Examination of Witnesses (Questions 280-299)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
4 JULY 2006
Q280 Mr Khabra: Chahal is
a famous case. He was in detention for a number of years.
Lord Falconer of Thoroton: In
England.
Mr Khabra: Eventually, the Chahal
case went to the European Court of Human Rights and he won the
case. There is a test case to get the judgment in Chahal
overruled. If that is unsuccessful does the Government intend
to do something about it, or does it intend that Ramzy
legislation should be passed to amend the Human Rights Act, as
the Prime Minister said in May?
Q281 Chairman: If we lose the case
that we have been discussing, what do we do?
Lord Falconer of Thoroton: If
we lose we have made it clear at all stages that we will accept
whatever the Convention says. If at the end of the day there is
no further place to go, in the sense that the European Court of
Human Rights says, "This is what Article 3 means", we
have to accept it. The question of amending the Human Rights Act
can arise only in the context of the period prior to any final
ruling by the European Court of Human Rights, but if after everything
has been gone through, every case has been considered and the
conclusion reached is that Article 3 is as Chahal described
it, we have to accept it. The Prime Minister and everybody else
in the Government have made it absolutely clear that we are not
leaving the Convention. If we are not leaving the Convention it
means we have to accept its terms. I raise one other point. There
is a further track in relation to this: a memorandum of understanding.
That is an agreement with the government of the country to which
deportation is sought whereby assurances are given by that country
that the deportee will be treated in such a way that does not
constitute degrading or inhuman treatment or torture. It seems
to me that these are worthwhile things to get. It is for the courts
to determine whether they sufficiently reduce the risk but they
are worth having because they have the potential to affect the
way that these countries treat not just the deportees about whom
we are speaking but others as well. I think that they are a worthwhile
track both in terms of dealing with the individual problem for
us and in the wider impact that they may have.
Q282 Mr Khabra: In the case of a
person being removed, with all the guarantees that you mention,
if the receiving country later on does not abide by the agreement,
what are the implications of it?
Lord Falconer of Thoroton: There
is little that the court can do in relation to the individual
country, but the judgment that the court must make in relation
to the memorandum of understanding is whether that agreement is
likely to be complied with. If a sovereign state says that it
will comply with a particular agreement then, absent any evidence
to the contrary, there should not be any reason why that is not
accepted, not least for the reason that the country would, having
given its word, want to keep it. But you are right that there
are no means of enforcement and so a judgment has to be made.
Q283 James Brokenshire: In a recent
speech in which the deportation of suspected terrorists was being
considered the Prime Minister indicated that the time had come
"to rebalance the decision in favour of the decent, law-abiding
majority who play by the rules and think others should too."
I note that in his comments to the Liaison Committee this morning
the concept of rebalancing the legal system for failing to take
account of the way the world had changed was also mentioned. What
do you think he meant by that in the context of the convention
and the obligations and responsibilities placed on countries under
it?
Lord Falconer of Thoroton: Is
that quote by reference to the Convention issues or the broader
issues about the criminal justice system?
Q284 James Brokenshire: He was probably
talking about the broader issues, but the quote I gave you was
in the context of the deportation of suspected terrorists.
Lord Falconer of Thoroton: The
rebalancing is the case being argued for in Ramzy. There
should be the ability to arrive at a balance, as I indicated in
answer to questions put by Dr Whitehead and David Howarth.
Q285 James Brokenshire: How do you
fit that within the context of your very clear view that convention
rights have to be maintained and there are no changes in them?
Lord Falconer of Thoroton: Where
opportunities arise in individual cases one argues that Chahal,
which involves no balance at all, should be developed in the way
that we have argued in Ramzy.
Q286 James Brokenshire: Do I take
it that when the Prime Minister also said today that it was possible
under the current law to take a different view of the balance
between the protection of the public and the human rights of the
accused you are following the same line of argument; namely, in
essence there is some flexibility there which perhaps you have
not seen before?
Lord Falconer of Thoroton: Perhaps
you would give me the quote.
Q287 James Brokenshire: The Prime
Minister, talking about human rights, said it was possible to
take a different view of the balance between protecting the public
and the human rights of the accused.
Lord Falconer of Thoroton: I have
not seen the whole context in which the Prime Minister made that
remark, so to ask me to interpret what he says by reference to
the quote is a bit tricky. But the rebalancing generally—he
is talking there about the accused—covers things like indeterminate
sentences where people pose a danger; being able to access people's
bank accounts to see whether they are money-laundering; and the
ability to impose interim ASBOs. That is an example of where the
accused can be the victim of an anti-social behaviour order without
the protection of a full trial because the balance of public protection
requires it. It is that sort of range of things to which he refers.
Q288 James Brokenshire: What do you
do when you come across obstacles, for example where there is
a conflict between that approach and perhaps rights that may exist
under the Human Rights Act? How do you address the desire to achieve
the ends that you have talked about but you find you are fettered
in some of the ways we have seen?
Lord Falconer of Thoroton: Ultimately,
there will be limits beyond which we cannot go, but in the three
examples I have given—indeterminate life sentences, the
ability to look at people's bank accounts and interim ASBOs—although
significant numbers of people have said that we should not have
done it, when we look into it there are no legal fetters, because
the balance between the rights of the individual, for example
to keep his bank account secret and not to have an interim ASBO
made against him, give way to the rights of the public, whether
it be stopping drug-trafficking or anti-social behaviour. These
matters are not absolutes and need to be looked at on a case-by-case
basis. What the Prime Minister and Government are saying is that
we need to see how we give people the confidence that we are looking
after and rebalancing the system in favour of the law-abiding
public. It does not mean infringing people's human rights but
reaching a sensible balance so the law-abiding public can feel
that the legal system is on its side.
Q289 Mr Tyrie: I want to take you
back to memoranda of understanding. These have been round a goodly
while now. Does the Government keep a check on whether it turns
out that it was prudent to take at face value memoranda or understanding?
Lord Falconer of Thoroton: At
the moment, I am not aware of any cases where memoranda of understanding
have been definitive in winning a case in relation to deportation.
Q290 Mr Tyrie: That was not my question.
The question was whether after the event the memoranda of understanding
were reviewed to see whether not they were decisive in the deportation
of the individual?
Lord Falconer of Thoroton: I am
not aware whether or not such a review is made. Plainly, a review
should be made.
Q291 Mr Tyrie: You would be disappointed
if there is not a review somewhere?
Lord Falconer of Thoroton: I do
not know the extent to which memoranda of understanding have played
as critical a part as they may do in future.
Q292 Mr Tyrie: Is this discussed
with the United States? Memoranda of understanding are used extensively
by the United States?
Lord Falconer of Thoroton: Between
them and other countries?
Q293 Mr Tyrie: Yes.
Lord Falconer of Thoroton: It
is not discussed with the United States as far as I am aware.
Whether or not I would be made aware of all those discussions
I am not sure.
Q294 Mr Tyrie: Do you think it would
be helpful if the Government published a review of the effectiveness
of memoranda of understanding?
Lord Falconer of Thoroton: Yes,
I think it would be.
Q295 Mr Tyrie: Would you be prepared
to do so?
Lord Falconer of Thoroton: Yes,
but I am not sure which ones we would be reviewing at the moment.
We have entered into memoranda of understanding that will be and
have been referred to in proceedings recently, for example in
relation to Jordan. I believe it is very important that we publish
it. Once a memorandum of understanding is reached and something
is done on the basis of it people should know what the consequence
is. The closest example from the past that I can think of is the
commitments made by the United States of America over a long period
not to execute people who have been extradited to that country.
I am pretty sure that every individual state has always complied
with the undertaking.
Q296 Mr Tyrie: Perhaps I may for
a few more moments refer to you as "Lord Chancellor".
Lord Falconer of Thoroton: I am
still Lord Chancellor and you can call me that for a few more
years.
Q297 Mr Tyrie: I look forward to
doing that.
Lord Falconer of Thoroton: I would
welcome it if you did—as long as I remain Lord Chancellor!
Q298 Mr Tyrie: I shall take that
request to heart, Lord Chancellor. You kindly agreed that you
would publish a review or at least consider whether you could
publish it.
Lord Falconer of Thoroton: I want
to see what we have in relation to that. I do not know what the
situation in the past has been, but in the future when it matters
in the way we have described it seems sensible to do so.
Q299 Mr Tyrie: As you can imagine,
many people may feel that this is just a coat of paint in order
to dress up something.
Lord Falconer of Thoroton: You
may well be wrong about that. If a nation enters into a memorandum
of understanding and commits itself to do particular things there
is a whole series of reasons which are public as to why it should
comply with that agreement.
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