Anti-terrorism, Crime and Security Act 2001: Part 4 Powers

– in the House of Lords at 2:30 pm on 26th January 2005.

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Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 2:30 pm, 26th January 2005

My Lords, with the leave of the House, I shall now repeat a Statement made earlier today in another place by my right honourable friend the Home Secretary. The Statement is as follows:

"With permission, Mr Speaker, I should like to make a Statement about the future of the powers in Part 4 of the Anti-terrorism, Crime and Security Act 2001 (the ATCS Act).

"These matters have of course received the closest attention in this House and in another place through the work of the Intelligence and Security Committee, the Home Affairs Committee and the Joint Committee on Human Rights, to all of which I pay respect. I appreciate, too, the valuable work carried out by a committee of Privy Counsellors under the chairmanship of the right honourable Lord Newton of Braintree, and of course we have the regular advice of Lord Carlile of Berriew on the operation of both the Anti-terrorism, Crime and Security Act 2001 Part 4 powers and the Terrorism Act 2000. This work shows the comprehensive scrutiny which both Houses give to these difficult issues. Of course, what I am saying today follows on from the consultation paper which my predecessor published in February last year and which has informed the conclusions I am presenting today.

"As the House well knows, the Part 4 powers are immigration powers. They enable me to certify and detain, pending deportation, suspected international terrorists who, because of our international commitments, we cannot remove.

"Despite concerns when we legislated for Part 4, the powers have been used very sparingly with only 17 people certified since the powers were introduced. Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat they pose, and that judgment has been upheld regularly by the Special Immigration Appeals Commission.

"On 16 December last year, the House of Lords Judicial Committee handed down its judgment on the compatibility of the Part 4 powers with the ECHR. It quashed the Human Rights 1998 (Designated Derogation) Order 2001 and declared Section 23 of the ATCS Act incompatible with Article 5 (the right to liberty) and Article 14 (freedom from discrimination) of the ECHR.

"It did so because it considered that the Part 4 powers were discriminatory in that they applied only to foreign nationals and that, as a response to the threat we faced from terrorism, they were not proportionate.

"It is true that the Part 4 powers apply only to foreign nationals. The reason for this is that, when we looked at the very real threat we faced from international terrorism in the immediate aftermath of the terrible events of 11 September, we were able to identify a small number of foreign nationals resident here who posed a particular danger to us. Prosecution for their activities was not possible for evidential reasons, although two of those certified and detained under the Part 4 powers have since been convicted of criminal offences, and there was no realistic prospect of deporting them.

"The Part 4 powers were the means of containing their activities where prosecution was not possible. I can tell the House that the Government believe that the powers have played an essential part in addressing the current public emergency because they have been successful in containing the threat posed by those certified and detained under them.

"They have, moreover, had another effect. It is clear from the intelligence reports that I have seen that the existence, and use, of these powers has helped to make the United Kingdom a far more hostile environment for international terrorists to operate in, with the result that some have been deterred from coming here and others have left entirely to avoid being certified and detained. I am pleased about that. The United Kingdom must never be regarded as a soft touch or a safe haven for terrorists.

"The Government believed that the Part 4 powers were justified because: the threat appeared to come predominantly, albeit not exclusively, from foreign nationals; foreign nationals do not have the same right to be here as British nationals; and, against the background of the strong condemnation of terrorism contained in UN Security Council Resolution 1373, it was necessary to take positive action against peripatetic terrorists who happened to be living here.

"That said, however, I accept the Law Lords' declaration of incompatibility with the ECHR of Section 23 of the ATCS Act. I accept, too, the Lords' judgment that new legislative measures must apply equally to nationals as well as non-nationals. But we still need to decide how to deal with the threat presented by terrorists without the assistance of the Part 4 powers.

"My starting point is the threat which we face. This is of course a heavy responsibility for all concerned and one which has the highest priority of all. That is why I have to take account of events happening around the world and, in particular, here at home. I have had frequent discussions with the Director-General of the Security Service and the Commissioner of the Metropolitan Police since my appointment. I am left in absolutely no doubt that nothing has happened recently which diminishes the threat or calls into question the state of public emergency threatening the life of the nation.

"The ATCS Act was enacted because there was an unprecedented terrorist threat to the United Kingdom, which was assessed to emanate from Al'Qaeda and those individuals and groups within the loosely co-ordinated series of overlapping terrorist networks linked to it. Our understanding of the threat has advanced since then, both from an increasing intelligence base and through the investigation of both successful and thwarted attacks. It is clear that some British nationals are now playing a more significant role in these threats. At the same time, networks, consisting of foreign nationals with international links, remain.

"Within the past year, for example, we have seen the multiple attacks in Spain in March 2004, attacks at Al Khubar in Saudi Arabia in May, the attack on the Australian Embassy in Jakarta, Indonesia in September, an attack on an Israeli-owned hotel in Egypt in October and the attack on the US consulate in Jeddah in Saudi Arabia in December 2004.

"In these circumstances, I repeat, my judgment is that there remains a public emergency threatening the life of the nation. The absence of the Part 4 powers would present us with real difficulties, and so I now set out the ways in which we can meet this threat.

"The Government believe that the answer lies in a twin-track approach: specifically, deportation with assurances for foreign nationals who we can and should deport; and a new mechanism—control orders—for containing and disrupting those who we cannot prosecute or deport.

"As the House knows, we have been trying for some time now to address the problems posed by individuals whose deportation could fall foul of our international obligations by seeking Memoranda of Understanding (MoUs) with their countries of origin. We are currently focusing our attention on certain key Middle Eastern and North African countries. I am determined to progress this with energy. My right honourable and noble friend Lady Symons of Vernham Dean visited the region last week and she had positive discussions with a number of countries on which we are now seeking to build.

"I want to make it clear that prosecution is, and will remain, our preferred way forward when dealing with all terrorists, and all agencies do operate, and will continue to operate, on this basis. But all of us need to recognise that it is not always possible to bring charges, given the need to protect highly sensitive sources and techniques.

"There is a widespread misconception that if only we could adduce intercept as evidence we should be able to prosecute those detained. However, the review of intercept as evidence found no evidence to support this and I have consequently made a Written Statement today stating that the Government do not intend to change the existing arrangements.

"Intercept provides only part of the intelligence against individuals, sometimes a small part. It does not stand alone. Some of the material we have in these cases is inadmissible, and other material while technically admissible could not be adduced without compromising national security, damaging relationships with foreign powers or intelligence agencies, or putting the lives of sources at risk.

"So there are cases where we remain unable to prosecute. However, that does not mean that we should do nothing to forestall or prevent suspected terrorists planning, assisting or otherwise supporting those willing to carry out attacks.

"The Government have therefore decided to replace the Part 4 powers with a new system of control orders. We intend that such orders should be capable of general application to any suspected terrorist irrespective of nationality or, for most of the controls, the nature of the terrorist activity (international or domestic) and enable us to impose conditions constraining the ability of those subject to the orders to engage in terrorist-related activities.

"Control orders would be used only in serious cases. The controls imposed would be proportionate to the threat each individual posed. Such orders would be preventive—designed to disrupt those seeking to carry out attacks, et cetera, whether here or elsewhere, or who are planning or otherwise supporting such activities. They would be designed directly to address two of the Law Lords' concerns— on discrimination and proportionality.

"The key features of the scheme will be: that the Secretary of State would consider whether, on the basis of an intelligence assessment provided by the Security Service, there are reasonable grounds for suspecting that an individual is or has been concerned with terrorism; and, if the answer to this is yes, and he or she considers it necessary for the purposes of protecting the public from terrorist-related activities, he or she would impose controls on that individual. There would be a range of controls restricting movement and association or other communication with named individuals; the imposition of curfews and/or tagging; other restrictions on access to telecommunications, the Internet and other technology. At the top end, control orders would include a requirement to remain at their premises; the controls to be imposed under the new scheme will not include detention in prison although I intend that breach of a control order should be a criminal offence, triable in the usual way through the criminal courts and punishable by imprisonment; there will be independent judicial scrutiny involving the hearing of evidence in open and closed session, against the imposition of the order or any subsequent variation of its provisions; a mechanism for reviewing and modifying conditions as circumstances warrant subject again to independent judicial scrutiny; other safeguards will include the Secretary of State reporting regularly to Parliament on the number of orders made et cetera; independent annual review of the powers, as now with the Part 4 powers; and annual renewal of the powers. I am considering separately what role the ISC might play here.

"The Government, of course, intend to ensure that any future powers we take in legislation are wholly compatible with the provisions of the ECHR, if necessary employing a new derogation to that effect.

"I have sought advice from the Director-General of the Security Service and the Metropolitan Police Commissioner about the powers we need to deal effectively with the public emergency threatening the life of the nation, and to deal with British and Foreign nationals whom we have grounds to believe are engaged in terrorism. On the basis of their advice, my judgment is that the range of powers I have outlined above, including a criminal sanction for breach, will be essential if we are to contain the threat which those who may be made subject to control orders pose to public safety.

"I told the House on 16 December that I intended to renew the Part 4 powers as necessary. However, my desire is to bring forward a Bill to give effect to control orders as soon as practicable. I can see advantages if it were possible to enact the Bill to a timescale which makes renewal unnecessary. Should that not be possible, I will seek to renew the Part 4 powers for the limited time necessary to put the new arrangements in place. I will need to lay the renewal order in draft and will do so tomorrow.

"For this reason I will not be revoking the certificates on the current detainees between now and when the new legislation is in place, unless the threat they pose changes and they no longer meet the criteria for certification.

"Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat they pose, and that judgment has been upheld by the Special Immigration Appeals Commission.

"We believe that those detained under the Part 4 powers continue to pose a threat to national security and that we should seek to ensure that we take all the necessary steps to address that threat.

"These are all difficult issues with no easy answers. A careful balance has to be struck between the rights of individuals and the protection of society against threats from organisations which seek to destroy central attributes of our society, such as freedom of belief, speech and association, freedom of expression and even our central democracy. All parts of our society—Parliament, the legal system, the media—need an open debate about this so that we understand the complexities of the security situation we face. I will shortly be bringing forward detailed proposals about the best way to conduct this debate.

"My principal responsibility as Home Secretary is to preserve our democracy against those who seek to destroy it through terrorist attacks. The threat is real and I believe that the steps I am announcing today will enable us more effectively to meet that threat.

"I am, of course, very well aware that the proposals I am making today represent a very substantial increase in the executive powers of the state in relation to British citizens who we fear are preparing terrorist activities and against whom we cannot proceed in open court.

"This will be contentious but I believe the need for us to protect ourselves against the threat justifies the changes I propose. I commend this Statement to the House".

My Lords, that concludes the statement.

Photo of Lord Henley Lord Henley Conservative

My Lords, I thank the noble Baroness for repeating the Statement on the replacement of the Part 4 powers in the Anti-terrorism, Crime and Security Act with a new scheme of control orders, on the Belmarsh detainees and on the recent judgment of the Judicial Committee of this House.

While I agree with parts of the Statement, particularly where the Home Secretary made it quite clear that,

"these are all difficult issues with no easy answers", and while I agree that one of his principal responsibilities must be,

"to preserve our democracy against those who seek to destroy it through terrorist attacks", it cannot be much fun to have been appointed Home Secretary on the day when the Judicial Committee of this House overturned one of his schemes by a majority of eight to one.

We understand the difficulty of the Home Secretary's position. As he made clear in the Statement, he has a very real duty to ensure the protection of the people of this country from terrorism and all the associated evils. He must do that while preserving the balance to which he referred in the Statement of keeping within the law and resisting the temptation to create something that approaches a police state.

We on these Benches certainly understand the difficulty of his position. Nevertheless, there are a number of questions that I wish to put to the Minister on the Statement that she has just repeated, and I hope that she will be able to answer them. I shall also want to go on to the Written Statement, also made by the Home Secretary, on phone tapping which, I understand, came out today but presumably it will be in tomorrow's Hansard. We find it rather odd that the Home Secretary should issue that Statement at the same time as this oral Statement, when it seems that the two could have been put together. But perhaps the Minister can come to that later when she deals with my questions.

My first point concerns the discussions that the Home Secretary and, presumably, the Foreign Office—because the Minister mentioned the noble Baroness, Lady Symons—are having with a number of countries which were described as,

"certain key Middle Eastern and North African countries".

I do not know whether at this stage she can say with which countries the Foreign Office and, presumably, the Home Office are having discussions. How many countries are involved? What is the current state of those discussions? I presume that she would want to assure the House that, whatever assurances she obtains from those countries, one will be that anyone being sent back to those countries goes back with a guarantee that there will be no use of capital punishment and no use of torture or anything else that is unacceptable in this country.

Secondly, I come to the whole question about intercept being used as evidence—or phone tapping, as some of us would refer to it. In the Statement the Minister repeated the remarks of the Home Secretary. He said:

"However, the review of intercept as evidence found no evidence to support this and I have consequently made a Written Statement today stating that the Government do not intend to change the existing arrangements".

That might be so. But in the Written Statement issued by the Home Secretary today, he refers to some of the evidence produced in the review and states that,

"evidential use of intercept would be likely to help . . . [convict] some serious criminals".

I appreciate that this is a matter of balance. However, I wonder whether the noble Baroness could say a little more about the Government's current thinking about that and whether the issue might be reviewed, because the two Statements—the oral and the Written Statement—seem to have contradictory parts.

Thirdly, I move to the new control orders that the Government propose to use to replace Part 4, which the Judicial Committee of this House found to be in breach of our human rights obligations—first, because, as I understand it, they were considered to be discriminate—that is to say, they were used only against those who are not United Kingdom citizens—and, secondly, because they were disproportionate. When the courts make a decision of that sort and the Home Office's initial reaction is to say, "Well, if they are discriminatory let's bring everyone else into it", one has some doubt whether that is the right approach. But, no doubt, the Government will set that out in due course and will also explain whether this possibly creates a new discrimination; in that now you have some who will be dealt with under new control orders who can then be deported and some who can be dealt with by the new control orders but who cannot be deported because they are United Kingdom citizens. No doubt the Home Office and the Home Secretary will deal with that in due course.

I have a number of questions about these new control orders. Obviously, before we on these Benches give any assurance of co-operation with whatever the Government want to do, we would want to see everything that the noble Baroness and the Home Secretary have said fleshed out in some considerable detail. We would want to be assured that whatever is being proposed will not be found by the Judicial Committee to be wholly disproportionate and the wrong way of going ahead.

So, first, can I have an assurance from the Government that what is proposed will not be disproportionate? Secondly, can the Minister tell us when and how we will see the details of what is proposed? What legislation precisely will be needed? What will be the timescale of that legislation? Will it be primary legislation—for example, will it have to go through both Houses in the usual way, and so on? Will she offer some sort of guarantee that noble Lords on these Benches, and, no doubt on the Liberal Democrat Benches, will be able to see whatever is proposed in good time and to see what safeguards the Government propose to include in the new control orders?

My next question is: exactly what—and here I am very confused—new criminal offences are proposed? We are told in the Statement that it will be a criminal offence to breach these new control orders, but the control orders themselves, it is implied, will not be a criminal offence. They seem to be something approaching anti-social behaviour orders. Again, I am confused. I think it is beholden on the Minister to let us know exactly what is proposed and what new criminal offences are proposed, other than the fact that a breach of one of these orders will be a criminal offence.

The last point I should like to make on these matters is that it seems that the Government propose to bring forward new legislation to introduce these new control orders. However much we on these Benches, our colleagues on the Liberal Democrat Benches or whoever, wish to co-operate with the Government and assist them, this will be difficult legislation that will take a considerable amount of time; certainly to take through this House. How long it takes to get through another place is another matter, but then they have their own ways of dealing with these things. But it will take time in this House. Therefore, it is necessary for the Minister to address the question of what other legislation might have to be dropped, in what is a very busy Session, to enable this legislation to go through.

It might be that the Minister does not feel able to answer the question at this stage, but, as one who was connected in the past with the business management in this House, I should be grateful if she would write to me and set out what the Government intend to do, how they intend to find time for this legislation and what other legislation they intend to drop.

Having said that, we on these Benches very much accept the difficult position the Home Secretary is in. Without obviously in anyway wishing to give a blank cheque to the Government, we accept that these are difficult issues with no easy answers, and, where appropriate, we shall offer our support; but where it is not appropriate, we will want to probe exactly what the Government are doing and seek the appropriate answers from them.

Photo of Lord Dholakia Lord Dholakia Shadow Minister, Home Affairs, Deputy Leader, House of Lords

My Lords, we take no pleasure in saying that during the passage of the Anti-terrorism, Crime and Security Act 2001, we expressed serious concerns about Part 4. But this is obviously not the time for recrimination. Nor do we wish to open up the whole debate about civil liberties of individuals against the security of our country. That is because we are in a fortunate position that the valuable work undertaken by various committees has given the most detailed and closest attention to the issues involved.

The Law Lords have ultimately determined that the Part 4 powers are discriminatory and not proportionate. Let me first of all thank the Minister for repeating the Statement in your Lordships' House and thank the Home Secretary for his advance notice of the Statement and, in particular, for the constructive approach he has taken on this particular issue. For three years the Government appeared to be dragging their feet. Now we have the sense that the Home Secretary is genuine about finding a way forward.

That is welcome and has our support. On the day that we see the return of four detainees from Guantanamo, this is indeed good news. Let me promise the Minister that we will give serious consideration to the control orders that the Home Secretary is suggesting, but can she confirm that the standard of burden of proof will be high before an order is made? Are the control orders the process of civil courts, which use the balance of probability, or are they part of criminal proceedings requiring proof which is beyond reasonable doubt? The idea of holding individuals in house detention is another solution that is worth examination, but is the Minister considering ways in which that could be done without requiring derogation from our human rights commitments?

I am disappointed that the Minister has ruled out the use of intercept communication in obtaining trials. Although they may not help with putting the current detainees on trial, does the Minister acknowledge that in future cases, information gained from tapping could be relevant and could be used? I simply ask the Minister to keep the door open.

We gather that there is a consensus of opinion between intelligence services and the police that such information could be of benefit in pursuing cases against individuals, yet there is confusion in government circles on the issue and an explanation from the Minister would be very helpful. There is also some confusion of interpretation that my party was against the use of such information. That has not been the case.

I remain concerned at the idea of returning the detainees to host countries, although that is better than a third country. Does the Minister acknowledge that any agreement to do that would require very strong reassurances on human rights from those countries and that any arrangement could be challenged by the detainees if they felt it was unsafe? There is provision for making in-country information available to immigration adjudicators. We should ensure that organisations such as Amnesty International and the United Nations are involved in updating such information.

However, despite all the assurances given, three questions remain. Can we trust some of the host countries whose human rights record is questionable? Would we have categorical assurances from those countries that the detainees would not be harmed? Thirdly, would the detainees' wishes on whether they remained here or were sent back to the country of origin be taken into account?

Finally, we will be constructive about helping to speed up legislation on this issue, as we are aware that the March deadline for renewing the derogation is looming. In doing so our priority will be to balance the security of our country with the need to maintain strong principles of justice. I hope that on this, we can now find cross-party agreement.

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

My Lords, I thank both noble Lords for the constructive and helpful way in which they have responded to the Statement and in particular for the compliments that have been paid to my right honourable friend the Home Secretary. I think that I will be able to give noble Lords some assurances on a number of the matters raised. The noble Lord, Lord Henley, raised the issue of the countries with which we have had conversations about returns. As the Home Secretary said in his Statement, my noble friend Lady Symons of Vernham Dean had conversations with a number of countries last week. We have discussed with those countries their assurances in relation to our and their international obligations and Article 3. It is good that we have had positive discussions and they will continue to, we hope, helpful conclusions.

Of the other issues raised by the noble Lord, Lord Henley, I shall turn first to intercept. My right honourable friend's Written Statement, repeated by me, makes clear that the review found that interceptor product might secure a modest increase in the number of convictions of level 1 and 2 serious criminals, but not of the most serious; and that it would be unlikely to assist in prosecuting terrorist targets and would not have made a critical difference to the prospect of prosecuting people detained under the Anti-terrorism, Crime and Security Act Part 4 powers. Therefore, there is no inconsistency. However, I tell both noble Lords that of course these matters will be kept under review, as we have reviewed that from time to time, to see whether the position has changed.

Many of the details about the timescale are difficult to answer at this precise moment. We will put a great deal of energy into making sure that the legislation appears as rapidly as possible. Noble Lords will know that we have a very limited time because of the date on which the Part 4 orders will expire, so it is of the utmost importance that we put a great deal of energy into that. It will be primary legislation. It will come before both Houses. Noble Lords will have an opportunity to scrutinise the detail. I cannot today give your Lordships full details of what will be in it, but I hope that noble Lords have found that we have tried to extend the usual courtesies in regard to the legislation. We will certainly use our best endeavours to ensure that noble Lords who will be interested in the matter get access to that information as soon as reasonably practicable.

The control orders will be civil orders and a breach of those orders will be criminal. The noble Lord, Lord Dholakia, raised the issue of the standard of proof. He will know that in considering whether to certify an individual under the Anti-terrorism, Crime and Security Act Part 4 powers, the Home Secretary must reasonably believe that the person's presence in the United Kingdom is a threat to national security and reasonably suspect that the person is an international terrorist. A very strict standard has been adopted in applying that test. I hope that noble Lords will be reassured by the very small number of individuals who have been subject to those powers. We will look with great care to ensure that the standard is appropriate.

The noble Lord, Lord Dholakia, asked me a number of questions about intercept information. I hope that I have covered those in my response to the noble Lord, Lord Henley.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 3:47 pm, 26th January 2005

My Lords, I am bound to say that I find the Statement very depressing. Indeed, I find the response of the opposition parties somewhat depressing as well. Does the Minister accept that the proposed control orders will inevitably involve a deprivation of liberty contrary to Article 5 of the European convention—and, indeed, probably of Article 11, as that also involves the deprivation of the right to association? Does that not inevitably mean that there will have to be another derogation from the convention by this country to replace the order of derogation so recently quashed by this House in another capacity?

Would it not be better for the Government to come clean straight away, rather than using the pious words included in the Statement, where they say that they,

"intend to ensure that any future powers we take in legislation are wholly compatible with the provisions of the ECHR"?

How could they be? I hope that the Minister will deal with that point in her reply, and say why we are the only country that has hitherto found it necessary to derogate from the convention and apparently intends to do so yet again.

The effect of the legislation would seem to be that we are simply extending deprivation of liberty to a wider number of people than before. How can that be regarded as a satisfactory solution to what I accept, and everyone accepts, is an extremely difficult problem? Would it not be far better to change the law so that those who are currently detained—and those who are not currently detained but are suspected of terrorism or terrorist intentions—are prosecuted in accordance with the ordinary law?

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

My Lords, of course I understand the import of what the noble and learned Lord says. However, I hope that it was made plain in the Statement that our primary responsibility must be the safety and security of this country. We will look with a great deal of care at the nature and the extent of the control orders. I am not in a position to help your Lordships with the precise detail, and we know that the devil is always in the detail. We will strive to produce a framework that is consistent with the ECHR. However, in the Statement, my right honourable friend the Home Secretary also made it plain that, in the end, he must make sure that the security of this country comes first. That heavy responsibility rests on his shoulders.

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, as I am the only member of the Privy Council review committee who is able to be here, I thank my noble friend for her kind words about its contribution. Perhaps I ought also to thank the Judicial Committee of this House for making some of our suggestions rather more palatable to the Home Office than they were at the initial stages.

Will my noble friend accept that, in trying to strike this extremely difficult balance, it is unlikely that a single measure will solve the problem? Many of us would accept that the reason for extending whatever measures are in place—to British nationals as well as to non-UK citizens—is one not of theoretical anti-discrimination, but of fulfilling what she described as the prime responsibility of the Home Secretary and the Government to protect citizens. The measure should be of the threat, not of the nationality or link to a particular terrorist organisation of the person posing that threat.

Is my noble friend aware, however, that there will be great concerns if the measures around control orders involve another derogation? If at all possible, could we not find a range of measures beyond some forms of control that we recommended? In that respect, I want to ask her about all the other recommendations made as alternatives to detention under Part 4, particularly the measures about improving the possibility of prosecutions being undertaken successfully and how the Government intend to address those issues apart from the simple replacement of Part 4.

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

My Lords, I wholeheartedly agree with my noble friend that there is no single golden bullet in relation to the issue, and that we will need a range of measures. However, it is right to emphasise what was said in the Statement—that prosecution must always be, where possible, the preferred option. We are looking at other solutions where prosecution is not possible, for particularly delicate and difficult reasons, but we hope that they will be rare cases indeed. I agree with her on the importance of looking at the threat posed by the individual concerned. We will continue to look at the range of measures discussed, to try to put forward the most effective package to keep this country safe.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, we found that internment without trial did not work during the IRA Troubles—which, let us remember, were partially financed from the United States. Large numbers of bombs went off here in London and in other parts of the United Kingdom. We found that internment without trial was not only counterproductive, but against the law and every tradition with which we should be proud to associate ourselves, so why are we taking this step? How many other common-law countries—Australia, New Zealand, Canada and the United States—have felt the necessity to introduce internment without trial?

Would the noble Baroness like to comment on the fact that asking the Egyptians to say that they will not torture people is exactly the same as asking someone whether they have stopped beating their wife yet? If they say yes they admit to doing it, and if they say no they are in a hot pickle. Whatever you ask the Egyptians or whoever it may be in north Africa, they will be forced to admit to torture so, as we have already seen in published data, that will not work either. It is a sad day when this country introduces internment without trial for its own subjects. It is an appalling issue.

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

My Lords, I acknowledge the passion with which the noble Earl expresses his views. However, we are looking very carefully at what proportionate response we can make to these matters. We will look at the detail, and your Lordships will be able to do so too.

In relation to the countries with which we are having discussions, I respectfully suggest to the noble Earl that his caricature is unfair. We have had the privilege to negotiate in the past with a number of countries and have generally found that, when we have managed to come to an agreement, our partners have honoured those agreements. We hope that any future agreement made with an international partner would be similarly honoured.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, given that detention of suspects will not be allowed under the new legislation to replace Part 4, will the Government oppose applications for bail from current detainees, subject of course to appropriate conditions being imposed on that bail? If so, how would they justify that opposition?

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

My Lords, it would be wholly inappropriate for me to talk about specific cases. The House will know that, under the provisions of SIAC now and for the whole time that they have been in place, it is and has always been open to those detained to apply for bail. When such applications are made, the Government have, in accordance with our duty, considered the nature of the threat and the application and have responded accordingly. We will continue to do so in the event of any application being made.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, is my noble friend aware that great satisfaction will have been felt among those who have experienced and know about interception from the Statement that my right honourable friend the Home Secretary will not change its use in courts? Does my noble friend agree that interception is a wide, complex and sensitive matter—it does not mean only phone tapping, as the noble Lord, Lord Henley, seems to believe—and that putting the product of any interception operation into the public domain inevitably reveals techniques and sources that have to be protected?

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

My Lords, I hear what my noble friend says, particularly given her wisdom and experience of such matters. I thank her for her support. We understand the wide complexity of intercept material. Those who seek to limit it simply to phone tapping indeed misunderstand it.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I too have a mixture of responses to the Statement. I am grateful that the Home Secretary has acknowledged the judgment of our senior court. It would have been awful had we suddenly seen some kind of constitutional crisis develop, so I am content that we have had that more positive response.

However, I share some concerns that have been expressed. We have just had a truly shameful episode in our history of unlimited detention of persons without trial. It was an affront to everything for which Britain stands in the world. It undermined our moral authority throughout the world, and gave encouragement to those with no respect for human rights. So I was hoping that the Home Secretary would accept some of the other suggestions that have been made by human rights organisations. I sat on a commission that was set up by the International Bar Association. Can the Minister say whether the Home Secretary considered its recommendations? It found that other European countries, including Sweden and Germany, have the same problem as we have. In those countries the activities of a number of persons suspected of engagement in or support for terrorism have been kept under very heavy surveillance and those activities have been emasculated. Has that been considered, because that would not involve derogation from the principles of the European Convention on Human Rights?

I am also concerned to hear the noble Baroness say that the standard of proof would be high. She mentioned that the current basis of certification is reasonable belief. That is lower than the civil standard of proof, never mind the criminal standard of proof, and has been criticised by members of the judiciary. So that is not a strict standard and would certainly not satisfy many members of human rights organisations. There should be a raising of the standard of proof. Might we not also consider alternatives to house arrest and could not bail be considered? There are other ways of dealing with such problems.

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

My Lords, I thank my noble friend for her contribution. I hope that I made clear that the Government were looking at the detail. We were considering whether the scheme that we put in place would need derogation or not and that there had not been a decision in relation to that, because we have not yet set out the specific detail in relation to it. Regarding the standard of proof, we will seek to put in place the appropriate test that will be applied in relation to obtaining the control order. Of course we have looked at other suggestions and will continue to look at suggestions that may better fit the position in which we now find ourselves. But I hope that my noble friend will accept that in making those difficult decisions, the Government have continued to strike a balance which is fair and proportionate in relation to the threat with which we are now faced.

Photo of Lord Glentoran Lord Glentoran Shadow Minister, Local and Devolved Government Affairs

My Lords, as a non-lawyer among many erudite lawyers, perhaps I may ask question for clarification. Does this packet of measures seek to maintain the distinction between international terrorism and national terrorism, such as that pursued by the IRA and the UDA? Do the Government intend that the penalties for international terrorism will continue to be more severe than those applying to national terrorism?

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

My Lords, I hope I have made clear that we have had to take into account the consequences of the decision made by the Judicial Committee of this House in relation to the discriminatory nature of the distinction we made between foreign nationals and citizens of our country. The new provisions would apply to terrorists generally. We have not yet decided on the nature of the penalties, but those details will be in any proposed legislation that comes before this House and another place.

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

My Lords, I was member of the Joint Committee on Human Rights which scrutinised this legislation twice—in fact more than that. Although I am no longer a member of the committee, I can say that it will very much welcome the Statement made in the other place, and repeated by the noble Baroness, as a vindication of the way in which the Human Rights Act has worked in this case.

First, it has worked because the Law Lords have given a judgment which is, I am sure, admired across the democratic world and which I hope will serve as some persuasive influence to colleagues on the American Supreme Court, when they consider a similar matter. Secondly, it has worked because the Home Secretary, instead of not obeying the ruling of the House of Lords, has wisely decided to do his best to comply with the judgments. That will be welcome to anyone who is concerned about human rights. Thirdly, the new Home Secretary, unlike his predecessor, has wisely looked at the Newton committee's recommendations and, instead of ruling them out, as happened in the discussion paper on the previous occasion, he has taken account of them. That is also welcome.

Like others, I respectfully disagree with the judgment about the use of telephone taps and intercept material. I cannot understand why that should be ruled out. Only Ireland and the UK do so. The Human Rights Committee took evidence from a senior French judge, who convinced us that one of the reasons we could not prosecute suspected terrorists was partly due to the exclusionary rule, which seemed to us not to be sensible.

I should like to ask the noble Baroness one question. What will be the position of the United Kingdom when the Belmarsh detainees go to the European Court of Human Rights, as they undoubtedly will, arguing that the declaration of incompatibility and the Minister's Statement do not give them any effective remedy? Do the Government have any idea in their current planning to avoid humiliation before the European Court of Human Rights? Are they considering any measures that will seek to provide a remedy to the Belmarsh detainees for their detention, which is, effectively, in breach of Article 5?

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

My Lords, the noble Lord knows perfectly well that it would be quite inappropriate for me specifically to comment about that case. Of course the Government are looking at their duty. I thank the noble Lord for the comments he made about the nature of my right honourable friend the Home Secretary's Statement. These are issues that will continue to provide the Government with anxious consideration.

Photo of The Bishop of Chester The Bishop of Chester Bishop

My Lords, I join others in recognising how difficult it is, in a democracy, for the Government to shape anti-terrorism measures. The responses to the two major points made by the Law Lords seem to extend to all our citizens a watered down version of the powers to detain people without trial. This is a serious matter. It may not quite be the internment to which the noble Earl, Lord Onslow, referred, but it is in that territory, especially if the orders strongly controlled someone in their own home. Issues would then arise about the right to work, how they will be sustained and other such questions.

Is the extension of these powers, which were not thought necessary when the Anti-terrorism, Crime and Security Act itself was passed, simply to address the issue of discrimination, or do the Government anticipate that our citizens will be detained without trial in their own homes, which would be a new development? Regarding the control orders, can the Minister assure us that the lightest possible touch will be used, with all the advantages of modern technology, to keep any constraint on the liberties of folk to an absolute minimum?

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

My Lords, certainly, in the operation of the control orders, there could be a very wide spectrum of intervention—from those who may need to report at certain times, to those who need to be tagged. There can be a combination of measures. Regarding the right reverend Prelate's other comments, the Government have tried to keep those matters very much in balance.