Examination of Witnesses (Questions 86-99)
RT HON
LORD FALCONER
OF THOROTON
QC AND RT
HON BARONESS
SCOTLAND OF
ASTHAL QC
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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