Human Rights Act 1998 (Designated Derogation) Order 2001
Lord Rooker (Minister of State (Asylum and Immigration), Home Office; Labour)
My Lords, I beg to move that the order standing in my name on the Order Paper be approved. There will be a temptation—it affects me as it does anyone else—to go much wider than the order. I believe that the exchange that has just taken place indicates the pressure for that to happen. In introducing the order, I shall stick as closely as possible to its narrow confines. However, if the occasion arises and matters are raised, naturally I shall be prepared to be as open as I can be about consequential questions or issues.
Before coming to my main point, perhaps I may follow on from what has just been said. Later today we shall debate issues arising from the European arrest warrant. That will be subject to legislation early in the new year in terms of the amendment to extradition legislation. As I have already forecast, later in the spring there will be an immigration and asylum Bill.
However, as my noble friend the Chief Whip has just said, the Government seek Royal Assent to the Anti-terrorism, Crime and Security Bill before Christmas. However, we in no way seek to stifle debate. With the amount of time available for debate, I do not believe that that criticism can be laid at this House. Obviously, if the Government propose a measure, it is for the House to respond to it. That is the way in which the system will work during our debates. We shall make the best of trying to convince noble Lords that what we propose is moderate, proportionate and precautionary.
The order that we are about to debate is significant. It concerns a derogation that the United Kingdom proposes to make from Article 5 of the European Convention on Human Rights. That article affects the right to liberty and security. It is not a step to be taken lightly, and I want to make clear at the outset that the Government have given very careful consideration to the matter before embarking down this road.
I shall cover three issues: first, the technicalities of the order; secondly, the domestic powers that we propose to take which require the order to be made; and, thirdly, the conditions that must be satisfied for a member state to derogate from an article of the European convention. I shall set out why we believe that those conditions have been met.
The order was made on 11th November. It was laid before Parliament on 12th November and came into force on 13th November. The power to make such an order comes from Section 14 of the Human Rights Act 1998. Section 1(1) of the 1998 Act sets out the articles of the convention which constitute the convention rights for the purposes of that Act. Section 1(2) provides that those articles are to have effect subject to any designated derogation. Section 14(1) of the Act provides that a designated derogation includes any derogation by the UK from an article of the convention which is designated in an order made by the Secretary of State. The order that we are debating is such an order.
The consequence of making the order is that the meaning of convention rights as they have effect in our domestic law will be amended in the manner that is set out in the order. The order has attached to it a schedule about the proposed derogation that the United Kingdom intends to make from Article 5(1) of the convention. It is considered that a derogation from that article is required to the extent that some of the measures in Part 4 of the Anti-terrorism, Crime and Security Bill are inconsistent with Article 5(1) of the convention.
I turn to the domestic powers that we are taking. The Bill is currently in another place—its Second Reading is due to start shortly, so we are debating the Bill and its consequences before the other place has started considering it. Clauses 21 to 23 provide for the detention, subject to judicial oversight, of certain individuals in circumstances that are likely to conflict with Article 5(1), as interpreted by the European Court of Human Rights in the case of Chahal. It extends existing detention provisions in the Immigration Act 1971 to cover a circumstance where the following three conditions are met. First, the Secretary of State certifies an individual as being a "suspected international terrorist"; that is, the Secretary of State believes that the person's presence in the UK is a risk to national security and suspects that the person is an international terrorist. Secondly, action has been taken with a view to removing that person—that is, the suspected international terrorist—from the UK. Thirdly, removal is temporarily or indefinitely prevented by a point of law relating to an international agreement or by a practical consideration.
Although it is possible to detain people consistently with Article 5 of the European Convention on Human Rights where the Government are seeking to remove someone on national security grounds, that detention would cease to be permissible if the duration of such proceedings became excessive. In the cases of some of the individuals who might be detained under those powers, it is possible that delays in removal would exceed a period that is acceptable in convention terms. Hence the need for the order, which modifies our domestic obligations under the Human Rights Act to match the modifications that the UK will make to its international obligations under the ECHR when the proposed derogation is formally notified to the Council of Europe.
I turn to the derogation itself. Noble Lords will be aware that there are restrictions on the scope for derogating from an article of the convention. For some articles—such as Article 3, which provides that no one shall be subject to torture or to inhuman or degrading treatment or punishment—there is no scope whatever to derogate. For other articles—such as Article 5—derogations may be made where there is a public emergency threatening the life of the nation, provided that the measures that are taken are strictly required by that emergency.
We have taken the view that the UK is currently facing a public emergency within the meaning of the convention. The first test is whether such a public emergency exists in the UK. There have been a number of public threats made by bin Laden and his supporters against western interests since 11th September. While we do not comment on intelligence, we do not believe that the overall level of threat to the UK has increased beyond the heightened levels following the events of 11th September. We believe that attacks against United States interests remain bin Laden's priority. We will of course keep all such issues under review.
The attacks in the United States represent a further escalation in the scale and scope of the international terrorist threat to western interests. The British role in the US-led coalition against international terrorism raises the overall risk of attack and it would be wrong to conclude that that threat has been diminished by recent events in Afghanistan. In addition, there is evidence to show that international terrorist organisations have links with the UK and therefore constitute a threat to the UK. We need to appreciate, as I have said before, that on 11th September the international terrorists rewrote the rule book, and these adjustments to our own rules are a consequence of that.
In its report last week, the Joint Committee on Human Rights expressed some concerns about the lack of specifics as regards the threats that we face. As the committee acknowledged, the specific information on which those judgments have to be based are necessarily not ones that can be shared. However, the public will readily be able to see, following the terrible events in the United States, that the devastation that international terrorists can wreak is large indeed. Our active support of the response of the United States means that we must be fully on our guard.
Those risks, however, do not mean that a "state of emergency" has been declared in this country. That is contrary to some of the shorthand used by ill-informed—or probably lazy—journalists. We are not talking about a situation under the emergency powers Act in which sweeping executive powers are being taken to address some general emergency. However, we do consider that the above threats mean that there is a public emergency within the meaning of Article 15 of the ECHR.
One question that we have to answer—everyone is asking it—is: are the detention powers that we propose a necessary and proportionate response to this emergency? We believe that they are. They are necessary because we need to do something to protect the public against individuals who contribute to the terrorist threat. If it is not possible to present sufficient admissible evidence to bring a successful criminal charge and if legal or practical considerations prevent removal from the UK, another option needs to be found. The extended but clearly circumscribed detention powers fill that gap. I repeat: our prime preference would be to prosecute; failing that, our second preference would be to remove the people from the United Kingdom—we are talking about non-UK citizens. We can adopt neither approach in these cases. We are therefore left with two alternatives: to do nothing and leave the people free or detain them.
We therefore believe that these measures are proportionate to that risk. The powers will be targeted on a small group of individuals. I cannot give a figure—a handful is involved but I cannot say whether it is a large or a small handful. A small group of individuals is involved. Those individuals constitute a major threat to national security; that is, as suspected international terrorists. With all due respect to the Joint Committee on Human Rights, whose work always greatly aids discussions in this House and in the other place, I do not share its conclusion that there is a lack of safeguards in the Bill. There are in fact a number of important safeguards relating to the use of those powers.
First, a detainee will be able to end his detention at his choice if he wishes to go to a third country. That is why I refuse to engage in a debate about whether internment is involved; it does not involve internment in the emotive historical sense in which that word has been used in this country. I refer to the internment of UK citizens who are locked up—banged up—and who certainly have no right to walk out. In this case, these people will be able to end their detention if they find a country that will take them.
Secondly, the powers exercised by the Secretary of State will be subject to full judicial scrutiny. I read reports in the media at the weekend which stated that no judge will ever see the evidence that David Blunkett will have used to make a decision or to issue a certificate. That is simply not true. The Special Immigration Appeals Commission—the relevant legislation went through this House and the other place at the back end of 1997—is well suited to considering these matters, having both judicial and security expertise. The commission consists in total of eight people: four judges and four others who have expertise in security matters. At any one time, there will be a minimum of two judges sitting and one person from the group that I call the lay people. They are in effect conducting a judicial review on the Home Secretary when he signs a certificate. The decisions of the commission will be capable of appeal to the Court of Appeal and to the House of Lords on a point of law. So to argue, as some commentators have, that there is no judicial process, no oversight of what the Home Secretary is doing in respect of such people is, frankly, not the case.
Furthermore, the oversight on the detention powers will be ongoing. There will be an immediate right of appeal against the issuing of a certificate, with six-monthly reviews thereafter, and the additional safeguard of a review earlier than that where a change of circumstances is raised that warrants that. If there is a change between the six-monthly reviews, the detainee, through his or her legal adviser, will be able to make an application to have the matter looked at as a result of a change of circumstances. I cannot conceive of such a request being refused by the commission.