Human Rights Act 1998 (Designated Derogation) Order 2001

– in the House of Lords at 3:15 pm on 19th November 2001.

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Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration) 3:15 pm, 19th November 2001

rose to move, That the order (S.I. 2001/3644) laid before the House on 12th November be approved.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

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.

Photo of Lord Corbett of Castle Vale Lord Corbett of Castle Vale Labour

My Lords, can the Minister clarify the point that, none the less, it remains entirely possible that a person could be detained indefinitely without ever knowing the allegations against him or her?

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration) 3:30 pm, 19th November 2001

My Lords, I shall address that. I am going through the process in a chronological manner. I have just referred to the detainees' legal adviser. The detainees can have whatever legal advice they choose, from wherever. Of course, there will be an appointed legal adviser to take the issue before the Special Immigration Appeals Commission, and that person will come from the Attorney-General's list. He or she will have that access, but will not be allowed to discuss it with the detainee. That is a necessary consequence of not being able to mount a prosecution. If we could mount a prosecution we could deploy the evidence in court. As we are not prepared to use intercept evidence, we are tied and so we have to build in this process to try to safeguard the issue.

My noble friend is correct. Last week, when the Home Secretary appeared before the Joint Committee, he was asked whether someone could be locked up for life. Technically, after five years the matter will have to be reviewed with all the other built-in provisions because the derogation is for five years only. But as the Bill is drafted, the answer, in a simplistic narrow way, would be yes. If one asks the question, "Can you conceive of someone being detained for life in that way?", the answer is probably no.

I cannot conceive of the circumstances because in this position—no doubt the matter will be debated at some length when we consider the Bill—I cannot give examples of what might fulfil those criteria.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, the Minister has helpfully told the House that SIAC, the Special Immigration Appeals Commission, would effectively be conducting a judicial review of the decision of the Home Secretary. Therefore, am I correct in assuming that SIAC will be able to review the decision of the Home Secretary that someone cannot be sent to another country for reasons related to Article 3 or for other practical reasons? Will that also be reviewed by SIAC? In reading the Bill, I am unclear whether the "ouster" clause, as it is called, will oust that or not. If SIAC is to substitute for normal judicial review, that is an important point.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, that is an incredibly important question which I cannot answer. I suspect the answer may be no, because it involves the interpretation of what happens under Article 3. There is really no way out of Article 3. If the Home Secretary takes the view that we cannot deport someone to a country in relation to which he has evidence that that person will face execution, torture or inhuman and degrading treatment, Article 3 is absolute. I do not believe that anyone could second-guess that and say to the Home Secretary, "By the way, we believe that things are okay in country X or Y and you can get this person out".

I do not believe that SIAC would have that capability. I shall take advice on that, but on my reading and understanding of the discussions that we have had, I suspect that that would not be SIAC's role. I have only just started to catch up with the debates in this House and the other place on the setting up of SIAC. At the moment it has had only three cases. There is not much experience in relation to this matter. I believe that the answer would be no.

The oversight on the detention powers will be ongoing. Furthermore, the continuance of these powers will be subject to renewal by Parliament: initially, our proposal is after 15 months, and annually from then on. However, the order that we are debating today will expire after five years unless Parliament agrees to it being extended.

In my opening remarks I said that this is a serious measure that addresses a serious situation. We believe that there is a clear need for the order and we genuinely believe it to be a moderate adjustment to our rule book, following the international terrorists rewriting their own set of rules on 11th September. I commend the order to the House.

Move, That the order (S.I. 2001/3644) laid before the House on 12th November be approved.—(Lord Rooker.)

Photo of Lord McNally Lord McNally Liberal Democrat

rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the order (S.I. 2001/3644) laid before the House on 12th November until the Anti-terrorism, Crime and Security Bill has received the Royal Assent".

Photo of Lord McNally Lord McNally Liberal Democrat

My Lords, I am somewhat fortified in moving an amendment that has at its heart civil liberties and human rights to have back in his place my colleague, my noble friend Lord Avebury, for the first time since his recent illness and accident.

The introduction by the Minister lasted for nearly 20 minutes and there were several occasions when he was unsure of the full implications and told us to await the full debate in Committee, so I believe that this order puts the cart before the Horse. The order is not about the new powers that the Home Secretary seeks in the Anti-terrorism, Crime and Security Bill, although the Minister went into a great amount of detail about them. This order assumes that those powers will be granted. My amendment concerns that presumption.

The Minister said that the powers that the Government seek are not to be taken lightly. Yet, as he said in opening, this debate on giving derogation powers is taking place in advance of a debate on Second Reading in another place. I have said in the House before that one of my favourite scenes in movies is in "A Man for all Seasons", when Richard Rich urges Thomas Moore expediency in relation to the law. Moore responds by saying, "Where do we shelter when the wind of tyranny blows?"

I do not accuse Ministers of planning tyranny—I have known many of them for too long to suspect that—but I accuse them of expediency and seeking expedient solutions, one of which is bringing forward this order today. Yesterday, in the Observer, Andrew Rawnsley put the matter well. He said:

"Urgent in their decision making and chaffing against any restraint, the emasculation of Parliament and the judiciary seems to them to make ripe common sense. Holding themselves to be good men and women, they simply cannot conceive that they could ever wield their accumulating powers in any way that is not benign".

It is such a frame of mind that causes the present Home Secretary to talk about "airy-fairy civil liberties" and his predecessor to sneer at his critics as "Hampstead Liberals". It is such a mood of impatience and intolerance which produces today's order.

Last Thursday I specifically asked the Minister whether he saw the Human Rights Act as a piece of fair-weather legislation or whether the Government still shared the view of my party that it was an iron pole around which our human rights and civil liberties are constructed. I was impressed by the robust nature of his reply supporting the Act and our 50-year-old commitment to the convention. Yet, four days later, here we are with a derogation order for powers that are contained in a Bill that has not yet been before this House.

Today is not the day for a detailed examination of the powers that the Home Secretary seeks. They will be properly discussed, as the Chief Whip has just reminded us, at Second Reading and at the Committee stage of a Bill that does not reach us until next week. Nevertheless, as the Minister went into some detail, I ask the House, particularly the Labour Benches, to consider some opinions which may be airy-fairy, but to which Labour used to pay quite a lot of attention. The Observer stated:

"Mr Blunkett has failed to offer any convincing explanation of why these specific powers are needed less than a year after an already severe new Terrorism Act was introduced".

The Independent stated:

"Think again Mr Blunkett before eroding our most fundamental rights".

It went on to say that the Home Secretary's plan,

"is a dangerous step. Parliament must force him to think again before we sleepwalk down this American road to a police state".

In a magisterial letter to The Times the noble and learned Lord, Lord Donaldson of Lymington, said:

"I cannot accept that the right of an individual to apply to the courts by judicial review for a writ of habeas corpus can be described as 'airy-fairy' liberty".

In case the Minister thinks that my range of reading is too narrow, let me also quote Mr Bruce Anderson—who would sue if anyone called him a "Hampstead Liberal". He said:

"Blunkett is introducing a range of restrictions that even Margaret Thatcher might have blanched at".

Maybe Labour Back-Benchers will find even more worrying Mr Anderson's conclusions. He said:

"The time for naivety is over. On these measures Mr Blunkett deserves full and unswerving support".

Maybe he does. But he should first argue those measures before Parliament. If he gains approval of them, that will be the time to consider the order.

Today Parliament has an opportunity to remind the Government of our respective responsibilities. Over 130 years ago Mr Gladstone, when addressing Parliament, said:

"Your business is not to govern the country, but it is, if you think fit, to call to account those who do govern it".

He spoke those words to the House of Commons. In normal times the country would look to that House for such a calling to account. But, as the noble Lord, Lord Hattersley, told us in yesterday's Sunday Times—it is usually in the Sunday Times because the noble Lord does not come here—all that is required of Government Back-Benchers in the Commons is,

"a willingness to nod like a toy dog in a car's rear window".

So it is left to this House, with all its imperfections, to carry out that duty.

We are strengthened in that determination by the view of both Houses in the Second Report of the Joint Committee on Human Rights. Most noble Lords will have read the report in detail, and in particular paragraph 78. I describe that as the "killer conclusion", although it is one which has already been rejected by the Minister. It states that,

"we are not persuaded that the circumstances of the present emergency or the exigencies of the current situation meet the tests".

It continues with strong words. They are not for the Government but for Parliament and this House. It states:

"It is now for Parliament to draw its own conclusions, and for Members of both Houses to satisfy themselves that there are adequate safeguards to protect the rights of the individual citizen against abuse of these powers".

That is for the debate on the Bill. That debate will decide whether the Government shall have the powers for which they seek premature derogation. There is a clear and present duty, to a clear and present danger, for this House to resist the claim tonight for this instrument.

We yield to no one in our determination to defeat terrorism. We match that with an equal determination to protect our civil liberties. The Government must argue their case for new powers and then seek derogation. Refusal by the House to approve the order tonight will be a timely reminder, especially at a time of emergency, that power flows from the people to Parliament to the Government and not the other way around. I beg to move.

Moved, as an amendment to the Motion, to leave out all the words after "That" and insert "this House declines to approve the order (S.I. 2001/3644) laid before the House on 12th November until the Anti-terrorism, Crime and Security Bill has received the Royal Assent".—(Lord McNally.)

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative 3:45 pm, 19th November 2001

My Lords, it would be tempting today to indulge ourselves with an anticipatory Second Reading debate. I hope that we shall avoid that. I have already thrown away three pages of notes which I regret that I shall be obliged to inflict upon noble Lords at a later date.

Of course the Bill has much in it which is open to criticism. It has content that is unrelated to emergency and inappropriate in detail. But we are agreed that legislation is needed to deal with the new situation that has arisen in this country post 11th September. Therefore, in principle the Bill is welcome, but there is much to criticise as regards its detail. If we accept that principle we can accept the order.

The noble Lord, Lord McNally, made much of outside criticism of what the Government seek to do in the Bill. He called it "the cart before the horse" and he quoted Moore, the emasculation of Parliament, the Observer, the Independent, the noble and learned Lord, Lord Donaldson, Mr Anderson and so on.

All those matters are valid, only if Parliament fails in its duty in the first place properly to consider the Bill. Whatever may happen in the other place, I do not accept the proposition that this House will avoid its duty. There will be plenty of opportunity on subsequent occasions properly to consider the detail of the Bill and to deal with it. I shall be very disappointed indeed if the Bill leaves the House in the form in which it arrives. That may give rise to an interesting situation subsequently, but that is another matter.

The Second Report of the Joint Committee on Human Rights, properly draws attention to many of the difficulties that exist with the Bill. I expect that we shall have many forceful debates before we get to the Motion, that the Bill do now pass. I shall refer only to one point. It illustrates the problem which arises within that report. Paragraph 23 states that,

"clause 23 of the Bill does not in itself make it clear that the purpose of detaining the suspect is solely to find a safe country to which to remove him or her. A suspect might be very willing to go to a country which supports, or at any rate does not oppose, terrorism".

It goes on:

"We asked the Secretary of State in oral evidence whether, for example, he would be prepared to let someone go to Iraq, Syria or Libya. We were reassured when he responded—

'If a country is prepared to take someone, then we would release them under these particular powers, because we are talking about immigration powers'".

I am obliged to say that I am not so reassured. Would we seriously release a man whom the Home Secretary has certified as a known terrorist to a country which is known to sponsor terrorism? I find that proposition extremely difficult to swallow. I would not want to take out an insurance policy on the life of that individual, or indeed on his comfort, because Article 3 of the European Convention on Human Rights prevents the export of someone to a country where either the death penalty or torture is prevalent. All three countries mentioned offer the possibility of death or torture as a fairly normal state of affairs. So while a terrorist may volunteer to go, that would strictly contravene Article 3 of the ECHR, which appears to me to be wrong.

That illustrates some of the difficulties that we shall face when we consider the Bill. For today, however, we do not think it right that we should delay the Bill by holding back the order. The order will apply to the Bill as passed, not the Bill as drafted. For those reasons, we do not support the noble Lord's amendment. The Government may have their order. We will not vote for it; but we will not vote against it.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I was one of six noble Lords who were members of the Joint Committee on Human Rights, on which it was a great privilege to serve. Our report has already been referred to. It was unanimously agreed by Peers from all three parties and the Cross Benches, as well as by six Members from the other place. We produced our report in record time on Friday, the measures having been published only on Monday afternoon. I pay tribute to the legal adviser, Professor Feldman, and the Clerk to the committee, who made that possible.

I shall speak briefly to one or two issues as a member of that committee. First, I welcome the fact that we have this debate at all. We have it because under the Human Rights Act 1998, what was always a matter of prerogative is now a matter for parliamentary approval. The Government are to be congratulated on having included in the Act a provision that makes clear that the approval of both Houses is needed before they take the serious step of derogating from one of the fundamental rights guaranteed by the convention.

The second kind thing that I should to like to say is that the Home Secretary and his colleagues should be commended for their broad interpretation of the right to liberty under Article 5 of the convention, which, as the Minister explained, in the Government's view gives rise to the need for a derogation. The Government could have taken a narrow view of the right to liberty and said that no derogation was needed, but they did not.

Another matter on which I congratulate the Home Secretary and his colleagues is that they resisted calls from the Conservative Front Bench in the other place to denounce the convention and enter what I would have considered an illegal reservation to Article 3 to allow the United Kingdom to extradite or deport a suspected terrorist to a country where he would face torture, inhuman treatment or the death penalty. I am glad that the Government did not go down that road. That is all positive.

It is also positive—I disagree on this point with the noble Lord, Lord Dixon-Smith—that the Home Secretary has made clear that a suspected terrorist could go to a country that would take him but would immediately set him free, even if that were a country such as Iraq, which harbours terrorists. There is a good reason for that. I think that the noble Lord said that such a person would have been found by the Home Secretary to be a terrorist. That is not right. It is not the Home Secretary's function to find someone to be a terrorist; only a court of law can do that. In such a case, the Home Secretary will have reasonably suspected that someone is a terrorist, but will have to release him immediately, because otherwise there would be indefinite internment. As the Minister has made clear—although the Bill does not make crystal clear—the Government have no intention of interning indefinitely.

The Minister has already explained to the House that in order to pass muster under Article 15 of the convention, the Government must, first, satisfy the European Court of Human Rights—because it is the ultimate guardian of the treaty—that there is a sufficient state of emergency to justify the derogation and, secondly, meet the strict test that the measures in the Bill are strictly required by the exigencies of the situation.

On the first question, the Select Committee considered that the case had not been proved, and asked both Houses to satisfy themselves on the basis of what the Home Secretary could tell them that there is a sufficient state of public emergency. There are now two opinions: one given on behalf of Liberty by my colleague, David Pannick QC, and another, given on behalf of Justice, by my colleagues David Anderson QC and Jemima Stratford. I declare interests in supporting both of those non-governmental organisations. Those two opinions explore the question in detail, and I shall simply place them in the Library for those who find them interesting. Mr Pannick adopts a robust view; he thinks that there is not a sufficient public emergency. Mr David Anderson gives the Government greater benefit of the doubt on that question.

I suggested to the Select Committee that the real question is not so much whether there is a public emergency, on which the European Court would give the Government a wide margin of discretion, even though, as far as I know, we are the only European country seeking to derogate in such a way—one might have thought that our allies such as Germany, France and Spain would have equal need if there were a sufficient emergency, but that is by the by. The real question is not whether there is a public emergency—an elastic concept—but whether the measures in the Bill are strictly required to meet the exigencies of the situation. On that the committee was clear.

The Home Secretary gave the committee the benefit of an hour's question and answer session last Wednesday evening. We were concerned about several aspects. I cannot go into all of them, because there is not time, but in brief, we were most concerned about the loose definition of "links with terrorism". As paragraph 37 of our report states, that risks "arbitrariness". We were also concerned about the technical question of whether the Home Secretary could issue new certificates against suspected terrorists indefinitely, even when the Special Immigration Appeals Commission had struck one down. Mr Blunkett was good enough to say that he would reread the wording and reconsider.

We were also concerned about the limited powers of SIAC. I support SIAC, as I did during the passage of the Bill that set it up, as a fair compromise. If we are to take the strong step of ousting normal judicial review, it is important to ensure that the independent judge and his colleagues on SIAC have full powers of review. In his opinion, Mr David Anderson points out an important ambiguity that I raised with the Minister previously, which I hope he will consider. It is vital that SIAC is able to assess the reasonableness of the Home Secretary's decision whether someone can or cannot in practice be sent to a safe country.

Another important question, which has already been raised, is whether it is good enough to give SIAC power to review a detention only every six months. I think that that should be possible every month, in view of the curtailment of liberty involved, but six months is certainly too long.

In the introduction to our report, at paragraph 5, we made a point with which I am sure that all Members of the House agree, but which is worth emphasising. Our report states:

"the provisions of the Human Rights Act 1998, for which we were appointed as the parliamentary guardians, represent core values of a democratic society such as individual autonomy, the rule of law, and the right to dissent, and these must not lightly be compromised or cast away. It is precisely those values which terrorists seek to repudiate and undermine."

In the penultimate paragraph, No. 78, to which my noble friend Lord McNally has drawn attention, we challenge Parliament to draw its own conclusions and to satisfy itself that there are adequate safeguards to protect the rights of individual citizens against abuse of power.

Whether today the cart is before the horse or the horse before the cart, I suggest that one matter is certain: if the Motion is passed and if the Bill does not contain adequate safeguards against abuse of the kind to which the Select Committee and others have drawn attention, the United Kingdom will ultimately face ignominy before the European Court of Human Rights. That is why when we come to debate the Bill it is our special responsibility to build in those safeguards.

Photo of Lord Mishcon Lord Mishcon Labour 4:00 pm, 19th November 2001

My Lords, before the noble Lord sits down, he knows that his speeches are well accepted in this House. However, I thought that he should be given the opportunity to explain one of his comments. He spoke of two eminent lawyers, well known to both of us, who gave an opinion on what is a public emergency. Perhaps I may suggest to him that lawyers are not completely qualified to deal with a question of fact which would usually be determined by a Minister of the Crown with full knowledge of matters which he could not divulge in public.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, the noble Lord, Lord Mishcon, is right. What is a public emergency is pre-eminently a political question and is pre-eminently for Ministers and the elected representatives of the people. However, the European Court of Human Rights must look at that as a legal question. The legal tests have been set out in a number of cases and the Northern Ireland state case was one of the best known. Those distinguished lawyers have examined that legal test and the opinion on the basis of the evidence that exists. That is a correct approach because if the United Kingdom Government were taken before the European Court of Human Rights, the first question would be: is there a sufficient threat to the life of the nation to justify limiting the right to liberty?

I have already stated that as regards that question I would anticipate the Government being given a wide margin of discretion, as do both distinguished lawyers in their opinion.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I support the principle of the Bill, the object of the Bill, in particular in Part 4. I agree with the approach of my noble friend Lord Dixon-Smith but I fundamentally question the method of implementation of the object. I do so for some of the reasons given to your Lordships which I have no intention of repeating.

I also support the amendment of the noble Lord, Lord McNally. The invitation to approve the statutory instrument on a Motion today is not well conceived. It proposes a derogation from the convention to enable Part 4 of the Bill to be enacted on the assumption that your Lordships accept Part 4 without amendment. It is premature as pre-empting debate in your Lordships' House. The assumption that there would be no amendment is one which may not be made.

There is no doubt that Part 4 is in breach of Article 5. That article largely adopts our indigenous concepts of natural justice as administered by our judiciary. Part 4 is in breach of all those concepts. Enactment of Part 4 fills me with total horror because it would exclude the jurisdiction of our judiciary; it would breach the separation of powers. That is the fundamental source of our constitution, which it is the duty of this House, as the sole guardian, to defend.

As appears from pages 7 and 8 of the report of the Joint Committee on Human Rights, of which I am a member—I am a rather insignificant member and have no pretence of speaking other than as to my own thoughts, so there is no interest to declare—the right honourable gentleman the Home Secretary, when questioned on the matters to which I have referred, in particular on natural justice and the constitution, was unable to give any satisfactory answer.

There can be no doubt that during the passage of the Bill through your Lordships' House amendments will be tabled such as to require that grounds are to be given for the reasonable belief or suspicion of the Secretary of State before a person is certified as an international terrorist and that person should have an opportunity to answer. Such should obtain on appeal from the decision.

There is no doubt that in due course Clauses 29 and 30, which exclude the jurisdiction of our courts, will be the subject matter of a Motion that they do not stand part. That is the order of debate on Part 4—the details are unimportant today—which would be pre-empted.

Points of concern have been mentioned by the noble Lord, Lord Lester of Herne Hill, and I shall not repeat them. However, I want to raise one point of which no particular mention, if any, has been made. It is that the derogation is sought under Article 15 of the convention. But there is no assurance that when the derogation is brought before the European Court of Human Rights in proceedings in which inevitably Part 4 if it were enacted would be impugned, the court would accept the proposed derogation. If not, what then would be the position of Her Majesty's Government? Why would it probably not accept the derogation? It would not appear to be—I use words from Article 15 but shall not bore your Lordships with the whole text—strictly required by a public emergency threatening the life of our nation. The court might well, and in all probability would, conclude that in any event it was not a proportionate response to the threat of global terrorism. It is taken for granted that urgent measures—not those proposed in Part 4, but measures to achieve the object of Part 4—must be taken to identify, deport or detain international terrorists.

It is of vast importance that the role of the judiciary should not be usurped for the sake of administrative convenience, to afford what would be a misuse of executive power. It would set the wrong precedent for a government with a landslide majority in another place to seek to introduce such a measure in Parliament.

Before I knew about the amendment, I found the same words—word for word—at the end of my notes. That is why I support the amendment.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

My Lords, in rising to support the order that has been presented by my noble friend, I advise your Lordships that I shall not speak at length but wish to address the specific area of concern—urgency and emergency.

The noble Lord, Lord McNally, referred to the film, "A Man for all Seasons", when he moved his amendment. My conclusions have been reached not because of a blockbuster film or its content, but on the basis of two events. The first is what happened on 11th September and, perhaps more important, what has happened since in terms of the amount of intelligence and information that we have received regarding Osama bin Laden and his terrorist world-wide network, Al'Qaeda.

Those factors make the order urgent, to protect the people of this nation, as other countries want to protect their people. We have international as well as national responsibilities. The Government would not be introducing the order were it not seen as essential to address the urgency of the situation. It is an emergency measure which I fully support and I am extremely disappointed that the Official Opposition cannot do so by going through the Lobby with us.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 4:15 pm, 19th November 2001

My Lords, the derogation is being sought not so much because there is a public emergency threatening the life of the nation. After all, detention without trial was introduced in Northern Ireland and then abandoned. It was not reintroduced following atrocities such as the Brighton bomb, the bombing in Canary Wharf or anything else of that nature. The suggestion must be that the derogation is being sought because it gets over a technical difficulty arising out of Article 3, which prevents the Secretary of State from removing an asylum seeker against whom no charges can be proved and who may face prosecution or persecution in another country. The decision, as we heard from the Minister this afternoon, will not be challengeable in the courts.

Are measures such as the abolition of habeas corpus and judicial review strictly required by the exigencies of the current situation? Let us consider the way in which the Government propose to proceed. Information will be provided to the Secretary of State by the security services. His decision will not be unaffected by that information; it will be based on that information. But, his decision to issue a certificate will be considered, at least partly, in secret. The evidence on which he has acted cannot be revealed to the person concerned and, most importantly, the decision of the commission who may review the certificate will be given without reasons.

It has not been found necessary in the United States or in the 40 states of the Council of Europe that may have been affected by the current situation to introduce detention without trial. It is true that the United States propose a severe system of military tribunals to deal with the terrorist threat, but at least there will be a trial and the formulation of a charge.

An 18th century statement of principle by Blackstone reads:

"To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government".

It is more dangerous to proceed along the lines of detention without trial than in any other way. It is not as if there was no alternative. Under the Terrorism Act it is possible to arrest, charge and to try a person for the

"commission, preparation or instigation of terrorism".

I wonder who of those who are subjected to detention without trial cannot be caught by a charge under those provisions.

Photo of Lord Acton Lord Acton Labour

My Lords, I wonder whether the noble Lord can comment on the figures that I have read repeatedly in newspapers—I know no more than that—that more than 1,000 people have been detained in the United States in circumstances that commentators have said are not altogether constitutional.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

My Lords, I have not read those reports. I understand that although a number of people have been detained, as the noble Lord says, they will subsequently face a charge. That is the important point. A person is detained, evidence is gathered and he is then charged. What is proposed here is that a person can be detained for up to six months. The certificate is then renewable without charge.

The first safeguard to which the Minister referred was that of the independent advocate who will act for the person who has been detained. I fail to see how an independent advocate can challenge evidence and act properly in the interests of the person who has been detained when, by definition, he cannot obtain instructions from that person on the evidence that is put before the commission. He will not be entitled to ask the person who is being detained, "What do you have to say about this? How can I challenge what is being said against you?". The independent advocate is a very weak safeguard.

The other safeguard that was suggested was the role of the Special Immigration Appeals Commission, which was considered recently in the Rehman case by the Judicial Committee of this House. Suffice to say that the effectiveness of the commission as a review of the decisions of the Secretary of State was diminished by their Lordships to some degree. It was the opinion of the noble Lord, Lord Hoffman, that

"if the appellate body prefers a different view [from the Secretary of State] it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained. Such restraint may not be necessary in relation to every issue which the Commission has to decide".

Therefore, the function of SIAC is not to review ab initio the original decision-maker; namely, the Secretary of State. The Judicial Committee of the House of Lords has decided that the role of the commission is extremely limited.

I support my noble friend Lord McNally in calling upon your Lordships to determine whether derogation will be necessary after the provisions of this Bill, which clearly are very contentious, have been fully discussed and decided upon in this House.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords,

"Amidst the clash of arms the laws are not silent".

This reversal of Cicero's famous aphorism was proclaimed about 60 years ago by a Law Lord, whom I believe was Lord Atkin, in the famous case of Liversidge v. Anderson. Although he was in a minority of one, those words in his judgment continue to be cited with admiration by everyone who studies the rule of law in our country.

In a democracy most right-thinking people, as we are allowed to say, believe that even amidst the clash of arms, whether in time of war or public emergency that threatens the life of the nation, the laws should nevertheless continue to govern the actions of the executive. It does not follow from that, surely, that in these dire circumstances the laws should remain unchanged. It is the duty of every government and parliament to provide sufficiently for the defence of the United Kingdom. The very writs which summon us to this place command us to consider these vital matters. In the light of that, one needs to consider whether or not the Government are justified in the course which they seek today. We are told by the Government that by reason of international terrorism a public emergency exists which threatens the life of the nation, in the language of the European convention which is now part of our domestic law. In the light of the events of 11th September and what we have learnt subsequently, I do not believe that we should have any difficulty in accepting that.

If that is true, the United Kingdom is empowered by the convention to take measures which derogate from its obligations under the convention, but only to the extent—this is important—strictly required by the exigencies of the situation, provided that in so doing it does not breach any of its other international obligations. I am not aware of any of those. It is quite clear that nothing may be done by the United Kingdom Government under that power unless the measures concerned—we are talking about the present Bill—are strictly necessitated by the danger that the Government have identified. We must examine how the case is put by the Government. I do not believe that it can be put more precisely. With the greatest respect to my noble friend Lord Campbell of Alloway, I do not believe that the Government's case pre-empts any debate that can reasonably be anticipated.

The Government say that there are people in this country whose presence is believed by the Secretary of State to present a threat to the security of the UK and whom he suspects to be international terrorists. He says that he cannot deport them to the country from which they come because the conditions which prevail there would make such deportation illegal. Either we must allow them to be at large in this country, with all the dangers that that represents, or Parliament must take some measure to protect this country unless and until, or for such time as, the persons suspected agree voluntarily to go elsewhere where they can be accepted. That is how the Government put the case, and they will justify the Bill that is now being debated in another place.

I believe that in today's circumstances we should accept the Secretary of State's assurance. I am very well aware of the dangers of this kind of legislation. Equally, I along with all noble Lords am very well aware of the dangers which face the civilised world from the kind of terrorism that we saw in action last September. We should accept that there are at large in our country people who fall within that narrow and extremely dangerous category. I believe that in times like these, on matters of national safety of such importance, a democratically elected government are entitled to be, and should be, trusted, subject to safeguards of review, by the Parliament that sustains them.

We were told by the noble and learned Lord, Lord McNally, that the Government had resorted to expedience and that the proposals were flawed in that regard. I would rather have expedient legislation than inexpedient legislation. I have always taken issue with the pejorative sense in which people employ that word today. One recalls that in the Book of Common Prayer one prays on behalf of certain beneficiaries for such benefits as may be most expedient for them. I do not regard that as too serious an objection.

I also make the point—I am rather surprised that so far it has not been taken—that by derogating from the whole of Article 5.1(f) the Government have gone wider than their purported very narrow purposes justify. But I suspect that technically it would have been very difficult to derogate from Article 5.1(f) alone. In any event, the Government will have to answer before the Court of Human Rights for any measures that they bring forward after derogation and in pursuance of it, as they would have to do before our own courts. I believe that our courts would, and certainly should, strike out any measure that went wider than the Bill that is before another place at the moment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am grateful to the noble and learned Lord. Is he aware that that is a very difficult question? It is not clear to a number of us whether the British courts would have any power of review given that Article 15 of the convention has not been incorporated and the way in which the ouster clause is phrased. It appears that the only tribunal that can do so is the court at Strasbourg.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, no question has ever proved too difficult for the noble Lord to argue, as I remember from my time as Attorney-General. In any event, this must come before the Court of Human Rights; the convention itself demands that it be reported. Therefore, it will only be a matter of time before the legitimacy or otherwise of such further measure is tested. I believe that the Government are entitled to the order that they seek and are entitled to it now. As I understand the matter, in any event it was necessary to make this order pro tem on 11th November because the Bill was to be debated two days later in the other place. How could it be said, short of an order, that it complied with the convention obligations of the Government?

That said, I give warning—if that does not sound too pompous—that the Government will face considerable trouble when the Bill comes forward by reason of Clause 29, which has been dwelt upon so effectively today. I believe that to attempt to exclude from the review of the judiciary actions that are at the centre of the whole process is thoroughly misguided, misconceived and rather disgraceful. It is likely to prove futile in any event, because I do not believe that it will wash with Parliament, and it certainly will not wash with the judiciary. I happen to believe that judicial review is a far more effective safeguard of human rights than even the convention.

Photo of Lord Corbett of Castle Vale Lord Corbett of Castle Vale Labour 4:30 pm, 19th November 2001

My Lords, we all have a duty in Parliament to do what we can collectively to safeguard the safety and security of the citizen. But we also have a parallel duty to safeguard the human rights of the citizen as well and that is what gives me concern about this order today.

What in fact the Government are saying to your Lordships' House is "Trust us, trust our judgment. We will do our best although there are narrow and specific circumstances where we, the Government of the United Kingdom, want to stand above the law". It is my strong view that this is not a good enough basis on which to base human rights.

I wish quickly to remind your Lordships' House that we do not come empty headed to this debate. Unhappily, we have long experience of anti-terrorist legislation in this Parliament. Perhaps I should make clear to your Lordships that I come here with attitude about terrorist legislation. I was in the other place when literally overnight the first Prevention of Terrorism Act was steamrollered through that place with all the dire consequences that had for many citizens wrongly, brutally, gaoled for lengthy periods, only later to have those convictions quashed by the Court of Appeal.

I remind your Lordships that just 10 years ago, at the time of the Gulf War, 50 Palestinians living in the United Kingdom were detained because of their alleged links to terrorism. Thirty-five Iraqis were picked up and described as "soldiers" together with another 141 Iraqis and other Arabs. In fact, the 35 Iraqis were engineering and physics students. They had been described as soldiers because someone had learnt—it was never hidden—that their scholarships had been provided by the Iraqi military. Making two plus two add up to five, that led people to surmise that they must be soldiers of Saddam.

In fact, at the end of that war all were later released without charge and many repaid the trust which Saddam Hussein had put in them by claiming asylum in the United Kingdom. As regards the Palestinians, one of those detained was a Mr. Abbas Cheblak, a rare and treasured creature in the tangled politics of the Middle East, because he was an advocate of Arab-Israeli rapprochement. The person who led the campaign for his release was none other than the editor of the Jewish Quarterly.

I mention these points because we should not assume that either the security services or the police get these matters right all the time. Whether this was simple human error or over-zealousness at the time of the Gulf War by the security services, we shall never know. It may even have been some kind of PR campaign to stoke up support for the war. In any event—I remind your Lordships of this point—all of those detained were subsequently released. No action to deport was taken against any of them. Indeed, some of them were awarded compensation for that detention.

Last year, under the wide powers of the Terrorism Act, just 16 non-Irish people were detained alongside the 23 involved in the Afghan plane hijack. That does not suggest to me the need for extra powers if those presently in existence are so little used and apparently needed. There are powers in Section 56 of the Terrorism Act to bring criminal proceedings against those alleged to be directing terrorist activities or incitement to commit terrorist acts abroad from within the United Kingdom.

I ask the Minister this question. Why are these powers not felt to be sufficient to deal with foreign nationals here suspected of terrorism post 11th September? It will come as no surprise to the Minister, because of our experience in another place, that I find totally abhorrent the prospect of what could be—the Minister was kind enough to acknowledge it—indefinite detention without charge or trial. I say to your Lordships something which is known already from previous experience. There is a real and almost certain risk that if the order is passed and the Bill is carried in its present form, some of those detained will seek to use that detention to further their claimed cause.

The order smacks of all the worst aspects of the former Soviet Union and other repressive states. A person detained will not know the charge against him or her and those legally representing him or her will not know the reasons. When the Minister says that every six months there can be an appeal to review whether there has been any change in the circumstances, I say to the noble Lord that it is impossible for a detained person in this manner to argue that there has been a change in the circumstances if he or she does not know the circumstances which have led to the detention in the first place. That is Kafka at its worst.

I wish to make clear it to my noble friend the Minister that I acknowledge the very real problem of trying to deal, on the one hand, with those foreign nationals living here who cannot be removed or extradited because of Article 3 of the European Convention on Human Rights and, on the other, those who cannot be prosecuted because of a lack of evidence. But if there is a lack of sufficient evidence to charge, how can that slighter evidence in that comparative sense be used for the much more serious purpose of indefinite detention? It simply does not follow in logic.

It is not good enough to take the risk that big mistakes are going to be made, as they are bound to be, to find cute and cunning ways around the need to respect the laws of this nation where those we suspect of criminal offences are to be charged, tried and, if the evidence is sufficient, convicted. It is my belief that the powers of the Terrorism Act 2000, fairly fresh on the statute book, are wide enough. Those contained in the order are awesome. We are saying to people living here against whom no charge has been formally made and there has been no case in any court, "You are going to be lifted off the streets, out of your homes and detained in prison for as long as it takes for us to decide that you are no longer a threat to the security of this country".

Should the order and the parallel Bill go through, I hope at least that the Minister will be able to say again not simply that these powers will be used sparingly but that they will be used only as a very, very last resort and that as an alternative ever proper consideration will be given to prosecution under the Terrorism Act.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, the last time I praised a speech by the noble and learned Lord, Lord Mayhew of Twysden, he began his reply, "I listened with growing eagerness for the 'however clause'". I shall not keep him in suspense. So this time, if he will forgive me, I shall begin with the "however".

The noble and learned Lord made one small point on which I believe him to be in error. He said, "provided what the Government do is not in conflict with any other of our international obligations", which he believed not to be the case. Perhaps I may draw his attention to a clause in the 1951 UN Convention on Refugees, on which the Government have relied. I refer to Article 33(2):

"The benefit of the present provision may not, however, be claimed by a refugee for whom there are reasonable grounds for regarding as a danger to the security of the country in which he is".

It is precisely the phrase "reasonable grounds" which does not appear in Clause 21 of the Bill, where one might have thought to find it. At the least, that risks putting us in breach of our obligations under the UN convention of 1951, which I regard as significant.

I admire the noble Lord, Lord Davies of Coity. He is a man of courage. He is the only noble Lord to have spoken full-heartedly in defence of the order now before the House.

Photo of Lord Acton Lord Acton Labour

My Lords, so did the noble and learned Lord, Lord Mayhew.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, full-heartedly? I hope that the noble Lord, Lord Acton, can recall his concluding words about judicial review. That is what I would have said before turning to the "however clause" had I had occasion to put it there.

The noble Lord, Lord Davies of Coity, thought it sufficient to cite 11th September and Al'Qaeda. I hope he understands that those of us who wholeheartedly support the Motion tabled in the name of my noble friend Lord McNally, of whom I am one, are not one whit less hostile to terrorism than those who support the government order. I have read the reports in The Times of the Al'Qaeda attempts to construct a Nagasaki-style bomb, as well as the reports of their use of ricin pellets, seven seeds of which could kill a child. I am under no illusion about what we are dealing with, but to my mind that creates an obligation to testify not only to the strength of our feelings, but to put forward measures that are going to be effective.

Thus the question the House must consider is this: are these measures the most effective means of dealing with the situation? It would be a very grave mistake—and it is one which the Home Secretary has at least come uncomfortably close to making—to assume that protecting us against terrorism and preserving our civil liberties are in some way antithetical. They are not. Our civil liberties are one of the weapons we can use in the battle against terrorism. I believe them to be an extremely important element in our weaponry.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

My Lords, I thank the noble Earl for giving way. Would he concede that, in the arena of terrorism, covert activity is paramount? As a result, sometimes it is necessary to detain suspects on the basis of intelligence and sourced information which could not be presented to the court for fear of causing damage to our national security.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, I concede without question the first half of the noble Lord's remarks, but because good intelligence is paramount, ensuring the sympathy of potentially neutral opinion is vital. If an innocent person is arrested, it is likely that the next time a terrorist proposition is put in front of him, he will no longer be innocent.

I do not know whether the noble Lord was in the Chamber for the debate held on 16th October. He would have heard my noble friend Lord Alderdice, who knows something about this subject. My noble friend stressed the importance of detaching the extremist terrorist from the potentially sympathetic, semi-neutral opinion in which, to utilise Mao Tse Tung's phrase, "he swims like a fish in water". Every time we over-react, we make that process a great deal harder. Every time we invoke a sense of injustice in those we arrest, we create another potential terrorist. Every time we offend those capable of passing on valuable intelligence, we receive less intelligence as a result. That is the mistake made by Al'Qaeda when the twin towers were attacked. Look at how much more intelligence we have received since 11th September. It was also the mistake made by the IRA when they began bombing the Tube. That campaign could have brought us to our knees within a few weeks, but the IRA gave it up. I learnt a great deal out of that experience.

I am not in politics simply to testify to my feelings. It can be taken for granted throughout Parliament that all stand against terrorism. I do not think that we need to prove it. However, the Home Secretary is in real danger of sounding like the proverbial left-winger who goes about testifying to his feelings in the most eloquent manner, with the result that he does not produce effective measures. I want the measures taken to counteract terrorism to be effective. That is why I am not prepared to vote in support of them until I know in what form the Bill leaves this House. I shall vote for the amendment tabled by my noble friend Lord McNally.

Photo of Lord Acton Lord Acton Labour

My Lords, before the noble Earl sits down, could he clarify a point for me? In fairness to the noble and learned Lord, Lord Mayhew, I understood his speech to be totally in favour of the order and wholly against Clause 29 of the Bill. Am I wrong in that?

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, I do not think that it is possible for a speech to reflect both of those views at the same time, but if the noble and learned Lord wishes to clarify his position, he is in his place and he may do so.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, I hesitate to interrupt or intervene in this interesting and rather flattering discussion. In my view, I concluded that the Government were entitled to their order for reasons which I shall not repeat, having inflicted them once on noble Lords. However, I venture to warn the Government of severe trouble in the future in regard to their attempt to exclude judicial review over the whole of the process on which they seek to pin public confidence for the measure.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I am grateful to the Minister for his explanation of the order. As regards the Bill, it will require detailed examination. Long nights lie ahead, but I am sure that noble Lords will complete their deliberations on the Bill on schedule.

I suspect that if no order had been put before the House first, the noble Lords on the Liberal Democrat Benches would protest: "No Bill without first considering the order". I do not deny the degree of urgency required here, but I am not absolutely convinced on that point. However, I am convinced about the need for and desirability of the order because of one sentence contained in the schedule:

"It will be open to a detainee"— who would be a foreigner and not a citizen of the United Kingdom—

"to end his detention at any time by agreeing to leave the United Kingdom".

If the order is put to a Division, I shall support the Government.

Photo of Lord Richard Lord Richard Labour

My Lords, I rise briefly to say that I regard this as a somewhat unhappy piece of legislation. It is not one that I can approach with a great deal of enthusiasm; indeed, it goes against most of my political and other instincts. However, we all know very well that from time to time governments have to take steps that they do not particularly like. Noses have to be held, if I may so put it. Over the years more noses have been held than that of the noble Lord, Lord McNally, who is experienced in the internal workings of government.

If the order must be passed, then the Government are under a duty to try to justify it. They need also to justify the passage of the Bill. I have two questions to put to my noble friend on the Front Bench, to which I hope he will be able to respond. First, why do we need to pass the order before the Bill? I do not support the Liberal Democrat Party on this matter, but the thought has occurred to me with a great degree of force, as it has to the noble Lord, Lord McNally. One would have thought to see the two pieces of legislation the other way around; namely, that we would find out what powers were sought by the Bill and that, once those powers had been adequately expressed and the legislation passed, then we would have the order derogating the Human Rights Act. Perhaps there is a reason, which I hope that my noble friend will make clear.

Secondly, what practical difference to the powers of the Home Secretary will the passing of the order make before the passage of the Bill? Does it give him additional powers that he otherwise would not have? Does it enable him to do anything that he thinks he should do which he cannot do now? If that is the situation, the Government will have gone a fairly long way towards justifying the introduction of the order.

I shall not discuss the legislation because the time to discuss it will be when it is introduced. Therefore the temptation to make Second Reading speeches on the passage of the order should be resisted.

Perhaps I may make one final comment to my noble friend who is to reply. I have been called lots of things in my political life, but I have never been called a "fairy" before. There are all kinds of reasons, perhaps, why I have not, but I sincerely hope that that kind of language will be eschewed in future.

Photo of Lord Windlesham Lord Windlesham Conservative

My Lords, one of the least conspicuous of the harms done by those responsible for the carnage at the World Trade Centre and in Washington on 11th September was to the international legal order itself. Here in Europe, the European Convention on Human Rights was created in the aftermath of the Second World War more than half a century ago. If we think about the fundamentals, the situation now is totally different. International terrorism is demonstrably on a scale which we must acknowledge presents a recognisable threat to large numbers of people in different parts of the world.

The protections contained in Article 5 of the European convention allowed for the deportation or removal of a person who is believed to be threatening the life or security of the nation. But if a person cannot be removed or extradited for a variety of reasons, and cannot be tried in the domestic courts, how to meet the threat to the security of the nation—which may be very real—poses a dilemma to which there is no answer within orthodox and established legal traditions.

I came to the House today with an open mind, with no prepared speech, and anxious to hear what noble Lords on the Liberal Democrat Benches had to say in support of their amendment. I have spoken from time to time in debates on the same side as some of the noble Lords who sit on those Benches. But I do not support their argument today. The correct approach for the House as a whole was put with commendable brevity and clarity at the start of the debate by my noble friend Lord Dixon-Smith. I support the order rather than the amendment today.

I shall listen with great interest during the course of the subsequent debates, when I am sure there will be opportunities to obtain elucidation and, if necessary, some changes. But to go down the path recommended so eloquently by the spokesmen for the Liberal Democrats in the situation that we, and the nation, currently find ourselves, would be misguided.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, the noble Lord, Lord Richard, asked the Government why they wanted the order approved before the passage of the Bill and not afterwards. I assumed that this House was here to make an honest man of the Home Secretary. On the front of the Bill he has, as he is obliged to do under the Human Rights Act, certified that the Bill is, in his view, compatible with the European Convention on Human Rights. As an amateur in these matters, it seems to me that, unless the order is passed, the Bill is not at the moment compatible with the convention on human rights.

When the Bill was introduced in the other place—when it received its First Reading and when it began its Second Reading—it was not compatible with that convention. It only will be compatible if we agree to the order today. I may be wrong, but that seems evident to me. I am surprised that no other noble Lord has made the point.

I would rather discuss an order knowing that the possibilities the Government were putting forward were within the law, than discuss it knowing that they were outwith the law until the end of the Bill. So the Government are right to do this.

I am sorry that there have been so many Second Reading speeches because we shall either hear them all over again, or we shall forget what has been said by the time we come to Second Reading. That is a pity. It seems to me that this is a simple point.

Photo of Lord Mishcon Lord Mishcon Labour

My Lords, perhaps I may make a brief speech. I hope your Lordships agree that if ever there was proof required that human memories are short, there could not have been better examples than some of the speeches which have been made in good faith today. If we had had this discussion on 12th September, I doubt whether any of us would have started wondering, "Is there an emergency? Perhaps we need legal opinion. Are the Government safe to assume that there is a public emergency of the gravest order?" Who would have made that suggestion on 12th September?

But we are not America; we are Great Britain. We are one of the countries threatened by terrorism. We are winning the fight on the battlefield. When you are engaged on the battlefield and you are winning, is that not the time when your opponent may take the most reckless action, because he knows it is all over and he wants to make it as painful as possible?

The responsibility of government is sometimes heavy, but the responsibility on an official opposition—I say this with every respect—is also very heavy in times of emergency. I feel that this is not a time for abstention but a time for standing up and saying, "The order is right in the circumstances". When the Bill comes before the House, those of us who are fighters for liberty will look at every line and decide how we will vote for amendments, if amendments there are to be. I assume that there may well be many.

Is not the question today very simple: are we prepared to give the Government the reasonable powers they will receive under the Bill if the vote of the House is in favour of reasonable powers, as I assume it will be? If we are prepared to face up to the fact that we are confronted by an emergency—and by a mad enemy—is this not the time to vote accordingly?

Photo of Baroness Strange Baroness Strange Crossbench

My Lords, Clause 42 of the Magna Carta states that all men shall be free to come and go except in time of war. We are all at war with terrorism.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration) 5:00 pm, 19th November 2001

My Lords, perhaps I may comment first on the amendment. In doing so, I want to make it clear that I have no complaint, and the Home Secretary and the Government have no complaint, about any of the questions raised in this debate or subsequently. Given the time constraints on a Bill with 125 clauses, we understand that we shall rightly be subject to scrutiny.

Perhaps I may deal with the point as to why the order is being brought before the House today. The noble Baroness, Lady Carnegy, raised a not unimportant question about the signature on the Bill. It is presently that of the Home Secretary, as the Bill begins its passage in another place; and in due course it will be mine as it passes through this House. It is true that, without the order being promoted, we should not be able to sign the Bill to the effect that it is compatible with the European Convention on Human Rights. We do not knowingly want to introduce Bills which are incompatible with the convention if we can take action beforehand to make them compatible.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, I am grateful to the Minister for giving way. The order having been laid, it would still have been possible to have approved it within the 40-day period provided. Would it not, therefore, have been possible to lay the order and to postpone bringing it before the House?

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

Yes, my Lords, it would have been. In a moment I shall come to the reasons why we chose not to do it in that way. The noble Lord makes a fair point. It is the first time that such an order has been made under the 1998 Act. That adds weight to the occasion in terms of the important step that we are taking. We do not belittle any of the questions in relation to the scheduling of the debate and the making of the order. Indeed, I have asked myself such questions. I am still getting to grips with procedures in your Lordships' House compared with those in another place.

Section 14(6) of the Human Rights Act clearly envisages that a designation order may be made in anticipation of the making by the UK of a proposed derogation. Once it has been proposed by the Government that a derogation from the ECHR should be made—and that amendments will accordingly be made to the Human Rights Act to reflect that derogation—it seems eminently desirable that Parliament should be given an opportunity to discuss the matter as soon as is reasonably possible.

By making the order last week, we were able both to make a statement of compatibility in respect of the Anti-terrorism, Crime and Security Bill, and to bring the matter to the attention of the House as soon as we could. That is one of the reasons why the order was made and laid before Parliament last week.

The question arises also of when the order should be debated. The legislation clearly requires that this must happen within 40 days of the order being made; otherwise, it lapses. While the exact timing was a matter for the usual authorities, the Government took the view that the debates should take place sooner rather than later.

Once the order was made, Members of this House and of another place would rightly expect the Government to explain what we were doing and why we were doing it. That explanation can be given most effectively in the debates that we are having today in both Houses. Had the debates been delayed for over a month, we should have been criticised for being dilatory in our response. We could easily have taken a relaxed view, but we did not think that that was the right approach.

I should stress that in debating the order we are not taking the will of Parliament for granted. It may appear that way on the surface; but that is not the reality. We believe that the provisions in the Bill relating to detention are, for reasons discussed today, necessary and proportionate—and precautionary in some respects—and we hope that they will be enacted in a form very close to the way in which they are set out in the Bill. The derogation that we propose to make from Article 5 of the ECHR is worded with the provisions of the Bill in mind, and it seems right to debate it in that context.

In the event that the provisions in the Bill end up in a slightly different form, we can also check whether the wording of the derogation notification also needs to be revised. But let us cross that bridge when we come to it. So there is that facility—obviously, were the Bill to be emasculated in either House, it would be a different Bill. But if the Bill is enacted in broadly its present form, we hope that the derogation notification to the European Court can be revised to take account of that without the need to return the matter to this House.

A couple of specific questions were raised. The noble Lord, Lord Dixon-Smith, made a point about where people might be sent back to. With respect, it is not a question of sending people back to a particular place. If they choose to leave the United Kingdom, they will be let out of detention. Presumably they will be escorted to the plane or another means of transport and they will leave our shores. So it is not a question of us having to contemplate sending people back to a place where they will suffer harm and torture.

That brings me to the question raised by the noble Lord, Lord Lester. I hope that I can give him an answer that is more accurate than the one that I gave; it is certainly not the one that I gave originally. It appears on advice given to me that SIAC would review whether a person could be removed following a deportation order made by the Home Secretary—there would obviously need to be such an order if someone was to be removed forcibly: for example, as to whether Article 3 would prevent such removal. The powers of SIAC derive from provisions in the Special Immigration Appeals Commission Act 1997. If SIAC agreed that a person could be removed, that would be fine; removal would proceed and the detention powers would not be needed.

Our priorities are, first, to prosecute if we can; secondly, if we cannot prosecute, to remove the person by means of a deportation order. If that is satisfactory and we have agreement on it, and there is no problem with Article 3, that will be the end of the matter. There will be no question of detention. But if matters are the other way round, SIAC can examine the position in respect of whether a person can be removed. We shall no doubt debate the point at greater length in Committee.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am grateful to the Minister for giving way. I have in mind the various comments made about judicial review. Am I to understand that, in effect, the Special Immigration Appeals Commission will have full powers of judicial review on the merits of a case, subject to the special procedure that is provided for? Am I to understand that it will have the kind of powers that the High Court would have by way of judicial review—obviously with procedural adjustments?

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, as a non-lawyer—I am an engineer by profession—my understanding is that the operation of the Special Immigration Appeals Commission is effectively a judicial review on the Home Secretary's decision, first, to sign the certification and, secondly, to order the detention because he does not believe that removal is possible. That being the case—and it is behind closed doors—the commission could review each stage of the Home Secretary's decision and how he has arrived at the point where he believes detention is the only alternative. To that extent, the commission ought to have access to all the information that the Home Secretary has, including his thinking as to why he cannot remove the person, because country A or country B is not compatible with our obligations or Article 3. To that extent, the commission would have the broad-ranging authority to examine the decision. I take the point made by my noble friend Lord Corbett that the decision would necessarily be made behind closed doors.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, I am grateful to the Minister for giving way. I am sorry to intervene again. But is his reply to my noble friend Lord Lester compatible with Clause 33(3) of the Bill:

"Where this Section applies the Commission must begin its substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate"?

Does not that block a consideration of the full merits of the claim to asylum; and does it not restrict the power of review of the reasonableness of the Home Secretary's decision?

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, with respect, that is another issue. It is one that we shall debate and, I would argue, not one relating to the order. There may be foreign nationals resident in this country who have already gone through the process and secured refugee status; they may have been classified as refugees under the terms of the 1951 convention. If we follow this process through, it could be argued that they would not be making a claim for refugee status, because that would already have been done. Clause 33 therefore takes account of this. That is best left, however, because we are getting into the details of the Bill. I may be wandering down a road where I would mislead the House, and I do not intend to do that.

I reiterate the point about the timing and why we did not want to leave it. If the order ceased to be valid, if it was not approved within 40 days, by resolution of each House, it would lapse. I have benefited from this debate, however. Without the order, we would not have had it. My officials, those responsible for designing this Bill and other Ministers, even in the other place, will have benefited from this debate today. To that extent it has been a useful operation, in terms of parliamentary accountability for the Government, to have it now rather than have it at the end of our processes.

The Home Secretary will bring forward amendments to Clauses 21, 25 and 26, which I believe will fully meet the point about the reasonableness test. We accept that all Ministers operate at all times in a reasonable fashion. If they did not, my learned friends would have something to say about it. If putting it on the face of the Bill brings a greater degree of contentment, then we are happy to do that. We shall bring forward amendments, though I do not know whether they will be brought forward in this House or in the other place.

We envisage that the validity of the derogation could be raised before SIAC and, from there, the Court of Appeal and the House of Lords. It could be challenged all the way through the judicial process. That is why we are more than comfortable in respect of Clause 29 and the point made by the noble and learned Lord, Lord Mayhew, in terms of the absence of judicial review. This whole process is a very narrow judicial review of the Home Secretary seeking to deal with an issue in the only way that he thinks is possible. Having failed in the sense of a prosecution—that not being possible for the reasons I have explained—he cannot remove someone and therefore is left with no alternative but to detain.

Photo of Lord McNally Lord McNally Liberal Democrat

My Lords, we have just seen the Minister swimming valiantly for shore, clutching the lifebelt thrown to him by the Conservative opposition. What we did not hear was any real answer—other than it had given him and his officials some useful clues about the debate to come—to what I would call the Richardson-Carnegy question which, a little like the Rooker-Wise amendment, is a kind of "killer" question. Why does an order that could last 40 days to 21st December have to be brought right to the front of the process when the Minister himself has conceded that if there are substantial changes he will have to bring another order to this House? We have not had an explanation.

I shall not delay the House for much longer. A number of points have been made. The noble and learned Lord, Lord Mayhew, even called me noble and learned. I am not sure whether to take that as a tribute or to consult with the lawyers behind me about possible slander. The serious point I make is in answer to the noble Lord, Lord Mishcon. It was on his own Benches that we saw the polarisation of the debate: between the noble Lord, Lord Davies, arguing force majeure and the noble Lord, Lord Corbett, defending civil liberties. Perhaps I may say to the noble Lord, Lord Mishcon, that it is not that we have short memories; we have long memories. The memory we have is that, from Fox to Aneurin Bevan, oppositions have taken their opposition seriously. Even at times of crisis and even at times of war they have defended civil liberties and human rights. We believe that the Government are wrong to bring the order forward at the beginning of this process, before we have the full opinion of the House and the full dimension of the derogation that they want. For that reason, I ask to test the opinion of the House.

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 148.

Division number 1 Private Parking: Ports and Trading Estates — Human Rights Act 1998 (Designated Derogation) Order 2001

Aye: 67 Members of the House of Lords

No: 146 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.