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Baroness Ashton of Upholland: My Lords, the noble Baroness makes an important point which fits with the point made by the noble Baroness, Lady Pitkeathley; namely, that sometimes these young people do not want to be carers. I shall consider that suggestion and come back to the noble Baroness.

Business of the House: Anti-terrorism, Crime and Security Bill

3.6 p.m.

Lord Carter: My Lords, it may be for the convenience of the House if I take this earliest opportunity to make a brief statement regarding the timetable for the emergency Anti-terrorism, Crime and Security Bill. The timetable has been agreed in the usual channels.

It is expected that the Bill will arrive in this House late on Monday 26th November; that is, a week today. The Second Reading will be on Tuesday 27th November. There will then be four days in Committee: Wednesday 28th and Thursday 29th November and Monday 3rd and Tuesday 4th December. There will be two days on Report on Thursday 6th and Monday 10th December. The Third Reading will be on Tuesday 11th December. I am extremely grateful to the usual channels for agreeing to reduce the intervals between the various stages of the Bill.

There are a number of associated questions which need to be addressed, for example, your Lordships will want to know when the Speakers' List will be open for Second Reading and what the deadlines will be for tabling amendments. I discussed those matters with the usual channels and with the House authorities and we have placed a comprehensive document outlining all the dates and arrangements in the Printed Paper Office.

Lord Cope of Berkeley: My Lords, I confirm, as the noble Lord the Captain of the Gentlemen-at-Arms says, that we have agreed to the accelerated programme for the Bill that he set out. I thank him for announcing it. However, I wish to add a few sentences about the nature of that agreement.

My right honourable friend Iain Duncan Smith rightly expressed to the Prime Minister and publicly the Opposition's support for necessary emergency measures in the face of the new threats from terrorism.

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We have always been resolute against terrorism and, of course, we remain so. But this Bill is not a coalition document. We were not consulted on its content before it was published. It embodies Labour Ministers' ideas and their judgment of what is required urgently under an accelerated timetable. Neither the Opposition nor your Lordships' House generally is under an obligation to accept unthinkingly either those ideas or those judgments of urgency. Indeed, I believe that we have an obligation to scrutinise them.

Ministers from eight different government departments are proposing permanent changes to laws, including some that we have recently passed after much discussion, for example, the Terrorism Act 2000, the Regulation of Investigatory Powers Act 2000 and so on. Some clauses are to be subject to monitoring by statutory instrument for renewal at intervals, some are not. For the first time, I believe, some clauses are limited to international terrorism as distinct from UK terrorism. Given the continuing domestic threat to the United Kingdom and the world-wide terrorist links of some UK terrorists, that is in itself an extraordinary proposal.

The point to be made about the agreement on the timetable is that it does not so much limit the actual length of your Lordships' debates—eight days is probably only two or three days short of what the Bill would have taken in the normal course—but it drastically cuts the normal intervals between stages and between the days of the Committee stage. Therefore, it reduces the time for reflection, for consultation with bodies and individuals outside Parliament, and for thought not only by Members of your Lordships' House but also by others outside and, indeed, by the Government on what is said in Parliament.

We have agreed the foreshortened timetable. However, neither we nor your Lordships' House should neglect our duty to consider the Government's proposals and their claims to urgency in each case.

Lord Roper: My Lords, we on these Benches are grateful to the Chief Whip for the suggestions that he accepted with regard to the timetabling. However, we share a number of the reservations expressed by the Opposition Chief Whip. This is a very full Bill. It includes some measures which do not immediately seem to be directly relevant to the issues of anti-terrorism with which we totally agree. We shall want to scrutinise those particularly carefully in deciding whether they should be included in a Bill which is being considered in such an accelerated way. However, subject to that, we have accepted, and will support when they come before the House, the changes which will enable us to consider the Bill in an abbreviated form.

Lord Peyton of Yeovil: My Lords, as we are not accustomed to timetable Motions in your Lordships' House, I want to ask whether this matter will be debatable. As there is very little precedent for it, I hope that it will at least be subject to a debate.

Lord Carter: My Lords, every Bill that we discuss in this House is subject to an agreed timetable. The noble

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Lord is entirely correct that we have no such thing as a timetable Motion. However, the usual channels spend their time agreeing timetables for every Bill with which we deal, and this Bill is no different in that respect. The timetable has been agreed. Certainly the intervals have been reduced but there are plenty of precedents for that.

I certainly accept what the noble Lords, Lord Peyton and Lord Cope, said. There is no chance that this House will accept unthinkingly anything that is put before it. We have allowed eight days for the Bill. I do not believe that this is the time or place to discuss its merits or what should or should not be included in it. Clearly that will become apparent as the Bill proceeds. However, since becoming Chief Whip, I have worked with the noble Lords, Lord Strathclyde, Lord Henley, Lord Cope, the late Lord Harris of Greenwich and now the noble Lord, Lord Roper, and we have always managed to complete Bills according to the agreed timetable. I hope that this extremely important Bill will not be the first on which we breach an agreement reached via the usual channels.

Lord Marlesford: My Lords, while I support my own Front Bench and yield to no one in my determination to fight terrorism, perhaps I may raise a procedural point. It may transpire that this House believes that some clauses in the Bill do not need to be enacted before Christmas and that some clauses require further thought and possible amendment. In that case, will the Government be open to the possibility of splitting the Bill so that clauses which, in the view of this House, genuinely need to be enacted before Christmas are so enacted while other clauses could be brought forward after Christmas for further and more detailed consideration? I say that in the context of the very abbreviated consideration which the Bill appears to be receiving in another place.

Lord Carter: My Lords, it would certainly not be right for me to comment on that. I am not familiar with all the details of the Bill. I am sure that the noble Lord and others will wish to place those arguments before the House as we proceed through the Bill. It would not be right for me to give such an undertaking today.

Lord Cope of Berkeley: My Lords, it is the Government's contention at present that all the propositions in the Bill need to be put into law by Christmas. It will, of course, be for your Lordships to consider whether they agree with that contention in the case of each individual proposal. We hope to be able to persuade the Government that some of the proposals are not urgent and that they should be left out of this Bill. Perhaps, if it is desired, they could be included in a further Bill to follow in the new year.

Lord Elton: My Lords, I raise a point for clarification only. I heard the Captain of the Gentlemen-at-Arms say that the intervals between stages had been reduced. Am I right in thinking that there will be no interval between Second Reading and Committee stage, no interval between Report stage

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and Third Reading, and that the interval between Committee and Report stages has been contracted to a single day?

Lord Carter: My Lords, that is entirely correct. I was able to meet that suggestion put forward by the two Opposition parties. They wish to go into Committee stage immediately after the Second Reading. Therefore, the noble Lord is quite correct. The Second Reading will take place next Tuesday. We shall then have four days of Committee. A break of one day will be followed by two days of Report. The Third Reading will follow that. The Government regard this as emergency legislation on an extremely important subject. That is the agreement that has been reached.

Human Rights Act 1998 (Designated Derogation) Order 2001

3.15 p.m.

The Minister of State, Home Office (Lord Rooker) rose to move, That the order (S.I. 2001/3644) laid before the House on 12th November be approved.

The noble Lord said: My Lords, I beg to move that the order standing in my name on the Order Paper be approved. There will be a temptation—it affects me as it does anyone else—to go much wider than the order. I believe that the exchange that has just taken place indicates the pressure for that to happen. In introducing the order, I shall stick as closely as possible to its narrow confines. However, if the occasion arises and matters are raised, naturally I shall be prepared to be as open as I can be about consequential questions or issues.

Before coming to my main point, perhaps I may follow on from what has just been said. Later today we shall debate issues arising from the European arrest warrant. That will be subject to legislation early in the new year in terms of the amendment to extradition legislation. As I have already forecast, later in the spring there will be an immigration and asylum Bill.

However, as my noble friend the Chief Whip has just said, the Government seek Royal Assent to the Anti-terrorism, Crime and Security Bill before Christmas. However, we in no way seek to stifle debate. With the amount of time available for debate, I do not believe that that criticism can be laid at this House. Obviously, if the Government propose a measure, it is for the House to respond to it. That is the way in which the system will work during our debates. We shall make the best of trying to convince noble Lords that what we propose is moderate, proportionate and precautionary.

The order that we are about to debate is significant. It concerns a derogation that the United Kingdom proposes to make from Article 5 of the European Convention on Human Rights. That article affects the right to liberty and security. It is not a step to be taken lightly, and I want to make clear at the outset that the Government have given very careful consideration to the matter before embarking down this road.

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I shall cover three issues: first, the technicalities of the order; secondly, the domestic powers that we propose to take which require the order to be made; and, thirdly, the conditions that must be satisfied for a member state to derogate from an article of the European convention. I shall set out why we believe that those conditions have been met.

The order was made on 11th November. It was laid before Parliament on 12th November and came into force on 13th November. The power to make such an order comes from Section 14 of the Human Rights Act 1998. Section 1(1) of the 1998 Act sets out the articles of the convention which constitute the convention rights for the purposes of that Act. Section 1(2) provides that those articles are to have effect subject to any designated derogation. Section 14(1) of the Act provides that a designated derogation includes any derogation by the UK from an article of the convention which is designated in an order made by the Secretary of State. The order that we are debating is such an order.

The consequence of making the order is that the meaning of convention rights as they have effect in our domestic law will be amended in the manner that is set out in the order. The order has attached to it a schedule about the proposed derogation that the United Kingdom intends to make from Article 5(1) of the convention. It is considered that a derogation from that article is required to the extent that some of the measures in Part 4 of the Anti-terrorism, Crime and Security Bill are inconsistent with Article 5(1) of the convention.

I turn to the domestic powers that we are taking. The Bill is currently in another place—its Second Reading is due to start shortly, so we are debating the Bill and its consequences before the other place has started considering it. Clauses 21 to 23 provide for the detention, subject to judicial oversight, of certain individuals in circumstances that are likely to conflict with Article 5(1), as interpreted by the European Court of Human Rights in the case of Chahal. It extends existing detention provisions in the Immigration Act 1971 to cover a circumstance where the following three conditions are met. First, the Secretary of State certifies an individual as being a "suspected international terrorist"; that is, the Secretary of State believes that the person's presence in the UK is a risk to national security and suspects that the person is an international terrorist. Secondly, action has been taken with a view to removing that person—that is, the suspected international terrorist—from the UK. Thirdly, removal is temporarily or indefinitely prevented by a point of law relating to an international agreement or by a practical consideration.

Although it is possible to detain people consistently with Article 5 of the European Convention on Human Rights where the Government are seeking to remove someone on national security grounds, that detention would cease to be permissible if the duration of such proceedings became excessive. In the cases of some of the individuals who might be detained under those powers, it is possible that delays in removal would

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exceed a period that is acceptable in convention terms. Hence the need for the order, which modifies our domestic obligations under the Human Rights Act to match the modifications that the UK will make to its international obligations under the ECHR when the proposed derogation is formally notified to the Council of Europe.

I turn to the derogation itself. Noble Lords will be aware that there are restrictions on the scope for derogating from an article of the convention. For some articles—such as Article 3, which provides that no one shall be subject to torture or to inhuman or degrading treatment or punishment—there is no scope whatever to derogate. For other articles—such as Article 5—derogations may be made where there is a public emergency threatening the life of the nation, provided that the measures that are taken are strictly required by that emergency.

We have taken the view that the UK is currently facing a public emergency within the meaning of the convention. The first test is whether such a public emergency exists in the UK. There have been a number of public threats made by bin Laden and his supporters against western interests since 11th September. While we do not comment on intelligence, we do not believe that the overall level of threat to the UK has increased beyond the heightened levels following the events of 11th September. We believe that attacks against United States interests remain bin Laden's priority. We will of course keep all such issues under review.

The attacks in the United States represent a further escalation in the scale and scope of the international terrorist threat to western interests. The British role in the US-led coalition against international terrorism raises the overall risk of attack and it would be wrong to conclude that that threat has been diminished by recent events in Afghanistan. In addition, there is evidence to show that international terrorist organisations have links with the UK and therefore constitute a threat to the UK. We need to appreciate, as I have said before, that on 11th September the international terrorists rewrote the rule book, and these adjustments to our own rules are a consequence of that.

In its report last week, the Joint Committee on Human Rights expressed some concerns about the lack of specifics as regards the threats that we face. As the committee acknowledged, the specific information on which those judgments have to be based are necessarily not ones that can be shared. However, the public will readily be able to see, following the terrible events in the United States, that the devastation that international terrorists can wreak is large indeed. Our active support of the response of the United States means that we must be fully on our guard.

Those risks, however, do not mean that a "state of emergency" has been declared in this country. That is contrary to some of the shorthand used by ill-informed—or probably lazy—journalists. We are not talking about a situation under the emergency powers Act in which sweeping executive powers are being taken to address some general emergency. However,

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we do consider that the above threats mean that there is a public emergency within the meaning of Article 15 of the ECHR.

One question that we have to answer—everyone is asking it—is: are the detention powers that we propose a necessary and proportionate response to this emergency? We believe that they are. They are necessary because we need to do something to protect the public against individuals who contribute to the terrorist threat. If it is not possible to present sufficient admissible evidence to bring a successful criminal charge and if legal or practical considerations prevent removal from the UK, another option needs to be found. The extended but clearly circumscribed detention powers fill that gap. I repeat: our prime preference would be to prosecute; failing that, our second preference would be to remove the people from the United Kingdom—we are talking about non-UK citizens. We can adopt neither approach in these cases. We are therefore left with two alternatives: to do nothing and leave the people free or detain them.

We therefore believe that these measures are proportionate to that risk. The powers will be targeted on a small group of individuals. I cannot give a figure—a handful is involved but I cannot say whether it is a large or a small handful. A small group of individuals is involved. Those individuals constitute a major threat to national security; that is, as suspected international terrorists. With all due respect to the Joint Committee on Human Rights, whose work always greatly aids discussions in this House and in the other place, I do not share its conclusion that there is a lack of safeguards in the Bill. There are in fact a number of important safeguards relating to the use of those powers.

First, a detainee will be able to end his detention at his choice if he wishes to go to a third country. That is why I refuse to engage in a debate about whether internment is involved; it does not involve internment in the emotive historical sense in which that word has been used in this country. I refer to the internment of UK citizens who are locked up—banged up—and who certainly have no right to walk out. In this case, these people will be able to end their detention if they find a country that will take them.

Secondly, the powers exercised by the Secretary of State will be subject to full judicial scrutiny. I read reports in the media at the weekend which stated that no judge will ever see the evidence that David Blunkett will have used to make a decision or to issue a certificate. That is simply not true. The Special Immigration Appeals Commission—the relevant legislation went through this House and the other place at the back end of 1997—is well suited to considering these matters, having both judicial and security expertise. The commission consists in total of eight people: four judges and four others who have expertise in security matters. At any one time, there will be a minimum of two judges sitting and one person from the group that I call the lay people. They are in effect conducting a judicial review on the Home Secretary when he signs a certificate. The decisions of the commission will be capable of appeal to the Court

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of Appeal and to the House of Lords on a point of law. So to argue, as some commentators have, that there is no judicial process, no oversight of what the Home Secretary is doing in respect of such people is, frankly, not the case.

Furthermore, the oversight on the detention powers will be ongoing. There will be an immediate right of appeal against the issuing of a certificate, with six-monthly reviews thereafter, and the additional safeguard of a review earlier than that where a change of circumstances is raised that warrants that. If there is a change between the six-monthly reviews, the detainee, through his or her legal adviser, will be able to make an application to have the matter looked at as a result of a change of circumstances. I cannot conceive of such a request being refused by the commission.

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