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Lord Dixon-Smith: My Lords, it would be tempting today to indulge ourselves with an anticipatory Second Reading debate. I hope that we shall avoid that. I have already thrown away three pages of notes which I regret that I shall be obliged to inflict upon noble Lords at a later date.

Of course the Bill has much in it which is open to criticism. It has content that is unrelated to emergency and inappropriate in detail. But we are agreed that legislation is needed to deal with the new situation that has arisen in this country post 11th September. Therefore, in principle the Bill is welcome, but there is much to criticise as regards its detail. If we accept that principle we can accept the order.

The noble Lord, Lord McNally, made much of outside criticism of what the Government seek to do in the Bill. He called it "the cart before the horse" and he quoted Moore, the emasculation of Parliament, the Observer, the Independent, the noble and learned Lord, Lord Donaldson, Mr Anderson and so on.

All those matters are valid, only if Parliament fails in its duty in the first place properly to consider the Bill. Whatever may happen in the other place, I do not accept the proposition that this House will avoid its duty. There will be plenty of opportunity on subsequent occasions properly to consider the detail of the Bill and to deal with it. I shall be very disappointed indeed if the Bill leaves the House in the form in which it arrives. That may give rise to an interesting situation subsequently, but that is another matter.

The Second Report of the Joint Committee on Human Rights, properly draws attention to many of the difficulties that exist with the Bill. I expect that we shall have many forceful debates before we get to the Motion, that the Bill do now pass. I shall refer only to one point. It illustrates the problem which arises within that report. Paragraph 23 states that,

It goes on:

    "We asked the Secretary of State in oral evidence whether, for example, he would be prepared to let someone go to Iraq, Syria or Libya. We were reassured when he responded—

    'If a country is prepared to take someone, then we would release them under these particular powers, because we are talking about immigration powers'".

I am obliged to say that I am not so reassured. Would we seriously release a man whom the Home Secretary has certified as a known terrorist to a country which is

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known to sponsor terrorism? I find that proposition extremely difficult to swallow. I would not want to take out an insurance policy on the life of that individual, or indeed on his comfort, because Article 3 of the European Convention on Human Rights prevents the export of someone to a country where either the death penalty or torture is prevalent. All three countries mentioned offer the possibility of death or torture as a fairly normal state of affairs. So while a terrorist may volunteer to go, that would strictly contravene Article 3 of the ECHR, which appears to me to be wrong.

That illustrates some of the difficulties that we shall face when we consider the Bill. For today, however, we do not think it right that we should delay the Bill by holding back the order. The order will apply to the Bill as passed, not the Bill as drafted. For those reasons, we do not support the noble Lord's amendment. The Government may have their order. We will not vote for it; but we will not vote against it.

Lord Lester of Herne Hill: My Lords, I was one of six noble Lords who were members of the Joint Committee on Human Rights, on which it was a great privilege to serve. Our report has already been referred to. It was unanimously agreed by Peers from all three parties and the Cross Benches, as well as by six Members from the other place. We produced our report in record time on Friday, the measures having been published only on Monday afternoon. I pay tribute to the legal adviser, Professor Feldman, and the Clerk to the committee, who made that possible.

I shall speak briefly to one or two issues as a member of that committee. First, I welcome the fact that we have this debate at all. We have it because under the Human Rights Act 1998, what was always a matter of prerogative is now a matter for parliamentary approval. The Government are to be congratulated on having included in the Act a provision that makes clear that the approval of both Houses is needed before they take the serious step of derogating from one of the fundamental rights guaranteed by the convention.

The second kind thing that I should to like to say is that the Home Secretary and his colleagues should be commended for their broad interpretation of the right to liberty under Article 5 of the convention, which, as the Minister explained, in the Government's view gives rise to the need for a derogation. The Government could have taken a narrow view of the right to liberty and said that no derogation was needed, but they did not.

Another matter on which I congratulate the Home Secretary and his colleagues is that they resisted calls from the Conservative Front Bench in the other place to denounce the convention and enter what I would have considered an illegal reservation to Article 3 to allow the United Kingdom to extradite or deport a suspected terrorist to a country where he would face torture, inhuman treatment or the death penalty. I am glad that the Government did not go down that road. That is all positive.

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It is also positive—I disagree on this point with the noble Lord, Lord Dixon-Smith—that the Home Secretary has made clear that a suspected terrorist could go to a country that would take him but would immediately set him free, even if that were a country such as Iraq, which harbours terrorists. There is a good reason for that. I think that the noble Lord said that such a person would have been found by the Home Secretary to be a terrorist. That is not right. It is not the Home Secretary's function to find someone to be a terrorist; only a court of law can do that. In such a case, the Home Secretary will have reasonably suspected that someone is a terrorist, but will have to release him immediately, because otherwise there would be indefinite internment. As the Minister has made clear—although the Bill does not make crystal clear—the Government have no intention of interning indefinitely.

The Minister has already explained to the House that in order to pass muster under Article 15 of the convention, the Government must, first, satisfy the European Court of Human Rights—because it is the ultimate guardian of the treaty—that there is a sufficient state of emergency to justify the derogation and, secondly, meet the strict test that the measures in the Bill are strictly required by the exigencies of the situation.

On the first question, the Select Committee considered that the case had not been proved, and asked both Houses to satisfy themselves on the basis of what the Home Secretary could tell them that there is a sufficient state of public emergency. There are now two opinions: one given on behalf of Liberty by my colleague, David Pannick QC, and another, given on behalf of Justice, by my colleagues David Anderson QC and Jemima Stratford. I declare interests in supporting both of those non-governmental organisations. Those two opinions explore the question in detail, and I shall simply place them in the Library for those who find them interesting. Mr Pannick adopts a robust view; he thinks that there is not a sufficient public emergency. Mr David Anderson gives the Government greater benefit of the doubt on that question.

I suggested to the Select Committee that the real question is not so much whether there is a public emergency, on which the European Court would give the Government a wide margin of discretion, even though, as far as I know, we are the only European country seeking to derogate in such a way—one might have thought that our allies such as Germany, France and Spain would have equal need if there were a sufficient emergency, but that is by the by. The real question is not whether there is a public emergency—an elastic concept—but whether the measures in the Bill are strictly required to meet the exigencies of the situation. On that the committee was clear.

The Home Secretary gave the committee the benefit of an hour's question and answer session last Wednesday evening. We were concerned about several aspects. I cannot go into all of them, because there is not time, but in brief, we were most concerned about the loose definition of "links with terrorism". As paragraph 37 of our report states, that risks

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"arbitrariness". We were also concerned about the technical question of whether the Home Secretary could issue new certificates against suspected terrorists indefinitely, even when the Special Immigration Appeals Commission had struck one down. Mr Blunkett was good enough to say that he would reread the wording and reconsider.

We were also concerned about the limited powers of SIAC. I support SIAC, as I did during the passage of the Bill that set it up, as a fair compromise. If we are to take the strong step of ousting normal judicial review, it is important to ensure that the independent judge and his colleagues on SIAC have full powers of review. In his opinion, Mr David Anderson points out an important ambiguity that I raised with the Minister previously, which I hope he will consider. It is vital that SIAC is able to assess the reasonableness of the Home Secretary's decision whether someone can or cannot in practice be sent to a safe country.

Another important question, which has already been raised, is whether it is good enough to give SIAC power to review a detention only every six months. I think that that should be possible every month, in view of the curtailment of liberty involved, but six months is certainly too long.

In the introduction to our report, at paragraph 5, we made a point with which I am sure that all Members of the House agree, but which is worth emphasising. Our report states:

    "the provisions of the Human Rights Act 1998, for which we were appointed as the parliamentary guardians, represent core values of a democratic society such as individual autonomy, the rule of law, and the right to dissent, and these must not lightly be compromised or cast away. It is precisely those values which terrorists seek to repudiate and undermine."

In the penultimate paragraph, No. 78, to which my noble friend Lord McNally has drawn attention, we challenge Parliament to draw its own conclusions and to satisfy itself that there are adequate safeguards to protect the rights of individual citizens against abuse of power.

Whether today the cart is before the horse or the horse before the cart, I suggest that one matter is certain: if the Motion is passed and if the Bill does not contain adequate safeguards against abuse of the kind to which the Select Committee and others have drawn attention, the United Kingdom will ultimately face ignominy before the European Court of Human Rights. That is why when we come to debate the Bill it is our special responsibility to build in those safeguards.

4 p.m.

Lord Mishcon: My Lords, before the noble Lord sits down, he knows that his speeches are well accepted in this House. However, I thought that he should be given the opportunity to explain one of his comments. He spoke of two eminent lawyers, well known to both of us, who gave an opinion on what is a public emergency. Perhaps I may suggest to him that lawyers are not completely qualified to deal with a question of

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fact which would usually be determined by a Minister of the Crown with full knowledge of matters which he could not divulge in public.

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