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House of Lords

Thursday, 17th July 2003.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of Chester.

Royal Assent

The Lord Chancellor (Lord Falconer of Thoroton): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Act:

Communications Act.

Guantanamo Bay Detainees

11.5 a.m.

Lord Judd asked Her Majesty's Government:

    How many representations they have made to the United States Government concerning Guantanamo Bay and its detained "unlawful combatants", as they are described by the United States Administration; and what was the outcome of their representations.

The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.

Lord Judd: My Lords, does my noble friend agree that if the Prime Minister is resolute and unequivocal on this matter, he will certainly have the backing of the entire nation? Does she also agree that, important as the British subjects obviously are—still waiting, with their families, to learn the nature of the charges—the matter is much greater than those British subjects? It is the whole issue of human rights and the international rule of law. Does she agree that the whole purpose of the stand against global terrorism is to preserve human rights and the international rule of law? Does she further agree that that stand is certainly not so that the powerful can unilaterally rewrite international law and their interpretation of the applicability of human rights? Finally, does she agree that the danger in this

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situation is that it is proving to be a very effective recruiting agent, through disillusion, dismay and even anger, for the extremist terrorists?

Baroness Symons of Vernham Dean: My Lords, on the last occasion that we discussed this issue in your Lordships' House, when I repeated a Statement, very similar points were made about the wider implications of what is happening in relation to the detainees at Guantanamo Bay. I believe I said then that I felt that the issues did go wider, as did the one concerning the British nationals, and that it was in the United States Government's own interests to resolve them along the lines of the norms of international law. Were they not to do so, they would themselves find that there would be those who felt that the United States Government had not lived up to their own high standards.

However, I should say to my noble friend that our first issue must be that of our own nationals. The matter on which many people in the United Kingdom are focused concerns the two British individuals among the group of six originally designated by the United States. Of course my right honourable friend will be concentrating on those British nationals in the first instance. However, I take my noble friend's broader points, and I believe that they are widely recognised by Her Majesty's Government.

Lord Howell of Guildford: My Lords, does the Minister agree that it probably does not make much legal sense to think in terms of the repatriation of these two accused individuals, but that that makes it all the more important to insist, as has been emphasised by the noble Lord, Lord Judd, on due process, proper trial proceedings, proper representation and clear charges? Does she accept that while noble Lords on these Benches recognise all the legal problems of trying to bring the two individuals back to this country, we think that the principles of due process are absolutely essential and should be pressed with the utmost vigour?

Baroness Symons of Vernham Dean: My Lords, as I indicated in my original Answer, the issue of the possible return of the detainees to the United Kingdom is still a matter under discussion, although, as I am sure all noble Lords are aware, it is not possible for the United Kingdom Government to give any guarantees even about a trial taking place because of the separation of powers—rightly—between the Government in the form of Government Ministers and the Crown Prosecution Service as the body which would decide whether there is sufficient evidence to go to trial.

However, the noble Lord is quite right to remark that the issues adduced by him of due process and the right to a fair trial still arise. Further, there are widely recognised international norms covering the various elements that constitute a fair trial which my right honourable friend will be addressing with the President of the United States.

Lord Thomas of Gresford: My Lords, in the course of his discussions on this topic, will the Prime Minister impress upon Mr Bush the point that if he thinks that

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the procedures of the military commissions are fair, then the presence of international observers at the hearings, in particular in relation to the British nationals, may promote confidence in the fairness and integrity of those proceedings? If they are not fair, the constructive criticism that would result may at the very least help the authorities to modify those procedures or, it is hoped, cause them to abandon such procedures altogether.

Baroness Symons of Vernham Dean: My Lords, the question raised by the noble Lord may be premature at this stage; we are still discussing what those procedures should be. If the trials as originally formulated by the United States authorities do go ahead, I think that there would be grave difficulties as regards any observers feeling that those trials would be fair on the basis that we have already discussed. There is no secret about this issue. The United Kingdom Government have very strong reservations about what is being proposed at the moment. However, to take the point that were some of those issues to be resolved and the trials to go ahead, I can agree with the noble Lord that the presence of international observers would provide something of a confidence boost to the international community. As my noble friend Lord Judd pointed out, this is a question not just for the United Kingdom but also for the international community.

However, we must recognise that some of the issues which may be brought up at those trials may have to be dealt with in camera, for very obvious security reasons.

Lord Dubs: My Lords, does my noble friend agree that the conditions under which these individuals are being held in Guantanamo Bay would be unacceptable within the British prison system or, indeed, within the prison system in the United States? Given that those conditions have been oppressive, many of us seek assurances that, if the individuals are brought to trial, it should not happen in circumstances where they have been, so to speak, coerced and oppressed into possibly pleading guilty and are not able to speak up for themselves after the period that they have been held in detention. Enormous concerns will be raised about the way in which such trials will be conducted, given the circumstances surrounding the detention of these people.

Baroness Symons of Vernham Dean: My Lords, the noble Lord raises two issues. We have made representations to the United States Government in regard to the physical conditions under which the individuals are held—for example, the inadequate facilities for exercise and the inadequate facilities for contact with their families. Representatives of the International Red Cross have visited Guantanamo Bay and are giving their advice to the United States Government.

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The more difficult issue pinpointed by my noble friend concerns coercion. It might be argued that a system of plea-bargaining where the alternative to admitting to charges is to face the death penalty is a coercive and difficult line of pre-trial cross-examination.

Lord Campbell of Alloway: My Lords, on the issue of coercion, is it correct that these men are denied access to an advocate of their own choice? If it could be agreed with America that the men could choose their own advocates—and there are some very fine ones in America—that would perhaps go some way.

Baroness Symons of Vernham Dean: My Lords, as I understand it, the United States proposes that individuals should be given an advocate chosen from a panel of military lawyers. If an individual does not want to go along with such an arrangement, there may be an opportunity for him to go to an alternative lawyer, but that lawyer will still be drawn from a panel of lawyers who have been vetted by the United States for security purposes. I understand that those are the proposals currently under discussion.

These matters are still under discussion with the United States. As I indicated when we last debated this issue, my right honourable friend the Foreign Secretary is dealing with these matters with his opposite number, Colin Powell. He has raised the serious concerns that we have over the kind of issues raised by the noble Lord and they have agreed that discussions on them will continue.

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