Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 80-99)

RT HON LORD FALCONER OF THOROTON QC AND RT HON BARONESS SCOTLAND OF ASTHAL QC

30 OCTOBER 2006

  Q80  Lord Judd: I would never accuse you of this at all but there is a danger of populism if this is not handled in the right way.

  Baroness Scotland of Asthal: I can certainly see that that is so but if you look at what we have done and the way in which it has been expressed I hope the Committee will feel that it has been proportionate, measured and sensible in terms of the approach that we have taken. I think that is the way in which we continue to want this issue to be looked at.

  Q81  Lord Judd: You would agree that anything that is done must not be at the expense of the well established right of suspects and offenders such as the right to a fair trial and the presumption of innocence. In that context, how happy are you really with a specific proposal to increase the use of live television links for victims rather than live evidence in court, because this raises the question of compatibility with the right of the accused to confront and cross-examine those giving evidence against them.

  Baroness Scotland of Asthal: We have used live links very successfully for those vulnerable witnesses who would find it very difficult to meet their alleged perpetrator face to face. We have done that in relation to children, rape and other cases, all of which have been a proportionate response to make sure that the imbalance that quite often happens between the victim and the perpetrator in those circumstances is addressed, because many victims in those circumstances feel very threatened and very worried about coming before a court. One of the things we have to address is to encourage more people to feel enabled to take that step of seeking justice and coming to court. The other issue about live links is that we are making that possibility available more for those defendants who wish themselves to take advantage of that as an appropriate way of disposing. For instance, in the Bill that we have just been dealing with, the Police and Justice Bill, we were looking at using live links for bail applications, where the defendant consents. All of that is perfectly sensible and proper.

  Q82  Baroness Stern: This is a question about how victims are treated. Is it still the case—I may well be completely wrong about this—that people with a criminal conviction are not entitled to go to the Criminal Injuries Compensation Board for compensation if they have been a victim of a crime and would otherwise qualify for compensation?

  Baroness Scotland of Asthal: They are entitled to go but it depends on the nature of the criminal offence and it depends on the quantum. It may be a factor which we have taken into account. At the moment they can still go but for certain offences it may materially reduce the amount they receive or indeed expunge it in its entirety.

  Q83  Baroness Stern: Even if the criminal conviction was absolutely nothing to do with the reason that they were victimised?

  Baroness Scotland of Asthal: It depends on the nature of the offence for which they were convicted.

  Chairman: There is a tariff by which they are discounted depending on the nature of the sentence and the offence.

  Q84  Lord Lester of Herne Hill: May I ask you about the Chahal case and its implications? In paragraph 2.13 of the unfortunately phrased Rebalancing the Criminal Justice System in favour of the law abiding majority, you describe Chahal in a way that I think is inaccurate. I just want first of all to clarify that. What you suggest is that the case goes against the fundamental principle in the Human Rights Act that individual and collective rights can and should be balanced against each other. You say that the Court of Human Rights decided that the UK government could not consider protection of the public as a balancing factor when arguing the case for the deportation of a dangerous person. May I suggest to you, and see if you agree with me, that what the court in fact decided in Chahal was that states may of course deport dangerous people on grounds of public safety which the United Kingdom frequently does and that the only exception which Chahal and Article 3 of the Convention impose is that, where there are substantial grounds to believe that the person concerned faces a real risk of death or torture or inhuman or degrading treatment on their return, they cannot be returned in those circumstances. In other words, that is the true finding in Chahal and it is not a question of balancing, is it, in that case because prohibition against torture is an absolute prohibition and there is nothing to balance when there is a substantial risk of torture.

  Baroness Scotland of Asthal: That is correct but that is one of the issues which causes difficulty. I think you and the Committee will accept that there are now different gradations of inhuman and degrading treatment. We are quite clear about what torture is but, in terms of the way in which Article 3 has been interpreted and the jurisprudence in relation to it, there is quite a broad bracket of what would now fall properly within Article 3. In those circumstances, the argument goes in Chahal, should it be right that the public safety considerations should never be taken into account at all once Article 3 is engaged? The whole point is about whether it is ever right to balance public safety in relation to those issues which fall within Article 3.

  Q85  Lord Lester of Herne Hill: Does it follow from what you have just said that what the government is seeking to persuade the Grand Chamber to do is to dilute its finding in Chahal so that, even though the government has substantial grounds for believing that someone will face torture or inhuman and degrading treatment or punishment in another country, they will nevertheless be free to deport that person to that country? Surely that cannot be the position of Her Majesty's Government?

  Baroness Scotland of Asthal: I think it is in relation to the degrading treatment. Coming back to what I said earlier, there are clear cases. For example, if we were talking about torture, if we reasonably believe this person would either face death or be tortured, in those circumstances even if you had an ability to put into the balance the issue of public safety it is likely that, taking that balance into account, you could only come to one conclusion. That is likely to be no return. If we go to the other end and look at the jurisprudence in relation to what can be described as degrading treatment, you have a much broader spectrum. The way in which this has evolved has rightly taken into account the way a number of countries have been brought into line so that their general behaviour has been improved. Article 3 has been expanded. The question that we raise is: bearing in mind that when one compares it to threats to public safety which may mean significant numbers of people in this country will be put at risk, is it right that in those circumstances there is a total prohibition to even thinking about whether that balance should be put into the scales or not? That is a very real issue. I will give you some examples. You may have seen the submission we have made in relation to Chahal. Suppose, for example, that a person had just surmounted the substantial grounds for believing that there was a real risk of, say, corporal punishment on a single occasion. For example, the case of Tyra v the United Kingdom. There was judgment on 25 April 1978: ". . . or any physical force by a person in authority that might not be strictly necessary." That too is Article 3—that is the case in 1995—or that you might be detained for a relatively short period in prison in conditions that might be considered degrading. That is a Moldovan case in October 2005. In those cases, would it be right not to be able even to consider the public safety ramifications if that person was to remain in this country? That is the outer edge of where Article 3 is but it may correlate directly to some of the real concerns we have on public safety.

  Q86  Lord Lester of Herne Hill: This all arose, did it not, out of nothing to do with corporal punishment or one-off situations which might be degrading treatment at the other end of the scale. It arose because of the desire to deport people perceived as dangerous terrorists, locked up indefinitely and held not to be, to countries which have practised torture in the past. I am not asking about memoranda of understanding. That is the context. As I understand it, maybe this is right: you are not suggesting we should water down the Chahal case in cases of torture because you accept that in cases of torture the prohibition is absolute. You are saying that there are some cases of degrading treatment that are relatively trivial but to take one example, take the East African Asians case: "Inherently degrading to subject fellow citizens to racial discrimination on the basis of their colour." The government's position surely is not that you would wish, under Article 3, to deport Jews to Nazi Germany or black people to face race discrimination in Rhodesia or something of that kind? Surely there are cases of inhuman or degrading treatment so serious that the same must apply under Article 3 and there must be no exception for balance?

  Baroness Scotland of Asthal: That is the question as to whether there should be no exception. If you have a threat which is very serious indeed to this country and to the safety and security of this country, is it right that where you have for example one issue of degrading treatment—I am not suggesting for a moment that any issue of degrading treatment is right—but, when one compares it to what may be a very significant risk to the safety of our nation, is it right that that cannot be even held in the balance? There can be no consideration of it whatsoever?

  Q87  Lord Lester of Herne Hill: If you lose in your intervention in the European Convention on Human Rights and the Court sticks to its jurisprudence and says that Article 3 is absolute in international covenants, in the Torture Convention, in customary international law, you cannot water it down, would you then seek to dilute the Human Rights Act to instruct judges to give a different interpretation from that of Strasbourg?

  Baroness Scotland of Asthal: It is really important to take this one stage at a time. You have already alluded to the fact that we are looking at memoranda of understanding and other steps that we can properly take in order to resolve that situation. I think it would be quite wrong and precipitous to prejudge where we would be at that stage. There is a very strong feeling that, the way in which the Article 3 jurisprudence has developed means there is a question we need to ask, now that we are facing some of the most severe difficulties we have ever faced: where are the boundaries? How should we balance that?

  Q88  Lord Lester of Herne Hill: The problems about suspected terrorists are not about being caned at school or something of that kind, are they?

  Baroness Scotland of Asthal: No.

  Q89  Lord Lester of Herne Hill: Therefore, the heart of the matter is whether there should be an exception for torture or inhuman or degrading treatment of the most serious kind.

  Baroness Scotland of Asthal: The truth is the way in which Chahal currently rests would mean that if there were such a case for saying, if they were to go back, they were at real risk of having one occasion when they might be held in custody for a period of days, which we think would be degrading—let us suppose we think that—Chahal would mean that even in those cases because of the absolute prohibition there is we would be unable to consider what was in the best interests of this country, security and safety. That is the reality of where we would be left on Chahal. You may say that it is nonsensical for us to be in that position. I would respectfully agree with you.

  Q90  Chairman: Are you not creating misconceptions? Lord Lester is right. We are not talking about somebody being put in the stocks for an hour or something. We are talking about people who are facing potentially quite serious torture because they have offended the regime from which they have fled. The best example recently would have been the case of Arar where the chap was kidnapped from one place to another and ended up in appalling conditions in Syria. Those are the sort of things we are talking about. It is a very interesting, academic, fine legal argument as to whether you could have some minor, little bit of inhuman or degrading treatment but that is not really what we are addressing. The whole debate is about can we send terrorists back or not. The problem with sending terrorists back or not is not that they are going to face getting dressed in a funny uniform; it is because they face real risk of torture or imprisonment. That is the cutting edge here, not the fiddly bits around the edges. Are you not really supporting the myth or creating a misconception about what the debate is really about?

  Baroness Scotland of Asthal: I do not think we are. There is now, we believe, a real debate as to whether it is right not to be able to put it in the balance—not that the balance would not go in favour of the person remaining here, but we cannot even consider public safety as an issue. That is in effect what Chahal says. With the full ambit of Article 3 we would not be able to because once you have established Article 3 there is a total prohibition.

  Q91  Chairman: It comes back to the basic principle that you would not send somebody back to be tortured.

  Baroness Scotland of Asthal: We have been very clear in relation to torture.

  Q92  Lord Judd: I am a bit bemused and I would appreciate clarification. I do not understand that you are debarred from considering public safety.

  Baroness Scotland of Asthal: We are.

  Q93  Lord Judd: The issue is: does the danger of what may happen to the person who is sent back override your anxiety about public safety? It is not either/or. You are able to take it very seriously. You might come to the conclusion that this is a terrible threat but in terms of discharging our commitment on another front we cannot send that person back.

  Baroness Scotland of Asthal: The way that Lord Lester put it to me to start off with was the correct way. That leaves us in a position that if an Article 3 case is established there is no balancing exercise. There is a total prohibition.

  Q94  Lord Judd: Do you accept that for many people who know the sort of countries we are talking about there is a kind of disbelief, because of what the Chair referred to as a rather academic approach, that there is a sort of dividing line between degrading treatment and torture? Somebody who may start off with degrading treatment may well in effect become tortured and indeed may well die. These things are not isolated. In those sorts of countries, in those sorts of situations, those things run together. If you have so much evidence that you are contemplating the return of a person in this situation, why not just have a prosecution and a case in this country?

  Baroness Scotland of Asthal: Wherever possible, we would always prefer to prosecute. If there is evidence to prosecute someone for an act of terror, we would always wish to do that. However, it is not a very comfortable position to be in but we have to face the fact that the European Convention on Human Rights has made it absolutely clear that the rights of individuals to be protected under Article 3 are paramount. They could not be weighed against any other factors, even in a case involving national security, even if we were to establish that this would cause huge risk to national security. Let us put it at its most extraordinary. It is likely that the retention of this person, because of the rules that we have, would cause real harm. Even if that were the case, because the rights of the individual are paramount, we would not be able to even consider those risks.

  Q95  Nia Griffith: If we can turn to the approach to deportation of EU and EEA nationals, perhaps you could enlighten us in some way as to what cases the Home Secretary was referring to when he said in the House of Commons in a statement that the IND's robust approach to the deportation of EEA nationals has been defeated consistently in the courts. Were there particular cases that he was referring to?

  Baroness Scotland of Asthal: I am very happy to give you those shortly. The IND management are collating those and I am very happy to write to the Committee and I will try and do that as quickly as we can.

  Q96  Nia Griffith: Would you accept that there is little opportunity to change the law in respect of EEA and EU nationals because they are governed by EU law?

  Baroness Scotland of Asthal: I think we agree that there is less scope to change the deportation legislation for EU and EEA nationals than others because we have had to comply with specific regulations in addition to the ECHR and the Refugee Convention. There is some room for manoeuvre but I absolutely accept this is limited and the presumptions planned for the new legislation will focus mainly on the non-EEA nationals.

  Q97  Nia Griffith: Do you think there might be a tendency for the Home Secretary to blame the courts, knowing he is powerless to change the law?

  Baroness Scotland of Asthal: I do not think it is an opportunity to blame the courts. What the Home Secretary was seeking to do was to identify the difficult situation we have and he was seeking to address that robustly. This has been an issue of some concern for a while and it is quite clear that we have to deal with it.

  Q98  Nia Griffith: Obviously you may have a situation where a prisoner has been in this country for very many years and has perhaps very little knowledge of the country of origin. Do you accept that we really have to work in a compatible way with Article 8 of the Convention?

  Baroness Scotland of Asthal: Absolutely.

  Q99  Nia Griffith: And treat these cases sensitively?

  Baroness Scotland of Asthal: We will not be seeking to deport anyone in contravention of Article 8. There are some sensitive issues in relation to this and this is something that we have to take fully into account.


 
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