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Baroness Blatch: My Lords, I am deeply grateful to the Minister for giving way. He has not dealt with security, translation and interpreters or ancillary assistance that would need to be provided on hearing days of the commission.
Lord Williams of Mostyn: That is so and there may be some costs of that kind. I refer to the section of the Bill on the financial effects in the Explanatory and Financial Memorandum. One is dealing here with the costs of the commission itself and the costs of counsel and, as the noble Baroness noted, they do not include the costs of interpretation.
I am grateful to the noble Baroness, Lady Blatch, for her overall support of these matters. I know she will join with me in the conclusion that one has to bear national security very carefully in mind. It is a balance of
interests and of rights. Any government would be unacceptably irresponsible not to bear in mind the fact that there are small numbers of people who come to our country with terrorist and murderous intent. We have a duty not only to the civil order of this country and to our own citizens but also to foreign nationals who may be the object of violent terrorist activity.We have tried to strike a decent, reputable balance between competing interests. I entirely agree with the observation made by the noble Lord, Lord Thomas of Gresford, that it will be a balance. There will be some disadvantages to someone who is accused of terrorism, but those are inevitable disadvantages when one has to perform a balancing exercise.
If your Lordships will allow me, I shall not deal with each individual contribution distinctly. It may be more fruitful if I attend to topic rather than author.
First, there is the very important question raised by the noble Baroness and echoed by subsequent contributions from your Lordships of whether the decision of the commission is to be binding on the Home Secretary. I do not dissent from the proposition that that is an essential and legitimate question, to which I give the answer, which I hope is acceptable to the House, that it is intended that the decision should bind the Home Secretary. I respectfully suggest that that is a very significant advance in human rights terms. It is not expressed in the Bill and we shall give consideration to bringing forward a clarifying amendment to put that beyond doubt. However, I hope that I have made it as plain as possible. I do not believe that that is simply a cosmetic concession. It has been thought about with care, bearing in mind our obligations under the convention and also the judgment in Chahal.
With regard to related matters, the noble Lord, Lord Lester of Herne Hill, asked whether this would be--I believe I have his phrase correctly--a full merits review. The intention of the Government is that the commission should have the same jurisdiction as the existing appeal bodies, which means a full appeal on the merits.
Questions were raised about jurisdiction. We shall certainly look at the questions that have been put--they were, if I may say so, quite careful questions--as to whether the commission's jurisdiction is as full as it should be. Consideration will certainly be given to that.
I have to deal with Article 3, which is another important question. There is no danger that new procedures will result in a person being returned to a place in which he or she will be at real risk of being subjected to torture or cruel or degrading treatment. Article 3 of the Convention on Human Rights prohibits us from returning a person to a place where there are substantial grounds for believing that such real risk would subsist. The absolute nature of Article 3, as the noble Lord, Lord Lester of Herne Hill, indicated, was determined by Chahal. I hope that that will be recognised and accepted as a distinct step forward or at least a distinct amplification of our responsibilities.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Before he leaves
Article 3, perhaps I may again make the point that Article 3 needs to be a binding standard within the scope of this Bill. There will still be the gap to which I referred when one is dealing not with suspected terrorists and others of that kind but with the routine asylum seeker, where, unless the special adjudicators and the criminal judges are given the power to give effect to Article 3, we shall be in the paradoxical situation in which wrongdoers such as suspected terrorists are given Article 3 protection under this Bill, but an innocent asylum seeker or a criminal offender facing deportation under sentence of the court is not given the same protection. Perhaps the Minister can indicate whether that gap also can be filled, if not in this Bill, then subsequently.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Lord for that intervention. As he rightly observed in his earlier remarks, those questions are outwith the scope of this specific Bill. That in itself does not prevent the noble Lord from putting his question. My answer--which I hope he will find a prudent and acceptable one--is that the Government's policy is to incorporate the Convention. Detailed work is being done on the nature of that incorporation and it is appropriate to await further discussions with interested parties, not least the noble Lord, as to exactly how that incorporation will affect our domestic, criminal and civil jurisdictions. It is not a point that is being overlooked.
Baroness Blatch: My Lords, I understand that the Minister is about to leave that point. The specific question that I posed related not only to the Article 3 point; it related to the juxtaposition of Article 3 and the declaration adopted earlier this year at the United Nations, the effect of which conflicts with Article 3. My specific question was whether thought had been given as to how they sit together on this issue.
Lord Williams of Mostyn: My Lords, I am grateful again for that distinct question from the noble Baroness, Lady Blatch, as to whether or not there is a conflict. I repeat my answer that Article 3 is an absolute obligation. In respect of her specific question in relation to the declaration on terrorism, terrorists will benefit from the provision of Article 3 because it is an absolute obligation which has been specified by the European Court, as was pointed out by the noble Lord, Lord Lester of Herne Hill.
Lord Lester of Herne Hill: My Lords, is the Minister aware that not only is that answer correct under the Convention, but also, in relation to the convention against torture by which we are bound, exactly the same applies? However hard it may be to apply in practice, even if one has a terrorist with a ticking time bomb situation, international human rights adopt an absolutist view, which is that one cannot torture a terrorist and one cannot extradite a terrorist to a country where he will face torture. Nothing being done in the United Nations
conflicts with that. Is the Minister aware that that is the general understanding of international human rights law across the world?
Lord Williams of Mostyn: My Lords, I am aware of that general understanding and offer this as an observation. It is easy to accord decent, civil rights treatment to decent, reasonable people; that is not the present problem. The problem is affording decent treatment to those who behave extremely badly, and I believe that to be one distinguishing mark of a civilised as well as a civil society.
The question of bail was specifically raised. We envisage that it may well be possible for bail applications to be heard by a single member to avoid the delays to which the noble Baroness referred. That is extremely important and I was heartened to hear someone of the authority of my noble friend Lord Mishcon saying that it is important. If delays occur and bail is denied, whatever the ultimate outcome, the complainant, appellant or applicant--however described--may well have suffered injustice.
I turn to one or two further questions which were specific to the noble Lord, Lord Hylton. Detention of an asylum seeker is only used as a last resort. Temporary admission is granted wherever possible. Only around 1.5 per cent.--the noble Baroness smiles because that may well be the sort of answer that she gave to me by way of reproof when we were in separate and distinct reincarnations--of asylum seekers are detained. The majority of those--75 to 80 per cent.--will have had their applications refused. Almost every asylum seeker has the right to apply to an independent adjudicator for bail. We do not incarcerate persons on mere suspicion alone. I hope that is a specific answer to the noble Lord's question. There are various ways, as is well known, of challenging detention by various applications for habeas corpus, applications for bail or judicial review.
We are conscious of the fact that lengthy periods of detention are undesirable and in many cases plain wrong. One of the aspects at which the Government are looking is the length of detention, the use of bail, the use of chief immigration officer's bail, the alternatives to detention consistent with other interests, when detention should be used, whether prisons ought to be used for detention and what is the place of bail hostels. The noble Lord had that particularly in mind because he was good enough to write to me in regard to the use of bail in these circumstances. The Government have those matters under review.
I detected, I hope, a general welcome to the steps that have been taken in the expression of the Government's policy in this Bill. I readily accept that there are challenging questions to be asked and they will essentially devolve on the nature of the rules to be produced by the Lord Chancellor. I reiterate the commitment that we wish the draft rules to be available so that they may be considered at Committee stage. They are important.
I do not entirely agree with the noble Lord, Lord Thomas of Gresford--whom I should earlier have thanked for his generous welcome. He focused in particular on Clause 4(3)(a), which says that rules may provide that proceedings may take place,
- "without the appellant being given full particulars of the reasons".
These proceedings are not perfectly analogous with ordinary criminal proceedings in this country. They cannot be. That is why we intend to make provision, first, for legal representation--that is the appellant's right; secondly, for the appointment of security vetted
counsel to the commission who will be able to act as though for the appellant. They will not disclose that material to the appellant; such a system cannot work. It is not a perfect system but, alas, the world which we inhabit is not perfect either.I hope that I have dealt with matters as fully as seems reasonable this evening. I recognise, and for my part welcome, a detailed scrutiny of the rules. My belief, fortified by five years sitting opposite, is that the more scrutiny this House gives to the detail, the better the legislation is in the end. I hope I have dealt with at least the most important aspects, forgiving myself for starting with the remuneration of lawyers. Further details will be forthcoming and I welcome that further consideration.
This is the first Bill which I have had the honour to introduce and perhaps I may say how grateful I am for the welcome given to me by those present. As the noble Baroness, Lady Blatch, knows, it means a great deal to have a fruitful working relationship, which I hope we have always had in the past and know will continue in the future. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
- House adjourned at twenty minutes past six o'clock.
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