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Lord Corbett of Castle Vale: My Lords, can the Minister clarify the point that, none the less, it remains entirely possible that a person could be detained indefinitely without ever knowing the allegations against him or her?

3.30 p.m.

Lord Rooker: My Lords, I shall address that. I am going through the process in a chronological manner. I have just referred to the detainees' legal adviser. The detainees can have whatever legal advice they choose, from wherever. Of course, there will be an appointed legal adviser to take the issue before the Special Immigration Appeals Commission, and that person will come from the Attorney-General's list. He or she will have that access, but will not be allowed to discuss it with the detainee. That is a necessary consequence of not being able to mount a prosecution. If we could mount a prosecution we could deploy the evidence in court. As we are not prepared to use intercept evidence, we are tied and so we have to build in this process to try to safeguard the issue.

My noble friend is correct. Last week, when the Home Secretary appeared before the Joint Committee, he was asked whether someone could be locked up for life. Technically, after five years the matter will have to be reviewed with all the other built-in provisions because the derogation is for five years only. But as the Bill is drafted, the answer, in a simplistic narrow way, would be yes. If one asks the question, "Can you conceive of someone being detained for life in that way?", the answer is probably no.

I cannot conceive of the circumstances because in this position—no doubt the matter will be debated at some length when we consider the Bill—I cannot give examples of what might fulfil those criteria.

Lord Lester of Herne Hill: My Lords, the Minister has helpfully told the House that SIAC, the Special Immigration Appeals Commission, would effectively be conducting a judicial review of the decision of the Home Secretary. Therefore, am I correct in assuming that SIAC will be able to review the decision of the Home Secretary that someone cannot be sent to another country for reasons related to Article 3 or for other practical reasons? Will that also be reviewed by

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SIAC? In reading the Bill, I am unclear whether the "ouster" clause, as it is called, will oust that or not. If SIAC is to substitute for normal judicial review, that is an important point.

Lord Rooker: My Lords, that is an incredibly important question which I cannot answer. I suspect the answer may be no, because it involves the interpretation of what happens under Article 3. There is really no way out of Article 3. If the Home Secretary takes the view that we cannot deport someone to a country in relation to which he has evidence that that person will face execution, torture or inhuman and degrading treatment, Article 3 is absolute. I do not believe that anyone could second-guess that and say to the Home Secretary, "By the way, we believe that things are okay in country X or Y and you can get this person out".

I do not believe that SIAC would have that capability. I shall take advice on that, but on my reading and understanding of the discussions that we have had, I suspect that that would not be SIAC's role. I have only just started to catch up with the debates in this House and the other place on the setting up of SIAC. At the moment it has had only three cases. There is not much experience in relation to this matter. I believe that the answer would be no.

The oversight on the detention powers will be ongoing. Furthermore, the continuance of these powers will be subject to renewal by Parliament: initially, our proposal is after 15 months, and annually from then on. However, the order that we are debating today will expire after five years unless Parliament agrees to it being extended.

In my opening remarks I said that this is a serious measure that addresses a serious situation. We believe that there is a clear need for the order and we genuinely believe it to be a moderate adjustment to our rule book, following the international terrorists rewriting their own set of rules on 11th September. I commend the order to the House.

Move, That the order (S.I. 2001/3644) laid before the House on 12th November be approved.—(Lord Rooker.)

Lord McNally rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the order (S.I. 2001/3644) laid before the House on 12th November until the Anti-terrorism, Crime and Security Bill has received the Royal Assent".

The noble Lord said: My Lords, I am somewhat fortified in moving an amendment that has at its heart civil liberties and human rights to have back in his place my colleague, my noble friend Lord Avebury, for the first time since his recent illness and accident.

The introduction by the Minister lasted for nearly 20 minutes and there were several occasions when he was unsure of the full implications and told us to await the full debate in Committee, so I believe that this order puts the cart before the Horse. The order is not about

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the new powers that the Home Secretary seeks in the Anti-terrorism, Crime and Security Bill, although the Minister went into a great amount of detail about them. This order assumes that those powers will be granted. My amendment concerns that presumption.

The Minister said that the powers that the Government seek are not to be taken lightly. Yet, as he said in opening, this debate on giving derogation powers is taking place in advance of a debate on Second Reading in another place. I have said in the House before that one of my favourite scenes in movies is in "A Man for all Seasons", when Richard Rich urges Thomas Moore expediency in relation to the law. Moore responds by saying, "Where do we shelter when the wind of tyranny blows?"

I do not accuse Ministers of planning tyranny—I have known many of them for too long to suspect that—but I accuse them of expediency and seeking expedient solutions, one of which is bringing forward this order today. Yesterday, in the Observer, Andrew Rawnsley put the matter well. He said:

"Urgent in their decision making and chaffing against any restraint, the emasculation of Parliament and the judiciary seems to them to make ripe common sense. Holding themselves to be good men and women, they simply cannot conceive that they could ever wield their accumulating powers in any way that is not benign".

It is such a frame of mind that causes the present Home Secretary to talk about "airy-fairy civil liberties" and his predecessor to sneer at his critics as "Hampstead Liberals". It is such a mood of impatience and intolerance which produces today's order.

Last Thursday I specifically asked the Minister whether he saw the Human Rights Act as a piece of fair-weather legislation or whether the Government still shared the view of my party that it was an iron pole around which our human rights and civil liberties are constructed. I was impressed by the robust nature of his reply supporting the Act and our 50-year-old commitment to the convention. Yet, four days later, here we are with a derogation order for powers that are contained in a Bill that has not yet been before this House.

Today is not the day for a detailed examination of the powers that the Home Secretary seeks. They will be properly discussed, as the Chief Whip has just reminded us, at Second Reading and at the Committee stage of a Bill that does not reach us until next week. Nevertheless, as the Minister went into some detail, I ask the House, particularly the Labour Benches, to consider some opinions which may be airy-fairy, but to which Labour used to pay quite a lot of attention. The Observer stated:

"Mr Blunkett has failed to offer any convincing explanation of why these specific powers are needed less than a year after an already severe new Terrorism Act was introduced".

The Independent stated:

"Think again Mr Blunkett before eroding our most fundamental rights".

It went on to say that the Home Secretary's plan,

"is a dangerous step. Parliament must force him to think again before we sleepwalk down this American road to a police state".

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In a magisterial letter to The Times the noble and learned Lord, Lord Donaldson of Lymington, said:

"I cannot accept that the right of an individual to apply to the courts by judicial review for a writ of habeas corpus can be described as 'airy-fairy' liberty".

In case the Minister thinks that my range of reading is too narrow, let me also quote Mr Bruce Anderson—who would sue if anyone called him a "Hampstead Liberal". He said:

"Blunkett is introducing a range of restrictions that even Margaret Thatcher might have blanched at".

Maybe Labour Back-Benchers will find even more worrying Mr Anderson's conclusions. He said:

"The time for naivety is over. On these measures Mr Blunkett deserves full and unswerving support".

Maybe he does. But he should first argue those measures before Parliament. If he gains approval of them, that will be the time to consider the order.

Today Parliament has an opportunity to remind the Government of our respective responsibilities. Over 130 years ago Mr Gladstone, when addressing Parliament, said:

"Your business is not to govern the country, but it is, if you think fit, to call to account those who do govern it".

He spoke those words to the House of Commons. In normal times the country would look to that House for such a calling to account. But, as the noble Lord, Lord Hattersley, told us in yesterday's Sunday Times—it is usually in the Sunday Times because the noble Lord does not come here—all that is required of Government Back-Benchers in the Commons is,

"a willingness to nod like a toy dog in a car's rear window".

So it is left to this House, with all its imperfections, to carry out that duty.

We are strengthened in that determination by the view of both Houses in the Second Report of the Joint Committee on Human Rights. Most noble Lords will have read the report in detail, and in particular paragraph 78. I describe that as the "killer conclusion", although it is one which has already been rejected by the Minister. It states that,

"we are not persuaded that the circumstances of the present emergency or the exigencies of the current situation meet the tests".

It continues with strong words. They are not for the Government but for Parliament and this House. It states:

"It is now for Parliament to draw its own conclusions, and for Members of both Houses to satisfy themselves that there are adequate safeguards to protect the rights of the individual citizen against abuse of these powers".

That is for the debate on the Bill. That debate will decide whether the Government shall have the powers for which they seek premature derogation. There is a clear and present duty, to a clear and present danger, for this House to resist the claim tonight for this instrument.

We yield to no one in our determination to defeat terrorism. We match that with an equal determination to protect our civil liberties. The Government must argue their case for new powers and then seek derogation. Refusal by the House to approve the order

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tonight will be a timely reminder, especially at a time of emergency, that power flows from the people to Parliament to the Government and not the other way around. I beg to move.

Moved, as an amendment to the Motion, to leave out all the words after "That" and insert "this House declines to approve the order (S.I. 2001/3644) laid before the House on 12th November until the Anti-terrorism, Crime and Security Bill has received the Royal Assent".—(Lord McNally.) 3.45 p.m.

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