rose to move, That the draft order laid before the House on
My Lords, I regret that since last year there has been no reduction in the threat to the United Kingdom from Al'Qaeda and its associated networks; nor, on the information available, is there any indication that the threat is likely to reduce substantially in the immediate future. The bombing of the British Consulate in Istanbul on
The outrage demonstrates forcefully that none of those atrocities could have been carried out without the support and assistance of a network of individuals who, while they do not themselves carry out the particular terrorist acts, consciously provide the material and financial support necessary for others to carry them out. Strong intelligence has been received demonstrating the high priority placed by Al'Qaeda and linked Islamic extremist groups to mounting terrorist attacks, including in the United Kingdom. Plans include the use of chemical and biological materials.
Put quite simply, we are aware of the disruption that that causes to thousands of innocent people, but we cannot afford to take the risk. It is clear, from the mass of intelligence and other information that my right honourable friend the Home Secretary and our counter-terrorist allies have seen, that Al'Qaeda and its associated networks retain both the will and ability to carry out further large-scale atrocities. As result of its strong support for United States and other allied action against international terrorism, the United Kingdom and British nationals are, regrettably, potential targets.
To sum up, the action that we have taken reflects the existence of a public emergency threatening the life of the nation, within the meaning of Article 15 of ECHR. That emergency continues. We view the powers in Part 4 as an essential tool in the United Kingdom's counter-terrorist armoury. Detention powers that we took under Part 4 of the Anti-terrorism, Crime and Security Act 2001, in response to that threat, closed a very specific loophole. There are present in the United Kingdom foreign nationals, and a small number of British citizens, who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism of a sort that resulted in the events of
Whenever possible, we will prosecute an individual. Failing that, when it is possible to remove a foreign national suspected terrorist from the United Kingdom, we will make every effort to do so. We will also continue to explore with other governments how they might help us safely to return individuals. Officials in the Home Office and the Foreign and Commonwealth Office are actively pursuing how that might best be achieved. But we must acknowledge that removal, at least in the short term, is precluded for some terrorists because of the ECHR Article 3 prohibition on removal to face torture or inhuman or degrading treatment or punishment.
There is a very difficult balance that we have to achieve between our international commitments and our duty to safeguard the security and population of this country. We have reviewed closely and regularly the need for detention powers and ECHR Article 5(1) derogation, and the feasibility of other possible options. We have done so particularly closely in the light of the Newton committee's comments, but have concluded that we have no responsible alternative but to maintain the powers to detain, and the ECHR derogation.
We have also reviewed closely the application of detention powers to foreign and non-United Kingdom nationals. We believe that they are entirely justified as the threat still comes predominantly, though not exclusively, from foreign nationals present in the United Kingdom whom we are not able to remove, and therefore not able to detain pending removal, and when the preferred course of prosecution is not possible because the evidence needed for successful prosecution is unavailable. It would be deeply damaging if the United Kingdom was seen to be unable to take action and as providing a safe haven, weakening the international fight against terrorism. Unlike United Kingdom nationals, who have the right to be in the United Kingdom, foreigners are ordinarily subject to removal—which remains the intention when possible for ATCS Act detainees—if they represent a threat to national security.
I am aware that there have been suggestions that the threat from British nationals is increasing. We heard that in the debate last week. That is something that we are addressing in our review of the United Kingdom's anti-terrorism powers. But we should not forget that, in the mean time, Part 4 allows us to take action against a significant proportion of those who seek to endanger national security and public safety. Those powers significantly assist our security and intelligence services in doing their job. The Court of Appeal upheld our position on the need for these powers in its judgment in October 2002. The court agreed that the powers are not discriminatory and that they comply with the ECHR. The matter is to go before the House of Lords Judicial Committee later this year.
I now turn to the working of current Part 4 detention powers. I shall deal, first, with the exercise of detention powers; secondly, with the legal processes under the ATCS Act; and thirdly, with the second report of the noble Lord, Lord Carlile, on the working of Sections 21 to 23 of the Act. The Government have used the powers sparingly and proportionately. They are used only as a last resort, when no other action is possible. To date, 17 foreign nationals have been certified under Sections 21 to 23 of Act—eight in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002 and two in January 2003, one in August and one in October last year. Of those, two have voluntarily left the United Kingdom. The other 15 remain in detention, one of whom is held under powers other than immigration.
My right honourable friend the Home Secretary's decision to certify those people as suspected international terrorists is based on detailed and compelling intelligence and other material. All those detained have had access to legal advice of their choice throughout the detention period. There is no limit on the number of legal visits that detainees may receive, and special arrangements are in place to help to arrange visits, often at short notice.
The material on which the decisions to certify those people is based has been, and will continue to be, reviewed by the Special Immigration Appeals Commission, as provided for under the ATCS Act. SIAC is a superior court of record equivalent to the High Court. Those detained have immediate right of appeal to the Special Immigration Appeals Commission against certification. All have exercised that right.
The ATCS Act provides for SIAC regularly to review certificates, for the first time six months after final determination by SIAC, giving power to quash them. Detainees also have the right to apply for bail to the commission at any time, and several have done so. I must stress that that is not internment; it is detention pending deportation, and it is open to detainees to leave the United Kingdom at any time. Two have done so.
Appeals of the individual detainees started in May 2003. To date, 13 determinations have been handed down by SIAC. SIAC has upheld my right honourable friend's decisions in 12 of the 13 cases. The one case where SIAC did not accept my right honourable friend's decision was one of two cases handed down on Monday this week. We are obviously disappointed by that decision—my right honourable friend has certified only in appropriate cases—and I can therefore confirm that we are seeking permission for leave to appeal in this case. However, the legislation does not stand and fall on one case, nor does it mean that the legislation is ineffective. Just as in a criminal trial, if someone is acquitted for murder, that does not mean that the offence of murder is ineffective or that the relevant legislation is flawed.
We debated the Newton committee's report last Thursday. It was a stimulating debate, which, although raising a number of issues relating to other parts of the Act, focused heavily on Part 4. I am sure that we all found it extremely helpful to consider those issues in depth. We are here today to decide whether the Part 4 powers should be renewed for one more year. As I have indicated elsewhere in my speech, it is the Government's very strong contention that it should. However, nothing that I say now detracts from the Statement that we made last week about the need to look very creatively at the situation in the future.
The committee led by the noble Lord, Lord Newton, carried out a very thought-provoking review of the Act as a whole and suggested some alternatives to the Part 4 powers for the future. We also have the report of the Joint Committee on Human Rights on the Act, which in many ways reflects the findings of the Newton committee. Finally, we have before us the second annual report of the noble Lord, Lord Carlile, reviewing the operation of Part 4 to inform our consideration. I believe that the publication of my right honourable friend the Home Secretary's options paper on
The report of the noble Lord, Lord Carlile, was published on
In particular, we are pleased to note that the noble Lord, Lord Carlile, is satisfied that my right honourable friend the Home Secretary has certified persons under the ATCS Act only in appropriate cases, and that he exercised his independent judgment in each case, having given due regard to advice from officials. I welcome the main conclusions of the noble Lord, Lord Carlile: it remains desirable that the derogation issue should be resolved as soon as possible; SIAC has clarified the "links" provision helpfully and restrictively; the Secretary of State has certified persons as international terrorists only in appropriate cases; and the Secretary of State has exercised his independent judgment in each case, giving due regard to advice from officials. SIAC has dealt efficiently and clearly with substantive cases, and we agree with all those findings.
Further consideration should be given to enable SIAC to continue hearing the merits of appeals against certification where there has been detention and the detainee has left the United Kingdom. The training, role and effectiveness of the special advocates as protectors of the rights of detained persons should be given early attention, and consideration should be given to widening the pool from which they are chosen. Further attention should be given to disclosure issues relevant to SIAC hearings and to other matters raised by SIAC in its first generic judgment. Efforts on an individualised basis should be made to secure the deportation of detainees to third countries willing to respect their rights under Articles 2 and 3 of the ECHR.
Facilities more suitable to the special circumstances of executive detention of persons who have not been charged with any offences having been provided during the past year, it is a matter of regret that none of the detainees has agreed to enter those facilities. Continuing scrutiny should be given to possible alternatives to detention and to the consequences of the sunset provision effective in 2006. Those are, in outline, the noble Lord's findings; we are considering them and the rest of his report in great detail.
The order extends for a further year Sections 21 to 23 of the Act. Those powers will then lapse, unless my right honourable friend the Home Secretary proposes renewal for a further period of up to 12 months, and if that proposal is then approved by both Houses of Parliament. The order was debated in committee by the other place on
The effect of the order is to continue in force, until
Noble Lords will be aware that the Court of Appeal has issued an interim decision in respect of other matters, on which I do not propose to comment today, as they are sub judice.
Where terrorism is concerned, our paramount responsibility is to ensure public safety and national security. Tragically, the threat is already beyond doubt. I was pleased that, last Thursday, agreement on that point echoed from all sides of the Chamber and we were united in the acceptance of that threat, as terrible as it is. We are certain that the detention powers have had a deterrent and disruptive effect on terrorists. We firmly believe that the powers have also sent a strong message.
Nothing can guarantee 100 per cent security. Those powers are just one, albeit very important, element of our counter-terrorist strategy. They deal with specific threats from foreign nationals suspected of involvement in terrorism of a sort that led to September 11 who we wish, but are currently unable, to remove or deport from the United Kingdom.
We have a tough and targeted framework of legislative measures, which are among the most robust in the world, in place to deal with the overall threat from terrorism, including the Terrorism Act 2000 and the full range of other Anti-terrorism, Crime and Security Act provisions. We also have the Nationality, Immigration and Asylum Act 2002 and the linked practical steps to stop terrorists exploiting the system by posing as asylum seekers and to strengthen our border controls.
In tackling the terrorist threat, we rely on our intelligence, security and police services to identify people who pose a risk, arrest them and disrupt their activities. The task is never complete and I would like to commend the work that those services have done over the years to secure the public's safety and national security.
We believe that it is necessary and proportionate to continue the measures that we currently have in place. I know that the House will want to weigh carefully this important measure. In that regard, I should formally confirm that we consider that the provisions of the Act are compatible with ECHR rights. Therefore, I have no hesitation in commending the order to the House.
Moved, That the draft order laid before the House on
My Lords, in moving this amendment, I am responding to the very clear and persuasive presentation by the Minister. I want to make quite clear what this amendment is not. It is not a fatal or wrecking amendment, nor is it intended to be. At the end of the day, the Government will have the renewal of their powers under Part 4 of the Anti-terrorism, Crime and Security Act for a further 12 months. But this amendment is intended to get a much clearer statement from the Government of exactly what will happen during those 12 months and to apprise them of the consequences should they try to sustain their first blanket rejection of the principal conclusion of the Privy Counsellor Review Committee, which was chaired by the noble Lord, Lord Newton, who I am very pleased to see in his place today.
Despite a full and excellent debate last week, it is worthwhile briefly summarising where we are today and how we got here. As we all know, the Act was passed in haste in 2001 to deal with the threat of terrorism which, if not new, since we have had to deal with threats of terrorism in this country for some time, seemed in its focus—because of the attempts of the malign leadership of Al'Qaeda to mobilise a network of terror from fundamentalist Islam—and in its extent after the awful atrocity of 9/11 to have escalated dangerously. The noble Baroness will recall that, despite the emergency in the autumn of 2001, that Act was heavily criticised in its passage through Parliament on three grounds. The first was that the process was over-hasty, did not allow for full and detailed scrutiny, and did not correspond to the criterion, set out in the Terrorism Act 2000, of properly considered, principled counter-terrorist legislation that should follow the four principles that had previously been set out by the noble and learned Lord, Lord Lloyd of Berwick, who I am also very pleased to see in his place this morning.
I shall remind your Lordships of those four principles because they are relevant to this discussion. First, anti-terrorism legislation should approximate the ordinary criminal law as closely as possible. Secondly, additional statutory powers may be justified, but only if they are necessary to meet the anticipated threat and then that they should strike the right balance between the security of the public and the rights and liberties of the individual citizen. Thirdly, such additional powers might imply consideration of additional safeguards and, fourthly, such laws should comply with the UK's obligations in international law. During the course of the debate in the autumn of 2001, all those issues figured largely. It is fair to say that doubts were expressed on all of them. At the same time, the scope and efficacy of the measures proposed were questioned.
Secondly, the Bill was criticised because it seemed to import a number of measures into anti-terrorism legislation that did not belong there and which, if they belonged anywhere, belonged in mainstream legislation. It was felt in the House, and in another place, that this piggybacking looked like opportunism, or perhaps a flurry of simulated activity by the Home Office that was designed to impress, rather than a focused approach to a new threat, which we all agreed existed. Thirdly, great concern was expressed about Part 4 of the Bill on the grounds that indefinite detention without proper trial is alien to British tradition and international law, and it was thought to be unacceptable.
Noble Lords will recall that the legislation got through Parliament, and your Lordships' House in particular, only because of the promise of a review by a committee of Privy Counsellors. I think that it is fair to say that the agreement of both Houses was strictly conditional on that committee being established and its conclusions were eagerly anticipated.
The committee, chaired by the noble Lord, Lord Newton, of which I had the honour to be a member, took a lot of evidence. We met as a committee 22 times and we paid 18 relevant visits in smaller groups. Our conclusions have been very well reported and they were, as the Minister said, well debated last week, so I shall not rehearse them again in detail. In summary, although we accepted unequivocally that the threat is serious—that is common ground between the Government, the committee and, I suspect, most Members of both Houses—continuing and needs a special response and we accepted that some of the new powers are well founded and well used, which is something that we looked at carefully, we were nevertheless very critical of the legislative process that created the Act. We found it honeycombed with extraneous provisions, which, if introduced at all, should be in mainstream legislation, and we found the provisions of Part 4 of the Act simply unacceptable.
This amendment refers, as evidence of the unacceptability of Part 4, to the fact that it requires derogation by the UK from the right to liberty under Article 5 of the European Convention on Human Rights. Some people may say that that is not the only thing wrong with it. That is true and I shall remind your Lordships of some of its other flaws in a moment. Some people may say that derogation is not the most important thing wrong with it. Perhaps, but derogation is not to be dismissed lightly. Attempts have been made to say that other European countries have not had such a strict interpretation placed on their emergency provisions as we have. Other people have said or implied that derogation is a small price to pay for the right measures. But we are the only European country that has had to derogate from the right to liberty. In my view, it is a sad day for this country. It is a stain on our reputation as the home of individual rights and personal freedom. Moreover, such derogation clearly does not conform to the fourth principle of anti-terrorist legislation of the noble and learned Lord, Lord Lloyd, that it should comply with the UK's obligations in international law.
Part 4 is deeply flawed in other ways. It has bent procedures designed for immigration and asylum matters into a strange shape. It detains people for an indefinite period. The process, to which the Minister referred, although operated properly in the verdict of my noble friend Lord Carlile, is lengthy and, crucially, it treats the threat from foreigners suspected of terrorism in a totally different way from British nationals suspected of being an equivalent threat.
The Government justify this last flaw in Part 4—the Minister has just repeated the justification in her speech—by saying that the threat comes predominantly from foreign nationals. I understand that that was their original assessment in 2001, and who knew then? That seemed to be a reasonable assumption at the time. But now the Government know better. Not only have there been highly publicised cases involving British nationals, such as the "shoe bomber", but our committee received and published uncontested evidence from the authorities that approaching half of those suspected of terrorism are British citizens. I suppose that that now includes the Guantanamo returnees. Yet the Government repeated their assertion of a predominantly foreign threat on page 7 of their discussion paper last month. Although I thought that the Minister had nuanced it slightly to "primarily" in the debate last week, I see she is back on "predominantly". I simply do not understand the Government's mathematics. May I ask the Minister yet again to set the record straight? We need the understanding and support of the public if we are to fight terrorism effectively, and I do not believe that misrepresentation and xenophobia help in that.
In summary the committee concluded that the shortcomings of Part 4 in terms of both efficacy and principle were such that it should be replaced as soon as possible. At this point, perhaps I may ask the Minister to comment further on why the Government have chosen to appeal the case in which a Libyan national who had been detained under Part 4 was released yesterday on appeal by Mr Justice Collins. Can she say why the Government, who seemed very pleased with the way in which the SIAC procedure operates, would find it necessary to appeal when the verdict goes against them? I really do not understand that. Perhaps she can explain that to the House.
The committee suggested several approaches which in various combinations might assist the Government in their deliberations. We certainly did not purport to have some sort of magic replacement formula instantly available. There are difficult trade-offs to be made, and there are disadvantages to most ways forward. I think that one has to concede that; anyone who has spent any time thinking about it recognises that. Clearly, finding the right alternative will not be easy. However, as the noble Baroness graciously conceded last week, that is the task of the Government, not of the review committee. Now, the Government have not only our ideas to help them; they have the interesting suggestion of my noble friend Lord Carlile of a new offence—"preparatory to terrorism"—and they have invited debate and new ideas during a six-month period which has variously been described as being one of discussion or consultation.
Here we come to the nub of the amendment. Do the Government go into this period of discussion and debate with a genuinely open mind? Are they determined to do their level best not to be here at this time next year, standing pat on Part 4 and asking supinely for its renewal, but determined to come forward with a better alternative? For example—the noble Baroness was somewhat coy about this in last week's debate—will they ensure that they complete their review on the total ban on the use of intercept evidence within the same six months in which the consultation proceeds?
I have to say that the first omens are not encouraging of the Government's determination to do better on this score. The Home Secretary, shooting from the hip, did his level best to wing the Newton report before it got off the ground by disparaging it and misrepresenting its main conclusion. The February discussion paper, which might have represented a more mature reaction to these proposals, must be one of the feeblest and thinnest Whitehall documents ever to be described as a discussion paper. It totally fails to answer most of the points made by the committee. It grasped avidly at the few points where our conclusions are supportive of current government policy. It dismisses, in paragraphs, substantial points of criticism developed over pages of careful argument—our conclusions not only on Part 4, but on many other important issues such as the clear recommendations on the need for proper oversight of the disclosure of information provided for in Part 3 of the Act, which the noble Baroness will recall was an issue raised by the noble and learned Lord, Lord Browne-Wilkinson, in the debate last week.
So, is the Government's position on the forthcoming six-month debate as stated by the Home Secretary when he said:
"The Government's mind is open on the long-term way forward. We are not advocating any particular cause"?
Those are fine, very promising words. Or is the position as the Home Secretary said a few paragraphs earlier in the same discussion document:
"The Government believes that these powers—Part 4—continue to be an essential part of our defences against attack"?
Those two phrases occur within about 10 lines of each other. Home Secretary speak with forked tongue.
I believe that the House needs clarity of intention from Ministers today. If the Government were to give a clear signal that they, too, are looking hard for a fairer, more effective and more even-handed way of dealing with suspected terrorists whatever their origin, and that their hope, intention and expectation is to come back with it to Parliament in good time so that today is the last renewal of Part 4, this amendment would be unnecessary. On the other hand, if the Government are merely playing for time in the face of the unanimous recommendation not only of the Newton committee but of the Joint Committee on Human Rights, I believe that they are misreading Parliament badly. This amendment is a necessary and timely warning and a wake-up call, not only on behalf of Liberal Democrats but, I believe, of the whole House, which the Government would be prudent not to ignore. From today, Part 4 is living on borrowed time. I beg to move.
Moved, as an amendment to the above Motion, at end to insert "but this House calls on Her Majesty's Government to replace Part 4 of the Anti-terrorism, Crime and Security Act 2001 with alternative provisions which do not require derogation from the European Convention on Human Rights."—(Lord Holme of Cheltenham.)
My Lords, in debates on orders it would be the usual procedure at this point that the Front Bench spokesmen from this side of the House would put forward their views. I suggest, however, that this is rather an unusual situation and that the House might find it more appropriate if I reserved my remarks until just before the Minister responds, and that instead I might turn to my noble friend Lord Newton, who chaired the committee, to present his remarks at this point.
My Lords, I am grateful to my noble friend on the Front Bench for her courtesy to me, although I should emphasise that I see as no part of that that I am now speaking formally on behalf of the Opposition as distinct from speaking in my capacity as chairman of what was a very non-partisan committee of Privy Counsellors. I saw my noble friend nodding vigorously. I am glad to see that that is accepted.
It is only a week and 10 minutes, almost to the second, since I last addressed the House on what was very broadly the same subject—though, of course, it was a bit wider last week. Therefore, my remarks today will be correspondingly brief. I am aided further in that by the fact that the noble Lord, Lord Holme of Cheltenham, who was an invaluable member of the committee, has made a number of the points that I might have made had I been minded to rehearse what I said last week. However, in passing I observe that—alongside the other difficulties that I spoke about last week, and that the noble Lord has spoken about—I continue to be puzzled at the apparent presumption that, even with the alleged terrorists who can be dealt with under Part 4—and bearing in mind the litany that the Minister produced last week of terrorist acts elsewhere directed at British property and British citizens—the best answer is to get them somewhere else. I continue to have reservations about that.
My principal purpose now is to make clear to the House that neither I personally nor, I think, the committee collectively would wish to oppose this order. That is not because we resile in any way from the concerns which both I and other members of the committee and, indeed, Members of the House at large set out in last week's debate. Indeed, it appears to me that those concerns have been underlined and further validated by the various events that have taken place during the week, including the publication of photographs, rather dramatically, of British—UK national—suicide bombers; the return of a number of Britons—UK nationals—from Guantanamo; and the SIAC judgment to which the noble Baroness referred. Nevertheless, those concerns, however valid, do need to be set in the context of two other considerations.
The first, of course, is that none of us doubt that there is a threat; that it is not going to disappear quickly; and that the Government do have a duty to seek to prevent it materialising, even if we do not think that what they have in place strikes an appropriate, effective and sustainable balance between the various considerations involved. The second is that none of us think that finding such a balance is a quick or simple task. It needs careful and thorough consideration, involving careful and thorough consultation, and leading to legislation, if it does, which can be subject to careful and thorough scrutiny. In other words, I, at any rate, would accept that the word "urgently"—which we used in our report to describe the need for a replacement—is not the same as "precipitately".
For reasons we all understand, the legislation that we are discussing was conceived and passed at a speed much greater than, but for the circumstances, anyone, including, I hope, the Government, would have thought desirable. I believe that none of us would wish to create a vacuum which would have to be filled in a similar way, which is what would no doubt happen were the renewal sought today to be refused.
As has been indicated several times, the Government have undertaken to have a further six months of extensive discussion and consultation in terms on which I touched last week and which I do not propose to go through again. As I said then, there appears now to be a much greater acknowledgement of the need to address some of the difficulties we identified than any we detected during the course of the long work of the committee of inquiry. In my judgment the right course now is to let the Government get on with that and to make a further judgment when we know what emerges from it.
Before I sit down, I should obviously say a few words about the Liberal Democrat amendment, not least because it was moved, though not, I think, originally tabled by, the noble Lord, Lord Holme of Cheltenham. I listened very carefully and, I need hardly say, sympathetically, to what he said in view of the noble Lord's membership of the committee of Privy Counsellors. I think he knows that I stand shoulder to shoulder with him on what I take to be his purpose of emphasising the importance that is attached to these issues by the committee and, indeed, I think, the House. There is no difference between us on that. It needs to be made clear that many of us who will have no great difficulty in supporting renewal today would have—if I may use the understated language that I always prefer—much greater difficulty in a year's time if by then there was neither the actuality nor the reasonably early prospect of something which better met the concerns that the committee and others have expressed.
That said, I want to refer—the noble Lord, Lord Holme, paved the way for this—to the precise terms of our recommendation. It can be found in various places, but I refer to paragraph 25 on page 11 of our report, which states:
"We strongly recommend that the powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should:
a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; and b. not require a derogation from the European Convention on Human Rights".
That embraces three concerns because there are two wrapped up in paragraph a. One is that it does not deal with terrorism that cannot be shown to be linked to Al'Qaeda. The other is that it does not deal even-handedly with terrorists of UK and foreign origin. Paragraph b constitutes the third element—the fact that it requires a derogation.
I am not totally happy about an amendment that asks me to march behind a banner which picks out only one of those considerations and appears to make it paramount. Although I stand shoulder to shoulder with what I take to be the principal purpose of the noble Lord and his party, and do not resile from that, I am afraid that I would not be able to march through the Lobby behind that particular banner even though, because of my sympathy for what I take to be his main purpose, I would not wish to march through the Lobby against him either. In other words, I should abstain.
My Lords, I spoke on
The Privy Counsellors' committee, as everyone knows, put forward an alternative approach with detailed options of a very important character. Those were at the time peremptorily rejected by the Home Secretary. When I asked the Minister at col. 829 of Hansard whether, for example, the Government would have an open mind about the important idea of being more inquisitorial and using the French juge d'instruction approach—which was one of the proposals of the Newton committee—the noble Baroness gave an understandably equivocal reply and said,
"I cannot say that that has been rejected".—[Official Report, 4/3/04; col. 829.].
But the problem is that it was rejected in the discussion document and so we are left at the moment in an unsatisfactory position because we do not know whether the rejection by the discussion document of all of the main recommendations of the Newton committee really means what it says, or, as my noble friend Lord Holme of Cheltenham asked, are the Government genuinely open-minded? That seems to me to be a critical question in this debate.
May I say—this is not flattery; it is just the plain truth—that I have great respect for the complete integrity of the Minister and for her personal commitment to the rule of law which transcends partisan politics? If I may say so, she is a precious asset for the Government at a time when their commitment to the rule of law, and public confidence in that commitment, is at a very low ebb. Therefore, when the noble Baroness comes to the Dispatch Box to commend these measures in the way that she does, I, for one, regard that as of very great importance indeed because I know that she would not do so if it were against her conscience or conviction.
I would support my noble friend's amendment if he decided to divide the House. There are, of course, dangers in that course as, if the Government were to win a vote, they would no doubt quite wrongly pray that in aid in litigation before the House of Lords or before the European Court of Human Rights as some kind of measure of the proportionality of what is now to be renewed. It is not a matter of arithmetic or who happens to be here at this particular time in the House. Ultimately, it will be a legal question for the supreme authority of the United Kingdom and, if necessary, for the Strasbourg court to decide whether the powers taken and their exercise are, in the words of the convention,
"strictly required by the exigencies of the situation"— that is to say, for the protection of public safety, public order and the protection of human life against the scourge and evil of terrorism.
The touchstone in answering that legal and political question is whether the means used are necessary to achieve the Government's and Parliament's entirely legitimate aims of combating that great scourge and evil. I have to say that the Government's refusal to apply these measures to British citizens suspected of terrorism on the ground mentioned in the discussion paper—that the powers are so draconian that they should not be applied to British citizens—gravely weakens any argument of proportionality since the scourge of terrorism is not a scourge of foreign nationals' terrorism. It does not make the slightest difference whether the terrorist, or suspected terrorist, has British citizenship or not.
The other great weakness in the Government's case is the fact that all other European states equally threatened by the scourge of terrorism have not found it necessary to introduce such sweeping powers and then to derogate from the convention. I know that the derogation has caused grave concern among senior officials in the Council of Europe, who see it as an extremely bad example. However, that is a matter for the courts.
Does the Minister agree that the test of proportionality, as laid down by the Law Lords in recent cases under the Human Rights Act, involves asking and answering the question of whether the means taken by Parliament and the Government are no more than are necessary to achieve their legitimate aims? Is the least sacrifice being made of the basic rights of the detainees in the sense that there is no alternative involving a lesser sacrifice? That was what the House of Lords decided in the Daly case, led by the noble and learned Lord, Lord Steyn.
If that is the test and if the Newton committee has put forward a series of alternatives that are less restrictive of human rights, I believe that the Government will find it difficult in any further litigation to justify the measures taken, according to the test of what is strictly required by the exigencies of a situation; and if Ministers reject a series of proposals by an independent committee of Privy Counsellors that has been established by Parliament with the express purpose of considering the proportionality of the measures that we passed in the statute.
Therefore, my noble friend's amendment is of critical importance, not whether we vote upon it or what the outcome is, but regarding the question he asked. If the truthful answer is that the Government do not have an open mind about every recommendation by the Newton committee and have closed the door to them, I would say as a lawyer—who may often be wrong—that the Law Lords or the European Court of Human Rights would be likely to say that the principle of proportionality and the "least sacrifice" test have not been satisfied. That is why I am so glad that my noble friend has asked that question and why obtaining a specific reply from the Minister is important.
My Lords, no one in this House underestimates the grave dangers which confront us or the heavy burdens of responsibility that they place upon Ministers, the police and the security services. I pay tribute to them all.
There has been reference to the events of the past week and the release of the United Kingdom detainees from Guantanamo Bay is highly relevant to the debate. When we debated such issues last week I said that I was a layman and, therefore, was always cautious about speaking in debates of that kind, because there was so much legal expertise available. But, perhaps a layman's perspective is valid, because many people are perplexed about how four people who have been detained for over two years have now been released without charge. It illustrates the pitfalls of a lack of transparency and emphasises the public anxiety about what is really going on and the reliability of the information on which draconian steps may be based.
Having mentioned Guantanamo Bay, I hope that I will be forgiven for saying that, in congratulating the Government on their hard work in achieving this result, I wish them well in the work they are doing on the remaining four who are still incarcerated. But, as I have said before, let us never forget that our concerns apply to everyone in Guantanamo Bay—to the non-British every bit as much as to the British. The whole principle, if that is not a misuse of the word, on which Guantanamo Bay is operated is wrong and its provocative nature is disturbing, because it drives young recruits into the arms of the extremists.
Derogation has been referred to. As a layman, I am convinced that if the rule of law is to be sustained, there have to be certain absolutes. Therefore, derogation is an extremely serious move. The trouble with derogation is that once it has been used, it can too easily drift into becoming an easier habit. It has to be exceptional for very demonstrable reasons. The difficulty is that as Britain is the only country in Europe that has found it necessary to derogate, it is important to stress—and I hope that my noble friend will forgive me for putting it so bluntly—that the Government have totally failed to demonstrate at any point why something is necessary in this country when it is not necessary in any other country in Europe.
I am a member of the Parliamentary Assembly of the Council of Europe. There I encounter the anxiety of people from all over Europe that a country such as ours, with its reputation as the fortress of the principles of the rule of law, should have introduced this measure when no one else has done so. I do not want to overdo it by pointing out again that I speak as a layman. For those of us who look at the law as laymen, there are certain principles that are extremely important—including the presumption of innocence and the principle of "beyond reasonable doubt", which is different from "reasonable belief or suspicion". There is also the tremendously important principle that justice should not only be done but is manifestly seen to be done. If confidence in the law is to be maintained, those principles should be sacrosanct.
I would argue that it is precisely when the pressures are at their greatest that it is most important to stand by those principles. It is both right and politically prudent, because, if we do not stand by them, the danger is that we give the extremists a victory. We play into their hands, do exactly what they want us to do, and we act as recruiting agents for impressionable young people who move into the arms of sinister, manipulating extremists.
My noble friend the Minister referred to the Special Immigration Appeals Commission and stressed that it should provide some sort of legal reassurance. But, she has to accept that there are great misgivings about it. I cast no aspersions on the members of the SIAC, who I am sure are dedicated and honourable people, trying to carry out the best possible job in a difficult situation. However, there is in fact secret evidence in its proceedings and those about whom secret evidence is given have no opportunity to see or to hear it. There are special advocates who are not allowed to discuss the secret evidence with those they are defending.
There is the evidence of third parties and where that is used in the secret part of the proceedings, there are anxieties that some of it may have been secured under torture from people in other parts of the world. That raises the whole issue of the reliability of evidence secured under torture. It is most distressing in terms of our commitment under other conventions to be firm in our stand against torture and there is the danger that inadvertently, by the back door, we are almost condoning torture.
There is the question of intercepted communications and we all know that that is central to the secret part of the proceedings. If other action has to be taken so urgently and quickly, there is also a need to get this part of the operation on side and to use methods within our legal system whereby intercepted communications can become at least part of—possibly never fully—the open proceedings.
I support what has already been said about the implications of "free to leave". Either these people are sinister dangers for whom special provisions overriding the normal operation of the law are necessary, or they are not. If they are, to say that they are free to leave at any moment begs credibility. How on earth can we simply say, "They can go at any moment to carry on their dangerous activities anywhere else in the world but we are not worried about that"?
In our deliberations in the Joint Committee on Human Rights, we envisaged the approach of the amendment, but we placed on the provision a time limit of six months. There was a good deal of discussion in the committee about placing that time limit, but the decision to do so was unanimous. We were afraid that without a pressing time limit, things would be kicked into touch or lost in the long grass.
In our deliberations in the Chamber last week, I specifically drew attention to what we, members of the Joint Committee on Human Rights, said in our report. My noble friend the Minister was dealing with a wider debate and although as usual she did an exceptionally good job in summing up, she was unable to refer to the committee's specific recommendations. I hope, therefore, that the House will forgive me if I briefly summarise them.
In paragraph 33, we said:
"We continue to doubt whether the very wide powers conferred by Part 4 are, in Convention terms, strictly required by the exigencies of the situation".
In paragraph 36, we said:
"we are nevertheless certain that a more satisfactory legal framework is urgently required which would be both effective and compatible with the United Kingdom's human rights obligations including full compliance with Article 5 of the ECHR".
In paragraph 37, we said:
"If the Government argue that it is necessary to continue Part 4 in force this should be limited to six months and should be subject to a firm undertaking that the Government will actively seek, as a matter of priority, a new legal basis for its anti-terrorism tactics to be put in place speedily and in accordance with the principles developed in the Newton Committee Report".
Then in paragraph 40, we referred to what the noble Lord, Lord Carlile of Berriew, referred to in his own report, which we felt was most important: that these people have not been charged let alone found guilty and there is real anxiety here about the conditions in which they are being detained. People in that situation should be treated with great dignity and respect and the conditions in which they are kept should demonstrate that dignity and respect. Frankly, not everyone is certain—to put it mildly—that, with regard to those in Belmarsh, that is the case.
In conclusion, I find an interesting coincidence in two important considerations whenever I think about this issue. First, what are we defending? We are defending men, women and children of course and we must. But over centuries, our forebears struggled to establish the principles which they believed ultimately were essential to the defence of freedom in our society. Those are enshrined in the European Convention. It is almost impossible to over-emphasise the dangers in lightly putting to one side that story of struggle over centuries.
Tremendous issues of principle are therefore involved, but the coincidence to which I referred is that there is an extraordinary political counter-productivity in what is done. Those against whom we are trying to protect our families and our society want to undermine and irreparably damage the principles of our society and we must deny them that victory. We must deny them an incremental victory, as happens when tremendously important principles are gradually eroded.
It is of course for the noble Lord, Lord Holme, to decide whether to put the amendment to a vote, but I want to thank him for having brought the issue to a head. I accept what the noble Lord, Lord Newton, said about the issue being partial in terms of the total concerns of his committee, but it was important that the noble Lord, Lord Holme, put it so firmly before us. I am determined that I do not want to be part of giving wicked, sinister, manipulative extremists any kind of victory by the erosions of what I believe to be central to the rule of law and the well being of our society.
My Lords, your Lordships' House is asked to renew the powers of government to hold foreign nationals without trial. Belmarsh prison lies within my diocese and I know it well. I would not want any person to be incarcerated there for an indefinite period without fair and transparent legal procedures.
The Minister, in her introduction, indicated that she does not envisage the state of public emergency ceasing to subsist. Surely, then, in the event of the public emergency continuing indefinitely, legislation is needed which deals with a situation that is becoming normative. In the mean time, although I do not envy the Home Secretary the weighty decisions he is called on to make, we might observe that where statements are made and decisions are taken which need to be taken on trust, someone somewhere needs to have the evidence on which the core for that trust is based. The country was persuaded to trust Her Majesty's Government and the intelligence services when, not so very long ago, firm assertions were made concerning the possession and deployability of weapons of mass destruction by Iraq. We went to war on that basis.
If errors were made over weapons of mass destruction, and it seems that they were, is it too implausible to suppose that they may be made over individuals also? As the noble Lord, Lord Judd, said, last night five UK citizens were released without charge after being held for two years at Guantanamo Bay because, I presume, the security services regarded them as a possible threat. Perhaps the security services have changed their minds in those two years. However, in a situation where mistakes can be made, I urge at the very least that, if powers granted to the Government are to be renewed, anonymised information should be published about the detainees.
If governments may err, so, too, may democratic peoples. I believe that we need to balance the safety of society against the honour of society. Those who elect to office people of liberal and noble views and who grant them extensive powers may yet be surprised if those powers are used differently under a government as yet undreamed of. I do not say that that is probable or even likely, but those who enjoy their citizenship in the land of the free and who rejoice in an honourable tradition of welcome to people of other nationalities will be very concerned about jeopardising the freedom of the future in the name of the safety of the present.
If it is anticipated that dangers will beset this country for the foreseeable future, emergency powers are not the appropriate way to proceed. And if Britain is to maintain her human rights record, it is questionable whether ongoing emergency legislation should be used to deny to the citizens of other lands the protection that we afford to those of this country. It is not that protection against a possible terrorist threat is unnecessary but, if it is to be a long-standing threat, perhaps the way forward is to attend to the amendment of the noble Lord, Lord Holme of Cheltenham, and to seek a way to respond to such a threat which does not require derogation from Article 5, or any other article, of the European Convention on Human Rights and which gives due regard to risk, to human rights, to evidence and to the kind of country in which we wish to live.
My Lords, I intervene briefly to underline the importance that we on these Benches attach to the sentiments expressed by my noble friend Lord Holme of Cheltenham in very powerful and eloquent language.
I want to say, first, that we should not make the mistake of trying to define terrorism in too narrow terms—a point raised, in particular, by the noble Lord, Lord Newton. This morning, a terrible incident occurred in Madrid. It is important to say that it took place in a country which is not related to Al'Qaeda and where terrorism has been one of the weapons chosen by certain groups in society. Following on from what was said by the noble Lord, Lord Judd, it occurred in a country which has not sought to derogate from the European Convention on Human Rights—perhaps because it has experienced dictatorship and therefore understands deeply how significant it is to hold on to the basic foundations of a just society, the rule of law and democratic ideals.
Secondly, as stated by the noble Lord, Lord Newton, real concerns arise from the way in which we try to resolve the problem of people who are detained but not tried. As the noble Lord, Lord Judd, pointed out, removal is a very strange way to deal with the issue because we then simply export to other countries which are even less capable of dealing with the matter people who we believe pose a serious threat to society. It is extraordinary that we should have allowed that to happen unquestioned when, undoubtedly, some of those who are said to pose a serious terrorist threat will be sent to continue their dangerous activities elsewhere. That is hardly a sensible approach to global terrorism.
Thirdly, as has been said by a number of noble Lords—not least, the noble Lord, Lord Newton—I believe it is important to underline that we are giving greater consideration to what is accepted by the Minister, the Home Secretary and others as a continuing threat. In the other place on
"retain part 4 for the foreseeable future".—[Official Report, Commons, 25/2/04; col. 306.]
In other words, the Home Secretary concedes that we are likely to see a continuing terrorist threat over many years, and he appears to feel that Part 4 can therefore be sustained by annual extensions. That is not a satisfactory outcome.
My final important point is that we need an absolute assurance from the Minister concerning the reaction of the Government, as expressed in an intelligent and constructive debate on
My Lords, I am aware that I rise not in the correct order and I apologise for speaking this late in the debate. It means that many of the points that I wanted to make have already been made eloquently, not least by the chairman of our committee, the noble Lord, Lord Newton, and by the noble Lord, Lord Holme of Cheltenham, in putting forward his amendment, the noble Baroness, Lady Williams, and my noble friend Lord Judd. I agreed almost entirely with my noble friend's speech, although I wish to pick up on one point that he made concerning the conditions in which the detainees are being held.
I visited both Belmarsh and Woodhill to see the detainees and had the opportunity to speak to them. I also had the opportunity, as did other members of the committee, to see the facilities that had been provided by the Home Office following the recommendations of the noble Lord, Lord Carlile of Berriew. I believe we all agreed that they are excellent facilities and we all regretted deeply, as did the noble Lord, Lord Carlile, in his latest report, the decision of the detainees not to take advantage of those facilities. I hope that that provides some reassurance that what we considered to be a totally appropriate regime and environment are in place, should the detainees wish to go there.
Of course, that does not detract from the issue that we are debating today—that is, whether the detention itself is an appropriate measure. On that, I start by saying that, like others who have spoken, I shall be supporting the renewal of the provisions put forward by my noble friend today. I believe it would be irresponsible of this House not to support the renewal of Part 4 unless and until we have in place a replacement set of measures—I believe that it will be a set of measures rather than a single measure—that better balances the eternal difficulty of reconciling the right of all citizens to security and public safety against the right of suspects to what is, in the Home Secretary's words in the introduction to the discussion document, non-negotiable—the right to a fair trial. Equally, I believe that it would be irresponsible of the Government not to take the opportunity presented to them by a year's renewal.
Perhaps I may say, having been part of its authorship, that the Privy Counsellor Review Committee published a very considered report. We sat for a long time; we heard a lot of evidence; we thought a great deal about the issue; and the report has been not badly reviewed in some areas. In our report—the report of the noble Lord, Lord Carlile of Berriew—there is adequate material on which I believe the Government could take action. Like the noble Lord, Lord Newton, I believe that the crunch will come not on today's renewal debate but were we to be faced with a renewal debate in a year's time without, as he said, satisfactory changes having been made or the prospect of a better package.
So, in spirit I am very much with my colleague and committee member, the noble Lord, Lord Holme of Cheltenham. I have to say that the spiritual may not be echoed by the corporeal as far as voting is concerned, were the noble Lord to push the amendment. The reason for that echoes the words of the noble Lord, Lord Newton. I believe that the balance of the noble Lord's amendment in referring only to the derogation issue is not satisfactory.
The reasons I shall give today for being deeply concerned about Part 4 are not those civil libertarianism issues which have been raised and spoken about eloquently—not that I am not concerned about them—but the efficacy issues. I took very seriously the tenor of the contribution made in another place by my honourable friend Vera Baird QC about not assuming that other countries' regimes were better or less destructive of civil liberties than our own simply because they had not gone through the process of seeking a derogation. I think that it is to the Government's credit that they recognise the need for a derogation and were willing to argue the case for it. So I do not think we should assume that everywhere else is necessarily better than ourselves. There was some evidence to the committee about long periods of detention in other countries under other mechanisms—equally unsatisfactory I would suggest in civil liberty terms—but that has not been given the imprimatur of a derogation because the government concerned have never sought it.
Today of all days, when in another European country we have seen multiple deaths from terrorism, is a day to consider the efficacy of these provisions as well as what they do in terms of civil liberties. My concerns are threefold in that area. The first is around the whole issue of identification, policing and disruption. Before anything can be done to a suspected terrorist, we must know that they are a suspected terrorist. That is why in the debate last week I welcomed the additional resources that are being made available to the security services. I hope they will also be made available to Special Branch in the Metropolitan Police and other police forces, because it is enormously important.
We have referred today to the case not of the suspected terrorist but of the known terrorists of UK nationality who were suicide bombers in Israel. The Guardian used the phrase that they were noted by MI5 but not judged to be a security threat. So the first hurdle of identification of people who are a threat apparently was not met. That is the first hurdle before we talk about any measure, whether detention without trial, prosecution or surveillance and disruption.
That is the first issue. For the second issue one can take the same example because of the potent photographs of those two young men kitted up to do their terrible deed. They were pursuing, in their own minds certainly, a cause that was very specific; it was a Palestinian cause. It was a Hamas press release that told us what they had done.
The link with Al'Qaeda, which would be necessary to bring them under the remit of Part 4, would then have to be established with perhaps more or less difficulty, but it would become a link with a link with a link. We categorised it rather jokingly as, "I have danced with the man who has danced with the girl who has danced with the Prince of Wales". But we do have to understand that Part 4 and the derogation allows us to tackle only terrorism that is related to Al'Qaeda. So, if there is a different ideological base or a different base in terms of the organisation, those who pose the threat cannot be captured by Part 4.
Of course the efficacy of Part 4 comes into doubt most clearly and in the most focused way when we deal with UK citizens, whom it does not cover. Many noble Lords have made the point today that I made last week; that is that in anti-terrorist legislation we should be looking for measures that meet the threat appropriately and not measures that are only efficacious against one section of the community; and, as the noble Baroness, Lady Williams, said, that efficaciousness is deeply undermined by the defence that is always made by the Government; namely, that these people could leave the country at any time.
I think that it has been generally accepted that if they pose that great a threat, it is not a satisfactory remedy for them to be "at loose" elsewhere and able to adopt another identity and perhaps return to this country to plot against UK citizens or citizens of any other country. If they are not that great a threat—it is not a threat to us that they are walking around—and they are not detained in another country, equally, they could be contained under surveillance noted in this country. So I do not understand the logic of the Government's position concerning that.
It leads us into a situation with the SIAC reviews which, for any of us brought up in liberal traditions and with an understanding of the British legal system, is difficult to accept. SIAC is constructed with great care. Having observed its proceedings and read both the open and closed judgments I have to say that no one could cast aspersions on how the process was undertaken by anyone involved, and I include the Home Secretary, who I believe from what we saw certainly has taken the greatest care with certification.
I made several members of the committee laugh by saying that observing SIAC was like Kafka played by the rules of cricket. That really was the sense you got out of the process; that an enormous lot was being done to try and ensure a scrupulousness in administering something that was fundamentally flawed—fundamentally flawed because those accused did not know what the accusation was and they or their lawyers did not have the right to see the evidence against them.
I know it is not easy to deal with these situations. We should not pretend that it is. There will always be a group of people, of whatever nationality, where the information against them—the mosaic of intelligence, reports and hearsay that has come forward—will make anyone who sees it deeply anxious that they should be stopped from being a threat, but which is not of an evidential standard for a normal prosecution in the criminal courts. That will remain a tremendously difficult issue with which to grapple. There is a range of measures on offer; from looking at offences that could be created—as suggested by the noble Lord, Lord Carlile of Berriew—to looking at the admissibility of intercepted evidence—perhaps the noble and learned Lord, Lord Lloyd of Berwick, may speak about this in a moment; and looking at the possibility of constructing a trial that allowed an investigating judge to look at some of this difficult secret evidence that should not be in open court, should not damage the security services or put them at risk.
There is a way of devising a range of measures and a package of measures that will better balance both giving additional protection to UK citizens and discharging the UK Government's responsibilities, but less undermining the fundamental liberties that we all hold dear on which our liberal democracy is based. I implore my noble friend not to interpret the fact that I am here to, in the immortal phrase used in my time in another place, "abstain in person" on the amendment of the noble Lord, Lord Holme of Cheltenham, should he decide to divide the House, in any way as detracting from the urgency of the Government looking to bring forward a better package of measures so that we are not faced with a renewal order next year.
My Lords, it is difficult to measure up to such an eloquent speech as the one that we have just heard. I agree with every word of it. It is not the only eloquent speech that we have heard today. Like others, I support the renewal of these powers. Having heard what the Minister said, there seems to be no question about that; it goes without saying. Like others, I look forward urgently to the day when Part 4 can be replaced, the sooner the better, as far as I am concerned. The noble Lord, Lord Holme of Cheltenham, has done the House a great service by moving his amendment to the Motion.
That seems to be even more so if the Minister is right in the message that I think she was giving, that the threat is not, as we had all hoped in the aftermath of 9/11, one that would soon go away or at least diminish in strength. She gave an extremely gloomy message today, that this threat is likely to continue more or less indefinitely. If that is the case, then surely it is all the more important that we should take the message from the noble Lord, Lord Holme of Cheltenham, very seriously indeed.
The two points I have to make are very pedestrian compared with the points that have been made so far in the debate. As the Minister will remember, a week ago I asked her whether the reason why those who are currently detained without trial is a gap in the substantive law—a gap in the Terrorism Act 2000—or whether it is some evidential difficulty. I think I received the answer this morning when the Minister referred to evidence being unavailable as the reason why they are not being prosecuted. Perhaps she could confirm that what I heard was correct. If so, perhaps she could tell us a little more about the evidential difficulty. Is it a practical difficulty, the practical difficulty of which we are all aware, of producing oral evidence in court, which would put lives at risk, or is it a legal difficulty by reason of the Regulation of Investigatory Powers Act 2000? Or is it perhaps a mixture of both? She ought to be able to give us an answer to that question without giving comfort to the terrorists who we all know may be in our midst.
My second point relates to the recent decision of the Special Immigration Appeals Commission. The noble Lord, Lord Holme of Cheltenham, asked why the Government are contemplating an appeal in that case. I echo that question. Is it because the commission erred in law, in which case I can well understand why an appeal would be necessary? Or is it because the commission reached a decision on the facts with which the Government disagree? Again, I hope that she will be able to answer that question without saying that the whole matter is sub judice, which is an easy thing for Ministers to say when they do not want to answer awkward questions.
I was a little surprised, although again I may have misheard her, that the Government had been disappointed by the decision of the commission. Why should they be disappointed? Surely the release of one more person who has been wrongly detained is something to rejoice at? During the first Iraq war, I and two others had the job—we were known as the three wise men, a description that may have applied to the other two and not to me—that is now performed by the Special Immigration Appeals Commission. We were abolished by statute, and that is not the first time that I have had the privilege of being abolished by statute.
My job then was to interview the many people who had been detained in Pentonville prison on the grounds that they were a risk to security. It is an experience that I shall never forget. A lot of people had been, to use a crude phrase, "rounded up" on evidence provided by MI5. Our job was to go to see those people, talk to them and find out what we could about them. Of course, inevitably we found out that many of them were being detained on evidence that was totally worthless, and many were being detained even on the grounds of simple mistaken identity. On those occasions, our job was to go to the Home Secretary, which we did, and say, "You must release A, B, C and D", and the Home Secretary released them. He never once gave me the impression that what I was telling him was disappointing. So why now should the Government be disappointed by the conclusion which the Special Immigration Appeals Commission has reached? They should be pleased.
My Lords, I am grateful to the noble and learned Lord for giving way. Is he aware that his point is particularly strong because the European Court of Human Rights decided that he and the other wise men should be replaced by a judicial review procedure, or a proper court procedure? It is particularly strange now for the Home Secretary to express disappointment when that better procedure, more judicial procedure, is used, than when the three wise men did it in a way that did not comply with the full rigours of the convention? Is he aware that that makes his point even more strongly than he has just put it?
My Lords, obviously, I am delighted to hear that the point is stronger than I thought it was. I did not entirely follow everything that the noble Lord said because, I am afraid, I have left my hearing aid behind. I am sure that I shall read what he said.
My Lords, I can be brief today, first, because the issues have been so eloquently covered by all noble Lords who have spoken and, secondly, because I had the opportunity to take part in the debate on the full range of the Newton report last Thursday. The views that I expressed then, reported at cols. 823 to 828 of Hansard, are still relevant to this debate.
We recognise that the threat of terrorism is a real and significant danger. We agree with the Government that, without the powers in the 2001 Act, our defences against terrorism would be weakened to an unacceptable level. For that reason and despite the reservations that I expressed last week about Part 4, we support its continuance for 12 months.
Last week, I made it clear in particular that we considered that the Government should heed the request made in the Newton report and seek an alternative approach as soon as possible, because the provisions of Part 4 are such a serious infringement of civil liberties. I welcomed then the Government's undertaking to consult on Part 4 over the next six months. I pay particular heed to the words used by my noble friend Lord Newton of Braintree, which were echoed in the eloquent speech made by the noble Baroness, Lady Hayman. The reality that they highlighted so well is that, if we are here next year considering a renewal because no progress has been made, the Government may face a very different debate.
For the reasons that I gave last week and having heard the full debate today, I can say that I support the Government in the making of the order without amendment.
My Lords, I thank all those who have spoken for making it clear that they support the making of the order. I say that with genuine feeling. I also thank the noble Lord, Lord Lester of Herne Hill, for his kind words about me. They were undeserved, but I say, "Thank you" anyway.
The debate has raised some important issues. The noble Lord, Lord Holme of Cheltenham, asked whether there would be a genuine discussion in the next year, between now and the time when the order comes to be debated—if it comes to be debated—in 12 months' time. The answer to that question is an unequivocal "Yes", but I need to put that in context. In our debate last Thursday, the noble Lord, Lord Holme of Cheltenham, accepted, I think, that the task given to the committee of Privy Counsellors was to consider this Act, not, perhaps, to put forward concrete substitute proposals for what would replace it. We all accepted last week that any proposals to replace Part 4 would need careful consideration, to ensure that the level of security that, we assert, Part 4 currently gives was maintained and that any substitution in procedure would not undermine that security but would give appropriate care to the rights of those who are subject to the procedure, which we all wish to preserve. So, I say right at the beginning that the aspirations of the noble Lord and others in that regard are totally shared by the Government.
The position that we face today is that Part 4 is the best that we have at the moment. In the past year, it has proven to be robust. The noble Lord, Lord Holme of Cheltenham, said that the Act—particularly Part 4—was created in circumstances that made it over-hasty and did not allow us to have mature reflection on all the issues. Of course, I concede that the circumstances in which we found ourselves at that time were such as to cause us to take emergency action. I hope that noble Lords who have participated in the debate will agree with me that the care that this House and the other place took in crafting the provisions—albeit speedily and against a background of emergency—was very robust. That is why we have the benefit of the report by what I will call in short form the "Newton committee"—I hope that the noble Lord, Lord Newton of Braintree, will forgive me if I call it that. It is why we have the benefit of the review by the noble Lord, Lord Carlile of Berriew, and of two serious and informative debates, last week and today.
I also pray in aid the comments made by my noble friend Lady Hayman. She argued—rightly, if I may respectfully say so—that the Government should be commended for coming before the House and expressly seeking a derogation. I hope that noble Lords are not in any doubt that the Government take any derogation from the European Convention on Human Rights very seriously and do not seek one lightly. The noble Lord, Lord Holme of Cheltenham, indicated, I think, that such a derogation should not be dismissed lightly. I think he said that some would say that it was a small price to pay for the right measures. I must make it clear that the Government do not believe that it is a small price. The Government believe that it is a weighty price but a necessary one.
My Lords, the noble Baroness is getting close to the crux of the issue between us, as there is so much that we agree on. In trying to craft what she called a substitute, would it be one of the cardinal aims to remove the need for derogation?
My Lords, we must consider whether it is possible to craft something that is equally robust but would not necessitate derogation. If it were, the Government would have done so. Our view, based on the information that we have and our discussion of the issues, is that the situation that we now face can be properly met only by the provisions that we have at the moment.
My Lords, I shall give way in a second. We have the discussion paper and all the issues that were laid out by the human rights committee and the Newton committee. There is also the discussion of the suggestions made in the report produced by the noble Lord, Lord Carlile of Berriew. All those issues will be debated, as a result of those discussions.
My Lords, further to the point made by my noble friend Lord Holme of Cheltenham, can the Minister say, at least, that the Government will endeavour to bring before the House, before the expiry of the present order a year from now, proposals based on the discussions in another place on
My Lords, I say to the noble Baroness that what was said by my right honourable friend the Home Secretary in another place was absolutely his intention: there will be an open discussion of the issues. If, as a result of those discussions, the Government come to the view that that is a course that should properly be taken, it will be taken. I hope the noble Baroness understands that I cannot give any guarantee in relation to timetable because I cannot foreshadow the nature or the extent of the discussions that will take place and what may emerge as a growing consensus as to what may be the way forward.
I take very seriously what has been said in debate. I also take very seriously what my noble friend Lady Hayman said about the nature of this issue. I take seriously what was said by the noble and learned Lord, Lord Lloyd, in terms of the length of time that these provisions may remain in force. There are many considerations that arise as a result of those suggestions. Some noble Lords have said that we may need further or other legislation. Is that right? Would that be a course to go down? Those are all issues that I am sure will excite a lot of attention and discussion.
My Lords, I thank the Minister for giving way. As the Minister will be aware, the speeches made by the noble Baroness, Lady Hayman, and others suggest that the robust measures—words used by the noble Baroness four or five times—do not deal with her devastating point that the measures are both under-inclusive and over-inclusive. They are under-inclusive in that they do not deal with some really nasty people who are British citizens; they are over-inclusive in taking unnecessary powers that could be dealt with in a more proportionate way.
Can the Minister give an assurance that the under-inclusiveness—that they do not go far enough—and the over-inclusiveness will be dealt with urgently so that the House has options properly considered by the Home Office back with us well before a year from now? I think that that is what all sides of the House are asking the Minister to tell us.
My Lords, I have tried to make it as clear as I can that these issues are included in any discussions that we shall have as a result of the discussion paper. I hope that your Lordships will find that the discussion paper is very open. It does not prohibit any issue being raised by any other party, who may say, "We need to consider the following".
However, I also need to say that the issue of what we do about our own nationals has always, to date, been dealt with separately because we have an irrefutable problem: we have no capacity to ask our own nationals to leave this country. They will be dealt with within our borders. They are British citizens and they have a right to remain.
My Lords, I thank my noble friend for giving way. I am sorry, but she provokes me on this point, which I made last week. These particular foreign nationals are in exactly the same position as our citizens. In effect, because of the provisions of the European Convention on Human Rights and because we cannot deport them, they must be dealt with within our own country, which is exactly the same as with UK citizens.
My Lords, I understand the point that the noble Baroness makes in that regard. I understand that she would say that we have to look very particularly as to the procedure that we therefore adopt in relation to foreign nationals to cure that mischief. I know that the noble Baroness understands that the Government currently believe that one cannot conflate the two. We have made it plain that the discussions we shall have as a result of the discussion document produced by my right honourable friend the Home Secretary will allow us to look now at what other options there may be to address the issues on which we are clearly divided.
I am unable to say what the outcome of those discussions will be. I hope that we could craft something together which everyone would think was robust and which would be supported on all sides, not least because we are all in agreement that, first, there is a threat; secondly, we have to respond proportionately to that threat; and, thirdly, we need to ensure that the ordinary rules that we would expect to apply will not be deviated from unless it is absolutely necessary. Those are things on which we agree. We are therefore saying that that is a discussion which now has to take place, and will take place.
The noble Lord, Lord Holme, asked me a number of questions about timetabling. I shall now turn to those because I need to be clear about what the next 12 months are likely to bring about. The suggestion is that we are going just to kick this into the long grass, come back in 12 months' time and say that we want the provisions to be reaffirmed.
I and, I am sure, all my noble friends will have listened clearly to what this House has said; namely, that we have been put on probation for 12 months and we will be dealt with and sentenced in 12 months' time. I hear that stricture. I reassure noble Lords that it will be heard by anyone who has either listened to this debate or reads it in Hansard.
As your Lordships know, the Government's response to the Newton report was published on
The discussion paper invites further ideas. We have heard many ideas in last week's debate and in today's debate. I remind noble Lords that the consultation period will continue until
Can I say, hand on heart, written in stone or blood, that it will be there in six months to the day? The answer is "no". Will we ensure that we do everything to encourage and enable it to be delivered as quickly as possible? The answer is "yes". Noble Lords who have had the advantage of standing at the Dispatch Box, and others, will know that sometimes our disappointment is expressed, but there may be little that we can do about it. That is something which will be energetically pursued.
The noble Lord, Lord Holme, also commented on numbers. I hope that your Lordships will understand when I say that the Government are clear that the threat now comes predominantly from foreign nationals. I am not in a position to go into the details, but that is the clear information that the Government have, and that is the position. In addition, I need to say that numbers themselves are not the determining factor. The powers tackle the adverse effects for the country in meeting the emergency arising from the continuing and unrestricted presence in the United Kingdom of suspected terrorists who cannot be removed to third countries. We think that it is not necessary to extend the measures further to include UK nationals.
My Lords, I am sorry to delay the noble Baroness, but have I got what she is saying right? We quoted from evidence given to us by the authorities that approaching half of those suspected of terrorism are British nationals. Is the noble Baroness saying, "Well, if you weight it for the potential seriousness of the terrorism, it is the foreigners who are more likely to do the serious things than the British suspected terrorists"? Is she saying that it is a matter of weighting the quality of terrorism rather than the numbers of suspected terrorists?
My Lords, no. That is not what I am saying. Of course, I appreciate that noble Lords have used figures in this debate. I am not able to comment on figures for very obvious security and other reasons. I am therefore obliged to indicate to your Lordships that the Government's information makes it clear that the dominant, major threat comes now mainly from foreign nationals. That is our assessment; it is not simply a numbers game. I hope that your Lordships will understand why I cannot go further.
The noble Lord, Lord Holme, and the noble and learned Lord, Lord Lloyd, asked about SIAC. I hope that I have acknowledged, both last week and today, that we believe SIAC is working very well. That does not mean that we unequivocally agree with every decision it makes. There is, of course, a case in point where we do not believe that SIAC have got it right. I know that the noble and learned Lord, Lord Lloyd, was teasing me when he asked whether we were appealing on fact. The noble and learned Lord knows that the only basis on which we could possibly appeal would be a point of law. That is why I say to the noble and learned Lord that on this occasion we believe that SIAC has got the law wrong. Even the most noble and learned judges are not infallible.
The noble Lord, Lord Newton, raised a number of points which were echoed by the noble Lord, Lord Holme. He specifically questioned the issue of exporting terrorism, a theme raised by my noble friend Lady Hayman. It is not an issue that we take lightly. However—it hurts one almost to say so—our major concern must be the protection of the United Kingdom. I hope noble Lords will understand that we work very closely with all our security colleagues around the world in relation to these issues.
The noble Lord, Lord Lester, and my noble friend Lord Judd asked about the status of other European countries and why they have not derogated. I hope that what I have said and what my noble friend Lady Hayman has said goes in part towards the answer—not least because we have to make an individual assessment of the threat, and that individual assessment has caused us to believe that the derogation was necessary. I absolutely accept that there may be a different view in that regard. I think my noble friend Lady Hayman is right: it may not be that other countries have not derogated in fact; they just have not derogated de jure, in law, whereas we have found it necessary.
It is not a comfortable position in which we find ourselves. But, as I have said, the Government have not closed their mind and we will continue to consider whether this is the best way forward. The noble Lord, Lord Lester, asked a very specific question about whether we accept, or agree with, the Court of Appeal definition or test in relation to proportionality. It is the correct test. However, we do not consider at present that there is any less intrusive measure which would meet the exigencies of the public emergency. That is where, perhaps, there is a difference of view.
That does not mean that we are not prepared to continue to keep these issues under review; it does not mean that we have closed our minds. I tried to make it clear on the previous occasion, and I repeat today, that no solution we come up with is likely to be perfect. We are all trying to get the best solution we can. No matter what solution we come up with, many will still feel some anxiety about it. The Government are clear that we need to continue to look at this issue.
I turn now to some of the specific points raised by my noble friend Lord Judd on the whole issue of secret evidence. I hope that noble Lords will not mind me reminding the House that we adopted the SIAC-type process following the European Court at Strasbourg ruling in Shahal. It was adopted precisely in order that we might address the concerns about secret evidence. Again, we have not suggested that it is a perfect solution, but it is the best we have available to us to enable the courts to consider secret intelligence.
As I said earlier, we are looking at whether the restrictions on the use of intercept material could be relaxed. When the review is published we shall, of course, be able to consider that issue further.
My noble friend Lord Judd also asked about SIAC and the issue of the use of torture and interrogation. Your Lordships will know that SIAC has adopted the common law approach to evidence which may have been obtained elsewhere through the use of torture, save for evidence that is obtained from a party—usually the defendant—in a criminal trial, where all the evidence is admissible however unlawfully obtained. However, where material may have been obtained by torture, the means by which that information is obtained will bear on the proper weight to be given to the information.
I turn now to the remarks made by the right reverend Prelate the Bishop of Southwark. He asked about anonymised information on detainees and whether or not it should be published. I can assure the right reverend Prelate that anonymised information is already made available, as recommended by the committee of the noble Lord, Lord Newton, on the Home Office website.
The right reverend Prelate asked about SIAC and the decision that we have made. I hope I have explained why we are appealing that decision. He also referred to the replacement of the temporary nature of the legislation. I hope that I have dealt with that, too, in terms of where we may respond.
The noble Baroness, Lady Williams, asked for a clear indication that the Government will not come back for a further renewal in a year's time. I think that I have dealt with that as best as I am able in terms of the approach that we hope we will be able to take in due course.
I thank noble Lords for the rigour with which they have approached the debate. It is right that there should be a rigorous scrutiny of the measures we are taking into account today. I very much welcome the assent of noble Lords to the continuation of these unfortunately very necessary powers, in the interim and for the next 12 months.
My Lords, I thank all noble Lords who have taken part in this short discussion on the amendment I have proposed from these Benches. I am extremely grateful to all who have spoken. It has been an outstandingly valuable debate, as the Minister has acknowledged. Although at the end of the day we may not find ourselves in complete agreement, there is a great deal to agree on. It is to the Minister's credit that she has identified some of those points.
Although obviously concerned not to have the potential support in the Lobbies of the Conservative Front Bench, I am very heartened by the fact that the noble Lord, Lord Newton—who will also not be there—will be at my shoulder, and that I shall have the spiritual guidance of the noble Baroness, Lady Hayman, hovering above me. It fortifies me to think that I might be able to survive this ordeal knowing that I have that, let alone the support of both the Church and the law in the shapes of the right reverend Prelate and the noble and learned Lord, Lord Lloyd of Berwick. It is very cheering from the point of view of a minority party proposing an amendment to have mustered such support.
The noble Baroness could not have put it better: the Government are now on probation. I think that she has got the message, loud and clear, from all sides of the House that it would be quite wrong for the Government to assume from here on that they can come back and say, "Renew Part 4", and expect acquiescence from all of us concerned with the problem of terrorism. We are saying, "You have got to do better, and you should do better within the next year".
I particularly welcome what the Minister said about telephone intercepts. It is very good news that she expects to see the conclusion of the Government's review within six months of discussion. I think that will help them to generate an alternative. She was careful to qualify that, by saying that she would be bitterly disappointed if such a review were not completed in time. It would be a very hard-hearted Home Secretary who would want bitterly to disappoint the noble Baroness, but perhaps this one is hard-hearted, so we shall have to keep up the pressure.
That brings me to my conclusion. We could say that we will rest on our laurels; it is clear what the feeling of the House is and it is clear that the Government are moving, under pressure, towards some abandonment of their first rejection of the Newton proposals on Part 4. However, I am afraid I am not able to feel confident about that, for two reasons. First, the noble Baroness was so circumspect about timing that I, for one, was left very unsure whether the Government would come up with new proposals within the year which are necessary for us to have an alternative. I understand her caution, but I cannot agree with it.
Secondly, when it comes to the content, the noble Baroness has, in her usual skilful way, left it rather unclear whether the Government will simply cherry-pick among the Newton proposals or whether they will make a point of reviewing all of them seriously, even those hitherto rejected, in order to try to come up with a combination which does not provide for derogation from the European convention. In the light of that, I think that we shall have to test the opinion of the House.