Guantanamo Bay: British Detainees

– in the House of Lords at 3:19 pm on 24th February 2004.

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Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 3:19 pm, 24th February 2004

My Lords, with the leave of the House, I should like to repeat a Statement on the British citizens detained at Guantanamo Bay which is being made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:

"Agreement with the United States Government on the return of five of the nine UK detainees was reached on Thursday last, 19 February. Although the House was in recess, I judged that it was only fair to the families of all nine detainees that they should be informed immediately. We therefore made every effort to contact the families and their parliamentary representatives and I made a public announcement late on Thursday afternoon. I could not report to the House yesterday as I had to attend the General Affairs Council in Brussels.

"The attacks of 11 September 2001 were the most appalling terrorist atrocity the world has ever seen. They killed more than 3,000 people, including 67 British citizens. In response to those attacks, a coalition of countries came together to launch a military campaign against Al'Qaeda and its Taliban supporters to remove them from their strongholds in Afghanistan.

"In these operations thousands of individuals believed to be Al'Qaeda or Taliban fighters, or their supporters, were detained by coalition forces. The vast majority of these individuals were released. But those who were deemed to pose a substantial risk of returning to the conflict—to date, around 800—were sent by the United States to its naval base in Guantanamo Bay to be detained and to be questioned about their knowledge of Al'Qaeda activities. As a result, valuable information has been gained which has helped to protect the international community from further Al'Qaeda and related terrorist attacks.

"The Government have been in frequent and regular contact with the United States authorities concerning the British detainees at Guantanamo Bay. From the outset, the Government have sought to ensure their welfare and have actively encouraged the US Government to resolve the position of the British detainees. British officials have visited Guantanamo Bay six times. We have kept their families and Parliament informed of the detainees' circumstances and of developments.

"In July 2003, two of the British detainees were designated by the United States authorities as eligible to stand trial by United States military commissions established to prosecute the detainees. The Government made it clear straight away that we had concerns about the military commission process. Consequently my right honourable friend the Prime Minister asked my noble and learned friend the Attorney-General to discuss with the United States authorities how the detainees, if prosecuted, could be assured of fair trials which met international standards.

"The Attorney-General therefore held a number of discussions with the United States authorities about the future of the detainees. In parallel, the Prime Minister has talked to President Bush. I have discussed this matter on many occasions with US Secretary of State Colin Powell; and extensive discussions have been held between British and United States government lawyers and officials.

"These discussions have involved many complex issues of law and security, which both governments have had to consider carefully. Although the discussions have made significant progress, the view of the Attorney-General was that the military commissions, as presently constituted, would not provide the process which we would afford British nationals.

"Our discussions with the United States authorities are continuing. In the mean time, as I announced last Thursday, we agreed that five of the British detainees will return to the United Kingdom. They are Rhuhel Ahmed, Tareq Dergoul, Jamal al-Harith, Asif Iqbal and Shafiq Rasul.

"These men will be flown home to the United Kingdom in the next few weeks. The House will understand that it would not be right to disclose the operational details at this stage. The police have, however, established links with the families so that they can be informed of developments.

"The police have confirmed that once the detainees are back in the United Kingdom, where there are grounds under the provisions of the legislation, the five men may be arrested under the Terrorism Act 2000 for questioning in connection with possible terrorist activity. Any subsequent action will be a matter for the police and the Crown Prosecution Service. It would therefore not be appropriate to comment further on their particular cases.

"But I would like to emphasise two points here. First, the police have said that they are investigating all the detainees thoroughly and individually, in the normal way, including the circumstances which led to the men's detention. Every necessary step, including prosecution if appropriate, will be taken to protect national security.

"Secondly, the detainees will be treated in the same way as anyone else suspected of committing a criminal offence, in accordance with UK law. The process has built-in safeguards and is subject to independent scrutiny to ensure that all individuals are treated fairly and properly. It includes access to lawyers.

"We shall continue our discussions with the United States authorities on the situation of the other four British detainees. They are Feroz Abbasi, Moazzam Begg, Richard Belmar and Martin Mubanga.

"There are a range of security and other issues which we and the Americans are considering in respect of these four men. As a result of our talks, US legal proceedings against Mr Abbasi and Mr Begg were suspended in July and the US said that the men would not be subject to the death penalty. This remains the case.

"Our overall position remains that the detainees should either be tried in accordance with international standards, or they should be returned to the United Kingdom. We shall continue to work to resolve their position. I will of course keep the House informed.

"The Government remain determined to work with our allies around the world to defeat the scourge of global terrorism. Terrorists seek to deny the most basic of human rights—to life, to security, and the right to go about our daily business free from threat and harm. We will continue resolutely to defend these rights through a robust and determined approach to combating terrorism and its networks of support wherever it is to be found".

My Lords, that concludes the Statement.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister (Foreign and Commonwealth Affairs) 3:27 pm, 24th February 2004

My Lords, I am grateful to the Minister for repeating the Statement and I should make it clear that on these Benches we are glad that some progress is at last being made in sorting out the complex issues behind both these detainees and the others at Guantanamo Bay.

We appreciate—as others have not always done—that from the earliest days in the Guantanamo situation the world has been confronted with a unique situation in human history and international affairs, where the individuals concerned were apparently deliberately participating in the stateless pursuit of terrorism, with the aim of killing, injuring and maiming non-combatants; and had placed themselves far outside the international law of war and outside recognised categories of behaviour or offence. So it was understandable that at the outset their status was bound to be ambiguous and that gap had to be filled by the concept of unlawful combatants.

But that time has passed and the situation must now be cleared up. Today's Statement raises a raft of important questions. First, the Home Secretary, Mr Blunkett, has told the media that none of the five named by the Minister and who will be released by the US authorities,

"represents a security threat to the British people".

Well, aside from that being a somewhat premature and improper judgment, many people want to know how the Home Secretary knows that—before investigations have been completed by the police and before questioning has taken place. Is it not absolutely vital in the interests of national security that each case should be rigorously examined and fully assessed to see whether there is sufficient evidence to justify proceedings? It is essential that the circumstances and causes of the original detention must be established.

It is, of course, for the prosecuting authorities to decide the nature of any charges, but has anyone considered whether charges for treason would be appropriate if those concerned can be shown to have taken up arms against British forces and the British Crown? I know that this morning the Foreign Secretary dismissed that as "a hare", but was he right to do so, given the uniqueness of the circumstances? Should we not keep our minds open on that aspect? What will happen to the five individuals when they arrive here? Will they be held in custody when they touch down or will they be allowed home while being investigated prior to possible arrest? Can the noble Baroness tell us something about that?

As to the other detainees—the four left behind—first, what is the difference between the five transferred here and the four retained at Guantanamo Bay? Do those four constitute a threat to our national security when, according to the Home Secretary, the other five do not? Will they go on to face the proposed military tribunals, which two of them were already beginning to face before the process was previously stood down? Are we satisfied that those procedures meet the international standards in which we believe? I do not consider that earlier we were so satisfied. Therefore, are discussions continuing about their fate and the way in which they are to be handled?

The Foreign Secretary said this morning that the new threats that the world faces were not only unique but were not anticipated. That is quite wrong. From the dawn of the information age, it was obvious that global protest and terror would be given new organisational impetus, and many of us said so at the time. If one adds suicide readiness to the lethal brew, we have the present completely predictable combination of threats to our open and highly vulnerable societies which we have never before experienced. In a sense, the feared rendezvous between new miniaturised and hideous weapons and methods of slaughter and the agents of terrorism has already arrived. Everyone is now in the front line and exposed to terror initiatives and the terror resources of often small cells or individuals, who can reap the most horrifying damage on our normal and everyday lives.

Of course, we want this country to be—it has to be—the champion of the rule of law, but that law must arm us to be able to address the new threats and the new terror and to protect our citizens and not handicap us from doing so. There must be a balance between established notions of law and doing our utmost to ensure people's security. That is the balance that we want to see maintained both here and, ultimately, in the treatment of all the other detainees remaining at Guantanamo Bay.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Shadow Minister, Foreign & Commonwealth Affairs 3:33 pm, 24th February 2004

My Lords, we on these Benches welcome this robust Statement—and we interpret it as a robust Statement. We welcome, in particular, the confirmation that the Attorney-General's view is that the military commission, as presently constituted, would not provide a process that we would find acceptable for British nationals. We also welcome the clarification that investigations on the returnees will be conducted "in the normal way" with detainees treated,

"in the same way as anyone else suspected of committing a criminal offence", under UK law. Those are extremely important points.

I understand that, on Friday, Trevor Kavanagh—an extremely well connected political journalist working for the Sun—said on Jeremy Vine's programme on Radio 2 that he had been told by senior Cabinet and security sources that the five were to have security surveillance for the rest of their lives once they returned from London. I do not know whether the Minister has any information on that report.

We recognise the effort that the Government have made to represent the British case to the American authorities. One has to say that if the situation had been reversed and the British authorities had been holding American nationals in a similar way, we can imagine the outcry that would have come from Washington.

I regard the behaviour of the Bush Administration in relation to Guantanamo Bay over the past two years as, in the strictest sense, un-American. I speak as someone who used to study and teach American politics in American universities, and I used to teach the United States constitution as the epitome of the rule of law. What we have seen from the Bush Administration over the past three years has been a falling away from the principle of the rule of law, both within the United States and internationally. We have seen the Geneva conventions ignored; we have seen, as the Statement said, the behaviour of the United States falling well below international standards; and we have seen the unacceptable legal void of Guantanamo Bay.

Will the Minister confirm that prisoners are not being held at Bagram and Diego Garcia? There have been repeated reports in the US press that some prisoners have been held at Diego Garcia. Again, I should welcome the Minister's confirmation that that is, and remains, without foundation.

We recognise that we have seen patient and quiet diplomacy by British officials and Ministers at the highest level. We should like an assurance from the Government that, if necessary—that is, if patient diplomacy is not enough—they will resort to public protest if that is the only way to ensure that British citizens receive appropriate treatment after two years or more in American custody.

Lastly, I repeat and strengthen the question raised by the noble Lord, Lord Howell. We heard about five detainees being returned. Two are being subjected to trial under certain guarantees, but we still do not know what will happen to Richard Belmar and Martin Mubanga. Can we be told what will happen to the eighth and ninth suspects?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 3:37 pm, 24th February 2004

My Lords, first, I thank both noble Lords for the welcome that they have given the Statement. I say to the noble Lord, Lord Howell, that we particularly welcome the context in which he started his comments. However, I think it is only fair to say that none of us envisaged the possibility of two armed aeroplanes being flown into buildings in the way that occurred on 11 September. That was a dramatic shock to the international community.

The noble Lord, Lord Howell, asked a number of questions. I hope that I made it clear in the Statement that I cannot go into the detail of the operational issues relating to the return of those who have now been identified to be returned to the UK. However, I can reassure the noble Lord that each case will be looked at on an individual basis. It will be considered rigorously and properly to ensure that all that should be done is done.

I note the noble Lord's comments concerning the statements made by my right honourable friend the Home Secretary. But, of course, the Home Secretary was correct because, following the investigations, either these individuals will be arrested and dealt with if they form a threat or, if the evidence does not justify such an act, they will not. Therefore, in those circumstances, our protection of national security will be maintained.

Before questioning by the police, the individuals will be examined to see whether they are medically fit to be interviewed. They also have a right to access to a defence lawyer. They can be questioned for an initial period of 48 hours, after which a court must approve further detention. Detention is, of course, a matter for the police. The men were interviewed in Guantanamo Bay by the security services on matters relevant to national security and not for prosecution purposes. Therefore, the decision will and must be left to the police authorities acting on any appropriate and proper advice given to them by the Crown Prosecution Service.

In relation to the issues raised by the noble Lord, Lord Wallace of Saltaire, about whether there are people being kept at Diego Garcia and elsewhere, the US has confirmed to us that there are no such detainees. Of course, we rely on that assurance.

I can give an assurance from which the noble Lord, Lord Wallace of Saltaire, may derive comfort. We have not changed our approach about the necessity to comply with international standards in relation to these men and we shall not do so. It is of some comfort that the acuity and persuasiveness of what we have managed to do has enabled five detainees to be properly returned. The noble Lord rightly said that legal proceedings were commenced in relation to two others, which were put into abeyance pending our discussions. Our discussions have not concluded. We are assured that nothing will be done until those matters have been concluded.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 3:41 pm, 24th February 2004

My Lords, I congratulate the Government, the Attorney-General, and the noble Baroness in particular, on the continuing efforts that have been made, over a very long period of time, to ensure that this totally unacceptable situation, in breach of the rule of law, is now beginning to be corrected. I am glad that she confirmed that further investigation, and as I understand it considerations of prosecution, will follow our usual independent system for all our citizens. Has that been made quite clear to the American authorities? Lastly, as regards the last four, what steps will the Government take—I am sure that some steps are being taken already—to try to get legal access to those who remain behind?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I thank my noble and learned friend for his congratulations. In particular, I warmly welcome the congratulations made in relation to my noble and learned friend the Attorney-General among the others who have worked so hard and assiduously on this issue.

We have made clear our position about the process that will be adopted by us in relation to the return of these men. It has been made absolutely clear to our American colleagues that the process of our law will operate in relation to them in exactly the same way as it would operate in relation to any other British citizen. That matter is clear between us. We have continuously taken advantage of our ability to have consular visits to the British men detained in Guantanamo Bay. I can assure my noble friend that we believe that we have seen our detainees more frequently than any other nation.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, I did ask about legal access.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, the issues in relation to the trial, maintenance and how those matters will be dealt with continue to be matters of discussions of the most robust nature between us and our American colleagues.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I have two very short questions for the noble Baroness. Under the current law, how long can the five be detained without being charged? Secondly, has she any information as to when the United States Supreme Court might reach a decision on the legality of the detention at Guantanamo Bay?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I can tell the noble and learned Lord that a terrorist suspect can be held under the Terrorism Act for a period of 14 days. The suspect must then be charged or released. The suspect must be released at any time beforehand as soon as the investigating officers become aware that the grounds for detention no longer apply. I can reassure the noble and learned Lord that all those debates in relation to the Terrorism Act in which he participated so energetically will bear fruit in relation to these detainees.

The noble Lord also asked about the Supreme Court. I am not able to give him an answer. If I am able to, I shall, but that is within the ambit of the American authorities. I am not aware of whether they have a timetable.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Shadow Minister, Foreign & Commonwealth Affairs

My Lords, while I acknowledge and welcome the strong statement that has been forthcoming from the Attorney-General, in particular about standards of trial required to meet international acceptability, does the Minister acknowledge that opinion within the United States is by no means fully supportive of the administration and that federal district courts have found Guantanamo detentions to be unconstitutional? Are the Government prepared to make it plain that quiet diplomacy is the method that they prefer, but that if unconstitutional actions are pursued against American or other citizens, we should regard it as an unfriendly act, and not one that we would be prepared to conceal within quiet diplomacy?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I am aware that there is a very wide debate in the United States on this issue. I am also aware that that is a matter of hot debate and contention in the United States. I can confirm that I have that understanding.

As to the quiet diplomacy, we believe that the robust diplomacy that we have exercised has borne fruit. Of course, we shall continue to pursue it and we hope that we shall have similar success in due course.

I should just say to the noble and learned Lord, Lord Lloyd of Berwick, that a note has arrived from the Box which indicates that the Supreme Court is due to rule at the end of June.

Photo of Lord Judd Lord Judd Labour

My Lords, I, like others, have the most profound respect for the work that my noble friend and her colleagues have been doing in this context. Like others, I have particular respect for the work done by the noble and learned Lord the Attorney-General, not least in the way that he has publicly sustained the need, to which my noble friend referred, to see the protection of the rule of law as part of the stand against terrorism and the need not to concede to terrorists the victory of having undermined our commitment to the rule of law. Would she therefore accept that as close allies and friends of the United States, while putting our commitment to our own citizens at the top of our anxiety, we have a responsibility to argue that what is wrong is Guantanamo Bay? There are a lot of people remaining in Guantanamo Bay who are not British citizens. The principles that we are arguing apply for our citizens apply every bit as much for them. We look to the United States, as our close friend and ally, to redress what is wrong with the whole arrangement.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, noble Lords will know that even among the very best of friends there can be differences of view that have to be respected and understood. I remind my noble friend that the United States of America suffered a grievous blow and sometimes when one is badly wounded it takes a little time to grow confident. The role of friends is to be resolute in standing by their side in times of difficulties but also to point out where the differences lie. That is the role that Her Majesty's Government have played and shall continue to play for the foreseeable future.

Photo of Lord Mackie of Benshie Lord Mackie of Benshie Liberal Democrat

My Lords, the Minister stated that the prisoners were to be returned here within a few weeks. Is there a reason for the delay?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, there is not any reason for delay. However, for operational reasons it would be inappropriate for me to be more specific as to when.

Photo of Lord Dholakia Lord Dholakia Shadow Minister, Home Affairs, Party Chair, Liberal Democrats

My Lords, I, too, thank the Minister and the Government for their efforts on behalf of individuals who are soon to return to this country. My first question follows that raised by my noble friends Lord Wallace and Lord Maclennan on the view of the Attorney-General in relation to the due process of law in the United States. What would be the Government's position if the US Government do not provide a due process acceptable to the British Government? Do they have a plan B?

My second question relates to the statement made by the Minister that the five men may be arrested. The due process of law in this country entitles them to legal advice and lawyers at the time of arrest. These people have gone through severe trauma and have been subjected to a tremendous amount of pressure over a long period of time. I am not here to determine their guilt or innocence; that is for a court of law to decide. However, surely, access to lawyers must be provided to those people the moment they arrive in this country so that they are properly informed as to what is likely to happen to them.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, that is why I said as clearly as I could that they would have to be medically fit and have access to lawyers when they arrived. I hope I made clear that I agree with the noble Lord that access to legal advice is a right which they are entitled to be offered and to exercise if they so choose. I reassure noble Lords that that is understood. Nothing will be done in relation to these detainees which differs from that which we would all expect to be done to any other British citizen.

Photo of Baroness Oppenheim-Barnes Baroness Oppenheim-Barnes Conservative

My Lords, assuming that the prisoners are returned to this country within a reasonable period of time, can the Minister tell the House what their status will be when they arrive here? Will they arrive back as prisoners or suspects or be placed under arrest? I should be grateful if the Minister could clarify that point.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, they will be brought back and will remain what they are now; that is, British citizens. When they arrive, the police will have to determine whether to investigate and whether to prosecute. It is the same position that any one of us would be in if we were in a similar situation.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, I congratulate the Government on the extent to which they have constantly referred to the need to observe the due process of law. Is there not a slight risk of hypocrisy entering this approach in view of the ouster provisions in Clause 10 or 11 of the asylum Bill, which prevent any application for due process in regard to decisions under that Bill? Even the suggestion that there has been a lack of jurisdiction is not to be permitted to be dealt with by the courts. A ring of steel has sought to be inserted in regard to that Bill so that the courts cannot in any way interfere with the decision made under its provisions. Is there not just a hint of hypocrisy entering into this subject if the Government continue to support those provisions?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, we would say, "no". I understand the temptation the noble and learned Lord has to conflate the two debates, one on asylum and the other on what should happen as regards prosecuting or investigating an offence which refers to a British citizen. When the Bill reaches this House no doubt we shall have the delight of debating those provisions at length.

Photo of Lord Sandberg Lord Sandberg Liberal Democrat

My Lords, can the Minister tell the House why the Americans appear to be so uncomfortable with their own judicial ability to try people in the way that they would normally be tried? I can understand the terrifying attacks that were made on them but, with the very well organised and historical links of the American judicial system I still do not understand why they feel they have to go outside it in this case.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I cannot speak for the Americans and it would be improper for me to do so. All I can say is that I have made plain what is the British position.