Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witnesses (Questions 86-99)


31 OCTOBER 2006

  Q86 Mr Denham: Good afternoon and welcome. Thank you very much indeed for joining us for the last session of what has been an all-day sitting of the two Select Committees, exploring various aspects of human rights and public policy making. A lot of issues have been raised in the day so far, so I hope we will be able to address some questions to you. We anticipate a vote at 10 to four so we will aim to conclude this session in time for the vote rather than have an adjournment. In the earlier sessions our witnesses were given the opportunity to make an opening statement. I do not know, Lord Chancellor, if you or the Minister wish to do so.

  Lord Falconer of Thoroton: No, I think it would be tempting fate to do an opening statement at two minutes to three after a full day of hearing evidence.

  Q87  Mr Beith: Perhaps I could say by way of opening statement that the actual review which the Department has produced ranks very highly in quality amongst documents I have seen the Government produce in a long time.

  Lord Falconer of Thoroton: Thank you very much.

  Q88  Mr Denham: Lord Chancellor, can I open the questioning then. In a speech you made in Canberra recently which was circulated to the Committee...

  Lord Falconer of Thoroton: It was Sydney actually.

  Q89  Mr Denham: . . . you made the statement "If we are seeking to transfer responsibilities from the political to the legal sphere, there must be complete confidence that the issues are genuinely being decided on a legal basis." The first half of that statement I have no question with but on the first half, who is "we" and when did we decide to transfer what powers from the political sphere to the legal sphere?

  Lord Falconer of Thoroton: "We" were Parliament. The issue was in relation to, for example, anti-terrorism legislation. The issue about the extent to which it was an appropriate response is no longer Parliament's alone. It also involves the courts. That is what I was referring to.

  Q90  Mr Denham: Were you referring quite narrowly there to those particular pieces of legislation or the more general trend that you refer to in your lecture of judges now being invited into areas that 30 years ago would have been seen as the preserve of politicians and the executive?

  Lord Falconer of Thoroton: In the speech I refer in particular to sentencing, where judges have always been involved in what is essentially making decisions about levels of punishment. I also refer to the Human Rights Act in some detail in the speech. The big change is not sentencing; it is human rights, where we are in effect saying decisions about whether counter-terrorism or other bits of law are regarded as "acceptable" are to be decided not just by Parliament but by Parliament and the judges together, albeit—and I make it clear in the speech—the final word is with Parliament.

  Q91  Mr Denham: To pursue that point a bit further in relation to terrorism, in the speech again you set out the principle that the responsibility for setting out the strategy for fighting terrorism lies with the executive and that it is the responsibility of the courts to decide whether individual actions are legal. I paraphrase it but I hope that is reasonably accurate.

  Lord Falconer of Thoroton: It is completely accurate.

  Q92  Mr Denham: If we look at three of the issues that have come up in the courts in relation to terrorism—Belmarsh, which was about detention; deportation and Article 3; and the control order judgments—the cumulative effect of a set of individual legal decisions is to remove from the government three of the things that not so long ago it thought were key parts of its counter-terrorism strategy. Is it as simple as to say that the strategy is decided by the executive but individual actions are decided by the courts, when actually the courts appear to be able to blow the whole thing out of the water?

  Lord Falconer of Thoroton: I do not think removing the right to detain in prison people they want to deport who were foreign completely removes all of the Government's counter-terrorism strategy. Equally, in relation to control orders, what the courts have said is that the process is all right, but in relation to the two individual cases that they heard as to whether it was a deprivation of liberty, they were simply applying a test, and that was not really a policy issue at all. It was applying a pretty well recognised test that the European Court had indicated. This is paraphrasing it slightly: does 18 hours in a bed-sit in East London deprive you or your liberty? That was what they decided did. The third one, Chahal, was something that existed prior to the Human Rights Act. I think you are exaggerating when you say the cumulative effect of those three decisions is to blow away the Government's terrorism strategy. I do not think that is the view the Government would take.

  Q93  Mr Denham: In relation to the group of foreign nationals that we are talking about, it becomes impossible to detain, it is impossible to deport, admittedly because of a prior decision of the European Court, and it is effectively difficult to have meaningful control orders on them. So far as that brief is concerned, you have a series of legal decisions, which at the very least have severely constrained what the Government would have liked to do and, in the case of both control orders and Belmarsh, Parliament wanted to be able to do with those particular individuals.

  Lord Falconer of Thoroton: First of all, as to the ability to deport, SIAC have already dismissed an appeal in a case called Y where we are seeking to deport Y to Algeria. There are other cases pending. So I think you are going too far when you say the Government cannot deport people they want to deport to other countries. Let us see how that series of cases go. Secondly, in relation to the deprivation of liberty cases, to reduce the period of time that the person has to stay at his house in East London from 18 hours to 12 hours a day does not seem to me to be shooting a complete hole in our counter-terrorism strategy. Thirdly, in relation to Belmarsh, yes, we could not detain the people in Belmarsh but the approach to them was then replaced by the control orders.

  Q94  Mr Beith: Was that not the sort of thing that the Home Secretary had in mind when he said, "It cannot be right that the rights of individual suspected terrorists be placed above the rights, life and limb of the British people. It's wrong. Full stop. No ifs. No buts. It's just plain wrong"?

  Lord Falconer of Thoroton: Public protection is incredibly important, but we know that the human rights provisions involve a balance between, on the one hand, providing public protection and, on the other hand, ensuring people's basic liberties. Human rights law allows a pretty robust response to counter-terrorism. I quote Kofi Annan in a lecture that Mr Denham referred to at the outset of this questioning in which he says that you can have a pretty robust response because human rights law understands that if the state is threatened, then you can go as far as is necessary in order to protect human rights. Torture is one that you cannot compromise on, but in all the others, there is a balance that can be struck and the balance allows you to protect yourself.

  Q95  Mr Beith: So was the Home Secretary not really talking about the Human Rights Act in that statement?

  Lord Falconer of Thoroton: He is making the point, in my view quite legitimately, that we have got to be able to protect our nation against terrorism. I am saying quite clearly that the human rights legislation allows us to do that.

  Q96  Mr Clappison: I want to come back on that point. Before I do, the question I have been asking other witnesses today is on the balance of opinion so far as it would be possible to do it. In your view, is it possible for this country to denounce the European Convention and remain part of the European Union? The balance of opinion so far has been that it is not possible. What is your view?

  Lord Falconer of Thoroton: In my view, it is in practice not possible. I say "in practice" because the European Union has made it clear that they expect all members to adhere to the European Convention on Human Rights. Indeed, we make it a condition as a European Union before anybody who is new joins in. I think the reason why there is some doubt is because the way that the relevant treaties are drafted does not express it as a condition, but to all intents and purposes, I believe it is not possible to be a member of the European Union and to have left or denounced the European Convention on Human Rights.

  Q97  Mr Clappison: I am not saying that that is what I want to do—far from it—but it is a proposition. One of the points that you make in your review is that it is always possible for us to leave the European Convention and to repeal the Human Rights Act at home if we wish to do so. Is this not putting a very significant obstacle in our way if we wanted to do that? I am not saying that we do.

  Lord Falconer of Thoroton: All I can do, Mr Clappision, and it is a perfectly legitimate question you have asked me, is to tell you what the consequences, in my opinion, are of leaving the European Convention. If the consequences are that we are in practice forced to leave the European Union, we should recognise that before we think what we are going to do about the European Convention.

  Q98  Mr Clappison: The other point I want to make follows on from the one that was being made earlier to you. The concern I have about the way in which Human Rights has panned out since it was implemented in this country and the way in which it has been interpreted is on the security grounds. Listening to that quote and your response to it, the quote did not seem to me to be saying that both sides can be right and it was entirely legitimate. The quote which was being quoted of the former Home Secretary was that you are getting the balance wrong.

  Lord Falconer of Thoroton: It is the absolute nub of the debate, it seems to me, as far as the country is concerned. What the law is saying, as far as the Human Rights Act is concerned, is that you can reduce individuals' rights to the extent that it is necessary to protect the country from terrorism. The judgment about the extent to which it is necessary must be made by Parliament but the courts can look to see whether or not the case has been made that you need to go as far as you have gone. In the Belmarsh case, what the House of Lords is saying is: you did not need to go that far in order to provide protection.

  Q99  Mr Clappison: Can I put my gut feeling to you on behalf of my constituents? We are just MPs. All we can do is represent our constituents on this. Some of my constituents were affected by what took place last July quite directly. I have a lot of sympathy for what the Government has been trying to do on this. I will go a long way to try to support the Government on what it has been doing about this. For my constituents, quite honestly, the human rights legislation is rather remote as far as they are concerned; they do not have fashionable causes and it is all very remote to their lives, but they do want to be able to travel in and out of London in safely. I think they would not lose a tremendous amount of sleep about whether or not somebody was able to stay in their bed-sit for 12 or 18 hours or whether, and I think this is part of the case though I might be wrong about it, they were able to use the internet or not and whether they can use their mobile phones. They just want to be able to lead a law-abiding, working life, travelling in and out of London. Do you think that we are getting the balance right on this?

  Lord Falconer of Thoroton: I am completely sympathetic with your constituents, Mr Clappison, and that is what the Government's prime aim is to achieve. I think as well that judges take the same view because they are just as conscious of the need to provide proper protection. There is nothing remotely distant about saying that the Government is entitled to take the steps that are necessary to provide the protection to which your constituents are entitled. It is perfectly appropriate that a court looks at the place where the Government has drawn the line and says: is that a legitimate place to draw the line because we, the judges, are also extremely keen to provide proper protection. It seems to me sensible in a united society, and we are a united society, to have both parliamentarians and judges seeking to achieve the same purpose, because the judges are just as keen to see proper security as anybody

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