Human Rights

Part of the debate – in the House of Commons at 11:50 pm on 19 November 2001.

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Photo of David Cameron David Cameron Conservative, Witney 11:50, 19 November 2001

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.