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I beg to move,
That the Human Rights Act 1998 (Designated Derogation) Order 2001 (S.I., 2001, No. 3644), dated 11th November 2001, which was laid before this House on 12th November, be approved.
We are about to debate a very significant order which concerns the derogation that the United Kingdom proposes to make from article 5 of the European convention on human rights—the right to liberty and security. It is not a step to be taken lightly, and I make it clear now that the Government have given very careful consideration to the matter before embarking down this road. I shall address three issues: the technicalities of what the order does; the domestic powers that we are proposing to take, which require the order to be made; and the conditions that have to be satisfied for a state to derogate from an article of the European convention, and why we believe that those conditions are met.
The Human Rights Act 1998 (Designated Derogation) Order 2001 was made on
The consequence of making this order is that the meaning of the convention rights as they have effect in our domestic law is amended in the manner set out in the order. The Human Rights Act 1998 (Designated Derogation) Order 2001 has attached as a schedule the proposed derogation which the UK intends to make from article 5.1 of the convention. It is considered that, as we have discussed earlier today, 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.
Will the hon. Lady explain something that is causing me some difficulty? If we have to derogate—as I am sure we do—how could the Home Secretary put on the face of the Anti-terrorism, Crime and Security Bill the statement that its provisions are compatible with the European convention on human rights? We know that they are not, because we are having to derogate.
Because article 15 provides for that, and the sequence in which we are taking the various stages means that it is perfectly in order for the Home Secretary to put that on the face of the Bill. That is why we are debating the order tonight.
Will the hon. Lady explain to the House why, rather than laying the order that brings derogation into force for 40 days last week, the Government did not wait? They could have waited, first, until the Select Committee on Home Affairs had reported; secondly, until the Joint Committee on Human Rights—which is of central importance to this deliberation—had reported; and thirdly, until the House had had an opportunity to debate this motion. There was no need for an order to be laid last week; it could have been laid at the end of the debate. Why did the Government not proceed by taking account of Parliament first, rather than legislating first and coming to Parliament later?
Although this is a very important order, I think that the hon. Gentleman knows that it is technical in the sense that—[Interruption.] He is aware of this; I know he is.
If we do not pass the measures in the Bill, the order will fall. The debate on the Bill that we have had today and will continue to have, and the debate in another place, will be about the principles that underpin the reasons for the order. In that sense, Simon Hughes is making an irrelevant point, because the order, and the need for it, is dependent on the existence of the powers in the Bill. If the provisions establishing those powers are not passed, the order will fall.
No, I shall make some progress. I shall give way later.
I now turn to the domestic powers that we are taking. Clauses 21 to 23 of the Anti-terrorism, Crime and Security Bill 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. They extend existing detention provisions in the Immigration Act 1971 to cover a circumstance in which the following three conditions are met.
First, the Secretary of State must certify an individual as being a "suspected international terrorist"; that is, he must believe that a person's presence in the UK is a risk to national security, and suspect that the person is an international terrorist. Secondly, action must have been taken with a view to removing that person from the UK. Thirdly, removal must have been 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 and be consistent with article 5 of the ECHR where we are seeking to remove someone on national security grounds, that detention would cease to be permissible if the duration of such proceedings extended beyond the time that would reasonably be required to secure the deportation. 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 acceptable in convention terms. That is why we need 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.
Is the hon. Lady aware that according to that principle, in the 1940s and early 1950s, members of my family who were not British citizens could have been arrested and detained without trial, simply because they supported the liberation of a country to which they could not possibly have been repatriated—Estonia? What response, and what comfort, could she give such people concerning the principle from which she seeks a derogation?
I just laid out three conditions that would have to be met, and the first was that the Home Secretary would have to certify that such individuals were suspected of being international terrorists. I am sure that that was not the case with the hon. Gentleman's parents. If an individual were to be suspected of being an international terrorist and removal was temporarily or indefinitely prevented—and the three conditions were met—that individual would fall within the province of the powers that we seek and the need for this order.
I am sorry to make a nit-picking point, but I think that the Minister inadvertently misled the House, and I hope that she will take this opportunity to correct the point—unless I am mistaken. She said that the order would fall unless both Houses approved part 4 of the Bill, but if both Houses approve the order and the derogation, as an act of prerogative power, is made, whether the House and the other place approve part 4 of the Bill is an irrelevance. The order would stand.
There would be no point in continuing with a derogation if we were not to get the powers in the Bill. [Interruption.] Okay, the hon. Gentleman is technically correct—[Interruption.] He is technically correct in the sense that we would have to remove the order. There would be no need for the order and we do not want to take this course of action unless we need to.
I turn now to the issue of derogation. Hon. Members 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 to derogate. For other articles, such as article 5, derogations may be made when a public emergency threatens the life of the nation, provided that the measures taken are strictly required by that emergency.
They are different. I shall come to the definition of a state of public emergency under article 15, but the state of national emergency as determined by the 1920 Act is one that mobilises special powers. We do not need those special powers in this case. Indeed, the last time that the Act was used was by the Conservative Government during the miners' strike, and we shall not go down that road.
No, I wish to—[Hon. Members: "Give way."] I shall give way in a moment, but I wish to deal with the point raised by Mr. Osborne on the first test, which is whether such a public emergency exists in the UK.
We have taken the view that the UK is currently facing a public emergency within the meaning of the convention. The attacks in the USA represent a further escalation in the scale and scope of the international terrorist threat to western interests. I am grateful that that was recognised by Opposition Front Benchers earlier this evening. Although to date no attacks have been mounted against the UK, there have been a number of public threats made by bin Laden and his supporters against western interests. The British role in the US-led coalition against international terrorism also raises the overall risk of attack. It would be wrong to conclude that the 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.
During the debate about the European convention on human rights, Ministers pooh-poohed any suggestion from Opposition Members that there would be any circumstances in which these derogations would be necessary for the United Kingdom. Can the hon. Lady explain why they have changed their mind and why no other European Union country thinks that the derogations are necessary?
Different sets of legislation in other European countries mean that the contexts are different. Each country must evaluate the risk that it perceives and make a judgment about the measures that are necessary, which is what we are doing here.
I am grateful to the Minister. Is she saying that the risk that undoubtedly arises for all European countries following
I think that the risk we face does, or could, threaten the life of the country. If we sustained an attack of the kind sustained by the American people, that would clearly threaten the life of the nation. Acts of terrorism outside this country can also threaten the life of the nation in threatening our economy and well-being. I believe that my hon. Friend must look more broadly at the question of defining whether the risk threatens the life of the nation. We have taken the view that it does; a public emergency threatens the life of the nation and the first test of article 15 has been met.
It is proposed that we review the clauses in 15 months. How many people does the Minister expect to be affected by this derogation? Knowing that will help us when we come to examine the level of risk and threat, and how matters have been dealt with, in 15 months' time.
I will not give a figure, because I think that that would be wrong. In giving evidence to the Joint Committee on Human Rights and the Select Committee on Home Affairs, the Home Secretary and I both said—and my right hon. Friend has also said it consistently elsewhere—that we expect the powers to be used sparingly and that a relatively small number of people will have to be detained under the powers for which the order is required. However, I shall not put a figure on it tonight.
I am most grateful to my hon. Friend for giving way—the moment had, in fact, almost passed. In her reply to the Liberal Democrat Northern Ireland spokesman, Lembit Öpik, she seemed to make a distinction between good and bad terrorists. She said that people who supported the liberation of Estonia, as it then was, would not be regarded as terrorists but that others would be. A distinction between good and bad terrorists would be very subjective. Many of us believe that good people engaged in legitimate aspirations to attain their freedom may well be regarded as terrorists by the Government of their country.
I made no such distinction between good and bad terrorists, as my hon. Friend suggests. I simply pointed again to the criteria that would have to be met, including certification and action, to enable people to be brought under the powers that it is proposed to take.
In its report last week, the Joint Committee on Human Rights expressed some concerns about the lack of specifics as regards the threat that we face. As the Committee acknowledged, the specific information on which these judgments have to be based necessarily cannot be shared. However, what the public will readily be able to see, following the terrible events in the USA, is that the devastation that international terrorists can wreak is large, and that our active support of the USA's response means that we must be fully on our guard.
The second test in article 15 is whether the detention powers we propose are a necessary and proportionate response to this emergency. We believe that they are. The powers are necessary because we must 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. The only alternative, which has had to be used in previous cases, is to release such people back into the community. Members of the public would find that unacceptable.
Is it not the case that article 5.1(f) of the European convention on human rights authorises the detention of a person so long as
"action is being taken with a view to deportation or extradition"?
As long as that process is in place—for instance, as long as due process is being followed, appeals are being heard and the authorities are seeking a third country, if it is not possible to deport straight away—detention is in fact lawful throughout that time. If that is the case, will the hon. Lady explain why, if these dangerous people are about, they have not already been detained and why they are not undergoing that process?
I have already explained the fact that we believe that the powers available already under article 5.1 to detain somebody, pending effecting their removal, would not be sufficient for the periods that may be involved when there is no third country to which we can deport that person. That is why we propose derogation, so that we do not risk falling foul of article 5.1 in those circumstances.
No, I shall carry on a bit longer—[Interruption.] I have explained that point fully. We believe—[Hon. Members: "Give way."] I am going to carry on a little longer. I shall certainly give way to my hon. Friend if I have not addressed her point.
We believe that the measures are also proportionate. The powers will be targeted on a small group of individuals who nevertheless constitute a major threat to national security: suspected international terrorists. Furthermore, with all due respect to the Joint Committee on Human Rights, whose work always greatly aids discussions in the House, we do not share its conclusion that there is a lack of safeguards in the Bill.
As the Select Committee on Home Affairs accepted, albeit reluctantly, there may be a small category of persons who are suspected international terrorists but who cannot be prosecuted, extradited or deported and therefore will have to be detained. A number of important safeguards will apply to the use of these powers, as they relate to that small target group.
First, a detainee will be able to end his or her detention at any time if they find a country to take them. They can leave; they can take their freedom. Secondly, the powers exercised by the Secretary of State will be subject to full judicial scrutiny.
How does the Minister think we will be assisted by deporting such people to Holland, Germany or elsewhere, where they can plot exactly the sort of actions that we are frightened they will carry out here? She seems to think that deportation will be good, but it would be frightening to let those people loose on the wider world.
It would be equally bad to let them loose in this country, which is the only alternative. If my hon. Friend wants to pursue that line of argument—
Let me make it clear, as my right hon. Friend the Home Secretary has done already, that where we can prosecute, we will prosecute. That will always be the route of choice, but where the threshold of evidence or the nature of the evidence makes that difficult, that course of action may not be open to us.
On the first point that my hon. Friend makes, she says that such people are free to go to a country that will take them. I understand that, but has she any indication of which countries are ready to take such people in those circumstances, given that the United States Government have already said that they will pursue such people wherever they go? Which country will risk being carpet bombed?
That depends on the circumstances of the case, on the nationality of those involved, on what they are suspected of doing and on which country might offer them a haven. I cannot possibly answer that question in that general way this evening.
Secondly, as I have said, the powers exercised by the Secretary of State will be subject to full judicial scrutiny.
No, I shall pursue this point because Mr. Hogg interrupted me on it earlier, and I need to ensure that it is well made. The Special Immigration Appeals Commission is already well suited to consider such matters, as it has judicial and security expertise. As my right hon. Friend the Home Secretary has already made clear, the commission's decisions will be capable of appeal to the Court of Appeal and the House of Lords on a point of law.
Furthermore, the oversight of the detention powers will be on-going. There will be an immediate right of appeal against the issuing of a certificate, with six-monthly reviews thereafter and the additional safeguard of an earlier review where a change of circumstances warrants it. Finally, the continuance of the powers will be subject to renewal by Parliament, initially after 15 months and annually from then on. The order will expire after five years, unless Parliament agrees to its extension.
I obviously do not disagree with the Minister's description of the process, which is a fact, but will she explain how she can tell the House that the right to judicial review will not be removed, given that clause 29 of the Anti-terrorism, Crime and Security Bill is headed "Exclusion of legal proceedings" and states:
"No court or tribunal may . . . entertain proceedings for questioning . . . a decision . . . of the Secretary of State"?
How will the facts or the reasonableness of the decision be reviewed? If clause 29 were deleted from that Bill, would the Government still need to seek such a derogation from the European convention on human rights?
As we made clear in the earlier debate, we regard the process under SIAC as the equivalent of the judicial review of an executive decision by the Home Secretary. The hon. Gentleman may disagree with that. As we have also said, no judicial review was sought in the three cases that have already gone to SIAC. It seems to us preferable to make the position absolutely clear that SIAC is that process of judicial scrutiny and that it will be the only option for judicial scrutiny of the Home Secretary's decision.
As I said in my opening remarks, this is a serious measure that addresses a very serious situation. Clearly, in the sense that we see a need for the powers that we have outlined in the Bill, there is a need for the order. The proposed derogation is necessary in view of the measures in relation to detention that we propose to take. The order is necessary, but I believe that it is a proportionate response to the situation. I hope that Members on both sides of the House will support it tonight.
Before I call the next speaker, may I remind the House that the debate must finish at two minutes past midnight? An awful lot of Members are seeking to catch my eye and, unless contributions are reasonably brief, many of them will be disappointed.
On a point of order, Mr. Deputy Speaker. You heard the Minister say a moment ago that she hoped that the House would support the order tonight. Can you confirm that we will be unable either to support or oppose it tonight because it is subject to the ghastly deferred Division procedure? That means that we shall not have an opportunity to give a view on it until Wednesday. Can you confirm that?
Yes, the Question will still be put this evening but, if there are dissenting voices, a deferred vote will take place on Wednesday.
I thank the Minister for her attempts to explain and justify an order that has created such a furore both inside and outside the House. Some of my remarks will, I hope, be seen at least by the Minister as supportive of her, but I would not want her to get too carried away by that.
Perhaps the best place to start is with a quotation from the order and an issue on which the Minister has just touched. The Home Secretary has signed the order, which states that
"there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism . . . and who are a threat to the national security of the United Kingdom."
Therefore, it is clear that we are not just discussing future arrivals in this country, but an unknown number of existing residents.
The majority of Members on both sides of the House are debating the order, rightly, in ignorance of the security and intelligence information that has given rise to that statement in the order. Therefore, it behoves us all to accept that there must be some such information and to ensure that safeguards are properly in place.
The Opposition believe absolutely firmly that, when there is sufficient evidence that a criminal offence under British law has been or is being committed, prosecution should take place in preference to any other possibility. However, we accept that there are cases in which the evidence is strong but may not be strong enough for a conviction or in which no offence under current British law has been committed. The question therefore is how we deal with such cases. Can any responsible politician say that, despite strong evidence, the liberty of an individual is more important than the security of the vast majority of the people? That is the invidious balance that we have to strike, but it is one that a Home Secretary in any Government always has to strike in a number of ways.
In this context, the Home Secretary is proposing one weapon, namely, internment without trial subject only to appeal to SIAC and to the six-monthly reviews and the annual renewal of the provisions. The Minister referred to public opinion and, of course, all of us in the House must pay heed to that. However, almost always the public are in favour of curtailing other people's civil liberties. The problem arises when, for whatever reason, it is their own that the House proposes to curtail. That puts an onus on us all to give careful consideration to such curtailment because we know not whom it may affect.
The Government's proposal will have a draconian impact on civil liberty. Whatever one's perspective, we must agree on that. However, it is occasionally necessary to have such measures for public safety and protection. As I implied earlier, we will propose further safeguards, including an element of judicial review and a tightening of the criteria under which the Home Secretary can issue a certificate. The official Opposition reluctantly accept part 4 and, in that context, the order is necessary.
As deportation is not possible in many cases, arrest and detention with the intent of subsequent deportation does not stand as a viable option, much as we might like it to. As my hon. Friend Mr. Letwin said in the Second Reading debate on the Anti-terrorism Bill, deportation should also be available and, indeed, would be preferable in many cases. Although clause 22 covers deportation, there is no provision under the convention to derogate from article 3, as we all know. First and foremost, a crime may have been committed in a friendly country with a sound legal system, such as the United States, but article 3, as interpreted by the judges in the Soering and Chahal cases, would prevent deportation because of the existence of capital punishment there.
The Home Secretary—I am sorry that he has left the Chamber—said that we have a good extradition treaty with America which could be used were bin Laden to arrive here. Is the Government's legal advice such that the treaty could continue to be used despite article 3 even if, as seems highly likely, the US refuses to set aside the death penalty for that case? Our advice is clear: article 3 overrides the extradition treaty.
The Home Secretary also interjected into the speech by my hon. Friend the Member for West Dorset that the judges have interpreted article 3 in a way that was not intended. We agree. In fact, the Home Secretary has for months been making speeches and writing articles bemoaning the power of judges, rather than Parliament, to make law. Although I do not in any way accept all his strictures, we will nevertheless offer him the opportunity to reassert the will of Parliament over the judges' interpretation of article 3.
Does not my hon. Friend remember the debates on this very accession to the European treaty, in which the Labour party told us that none of these things would occur? They said that everything was all right because no judge would reach such a decision. We now have a ludicrous situation in which we are busy trying to kill bin Laden directly, but if he were to arrive in this country we would not be able to send him to the US in case he was killed after the due process of law. I am opposed to capital punishment, but that is ludicrous.
My right hon. Friend makes the point more effectively than I could. The situation is anomalous. I hope that the Minister will tell the House whether the Government's advice is that the extradition treaty supersedes article 3 or whether, as we believe, article 3 takes precedence.
We are going to offer the Home Secretary the opportunity to reassert the will of Parliament on article 3. The Government should give notice that we will denunciate the convention and rejoin immediately after entering a reservation on article 3. It is beyond doubt that that is legally possible. Our legal opinion says so, as does paragraph 19 in today's report of the Joint Committee on Human Rights, which states:
"The Government cannot therefore derogate from Article 3 without 'denouncing' the Convention as a whole and then re-entering with a reservation relating to Article 3."
That is precisely what we propose, and the power to do so is clear under article 57.
I was just coming to that precise point. I believe that it was raised this afternoon by the hon. Gentleman, speaking sotto voce, from a sedentary position, and by the Home Secretary. It seems from the right hon. Gentleman's comments that he too knows that denunciation can be done, but has decided that it should not be done. He resorted to the argument that the hon. Gentleman has just repeated. Our legal advice, such as it is, is that, under article 59, as long as the United Kingdom remains a member of the Council of Europe, we would be able to re-accede after denunciation.
We can go beyond that. Today's report from the Home Affairs Committee also refers to the issue, and paragraph 20 clearly says:
"It would be desirable for the Home Secretary, who is accountable to Parliament, to be able to exercise his discretion within the framework of Article 3."
Again, we agree. However, the Committee states that after having said that it thinks
"that the Government should engage in a review with our European partners, with a view to finding some acceptable solution that might avoid the need to exercise a power of indefinite detention."
That would indeed achieve the same ends. If, by following that proposal, we could avoid denunciation, which I accept is a fairly dramatic option, that would be more acceptable. However, unless the Minister can convince us otherwise, there is no evidence that the Government have embarked on any such discussions with fellow members of the Council of Europe.
I apologise to colleagues for persisting with this point, but paragraph 3 of article 58 says:
"Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions."
If we cease to be a member, how can we, under article 59, resurrect rights that we no longer have?
Our advice is that we could do so if, on denunciation, we announced that we intended to re-accede, having entered a reservation. Article 59 says:
"This Convention shall be open to the signature of the members of the Council of Europe. It shall be ratified."
Even if that were legally possible, what example does the hon. Gentleman think it sets to countries who have joined the Council of Europe in recent years and others who now wish to join if we advocate denunciation whenever we are faced with a conflict, instead of seeking a specific derogation and having to satisfy certain conditions for that?
As my hon. Friends suggest, I refer the right hon. Gentleman to the French situation. What we are proposing is certainly no worse and no different. We are considering a very serious security situation, and sometimes in response to such situations we have to take unpalatable measures. In the normal course of events, nobody would advocate this proposal or indeed, I suspect, the order that we are debating, but serious situations may require extraordinary actions.
No, if my hon. Friend will forgive me, I want to conclude because I know that many hon. Members want to contribute.
The effect of the order, taken with part 4 of the Bill, is that only internment will be available. As hon. Members said this afternoon, every internee would become a cause celebre in their group. They would become a target for future atrocities and hostage taking to secure their release.
Wherever possible, that risk should not have to be faced by the British people. If at all possible, those individuals should be deported to countries with sound legal systems, where we can be assured that they will be reasonably treated, according to law. Because it will take six months for our proposed denunciation and re-accession to take place, because there are urgent cases now, and because there will be cases where there is no suitable country to which to deport the individual, internment is, regrettably, necessary. Reluctantly, we support the order, but believe it to be wholly inadequate in addressing the wider issue.
I shall vote for the Government, and urge everyone in the House to do likewise, but I hope that colleagues will vote for the order with a heavy heart and little joy. We know why we must do so but, equally, we all know that it is a small victory for the terrorists.
Tonight, we are suspending the right to trial. Bizarrely, we are doing so through an Executive order, which cannot be amended and came into force last week. The order is being debated after 10.30 pm; there will, perhaps, be 40 to 45 minutes of Back Benchers' speeches in a mere hour and a half's debate, at the end of which there will be no immediate vote. There has been scant, if heroic, pre-legislative scrutiny of the order by the Joint Committee on Human Rights and the Select Committee on Home Affairs. That would be insulting for some obscure weights and measures order but, as the order before us compromises one of our basic freedoms, it is wholly unacceptable. It reveals all too accurately the contempt in which Parliament is held by the Executive; it could only happen in Britain. I hope that the Joint Committee on Human Rights, chaired by my hon. Friend Jean Corston, will, as a matter of urgency, propose better safeguards in future, as the next attempt at abrogating part of the European convention on human rights may come from quarters more sinister than my right hon. Friend the Home Secretary. In future, tougher obstacles will be needed, when the threat to our liberties may be more genuine and widespread.
The United States, which has a separate legislature and Executive, has done things slightly differently. I was informed by the House of Commons Library that the Americans spent six weeks deliberating on the issue, and that that involved intense bipartisan negotiations and bicameral negotiations. Many of the provisions first introduced by Attorney-General John Ashcroft have been dropped or diluted, including a request for the authority to detain indefinitely non-USA citizens suspected of posing a terrorist threat. In the final version of the Americans' bill, detention is limited to seven days. Senator Patrick Leahy, the senior member of the Senate judiciary committee, said,
"The bill that we have brought back to the House and Senate is a far better bill than proposed to us by the administration and a better bill than either body passed initially. We have done the White House a great favor by taking the time to actually read and improve this bill before passing it."
If the hon. Gentleman will forgive me, I will continue, as I know that many colleagues wish to express their opinion.
In the USA, there has been a partnership. The country was afflicted by the tragedy to an even greater extent than the United Kingdom, yet it has found the ability to resolve the matter, with the legislature and the Executive working together. It took the House more than 50 years to incorporate the ECHR in English law—I say "English" advisedly—but now it is to be compromised after just one year. One of John Smith's ambitions was to incorporate the ECHR to give domestically enforceable rights to British citizens for the first time. It was intended that incorporation would be followed by a home-grown British Bill of Rights. I had the privilege of working on that policy when I was a Front-Bench member of the shadow home affairs team led by my right hon. Friend the Prime Minister. Where I had hoped for further progress, the events of
The House should not mince its words. The Executive are in effect suspending habeas corpus and ending trial by jury, a right that can be traced back more than 700 years to the Magna Carta. We are bringing in indefinite internment and introducing to the English mainland something that we never did even at the height of the IRA offensive. As with internment, the normal burden of proof will be reversed: people will be treated as guilty unless they can prove their innocence. Those who are detained will not be able to see the evidence gathered against them, and will therefore not be able to challenge its accuracy.
None the less, the Home Secretary and the Prime Minister say that they believe the measure is necessary to combat terrorism, and I will trust their judgment. I am certain that they have no other motive. Indeed, it would be unlawful for them to have any other motive. However, the Prime Minister intriguingly said last Wednesday, at column 878 of Hansard, that when he meets other world leaders, they pressure him to do something about those in the UK who plot against them. When the Minister winds up, could she be a little more specific about who such people are and whether those world leaders have given Her Majesty's Government their list of plotters who seem so to embarrass them in conversation with the Prime Minister?
Many questions have been answered during the debate earlier today, so I can move on fairly quickly. I still fail to understand why none of the other 40 European countries that are party to the European convention has found it necessary to suspend the right to trial. What are the special factors that have led the UK alone to require such protection? Even in the USA, as I said, the constitution has not been abrogated or suspended, and detention has been limited to a relatively short period. The person must then be charged or released. Despite their pain, the Americans have adopted a balanced approach.
The Home Secretary's new powers can be applied only to people whom he knows to be in the country and whom he can correctly identify. The powers will provide no protection whatever against terrorists who are in the country illegally, or under false identities, or who simply have not made themselves known. Perhaps the Minister can tell the House whether she already knows the people whom she would wish to detain. Can she confirm reports that have appeared in the press that there is a maximum of 16 or 20 individuals against whom the power is to be used?
The new powers to detain are to be applied to people who have not so far given cause for arrest or committed any offences of incitement, attempt or conspiracy. In other words, the intelligence information against them is not substantial enough to sustain any of those charges, even at the conspiracy level. We will rely on information from the security services.
I must tell my hon. Friend the Minister that the security services had a rather patchy record leading up to
I am keen to let others speak, so I shall end with these remarks: the Government are using their muscle today to force the House to extinguish for certain people a fundamental liberty. The House should have been enabled to do everything it could to satisfy itself that the measure is necessary for the prevention of greater evil. Although the penalties are to be applied to foreign nationals, we owe them the same duty to scrutinise and question the measure as we owe our own citizens and constituents.
As I trust the Prime Minister, and because of the need to show no flinching in the face of terrorism, I shall vote for the order, which has a life of 15 months. However, I urge the Government not to bring it back for renewal unless there is compelling evidence to show that the security gains have massively outweighed the appalling precedent of suspending one of our key human rights. For the future, I ask the Prime Minister to accept that an empowered and vigilant House of Commons should not be feared, but should be his strongest ally against terrorism. I look forward to this House being treated more seriously in future on these questions of fundamental human rights.
May I begin by congratulating Mr. Allen on his contribution? If he is truly one of the Government's supporters, I suggest that they are in some considerable difficulty with the order.
I find it deeply depressing that, so soon after the enactment of the Human Rights Act 1998, we are already being asked to approve a derogation from it. Furthermore, we were asked to give our approval when an order had already been introduced and before this debate. We must consider the order in only an hour and a half, late on a Monday evening, and before Royal Assent is given to the Anti-terrorism, Crime and Security Bill. The Minister confirmed in response to an intervention that derogation will still stand even if the Bill is refused Royal Assent.
The Government rightly won credit for introducing the Human Rights Act 1998. In those heady days, we were even assured that the Act was not a ceiling, but a floor. Tonight, it is not even a floor. The Home Secretary is proposing that the state should have the power to lock up individuals, in theory for up to five years, without charge, trial or even the right to see or hear the evidence, such as it is, against them. We are told by him that the law will be used only against a handful of people—maybe about 20 of them—as if that somehow makes it all right.
The liberty and rights of one are the liberty and rights of us all. If we are to protect our historic rights, we must when we consider legislation have regard to its impact not on the majority, but on the minority and the irksome, unpopular and different, even if they are not British.
Hon. Members throughout the House are uncomfortable with the idea of effectively reintroducing internment. As the hon. Members for Hull, North (Mr. McNamara) and for South-West Devon (Mr. Streeter) mentioned earlier, it might have unforeseen and unwelcome consequences. Indeed, it might provide a recruiting ground for the very people whom the Home Secretary wishes to contain and neutralise. There must, therefore, be a very good reason to introduce the order. In law, the Home Secretary needs to demonstrate that we are in a time of war or that another public emergency is threatening the life of the nation. Where is this emergency? I do not see it. That point was made very well by Mr. Fisher, whom I forgive if he means by normal life the fact that Stoke knocked Lewes out of the FA cup yesterday. Surely, an emergency is an invasion, a barrage of bombing, a mass poisoning of the water supply or something rather more tangible than what Ministers have so far described. Where is this emergency? Is not it the truth that the Home Secretary wanted to introduce the new power and had to argue that there was a public emergency as is defined in law, as that was the only way of introducing it in anything approaching a legal manner?
Now we are told that the Home Secretary cannot share with us the information that justifies his position. I accept that some information from our security services must remain secret. However, if he wants to convince the House that this drastic step is the only way forward, he will have to do better than simply to say, "Trust me." I will trust him if he asks to borrow a tenner from me. In fact, I will trust him a good deal, as he is a rather trustworthy fellow and a decent human being, but I will not trust him when he tells me that he has to lock up people without charge or trial, potentially for years, and that we in this House cannot be told why.
The Home Secretary has consistently failed to explain why this drastic legislation is needed in this country, when no other European country has announced an intention to introduce such measures. Many hon. Members have made that point today and no answer has been given by him or any Minister. The best that he could do was suggest to the Joint Committee on Human Rights that some other European countries might be thinking about introducing the measures—which countries, we are not sure. Again, we are asked to trust him.
I find it slightly surprising—I put it no higher than that—that after all the powers that successive Governments have taken unto themselves in recent years to deal with terrorism, we still apparently need yet more emergency legislation and yet more draconian legislation. Surely if an individual has committed or is plotting a terrorist offence, there are existing laws under which he can be charged through our normal legal procedures. I presume that as we are considering only a handful of individuals, they are subject to continuous surveillance by our security services. Cannot they find evidence that will stick in a court of law, with proceedings held in camera if necessary?
If the inadmissibility of wire taps is a problem, as Mr. Donaldson suggested earlier, let us reconsider them if the alternative is to lock someone up without trial. We are being asked to lock up the people against whom there is insufficient evidence to secure a conviction in the courts. Do not the Home Secretary and the Minister find that worrying?
The Home Secretary seems keen to eliminate the courts—clause 29 of the Bill is entitled "Exclusion of legal proceedings". My hon. Friend Simon Hughes referred to that earlier. Are we here to defend or attack civil liberties? Why is the Home Secretary so afraid of judicial review? Is it because he anticipates that the evidence against those whom he wishes to incarcerate for up to five years might be so flimsy that no judicial process would uphold it? To emphasise my hon. Friend's point, if clause 29 were omitted, would derogation be required? The Minister should deal with that point later if not today.
The Home Secretary's case for justifying his internment proposals is far from sufficient. He also falls short on the safeguards. The alleged terrorists—who remain "alleged" until we have proof that they have committed an offence—will not have the right to know the details of the evidence that has caused them to be accused, to choose their legal representation or to appeal, apart from on a point of law.
Furthermore, the vehicle that the Home Secretary chose to handle the cases was never meant for the specific road that we are considering. The Special Immigration Appeals Commission was set up to deal with appeals against deportation, not extended incarceration. Even the United States, the country directly attacked on
Like other hon. Members, I refer the Home Secretary and the Minister to paragraph 30 of the report by the Joint Committee on Human Rights, on which I am proud to serve. It states:
"The tests against which a derogation must be judged to be valid are very stringent. They require that there is an emergency which threatens the life of the nation. The test for the extent of measures taken under a derogation is equally stringent—that the measures are strictly required by the exigencies of the situation. In this context we also note that the United Kingdom's armoury of anti-terrorism measures is already widely regarded as among the most rigorous in Europe, and yet no other Member State of the Council of Europe has so far felt it to be necessary to derogate from Article 5 in order to maintain their security against terrorist threats."
Why is the Home Secretary prepared to ignore that? The Minister has said nothing to convince me that the measure is anything other than flawed.
The Home Secretary proposes a step too far and a dangerous erosion of fundamental liberties, which he and others say that they are trying to defend from terrorists. We may be at risk from terrorists, but the civil liberties of this country are more at risk from the Home Secretary. Liberal Democrat Members will vote against the order, and I urge other hon. Members to do the same.
I want to raise at greater length a point that I made to my hon. Friend the Minister earlier to ascertain whether I can be helped out of my current state of confusion. As I understand it, the specific problem is that article 5.1(f) authorises the detention of a person against whom
"action is being taken with a view to deportation" or extradition. That is fine. The Home Secretary says that he will unlawfully detain somebody if, after taking him in and going through due process to deport him, he is unable to send him to his country for fear of torture and cannot find a third country. Surely the detention will only then become unlawful. That is common sense, and I know of no English or Strasbourg case against that.
While the Home Secretary is going through due process and searching for a third country, he is taking action
"with a view to deportation" during which detention is permitted under article 5. When the Home Secretary is stumped, boxed in, has nowhere to go and can do no more, he cannot be described as "taking action" and the detention becomes unlawful.
Mr. Chahal, a Khalistani separatist, had been detained for six and a half years by the time the European Court of Human Rights said that if deportation proceedings were not prosecuted diligently, the courts could say that the detention may have been for too long.
That judgment seems to make it clear that, at the outset, the detention of a person such as Mr. Chahal—a suspected terrorist who could never have been sent to the Punjab, but who was none the less detained with a view to his ultimate deportation to somewhere—was lawful. It was lawful all the time that the problem of finding him somewhere to go was being worked on, and it remained lawful right up to the time when nowhere could be found. Does not that make it clear that foreign nationals suspected of terrorism can already be arrested and lawfully detained? That lawfulness will continue as long as real efforts are being maintained to go through due process, or to find such people a place to go.
Furthermore, that lawfulness may simply never run out. Times change; people might be able to go to countries in six months' time that they cannot go to now. A third country that is not available now might be available in six months' time. The political climate in the suspect's homeland might change, enabling him to return there. The lawfulness of the detention will not, in any event, run out on its own, at a particular point in time. It will run out only when a suspect brings an action to a court and asks for his detention to be declared unlawful. The Home Secretary could then be given more time to find a place for him to go, as happened in the Chahal case. It was six and a half years before that detention became unlawful.
On that basis, I wonder whether we need to derogate at all. The Bill's sunset clause will apply only to the next 18 months. There is certainly no need for dangerous foreign nationals to be on the streets, as I was shocked to discover that the man at the top of the Home Secretary's hit list is—if a report in The Observer is right—when he could be subject to detention now if he is so dangerous. I do not understand why that is not happening. It seems entirely consistent with what the courts have decided, and I seek assistance from the Minister and an answer to the question: if people are dangerous, why are they not being detained now? 11.37 pm
I would like to respond to Vera Baird, who made an important point that shows that this is not a necessary or urgent matter to be agreed now. She also made the point that it might become one at some time in the future. However, if those people are on the streets now, the Home Secretary has all the necessary powers to detain them for what may be as long as the hon. Lady suggested.
I also want to respond to Mr. Allen, who listed the problems that we face. We are debating this measure for an hour and a half, late at night. We shall vote on it later and—a point that the hon. Gentleman did not make—the Minister has failed to answer any of the questions that have been raised. [Interruption.] The Minister can say, "Ooh!" from a sedentary position as much as she likes, but the questions have been asked and they are very clear.
Why has no other member state of the European Union or the Council of Europe found it necessary to make this decision? The Minister said that her right hon. Friend the Home Secretary had answered that question. I remind her that her right hon. Friend said that he had not had time to go through all the laws of those countries to show that they did not need to make this change, or to show why they had not done so. Frankly, if he has not had time to do that, it shows that he cannot answer the question. If he cannot show that there is something unique in this country that makes it necessary for us to do this in a way that is not necessary for any other country, he is failing in his duty to the House. We cannot take him on trust if he cannot give us that information.
It is peculiar for the Home Secretary not to be able to give us that information, because we have been going round the world making the point that our laws are better in this area. Hon. Members on both sides of the House have been making rather unattractive comments about the willingness of our neighbours in the European Union and beyond to take the same measures on terrorism that we have been taking. That has been the permanent and continuous refrain of Governments of both parties. It is not acceptable to say to the House, "We do not know why nobody else has done this and we do not know what their laws are on the subject." Why on earth say that their laws are inadequate? It does not make sense.
We must consider that in context. A year ago, the Government told the House that there was no conceivable circumstance in which our adhesion to the European convention on human rights would put us in such a position. I must tell the Minister that although I was one of those who thought it advantageous to be able to adhere to the convention, I had considerable concerns about the way in which judges were extending the operation of such conventions. It is a perfectly good convention, but all the experience is that judges appear, in an odd way, to extend such documents in a fashion that may give us considerable cause for concern.
I shall give way in a moment. The difficulty was that Labour Members told us absolutely assuredly—there was no scintilla of doubt—that we were being xenophobic and that we should be ashamed of ourselves, although they found it difficult to say that I was being anti-European. Yet within a year, we face this issue. Before I give way to my hon. Friend, I shall explain why that is serious.
If a country does not adhere to a convention because, for one reason or another, it is worried that the provisions extend beyond what it can reasonably support, that is understandable. However, if a country signs up to a convention and tries to get out of it the moment difficulties arise, what example does that set for the rest of the world? After all, the only genuine reason for joining the convention in the first place was not that we needed it or that we thought there was something nasty about Britain, but that we wanted to help those countries where there was something nasty or which had a nasty history.
We wanted to give those countries the opportunity to join. We did not want to give the opponents of joining in those countries the advantage of saying, "If Britain is not a member, why should we join?" However, within a year we have created the opposite effect by giving succour to those who are least attractive in the countries that have most difficulty in defending human rights.
I am most grateful to my right hon. Friend for giving way. In support of that point, he will have heard, as I did, my hon. Friend Mr. Paice contest from the Front Bench the legal advice about the primacy of article 3. What is worrying is that the legal advice obviously exists. It would be helpful to have it placed in the Library at the very least. We are being forced to end the debate and are unable to vote on it for two days, so we cannot reach a conclusion on valid points such as those my right hon. Friend has made about context. Surely that is another example of why the deferred voting procedure is inadequate for such extremely important issues.
No. Given the time, and if the hon. Gentleman will forgive me, I ought to continue.
Every time we asked the Minister to answer a question, she used the phrase, "We have taken the view", which is most unusual and most unparliamentary. Of course the Government have "taken the view". It is their order, but saying, "Actually, we have taken this view" does not help to answer a question. It may be so, but it is not proof. The words "We have taken the view" are merely her opinion, so it is not surprising that she attracted many attacks from both sides of the House. She clearly cannot answer the questions, which is serious on such a matter.
I also remind the Minister that it is not good enough to say that there will be full judicial scrutiny. Those are her words, but that is not true. She told us that when she said that the Government have decided to assume that this wholly different procedure is equivalent to full judicial review, but that cannot be so if the person seeking the review does not know what he is accused of. What kind of review is that? What sort of legal system is that? She must apologise to the House for referring to full judicial scrutiny. That is not true and in her next sentence she showed that she knows it to be untrue. That is why Opposition Members found her answers so hard to accept.
Lastly, we must return to a simple question. Had a Government of a different kind proposed to the House, when the Minister was on this side of it, that—despite the advice of the Joint Committee on Human Rights, despite the advice of the Home Affairs Committee and despite the view of every other country in the European Community and the wider Europe beyond—we should proceed with what appeared to be a gross curtailment of human rights, what would Labour Members have said? They would have talked of the most dreadful infringement that we had seen since Magna Carta.
The truth is that the Government should not have produced the Bill. They know, and their members and supporters know, that they should not have produced it, and they would not have allowed any other party to produce it without the most outrageous attack possible. That is why the Minister is letting her side down by not answering the serious questions asked by the Opposition: as we know perfectly well, she would never have let anyone else get away with it.
Having sat in the Chamber for more than nine hours, I am grateful for the opportunity to speak for five minutes or less.
I wanted to speak because of my concern about the precedents set by derogation from article 5 of the European convention, and the permitting—even in only a minuscule number of cases—of detention without trial. Several respected QCs, including one employed by the Government to review SIAC cases, argue that there may be a way around derogation. I shall return to that later, but first let me specify where I think the Government are right. They are right to act against the tiny minority—perhaps fewer than 50 of our island's 60 million inhabitants—who plot violent terrorist acts and cannot be prosecuted or deported.
I think that the Government are mistaken in concluding that the only way in which they can act against a handful of fanatics is by derogating from article 5 of the convention and curtailing judicial review—enshrined in our law, as we have heard, since the Habeas Corpus Act 1679. If this most reasonable Government can invoke an emergency when—again, as we have heard—people are rushing out to see the Harry Potter film and virtually no one has altered their daily routine, imagine what a less charitable Government might do in much less pressing circumstances.
Having said that, I do not want to be mistaken for someone who does not want to bang up suspected terrorists, or for someone who does not understand the difficulty of undertaking a successful prosecution of someone engaged in terrorist activity. Sometimes the obstacles faced by the police in securing a prosecution are insurmountable, and that should worry all of us—especially those of us who work in places such as this, a prime terrorist target. I feel, however, that we should revisit our options.
The Home Secretary said today that, when dealing with people suspected of terrorist activity who could not be prosecuted or deported, we faced a number of options. We could release them into the community and allow them to go on organising their terrorist networks, we could deport them to possible torture or death, or we could detain them. That was the Government's choice.
I hope the Minister is pleased—certainly my Whip will be—to learn that I fully support the Home Secretary's and the Government's choice. I do not want such people to be released into the community, and I do not want them to be deported and then tortured to death; I do want them to be detained. The million-dollar question is whether it is possible to detain someone without suspending habeas corpus when the state has clear but sensitive evidence that cannot be disclosed, and the person therefore cannot be brought to trial. We have heard that we can detain people—that we have detained people. In my view, and in that of several very distinguished QCs who know far more than me, the answer to the question is yes. I believe that we must explore that possibility, and avoid derogation.
Let us take an example. The authorities arrest an al-Qaeda suspect whom they wish to deport. The Home Secretary says that owing to the nature of the threat the suspect must be detained. He argues that the detention is not arbitrary in the sense implied by article 5, because it is connected to the deportation. The suspect then takes his case to Strasbourg. It is highly unlikely that Strasbourg would rule that he had to be released, as the British Government's only alternative would be derogation from the European convention on human rights. Either way, however, it would be a better outcome than the suspension in this country of the rule of law.
In theory, therefore, the order reduces civil liberties. In practice, however, in the short term, it will do no such thing. If it is approved we shall still live in one of the most democratic countries in the world, with one of the most progressive Governments in the world. However, my concern is not the short term but the long term, when the precedent that we set today comes home to roost. For that reason, I do not think that we should set the precedent.
The Select Committee on Home Affairs grudgingly accepted the need for this derogation, stating that
"We reluctantly accept that there may be a small category of persons who are suspected international terrorists who cannot be prosecuted, extradited or deported and therefore will have to be detained".
I accept that the Government's answer deals with that problem. As Ms King has just pointed out, the Home Secretary will be able to lock up those who pose a risk. That is why the Government are opting out of article 5 and why we are debating this order. In the few minutes that I have to speak, however, I should like to consider whether that is the right answer.
Surely we have to ask why we are in this mess in the first place. The answer is that, in very many cases, because of article 3 and the jurisprudence under article 3, the Home Secretary cannot deport those who are potentially a danger to this country. The limitation, however, is not caused by article 3 itself—which is the shortest article in the European convention on human rights and simply states:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Nowhere does article 3 mention deportation. What has happened is that, over many years, jurisprudence has been developed that has prevented deportation. The problem, therefore, is jurisprudence under article 3, whereas the solution that we are being offered is derogation under article 5. It is a bit like having mumps but taking a treatment for measles. We are not treating the long-term problem. I profoundly believe that the long-term problem will get worse.
In the Chahal case, the Home Secretary stated that he should be able to balance the risk of deporting someone to a third country and the risk that that individual poses to this country. The Strasbourg court found that
"the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration."
The Home Secretary cannot simply think of the individual in such a case. Consequently, the Home Affairs Committee has said that the Home Secretary should be given greater discretion.
The problem will become much worse in two respects. First, after the Soering case, article 3 applies to every country regardless of whether that country has signed the convention. The Soering case involved a German who was wanted for murder in the United States but could not be deported. Secondly, our courts discriminate against other signatories to the ECHR in relation to article 3. In the Adan case, for example, which involved two asylum seekers whom we were trying to return to Germany, the British courts feared that the Germans would more narrowly interpret the ECHR. The problem will therefore become far worse unless we consider the ingenious solution proposed by my hon. Friend Mr. Letwin.
D v. United Kingdom is the last case that I shall cite in the remaining time that I have allotted myself. That case involved not a terrorist but a drug dealer whom we were trying to deport back to the West Indies. The court thought that deportation would infringe his article 3 rights because he was HIV positive and would not receive the right treatment in the West Indies. Such treatment is nothing to do with article 3. It is not inhuman or degrading treatment or punishment, or torture. That was a very wide interpretation.
My conclusion is that the Government's answer will not work in the long term. They have to deal with the problem, which is that the Home Secretary cannot deport those whom he believes are a danger to this country. The option of opting out and suspending habeas corpus is the wrong answer to the question. In many ways, the Government had a choice between this country's ancient rights of habeas corpus and the right not to be detained without charge or trial: between Magna Carta and the ECHR. They have taken wholly the wrong decision. They should very carefully reconsider the suggestion of my hon. Friend the Member for West Dorset.
With the leave of the House, I shall try to address some of the more substantive points that have been made by hon. Members tonight. My hon. Friend Mr. Allen raised several points, and asked how many people we expected the powers that we seek to be applied to. A number of people have already been arrested since
In response to my hon. Friend's points about other Governments and the Prime Minister, I can say that we are in frequent contact with other Governments who share information, and share our abhorrence of terrorist activities. Where we receive information alleging the presence of terrorists in the UK, we investigate those allegations. We believe that there are people here who are involved in international terrorism. Indeed, we have set that out in the schedule to the order. That is part of the basis for the evidence which, taken in the round, we feel meets the first test of article 15—that there must be a public emergency.
Norman Baker asked, "Where is the public emergency?" In current circumstances, I find that an extraordinary question. Again, the evidence that we cite for the existence of a public emergency is set out in the schedule—but to reiterate what has already been said, the answer is: the events of
Does the Minister recall that on
The fact that there is no specific and immediate threat to this country of which we are aware does not mean that there is not a state of public emergency in the sense outlined by the UN Security Council resolutions and endorsed a few weeks ago by the House of Lords, which clarified both the threshold of evidence and the nature of the assessment that the Home Secretary was entitled to make, in the round, of the threat to national security and the extent to which that constituted a public emergency—
I have only a short time left, and I want to deal with what my hon. Friend Vera Baird said. While accepting the need for detention in the circumstances that we have outlined, she and several other Members questioned the need for derogation.
I have two further points to make to my hon. Friend, in addition to those that I made earlier in the debate. First, current arrangements as they stand, and article 5.1, have inhibited the use of removal. Secondly, and more substantively, case law subsequent to the Chahal case, concerning two other people who have been through the Special Immigration Appeals Commission process, has made it clear that article 3 is an absolute bar to removal if a person is likely to face torture, or inhuman or degrading treatment. Currently, if a person is detained pending removal and article 3 is relevant to the case, that person would be able to challenge detention immediately and be released, because there would be no realistic prospect of removal at that time. Therefore, to ensure that we are not inconsistent with article 5 in the detention powers we seek, we have to make sure that our position is regularised. That means that we have to derogate from article 5.1.
The official Opposition have argued that a better course of action—what they would have done were they in government—would have been to renounce the ECHR in its entirety and then rejoin immediately. We take the view that that is a much more extreme measure than we propose—even if rejoining the convention with reservations would be allowed—both in terms of our international obligations and in terms of the subsequent ability to send people back to torture or death. Derogation from article 5.1 is a more measured and proportionate approach and it preserves unequivocally—this is an important point—our international obligations under the ECHR, while enabling us to implement the detention measures that we feel are necessary in the event that we cannot deport a person consistent with the provisions of article 3. It is precisely because the Government—
It being one and a half hours after the commencement of proceedings on the motion, Mr. Deputy Speaker put the Question, pursuant to