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Constitutional Reform Bill [HL]

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to introduce a Bill to make provision for replacing the office of Lord Chancellor and to abolish that office; to establish a Supreme Court of the United Kingdom and to abolish the appellate jurisdiction of the House of Lords; to make provision about the jurisdiction of the Judicial Committee of the Privy Council and the judicial functions of the president of the Council; to make other provision about the judiciary, their appointment and discipline; and for connected purposes. I beg to move that this Bill be now read a first time.

Moved, That the Bill be now read a first time.—(Lord Falconer of Thoroton.)

On Question, Bill read a first time, and ordered to be printed.

Domestic Violence, Crime and Victims Bill [HL]

3.18 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the amendments for the Report stage be marshalled and considered in the following order—

Clauses 1 to 16, Schedule 1, Clause 17, Schedule 2,

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Clauses 18 to 22, Schedule 3, Clauses 23 to 26, Schedules 4 and 5, Clauses 27 to 31.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

Guantanamo Bay: British Detainees

3.19 p.m.

Baroness Scotland of Asthal: My Lords, with the leave of the House, I should like to repeat a Statement on the British citizens detained at Guantanamo Bay which is being made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:

    "Agreement with the United States Government on the return of five of the nine UK detainees was reached on Thursday last, 19 February. Although the House was in recess, I judged that it was only fair to the families of all nine detainees that they should be informed immediately. We therefore made every effort to contact the families and their parliamentary representatives and I made a public announcement late on Thursday afternoon. I could not report to the House yesterday as I had to attend the General Affairs Council in Brussels.

    "The attacks of 11 September 2001 were the most appalling terrorist atrocity the world has ever seen. They killed more than 3,000 people, including 67 British citizens. In response to those attacks, a coalition of countries came together to launch a military campaign against Al'Qaeda and its Taliban supporters to remove them from their strongholds in Afghanistan.

    "In these operations thousands of individuals believed to be Al'Qaeda or Taliban fighters, or their supporters, were detained by coalition forces. The vast majority of these individuals were released. But those who were deemed to pose a substantial risk of returning to the conflict—to date, around 800—were sent by the United States to its naval base in Guantanamo Bay to be detained and to be questioned about their knowledge of Al'Qaeda activities. As a result, valuable information has been gained which has helped to protect the international community from further Al'Qaeda and related terrorist attacks.

    "The Government have been in frequent and regular contact with the United States authorities concerning the British detainees at Guantanamo Bay. From the outset, the Government have sought to ensure their welfare and have actively encouraged the US Government to resolve the position of the British detainees. British officials have visited Guantanamo Bay six times. We have kept their families and Parliament informed of the detainees' circumstances and of developments.

    "In July 2003, two of the British detainees were designated by the United States authorities as eligible to stand trial by United States military

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    commissions established to prosecute the detainees. The Government made it clear straight away that we had concerns about the military commission process. Consequently my right honourable friend the Prime Minister asked my noble and learned friend the Attorney-General to discuss with the United States authorities how the detainees, if prosecuted, could be assured of fair trials which met international standards.

    "The Attorney-General therefore held a number of discussions with the United States authorities about the future of the detainees. In parallel, the Prime Minister has talked to President Bush. I have discussed this matter on many occasions with US Secretary of State Colin Powell; and extensive discussions have been held between British and United States government lawyers and officials.

    "These discussions have involved many complex issues of law and security, which both governments have had to consider carefully. Although the discussions have made significant progress, the view of the Attorney-General was that the military commissions, as presently constituted, would not provide the process which we would afford British nationals.

    "Our discussions with the United States authorities are continuing. In the mean time, as I announced last Thursday, we agreed that five of the British detainees will return to the United Kingdom. They are Rhuhel Ahmed, Tareq Dergoul, Jamal al-Harith, Asif Iqbal and Shafiq Rasul.

    "These men will be flown home to the United Kingdom in the next few weeks. The House will understand that it would not be right to disclose the operational details at this stage. The police have, however, established links with the families so that they can be informed of developments.

    "The police have confirmed that once the detainees are back in the United Kingdom, where there are grounds under the provisions of the legislation, the five men may be arrested under the Terrorism Act 2000 for questioning in connection with possible terrorist activity. Any subsequent action will be a matter for the police and the Crown Prosecution Service. It would therefore not be appropriate to comment further on their particular cases.

    "But I would like to emphasise two points here. First, the police have said that they are investigating all the detainees thoroughly and individually, in the normal way, including the circumstances which led to the men's detention. Every necessary step, including prosecution if appropriate, will be taken to protect national security.

    "Secondly, the detainees will be treated in the same way as anyone else suspected of committing a criminal offence, in accordance with UK law. The process has built-in safeguards and is subject to independent scrutiny to ensure that all individuals are treated fairly and properly. It includes access to lawyers.

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    "We shall continue our discussions with the United States authorities on the situation of the other four British detainees. They are Feroz Abbasi, Moazzam Begg, Richard Belmar and Martin Mubanga.

    "There are a range of security and other issues which we and the Americans are considering in respect of these four men. As a result of our talks, US legal proceedings against Mr Abbasi and Mr Begg were suspended in July and the US said that the men would not be subject to the death penalty. This remains the case.

    "Our overall position remains that the detainees should either be tried in accordance with international standards, or they should be returned to the United Kingdom. We shall continue to work to resolve their position. I will of course keep the House informed.

    "The Government remain determined to work with our allies around the world to defeat the scourge of global terrorism. Terrorists seek to deny the most basic of human rights—to life, to security, and the right to go about our daily business free from threat and harm. We will continue resolutely to defend these rights through a robust and determined approach to combating terrorism and its networks of support wherever it is to be found".

My Lords, that concludes the Statement.

3.27 p.m.

Lord Howell of Guildford: My Lords, I am grateful to the Minister for repeating the Statement and I should make it clear that on these Benches we are glad that some progress is at last being made in sorting out the complex issues behind both these detainees and the others at Guantanamo Bay.

We appreciate—as others have not always done—that from the earliest days in the Guantanamo situation the world has been confronted with a unique situation in human history and international affairs, where the individuals concerned were apparently deliberately participating in the stateless pursuit of terrorism, with the aim of killing, injuring and maiming non-combatants; and had placed themselves far outside the international law of war and outside recognised categories of behaviour or offence. So it was understandable that at the outset their status was bound to be ambiguous and that gap had to be filled by the concept of unlawful combatants.

But that time has passed and the situation must now be cleared up. Today's Statement raises a raft of important questions. First, the Home Secretary, Mr Blunkett, has told the media that none of the five named by the Minister and who will be released by the US authorities,

    "represents a security threat to the British people".

Well, aside from that being a somewhat premature and improper judgment, many people want to know how the Home Secretary knows that—before investigations have been completed by the police and before questioning has taken place. Is it not absolutely vital in the interests of national security that each case should be rigorously examined and fully assessed to see whether there is

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sufficient evidence to justify proceedings? It is essential that the circumstances and causes of the original detention must be established.

It is, of course, for the prosecuting authorities to decide the nature of any charges, but has anyone considered whether charges for treason would be appropriate if those concerned can be shown to have taken up arms against British forces and the British Crown? I know that this morning the Foreign Secretary dismissed that as "a hare", but was he right to do so, given the uniqueness of the circumstances? Should we not keep our minds open on that aspect? What will happen to the five individuals when they arrive here? Will they be held in custody when they touch down or will they be allowed home while being investigated prior to possible arrest? Can the noble Baroness tell us something about that?

As to the other detainees—the four left behind—first, what is the difference between the five transferred here and the four retained at Guantanamo Bay? Do those four constitute a threat to our national security when, according to the Home Secretary, the other five do not? Will they go on to face the proposed military tribunals, which two of them were already beginning to face before the process was previously stood down? Are we satisfied that those procedures meet the international standards in which we believe? I do not consider that earlier we were so satisfied. Therefore, are discussions continuing about their fate and the way in which they are to be handled?

The Foreign Secretary said this morning that the new threats that the world faces were not only unique but were not anticipated. That is quite wrong. From the dawn of the information age, it was obvious that global protest and terror would be given new organisational impetus, and many of us said so at the time. If one adds suicide readiness to the lethal brew, we have the present completely predictable combination of threats to our open and highly vulnerable societies which we have never before experienced. In a sense, the feared rendezvous between new miniaturised and hideous weapons and methods of slaughter and the agents of terrorism has already arrived. Everyone is now in the front line and exposed to terror initiatives and the terror resources of often small cells or individuals, who can reap the most horrifying damage on our normal and everyday lives.

Of course, we want this country to be—it has to be—the champion of the rule of law, but that law must arm us to be able to address the new threats and the new terror and to protect our citizens and not handicap us from doing so. There must be a balance between established notions of law and doing our utmost to ensure people's security. That is the balance that we want to see maintained both here and, ultimately, in the treatment of all the other detainees remaining at Guantanamo Bay.

3.33 p.m.

Lord Wallace of Saltaire: My Lords, we on these Benches welcome this robust Statement—and we interpret it as a robust Statement. We welcome, in

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particular, the confirmation that the Attorney-General's view is that the military commission, as presently constituted, would not provide a process that we would find acceptable for British nationals. We also welcome the clarification that investigations on the returnees will be conducted "in the normal way" with detainees treated,

    "in the same way as anyone else suspected of committing a criminal offence",

under UK law. Those are extremely important points.

I understand that, on Friday, Trevor Kavanagh—an extremely well connected political journalist working for the Sun—said on Jeremy Vine's programme on Radio 2 that he had been told by senior Cabinet and security sources that the five were to have security surveillance for the rest of their lives once they returned from London. I do not know whether the Minister has any information on that report.

We recognise the effort that the Government have made to represent the British case to the American authorities. One has to say that if the situation had been reversed and the British authorities had been holding American nationals in a similar way, we can imagine the outcry that would have come from Washington.

I regard the behaviour of the Bush Administration in relation to Guantanamo Bay over the past two years as, in the strictest sense, un-American. I speak as someone who used to study and teach American politics in American universities, and I used to teach the United States constitution as the epitome of the rule of law. What we have seen from the Bush Administration over the past three years has been a falling away from the principle of the rule of law, both within the United States and internationally. We have seen the Geneva conventions ignored; we have seen, as the Statement said, the behaviour of the United States falling well below international standards; and we have seen the unacceptable legal void of Guantanamo Bay.

Will the Minister confirm that prisoners are not being held at Bagram and Diego Garcia? There have been repeated reports in the US press that some prisoners have been held at Diego Garcia. Again, I should welcome the Minister's confirmation that that is, and remains, without foundation.

We recognise that we have seen patient and quiet diplomacy by British officials and Ministers at the highest level. We should like an assurance from the Government that, if necessary—that is, if patient diplomacy is not enough—they will resort to public protest if that is the only way to ensure that British citizens receive appropriate treatment after two years or more in American custody.

Lastly, I repeat and strengthen the question raised by the noble Lord, Lord Howell. We heard about five detainees being returned. Two are being subjected to trial under certain guarantees, but we still do not know what will happen to Richard Belmar and Martin Mubanga. Can we be told what will happen to the eighth and ninth suspects?

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3.37 p.m.

Baroness Scotland of Asthal: My Lords, first, I thank both noble Lords for the welcome that they have given the Statement. I say to the noble Lord, Lord Howell, that we particularly welcome the context in which he started his comments. However, I think it is only fair to say that none of us envisaged the possibility of two armed aeroplanes being flown into buildings in the way that occurred on 11 September. That was a dramatic shock to the international community.

The noble Lord, Lord Howell, asked a number of questions. I hope that I made it clear in the Statement that I cannot go into the detail of the operational issues relating to the return of those who have now been identified to be returned to the UK. However, I can reassure the noble Lord that each case will be looked at on an individual basis. It will be considered rigorously and properly to ensure that all that should be done is done.

I note the noble Lord's comments concerning the statements made by my right honourable friend the Home Secretary. But, of course, the Home Secretary was correct because, following the investigations, either these individuals will be arrested and dealt with if they form a threat or, if the evidence does not justify such an act, they will not. Therefore, in those circumstances, our protection of national security will be maintained.

Before questioning by the police, the individuals will be examined to see whether they are medically fit to be interviewed. They also have a right to access to a defence lawyer. They can be questioned for an initial period of 48 hours, after which a court must approve further detention. Detention is, of course, a matter for the police. The men were interviewed in Guantanamo Bay by the security services on matters relevant to national security and not for prosecution purposes. Therefore, the decision will and must be left to the police authorities acting on any appropriate and proper advice given to them by the Crown Prosecution Service.

In relation to the issues raised by the noble Lord, Lord Wallace of Saltaire, about whether there are people being kept at Diego Garcia and elsewhere, the US has confirmed to us that there are no such detainees. Of course, we rely on that assurance.

I can give an assurance from which the noble Lord, Lord Wallace of Saltaire, may derive comfort. We have not changed our approach about the necessity to comply with international standards in relation to these men and we shall not do so. It is of some comfort that the acuity and persuasiveness of what we have managed to do has enabled five detainees to be properly returned. The noble Lord rightly said that legal proceedings were commenced in relation to two others, which were put into abeyance pending our discussions. Our discussions have not concluded. We are assured that nothing will be done until those matters have been concluded.

3.41 p.m.

Lord Morris of Aberavon: My Lords, I congratulate the Government, the Attorney-General, and the noble Baroness in particular, on the continuing efforts that

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have been made, over a very long period of time, to ensure that this totally unacceptable situation, in breach of the rule of law, is now beginning to be corrected. I am glad that she confirmed that further investigation, and as I understand it considerations of prosecution, will follow our usual independent system for all our citizens. Has that been made quite clear to the American authorities? Lastly, as regards the last four, what steps will the Government take—I am sure that some steps are being taken already—to try to get legal access to those who remain behind?

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