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Mr. Oaten: The shadow Home Secretary makes an interesting point about the transparency in respect of understanding why such decisions are taken. The more we hear about C, however, the more the impact on me and perhaps others is that we want to understand more about the intelligence and the reasons why some other detainees are held. That prompts the question whether some of those individuals are such a danger to society that they should be kept in the way in which they have been kept.
Mr. Tim Boswell (Daventry) (Con): Does the hon. Gentleman also agree that under the present arrangements, now overturned by the House of Lords, it would have been open to any of those detainees to go to any country that was prepared to take them? If they were a danger to this country while they were present, would they not equally pose a significant danger not only to this country, but to the wider western world, if they were to find such a country to take them without further detention?
Mr. Oaten:
The hon. Gentleman makes a very interesting point. Of course, one of the aspects of 9/11 and of terrorism now is that terrorism is global. The
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ability to operate in different countries means that we cannot simply assume that a threat will change if somebody is removed to a different country.
Mr. Tom Harris (Glasgow, Cathcart) (Lab): Will the hon. Gentleman give way?
Mr. Oaten: I want to make bit of progress.
As for the Government's approach, for the past three years, as we know, detainees have been held without charge. The cases have been under review from the Special Immigration Appeals Commission. As a result of the Government's actions, there has been a need to seek annual review by this House of a derogation from the European convention on human rights. It is fair to say that there were many in the first six months and each year thereafter who were prepared to accept that the Government were dealing with a difficult situation and to give them some leeway, but three years on, that mood has certainly disappeared, and the Liberal Democrats made the judgment last spring that we would vote against that derogation.
The Newton committee has been extremely critical of what the Government have said. In December 2003, the committee, which comprises some of the most senior Members in all parts of the House, including my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), who is sitting on the Benches behind me, said:
"We strongly recommend that the powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency".
Furthermore, some of the individuals who sit on the Special Immigration Appeals Commission resigned. Mr. Macdonald, who represented the interests of five detainees, became an advocate when SIAC was purely an immigration court dealing with cases that involved national security. He described it as becoming an internment court, however, and said:
"I was increasingly uncomfortable at my position in there, and after the government's reaction to the judgment, I decided it was time to go . . . It's something I've been thinking about for some time. The House of Lords' judgment was so very clear about the need to defend the rule of law and I felt that our role is legitimising something I don't think can be legitimised."
Of course, the Law Lords' ruling was made at the end of last year. They ruled by a majority of eight votes to one that allowing suspects to be held in the way in which they have been held was in breach of their human rights. Lord Nicholls, for example, said that
"indefinite imprisonment without charge or trial is anathema in any country which observes the rules of law."
The Government have had many warnings, and they have now at last decided to respond. I want to look at their response, but before I get on to the individual measures, I want also to suggest that we should judge those measures on the basis of two overriding principles. From the Liberal Democrat perspective, those principles are as follows. First, we should not have measures that give the Executive alone the power to take these decisions. Secondly, we should not have to seek a derogation or opt-out from our international
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responsibilities and from conventions. Those two principles should be the benchmark for deciding what Government measures we can support and which ones we will reject.
Let us look and see how the measures match up against those two criteria. The Government have suggested that house detention be used as part of a control order. We think that that is unacceptable. First, we believe that it would require a further derogation, and the Home Secretary said as much when he came to the House and was questioned by the Opposition parties.
I do not know whether the Minister can say whether further legal advice has been taken, but the Home Secretary indicated that house detention would probably require a derogation and Liberty and other organisations think that it would fall foul of our international responsibilities.
The second problem with house detention is that it covers UK nationals, which is totally unacceptable. The third problem with house detention is that it still leaves the power purely with the Home Secretary. If it were to get through the House, the detainees would be likely to challenge it, in which case the Law Lords would probably vote against it three years down the track after various cat and mouse rulings, and the Government would be no better off than they are at the moment.
Irrespective of those legal concerns and the likelihood that house arrest would be challenged, do we want to live in the kind of society in which the Home Secretary has the power to hold people under house arrest or house detention? Whatever the Government call that policy, that is what it is about. The issue may not involve this Home Secretary, but surely we have a responsibility to legislate for what future Home Secretaries might wish to do. When we legislate in this House, we should legislate not for today, but for what might happen in the future. Giving the Home Secretary the power to hold individuals in that way is totally unacceptable.
Mr. Graham Allen (Nottingham, North) (Lab): I congratulate the hon. Gentleman on how he has conducted the debate, and his party on choosing this important subject for half of its precious Supply day. As well as worrying about how future Home Secretaries might use that power, is it not apposite to consider what recent Home Secretaries—for example, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard)—might have done with it? It would be benign in some hands and a frightening prospect in others.
Mr. Oaten: Even that former Home Secretary finds the measures unacceptable, which demonstrates how scary they are. The most compelling argument is the list of other countries that use house arrest. Do we really want to be grouped with Burma, Zimbabwe and North Korea? I do not want to be part of the family of countries that have house detention.
Last Friday, I was shadowed by a newly elected member from the Maldives Parliament, who won his seat despite being held under house detention. He found it remarkable that I was spending part of my Friday dealing with the prospect of having to debate house
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detention in this country. The Liberal Democrats will certainly not support the Government on house detention.
Vera Baird (Redcar) (Lab): I apologise for not being present from the outset, and for being very stuffed up. The comparison with North Korea, Myanmar and Zimbabwe is not correct. Nobody has suggested for one second that the courts would not closely supervise such a power, if it were necessary to take it. There is no reason why a decision by the Home Secretary should not include an automatic and immediate right of appeal, which does not exist in any of the three countries mentioned by the hon. Gentleman.
Mr. Oaten: I respect the contribution from the hon. and learned Lady, who makes an awful lot of sense on those issues. However, a full judicial process has not been promised as part of house arrest, and the Home Secretary will make the ultimate decision. What the hon. and learned Lady has described is not a full and proper judicial process.
David Davis: I want to help the hon. Gentleman, albeit that the hon. and learned Member for Redcar (Vera Baird) is right about the comparison with North Korea. He has discussed one case in which the evidence probably turned out to be inadequate. If that individual is innocent—we do not know—he has been in jail for three years with no trial and no rights. Without the latest judgment on that case, he might have been held for much longer. From his point of view, the situation is not much different from that in North Korea.
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