarks about working on a basis of consensus. I hope that his party will be prepared to do that, but in so doing that it will consider carefully the precise legal measures.
We have of course considered the questions raised by the Newton committee and a number of other representations, including from the Joint Committee, but we shall look carefully at the Law Lords' judgment. I shall not be rushed into coming to a conclusion on the right course to take simply to meet some conception of brevity that the hon. Gentleman has to offer. We shall look at the issue properly. We shall come to proper conclusions and bring them to the House. The most important point, as my right hon. Friend Mr. Straw, now the Foreign Secretary, and my right hon. Friend Mr. Blunkett—the previous Home Secretary—made clear on several occasions, is that it is Parliament that must decide how best we deal with this country's security interests. I shall report to Parliament and Parliament will come to its conclusions, but my report will be based on a detailed and full understanding of the decisions and views of the Law Lords in their consideration.
Mr John Denham (Southampton, Itchen, Labour)
The House will welcome my right hon. Friend's commitment to careful consideration of these issues. When the House is invited—presumably early next year—to consider how, or whether, we want to change the law as it relates to the group of foreign nationals in Belmarsh, it will be enormously helpful if we have the clearest idea of what further anti-terrorism measures the Government propose to cover British citizens, as flagged up in the Queen's Speech. Can my right hon. Friend give us any hope that when we look at those issues, we shall have a better idea of what will be in the draft Bill referred to in the Queen's Speech?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
First, I appreciate the work of my right hon. Friend and his Committee in considering this matter with due care. The best way that I can respond to his question is by saying that it would be better if we looked at such situations in the round, as he suggests, so that we have a comprehensive view of them. That is not to say that particular difficult questions are not raised, but he is right to say that consideration will be best effected if we are clear on how we are pursuing the issues.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice and Howden, Conservative)
The Opposition do not underestimate the difficulty that the judgment presents for the Home Secretary in balancing his duties, but it is impossible to overstate its importance. It is only the second time since the second world war that a panel of nine, rather than five, Law Lords has sat. The Government cannot claim to be surprised by the judgment. When the Act was moved, we warned that the longer the detention went on, the more difficult it would be to justify. The powers taken by the Government at the time were viewed as temporary; presumably that is why the previous Home Secretary commissioned the Newton report.
The report was published exactly a year ago this week and in that time exactly nothing has happened. I remind the Home Secretary of some of the recommendations and reiterate the points made by the Liberal spokesman, Mr. Heath, who was quite right on this matter. The committee suggested that the power of freezing order be repealed, as it has not been used. Will the Government accept that? The committee recommended that it should be possible to use intercepts in court, as the Liberal spokesman said, and as we, too, have argued. We intend to table an amendment to the Serious Organised Crime and Police Bill to try to get the Government to accept changes to the law. Will the Home Secretary accept that, or undertake changes himself?
The committee also recommended proposals on plea bargaining. There are some changes to Queen's evidence in proposed legislation currently going through the House. Will the Home Secretary ensure that the changes meet those requirements on plea bargaining? Newton recommended that the Home Office carry out research into alternatives to the use of powers granted under part 4. What research has been carried out? What progress has been made?
Even after evidential changes that we recommend, there may still be cases of grave concern to the security services that cannot be tried. I am conscious that there is at least one case of an alleged terrorist released under licence, case G. A three-member panel ordered his release after he was diagnosed as psychotic. G is electronically tagged and has to report to the police five times a day. He is not allowed to use telephones, mobile phones or computers, and visitors are restricted. Does that give us a model for similar cases in the future if the courts cannot deal with them?
I reiterate that I do not recommend the release of those prisoners immediately, but in the interests of natural justice I recommend that the Government move as fast as competently possible to sort the problem out legislatively. If the Home Secretary does that, we shall give him every support.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I agree with the right hon. Gentleman's concluding point; it is important to reach a conclusion of these matters as soon as possible so the House can decide clearly how it wants to proceed. I was not particularly surprised at the Law Lords' judgment. In fact, it would be a surprise if there were not deep controversy about the ethnical, philosophical and moral issues that are involved. These are difficult questions, and it is not surprising that people will come to difficult and complicated judgments on them. I reiterate that I have the particular responsibility of looking at the national security of this country—I appreciate the remarks of the right hon. Gentleman on that question—but I simply will not be rushed into taking a view on this in the first few days of my stewardship of my office, without looking at the situation in the round. The assurance that I can give to the House is that, early in the new year, I will come with proposals for the House to consider and we can then look at them in the round, which is as it should be.
Mr Frank Dobson (Holborn and St Pancras, Labour)
I welcome the Home Secretary's statement. As one of those who voted for the Act that the House of Lords has decided is contrary to the human rights legislation, for which I also voted, I recognise the major dilemma that the Government face in trying to reconcile maintaining the security of the people of this country with our treasured reputation for the rule of law and the maintenance of natural justice. So in the spirit in which the Home Secretary has made his statement, I urge him to look carefully at the proposals from the Newton committee and the Joint Committee on Human Rights. The objective of terrorists is, in the end, to persuade us to bring our sacred institutions into disrepute so that we can be mocked throughout the world as hypocrites. I know that he recognises that, and I hope that the House will be able to come up with proposals that reconcile the two needs.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I appreciate the tone and style of my right hon. Friend's remarks and, yes, I can give him the assurance that I will seek to address this matter in the way that he suggests. I should like to make one observation on what he said. Some of the terrorist organisations active in the world that we seek to contain are about destroying every fundamental freedom that we have; not only the fundamental freedom of the House to debate a range of issues, but the rule of law itself and the right of the media to discuss questions in a general way. Their explicit aim is to destroy all those things, which hon. Members throughout the House have sought to build and develop over many years. We must defend ourselves against these attacks. The best way to defend ourselves in these circumstances is a matter for debate—it is in that spirit that I appreciate my right hon. Friend's remarks—but we cannot run away from this. When we read some people's comments, we see that they do not appreciate the seriousness of the matter. Our obligation is to take that seriously and then to decide the best course, for precisely the reasons that my right hon. Friend gave.
Mr David Trimble (Upper Bann, UUP)
I welcome the fact that the Home Secretary has emphasised in his response the supremacy of Parliament on these matters. That is hugely important. I also endorse his statement that his approach will be based fundamentally on questions of national security and the need to protect the community. I urge him to consider that whatever he does should be based simply and essentially on the legislation framed to meet the needs of protecting the whole community, not on little quirks of immigration legislation.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I think that I can give the right hon. Gentleman that assurance. Our existing legislation is based on a foundation of principle, which I see as my duty to seek to defend. That is the way in which we must approach this matter and the way that, historically, the House has sought to approach these matters; the House would wish to do so in the same way in the future.
Ms Jean Corston (Bristol East, Labour)
I welcome my right hon. Friend's answer to this question and congratulate him on emphasising that he will proceed cautiously. Reference has been made to the report from the Joint Committee on Human Rights, which, as he knows, I chair. I urge him to consider one of our recommendations: that intercept material should be admissible in court, as it is in many other countries. Will he confirm whether he will discuss with our security services ways in which that material can be admissible, while protecting personnel and methods?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I can give my right hon. Friend the assurance that she seeks. I will consider the recommendations of her Committee, especially the one that she cited. However, let me make the point that this Government implemented the Human Rights Act under which her Committee was established and the Act under which the Law Lords gave their judgment. We should be proud of the Act and of our approach. As my right hon. Friend said, we were clear from the outset during our first debates on the matter that difficult and not straightforward questions such as those that we are discussing would be raised, but it is better to address them with a discussion of human rights and its importance rather than trying to ignore them. I put that remark on record while giving a full commitment to examine carefully her Committee's recommendations.
Mr Teddy Taylor (Rochford and Southend East, Conservative)
As there is obvious concern about any individual who is kept in prison for a long time without charge or prosecution, will the Home Secretary explain to us and the public the opportunities that the people in prison have to put forward their arguments if they think that the complaints made against them are inaccurate, or perhaps created by someone unfairly?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
They have the opportunities that the current law gives them; that is the state of affairs. It is important to recognise that our legislation is designed to deal with threats from organisations that want to destroy any such rights and abilities in any respect whatsoever.
Mr Jeremy Corbyn (Islington North, Labour)
Would the Home Secretary care to reflect on the fact that the big problem with the legislation is that it gives him the power to imprison foreign nationals, which is obviously discriminatory? Does he not think that we have crossed a rather dangerous rubicon, in that politicians, rather than independent courts acting under the criminal law, are allowed to imprison people?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
As my hon. Friend knows—his record on these matters is well understood in the House—there is a substantial process of review of any of the decisions taken in the area. That includes legally qualified people, so that judgments can be made on precisely the issues that he describes. However, I come back to the absolutely fundamental point; the House must decide whether it wants its Government to try to work to defend national security in these circumstances and to put that as a central question. That issue remains for my hon. Friend, for me and for every other Member of the House. I am sure that we will continue to discuss these matters, but I remain firmly of the view that one cannot simply assume that there is a benign set of organisations out there with a specific and interesting point to make. There are people who are determined to do what they can to destroy the fundamental foundations of our society.
Mr Douglas Hogg (Sleaford and North Hykeham, Conservative)
The right hon. Gentleman will know that I have opposed the powers since their introduction. Any legislation that he introduces must reflect the judgment of the highest court in the land. He must do away with the right to hold people in detention indefinitely. Should he not be trying to create an offence of associating with terrorists or terrorism, which might, in appropriate circumstances, lead to a custodial sentence?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I hear that suggestion and know that the right hon. and learned Gentleman has long experience of debating these matters in the House. I assure him that I shall examine his suggestion carefully when making the considerations to which I referred earlier.
Mr Kevin McNamara (Kingston upon Hull North, Labour)
My right hon. Friend is quite right to say that he will come to the House with proposals early in the new year—we look forward to hearing them—and to point out that terrorists are bent on destroying our fundamental institutions and our institutions of liberty. One of the fundamental institutions of which we were most proud was the fact that we did not detain people without trial or without allowing them to see the evidence on which they were kept in custody. Such things are fundamental, but we believe that the legislation has already given the terrorists one of the victories that they want. Will he examine carefully the suggestions of the Joint Committee and the Newton committee? In particular, no one understands why intercepted communications cannot be used if they might convict people, provided that the communications have been subject to proper safeguards. Finally, there are people in prison at the moment about whom we are talking in something of the abstract. What will happen to them in the meantime while he cogitates?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I think I dealt with my hon. Friend's points earlier. I repeat that I will return to the House with proposals relating to all of them. I also repeat to my hon. Friend and the House that our obligation to do all we can to inhibit those who want to destroy our fundamental institutions of freedom is critical, and I am determined to uphold it.
Mr Alan Beith (Berwick-upon-Tweed, Liberal Democrat)
When the Home Secretary rightly warned against an instant response, did he recall the instant negative response that his predecessor gave the Newton committee when we recommended a range of measures which, taken together, could deal with these foreign nationals and, indeed, with United Kingdom citizens about whom similar suspicions were felt? Why has no work been done in the interim to prepare the new legislation that we thought should be prepared by the end of the year?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I think I have already dealt with those points as well. I have committed myself to considering the issues involved, and to returning to the House to discuss them in the round.
Dr Phyllis Starkey (PPS (Dr Denis MacShane, Minister of State), Foreign & Commonwealth Office; Milton Keynes South West, Labour)
Although most of those affected by the decision are in Belmarsh, one is in Woodhill prison in my constituency. I entirely accept the Home Secretary's description of this issue as a difficult one, requiring us to balance the right of the individual to a fair trial against the need to protect the general public. When the issue returns to Parliament, will he be as open as he can be with Members about all the information behind these cases, and explain why the measures on which the Government decided were the only way in which the matters could be handled at the time? Back Benchers want to understand the reasoning behind the Government's current proposals.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I can assure my hon. Friend that I will indeed be as open as I can be, although I think she and the House understand that difficult security issues are involved.
Mr Elfyn Llwyd (Parliamentary Leader; Meirionnydd Nant Conwy, Plaid Cymru)
During the passage of the 2001 Act, many of us could not quite square detention without trial with article 6 of the European convention on human rights. May I urge the Home Secretary to act quickly and positively? Otherwise, the certification that Bills comply with the Human Rights Act 1998 may well become a meaningless endorsement.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I return to the point with which I began. The Human Rights Act requires a derogation to be indicated if necessary in a particular case. That was done in this case, quite properly. It is then for Parliament to decide how to respond to the circumstances. I do not think that our approach involves any devaluation of the Act, which has been followed to the letter and in accordance with processes that were established when the Bill was passed.
Mr Mike Gapes (Ilford South, Labour/Co-operative)
My right hon. Friend spoke of the threat of international terrorism. When carrying out his assessment, will he take account of what happens in other countries facing similar threats? Will he also confirm that the individuals currently being detained could leave tomorrow, and return to the countries from which they come?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I can confirm that. I had not thought to highlight the point, but it is important and arises specifically in the case of those detained in such circumstances. I can also confirm, as I did earlier, that we will consider the situation in the round.
Mr Tony Baldry (Banbury, Conservative)
Does the Home Secretary accept that the Law Lords did not make what he described as an ethical, moral or philosophical judgment, but a legal judgment? Does he accept that that judgment is now a statement of law regarding the relationship between human rights legislation and terrorism legislation? Since the judgment, he has given the impression—unintentionally, I am sure—of being rather contemptuous of it.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I am not at all contemptuous of the Law Lords' judgment. Theirs is the very highest court, and they judge the law in the way described by the hon. Gentleman. However, as an experienced parliamentarian, he will understand the relationship between their judgment and the duties and obligations of Parliament. That was clearly established at every point during the progress of the Human Rights Act, and rightly so. That has also been made clear by my right hon. Friend the Foreign Secretary and my right hon. Friend the Member for Sheffield, Brightside, the former Home Secretary, who I am delighted to see is present. That has been clear throughout the whole of this discussion. The Law Lords understand that very well and I am sure that the hon. Gentleman understands it properly, but it is in the light of that that the judgments have to be made by this Parliament.
Dr Nick Palmer (PPS (Team PPS), Department for Environment, Food and Rural Affairs; Broxtowe, Labour)
Few of us envy the Home Secretary in the current dilemma, any more than we did his predecessor, who I am also extremely pleased to see in the Chamber. Many of us who feel that there is excessive hysteria about asylum issues in general still do not feel that it will be possible to defend free entry to Britain for people whom we believe wish to support terrorist acts in Britain. I consulted constituents on this last year, and my impression is that there would be widespread support for powers to prosecute people for co-operation with terrorists—I say co-operation rather than mere association—as an alternative to detention under current law, and that that should apply to British nationals as well as to foreign nationals. Will the Home Secretary consider that in his review?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I will consider that, but my hon. Friend used the word "envy" in an interesting way when he said that he did not envy me or my predecessors the responsibility here. There is a key point here. If we choose to live in a democracy, we have to face up to the responsibilities of that and take the decisions necessary to ensure that we continue to live in a democracy. That may not be enviable, but it is not only my responsibility and the responsibility of other Members of the Government; it is for all Members of the House to think how to carry out such responsibilities properly. I would argue that that extends to wider groups in society as well. It is not a question of my having a particularly unenviable responsibility; it is a question of all of us facing up to our responsibility to preserve democracy when it is under these kind of threats. I am glad that the issue will be debated in the House in the new year so that we can consider how to address it.
Mr Robert Marshall-Andrews (Medway, Labour)
In considering the matter, will the Home Secretary also bear in mind the political dimension of the difficulties that we and the Government have in rationally criticising the state of affairs in Guantanamo bay while we ourselves also have imprisonment in this way?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I will look at those issues, but my hon. and learned Friend makes the point extremely clearly. The obligation to determine how to defend our democracy is particularly an obligation on our learned Friends in the House, who should consider how the law can play its proper role. That is a key question for us all.