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Lord Windlesham: My Lords, one of the least conspicuous of the harms done by those responsible for the carnage at the World Trade Centre and in Washington on 11th September was to the international legal order itself. Here in Europe, the European Convention on Human Rights was created in the aftermath of the Second World War more than half a century ago. If we think about the fundamentals, the situation now is totally different. International terrorism is demonstrably on a scale which we must acknowledge presents a recognisable threat to large numbers of people in different parts of the world.

The protections contained in Article 5 of the European convention allowed for the deportation or removal of a person who is believed to be threatening the life or security of the nation. But if a person cannot be removed or extradited for a variety of reasons, and cannot be tried in the domestic courts, how to meet the threat to the security of the nation—which may be very real—poses a dilemma to which there is no answer within orthodox and established legal traditions.

I came to the House today with an open mind, with no prepared speech, and anxious to hear what noble Lords on the Liberal Democrat Benches had to say in support of their amendment. I have spoken from time to time in debates on the same side as some of the noble Lords who sit on those Benches. But I do not support their argument today. The correct approach for the House as a whole was put with commendable brevity and clarity at the start of the debate by my noble friend Lord Dixon-Smith. I support the order rather than the amendment today.

I shall listen with great interest during the course of the subsequent debates, when I am sure there will be opportunities to obtain elucidation and, if necessary,

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some changes. But to go down the path recommended so eloquently by the spokesmen for the Liberal Democrats in the situation that we, and the nation, currently find ourselves, would be misguided.

Baroness Carnegy of Lour: My Lords, the noble Lord, Lord Richard, asked the Government why they wanted the order approved before the passage of the Bill and not afterwards. I assumed that this House was here to make an honest man of the Home Secretary. On the front of the Bill he has, as he is obliged to do under the Human Rights Act, certified that the Bill is, in his view, compatible with the European Convention on Human Rights. As an amateur in these matters, it seems to me that, unless the order is passed, the Bill is not at the moment compatible with the convention on human rights.

When the Bill was introduced in the other place—when it received its First Reading and when it began its Second Reading—it was not compatible with that convention. It only will be compatible if we agree to the order today. I may be wrong, but that seems evident to me. I am surprised that no other noble Lord has made the point.

I would rather discuss an order knowing that the possibilities the Government were putting forward were within the law, than discuss it knowing that they were outwith the law until the end of the Bill. So the Government are right to do this.

I am sorry that there have been so many Second Reading speeches because we shall either hear them all over again, or we shall forget what has been said by the time we come to Second Reading. That is a pity. It seems to me that this is a simple point.

Lord Mishcon: My Lords, perhaps I may make a brief speech. I hope your Lordships agree that if ever there was proof required that human memories are short, there could not have been better examples than some of the speeches which have been made in good faith today. If we had had this discussion on 12th September, I doubt whether any of us would have started wondering, "Is there an emergency? Perhaps we need legal opinion. Are the Government safe to assume that there is a public emergency of the gravest order?" Who would have made that suggestion on 12th September?

But we are not America; we are Great Britain. We are one of the countries threatened by terrorism. We are winning the fight on the battlefield. When you are engaged on the battlefield and you are winning, is that not the time when your opponent may take the most reckless action, because he knows it is all over and he wants to make it as painful as possible?

The responsibility of government is sometimes heavy, but the responsibility on an official opposition—I say this with every respect—is also very heavy in times of emergency. I feel that this is not a time for abstention but a time for standing up and saying, "The order is right in the circumstances". When the Bill comes before the House, those of us who

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are fighters for liberty will look at every line and decide how we will vote for amendments, if amendments there are to be. I assume that there may well be many.

Is not the question today very simple: are we prepared to give the Government the reasonable powers they will receive under the Bill if the vote of the House is in favour of reasonable powers, as I assume it will be? If we are prepared to face up to the fact that we are confronted by an emergency—and by a mad enemy—is this not the time to vote accordingly?

Baroness Strange: My Lords, Clause 42 of the Magna Carta states that all men shall be free to come and go except in time of war. We are all at war with terrorism.

5 p.m.

Lord Rooker: My Lords, perhaps I may comment first on the amendment. In doing so, I want to make it clear that I have no complaint, and the Home Secretary and the Government have no complaint, about any of the questions raised in this debate or subsequently. Given the time constraints on a Bill with 125 clauses, we understand that we shall rightly be subject to scrutiny.

Perhaps I may deal with the point as to why the order is being brought before the House today. The noble Baroness, Lady Carnegy, raised a not unimportant question about the signature on the Bill. It is presently that of the Home Secretary, as the Bill begins its passage in another place; and in due course it will be mine as it passes through this House. It is true that, without the order being promoted, we should not be able to sign the Bill to the effect that it is compatible with the European Convention on Human Rights. We do not knowingly want to introduce Bills which are incompatible with the convention if we can take action beforehand to make them compatible.

Lord Goodhart: My Lords, I am grateful to the Minister for giving way. The order having been laid, it would still have been possible to have approved it within the 40-day period provided. Would it not, therefore, have been possible to lay the order and to postpone bringing it before the House?

Lord Rooker: Yes, my Lords, it would have been. In a moment I shall come to the reasons why we chose not to do it in that way. The noble Lord makes a fair point. It is the first time that such an order has been made under the 1998 Act. That adds weight to the occasion in terms of the important step that we are taking. We do not belittle any of the questions in relation to the scheduling of the debate and the making of the order. Indeed, I have asked myself such questions. I am still getting to grips with procedures in your Lordships' House compared with those in another place.

Section 14(6) of the Human Rights Act clearly envisages that a designation order may be made in anticipation of the making by the UK of a proposed derogation. Once it has been proposed by the

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Government that a derogation from the ECHR should be made—and that amendments will accordingly be made to the Human Rights Act to reflect that derogation—it seems eminently desirable that Parliament should be given an opportunity to discuss the matter as soon as is reasonably possible.

By making the order last week, we were able both to make a statement of compatibility in respect of the Anti-terrorism, Crime and Security Bill, and to bring the matter to the attention of the House as soon as we could. That is one of the reasons why the order was made and laid before Parliament last week.

The question arises also of when the order should be debated. The legislation clearly requires that this must happen within 40 days of the order being made; otherwise, it lapses. While the exact timing was a matter for the usual authorities, the Government took the view that the debates should take place sooner rather than later.

Once the order was made, Members of this House and of another place would rightly expect the Government to explain what we were doing and why we were doing it. That explanation can be given most effectively in the debates that we are having today in both Houses. Had the debates been delayed for over a month, we should have been criticised for being dilatory in our response. We could easily have taken a relaxed view, but we did not think that that was the right approach.

I should stress that in debating the order we are not taking the will of Parliament for granted. It may appear that way on the surface; but that is not the reality. We believe that the provisions in the Bill relating to detention are, for reasons discussed today, necessary and proportionate—and precautionary in some respects—and we hope that they will be enacted in a form very close to the way in which they are set out in the Bill. The derogation that we propose to make from Article 5 of the ECHR is worded with the provisions of the Bill in mind, and it seems right to debate it in that context.

In the event that the provisions in the Bill end up in a slightly different form, we can also check whether the wording of the derogation notification also needs to be revised. But let us cross that bridge when we come to it. So there is that facility—obviously, were the Bill to be emasculated in either House, it would be a different Bill. But if the Bill is enacted in broadly its present form, we hope that the derogation notification to the European Court can be revised to take account of that without the need to return the matter to this House.

A couple of specific questions were raised. The noble Lord, Lord Dixon-Smith, made a point about where people might be sent back to. With respect, it is not a question of sending people back to a particular place. If they choose to leave the United Kingdom, they will be let out of detention. Presumably they will be escorted to the plane or another means of transport and they will leave our shores. So it is not a question of us having to contemplate sending people back to a place where they will suffer harm and torture.

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That brings me to the question raised by the noble Lord, Lord Lester. I hope that I can give him an answer that is more accurate than the one that I gave; it is certainly not the one that I gave originally. It appears on advice given to me that SIAC would review whether a person could be removed following a deportation order made by the Home Secretary—there would obviously need to be such an order if someone was to be removed forcibly: for example, as to whether Article 3 would prevent such removal. The powers of SIAC derive from provisions in the Special Immigration Appeals Commission Act 1997. If SIAC agreed that a person could be removed, that would be fine; removal would proceed and the detention powers would not be needed.

Our priorities are, first, to prosecute if we can; secondly, if we cannot prosecute, to remove the person by means of a deportation order. If that is satisfactory and we have agreement on it, and there is no problem with Article 3, that will be the end of the matter. There will be no question of detention. But if matters are the other way round, SIAC can examine the position in respect of whether a person can be removed. We shall no doubt debate the point at greater length in Committee.

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