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Lord Lester of Herne Hill: My Lords, the noble Lord, Lord Mishcon, is right. What is a public emergency is pre-eminently a political question and is pre-eminently for Ministers and the elected representatives of the people. However, the European Court of Human Rights must look at that as a legal question. The legal tests have been set out in a number of cases and the Northern Ireland state case was one of the best known. Those distinguished lawyers have examined that legal test and the opinion on the basis of the evidence that exists. That is a correct approach because if the United Kingdom Government were taken before the European Court of Human Rights, the first question would be: is there a sufficient threat to the life of the nation to justify limiting the right to liberty?

I have already stated that as regards that question I would anticipate the Government being given a wide margin of discretion, as do both distinguished lawyers in their opinion.

Lord Campbell of Alloway: My Lords, I support the principle of the Bill, the object of the Bill, in particular in Part 4. I agree with the approach of my noble friend Lord Dixon-Smith but I fundamentally question the method of implementation of the object. I do so for some of the reasons given to your Lordships which I have no intention of repeating.

I also support the amendment of the noble Lord, Lord McNally. The invitation to approve the statutory instrument on a Motion today is not well conceived. It proposes a derogation from the convention to enable Part 4 of the Bill to be enacted on the assumption that your Lordships accept Part 4 without amendment. It is premature as pre-empting debate in your Lordships' House. The assumption that there would be no amendment is one which may not be made.

There is no doubt that Part 4 is in breach of Article 5. That article largely adopts our indigenous concepts of natural justice as administered by our judiciary. Part 4 is in breach of all those concepts. Enactment of Part 4 fills me with total horror because it would exclude the jurisdiction of our judiciary; it would breach the separation of powers. That is the fundamental source of our constitution, which it is the duty of this House, as the sole guardian, to defend.

As appears from pages 7 and 8 of the report of the Joint Committee on Human Rights, of which I am a member—I am a rather insignificant member and have no pretence of speaking other than as to my own thoughts, so there is no interest to declare—the right honourable gentleman the Home Secretary, when questioned on the matters to which I have referred, in particular on natural justice and the constitution, was unable to give any satisfactory answer.

There can be no doubt that during the passage of the Bill through your Lordships' House amendments will be tabled such as to require that grounds are to be

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given for the reasonable belief or suspicion of the Secretary of State before a person is certified as an international terrorist and that person should have an opportunity to answer. Such should obtain on appeal from the decision.

There is no doubt that in due course Clauses 29 and 30, which exclude the jurisdiction of our courts, will be the subject matter of a Motion that they do not stand part. That is the order of debate on Part 4—the details are unimportant today—which would be pre-empted.

Points of concern have been mentioned by the noble Lord, Lord Lester of Herne Hill, and I shall not repeat them. However, I want to raise one point of which no particular mention, if any, has been made. It is that the derogation is sought under Article 15 of the convention. But there is no assurance that when the derogation is brought before the European Court of Human Rights in proceedings in which inevitably Part 4 if it were enacted would be impugned, the court would accept the proposed derogation. If not, what then would be the position of Her Majesty's Government? Why would it probably not accept the derogation? It would not appear to be—I use words from Article 15 but shall not bore your Lordships with the whole text—strictly required by a public emergency threatening the life of our nation. The court might well, and in all probability would, conclude that in any event it was not a proportionate response to the threat of global terrorism. It is taken for granted that urgent measures—not those proposed in Part 4, but measures to achieve the object of Part 4—must be taken to identify, deport or detain international terrorists.

It is of vast importance that the role of the judiciary should not be usurped for the sake of administrative convenience, to afford what would be a misuse of executive power. It would set the wrong precedent for a government with a landslide majority in another place to seek to introduce such a measure in Parliament.

Before I knew about the amendment, I found the same words—word for word—at the end of my notes. That is why I support the amendment.

Lord Davies of Coity: My Lords, in rising to support the order that has been presented by my noble friend, I advise your Lordships that I shall not speak at length but wish to address the specific area of concern—urgency and emergency.

The noble Lord, Lord McNally, referred to the film, "A Man for all Seasons", when he moved his amendment. My conclusions have been reached not because of a blockbuster film or its content, but on the basis of two events. The first is what happened on 11th September and, perhaps more important, what has happened since in terms of the amount of intelligence and information that we have received regarding Osama bin Laden and his terrorist world-wide network, Al'Qaeda.

Those factors make the order urgent, to protect the people of this nation, as other countries want to protect their people. We have international as well as

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national responsibilities. The Government would not be introducing the order were it not seen as essential to address the urgency of the situation. It is an emergency measure which I fully support and I am extremely disappointed that the Official Opposition cannot do so by going through the Lobby with us.

4.15 p.m.

Lord Thomas of Gresford: My Lords, the derogation is being sought not so much because there is a public emergency threatening the life of the nation. After all, detention without trial was introduced in Northern Ireland and then abandoned. It was not reintroduced following atrocities such as the Brighton bomb, the bombing in Canary Wharf or anything else of that nature. The suggestion must be that the derogation is being sought because it gets over a technical difficulty arising out of Article 3, which prevents the Secretary of State from removing an asylum seeker against whom no charges can be proved and who may face prosecution or persecution in another country. The decision, as we heard from the Minister this afternoon, will not be challengeable in the courts.

Are measures such as the abolition of habeas corpus and judicial review strictly required by the exigencies of the current situation? Let us consider the way in which the Government propose to proceed. Information will be provided to the Secretary of State by the security services. His decision will not be unaffected by that information; it will be based on that information. But, his decision to issue a certificate will be considered, at least partly, in secret. The evidence on which he has acted cannot be revealed to the person concerned and, most importantly, the decision of the commission who may review the certificate will be given without reasons.

It has not been found necessary in the United States or in the 40 states of the Council of Europe that may have been affected by the current situation to introduce detention without trial. It is true that the United States propose a severe system of military tribunals to deal with the terrorist threat, but at least there will be a trial and the formulation of a charge.

An 18th century statement of principle by Blackstone reads:

    "To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government".

It is more dangerous to proceed along the lines of detention without trial than in any other way. It is not as if there was no alternative. Under the Terrorism Act it is possible to arrest, charge and to try a person for the

    "commission, preparation or instigation of terrorism".

I wonder who of those who are subjected to detention without trial cannot be caught by a charge under those provisions.

Lord Acton: My Lords, I wonder whether the noble Lord can comment on the figures that I have read

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repeatedly in newspapers—I know no more than that—that more than 1,000 people have been detained in the United States in circumstances that commentators have said are not altogether constitutional.

Lord Thomas of Gresford: My Lords, I have not read those reports. I understand that although a number of people have been detained, as the noble Lord says, they will subsequently face a charge. That is the important point. A person is detained, evidence is gathered and he is then charged. What is proposed here is that a person can be detained for up to six months. The certificate is then renewable without charge.

The first safeguard to which the Minister referred was that of the independent advocate who will act for the person who has been detained. I fail to see how an independent advocate can challenge evidence and act properly in the interests of the person who has been detained when, by definition, he cannot obtain instructions from that person on the evidence that is put before the commission. He will not be entitled to ask the person who is being detained, "What do you have to say about this? How can I challenge what is being said against you?". The independent advocate is a very weak safeguard.

The other safeguard that was suggested was the role of the Special Immigration Appeals Commission, which was considered recently in the Rehman case by the Judicial Committee of this House. Suffice to say that the effectiveness of the commission as a review of the decisions of the Secretary of State was diminished by their Lordships to some degree. It was the opinion of the noble Lord, Lord Hoffman, that

    "if the appellate body prefers a different view [from the Secretary of State] it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained. Such restraint may not be necessary in relation to every issue which the Commission has to decide".

Therefore, the function of SIAC is not to review ab initio the original decision-maker; namely, the Secretary of State. The Judicial Committee of the House of Lords has decided that the role of the commission is extremely limited.

I support my noble friend Lord McNally in calling upon your Lordships to determine whether derogation will be necessary after the provisions of this Bill, which clearly are very contentious, have been fully discussed and decided upon in this House.

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