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Lord Judd: My Lords, no one in this House underestimates the grave dangers which confront us or the heavy burdens of responsibility that they place upon Ministers, the police and the security services. I pay tribute to them all.
There has been reference to the events of the past week and the release of the United Kingdom detainees from Guantanamo Bay is highly relevant to the debate. When we debated such issues last week I said that I was a layman and, therefore, was always cautious about speaking in debates of that kind, because there was so much legal expertise available. But, perhaps a layman's perspective is valid, because many people are perplexed about how four people who have been detained for over two years have now been released without charge. It illustrates the pitfalls of a lack of transparency and emphasises the public anxiety about what is really going on and the reliability of the information on which draconian steps may be based.
Having mentioned Guantanamo Bay, I hope that I will be forgiven for saying that, in congratulating the Government on their hard work in achieving this result, I wish them well in the work they are doing on the remaining four who are still incarcerated. But, as I
have said before, let us never forget that our concerns apply to everyone in Guantanamo Bay—to the non-British every bit as much as to the British. The whole principle, if that is not a misuse of the word, on which Guantanamo Bay is operated is wrong and its provocative nature is disturbing, because it drives young recruits into the arms of the extremists.Derogation has been referred to. As a layman, I am convinced that if the rule of law is to be sustained, there have to be certain absolutes. Therefore, derogation is an extremely serious move. The trouble with derogation is that once it has been used, it can too easily drift into becoming an easier habit. It has to be exceptional for very demonstrable reasons. The difficulty is that as Britain is the only country in Europe that has found it necessary to derogate, it is important to stress—and I hope that my noble friend will forgive me for putting it so bluntly—that the Government have totally failed to demonstrate at any point why something is necessary in this country when it is not necessary in any other country in Europe.
I am a member of the Parliamentary Assembly of the Council of Europe. There I encounter the anxiety of people from all over Europe that a country such as ours, with its reputation as the fortress of the principles of the rule of law, should have introduced this measure when no one else has done so. I do not want to overdo it by pointing out again that I speak as a layman. For those of us who look at the law as laymen, there are certain principles that are extremely important—including the presumption of innocence and the principle of "beyond reasonable doubt", which is different from "reasonable belief or suspicion". There is also the tremendously important principle that justice should not only be done but is manifestly seen to be done. If confidence in the law is to be maintained, those principles should be sacrosanct.
I would argue that it is precisely when the pressures are at their greatest that it is most important to stand by those principles. It is both right and politically prudent, because, if we do not stand by them, the danger is that we give the extremists a victory. We play into their hands, do exactly what they want us to do, and we act as recruiting agents for impressionable young people who move into the arms of sinister, manipulating extremists.
My noble friend the Minister referred to the Special Immigration Appeals Commission and stressed that it should provide some sort of legal reassurance. But, she has to accept that there are great misgivings about it. I cast no aspersions on the members of the SIAC, who I am sure are dedicated and honourable people, trying to carry out the best possible job in a difficult situation. However, there is in fact secret evidence in its proceedings and those about whom secret evidence is given have no opportunity to see or to hear it. There are special advocates who are not allowed to discuss the secret evidence with those they are defending.
There is the evidence of third parties and where that is used in the secret part of the proceedings, there are anxieties that some of it may have been secured under torture from people in other parts of the world. That
raises the whole issue of the reliability of evidence secured under torture. It is most distressing in terms of our commitment under other conventions to be firm in our stand against torture and there is the danger that inadvertently, by the back door, we are almost condoning torture.There is the question of intercepted communications and we all know that that is central to the secret part of the proceedings. If other action has to be taken so urgently and quickly, there is also a need to get this part of the operation on side and to use methods within our legal system whereby intercepted communications can become at least part of—possibly never fully—the open proceedings.
I support what has already been said about the implications of "free to leave". Either these people are sinister dangers for whom special provisions overriding the normal operation of the law are necessary, or they are not. If they are, to say that they are free to leave at any moment begs credibility. How on earth can we simply say, "They can go at any moment to carry on their dangerous activities anywhere else in the world but we are not worried about that"?
In our deliberations in the Joint Committee on Human Rights, we envisaged the approach of the amendment, but we placed on the provision a time limit of six months. There was a good deal of discussion in the committee about placing that time limit, but the decision to do so was unanimous. We were afraid that without a pressing time limit, things would be kicked into touch or lost in the long grass.
In our deliberations in the Chamber last week, I specifically drew attention to what we, members of the Joint Committee on Human Rights, said in our report. My noble friend the Minister was dealing with a wider debate and although as usual she did an exceptionally good job in summing up, she was unable to refer to the committee's specific recommendations. I hope, therefore, that the House will forgive me if I briefly summarise them.
- "We continue to doubt whether the very wide powers conferred by Part 4 are, in Convention terms, strictly required by the exigencies of the situation".
- "we are nevertheless certain that a more satisfactory legal framework is urgently required which would be both effective and compatible with the United Kingdom's human rights obligations including full compliance with Article 5 of the ECHR".
- "If the Government argue that it is necessary to continue Part 4 in force this should be limited to six months and should be subject to a firm undertaking that the Government will actively seek, as a matter of priority, a new legal basis for its anti-terrorism tactics to be put in place speedily and in accordance with the principles developed in the Newton Committee Report".
Then in paragraph 40, we referred to what the noble Lord, Lord Carlile of Berriew, referred to in his own report, which we felt was most important: that these people have not been charged let alone found guilty and there is real anxiety here about the conditions in which they are being detained. People in that situation
should be treated with great dignity and respect and the conditions in which they are kept should demonstrate that dignity and respect. Frankly, not everyone is certain—to put it mildly—that, with regard to those in Belmarsh, that is the case.In conclusion, I find an interesting coincidence in two important considerations whenever I think about this issue. First, what are we defending? We are defending men, women and children of course and we must. But over centuries, our forebears struggled to establish the principles which they believed ultimately were essential to the defence of freedom in our society. Those are enshrined in the European Convention. It is almost impossible to over-emphasise the dangers in lightly putting to one side that story of struggle over centuries.
Tremendous issues of principle are therefore involved, but the coincidence to which I referred is that there is an extraordinary political counter-productivity in what is done. Those against whom we are trying to protect our families and our society want to undermine and irreparably damage the principles of our society and we must deny them that victory. We must deny them an incremental victory, as happens when tremendously important principles are gradually eroded.
It is of course for the noble Lord, Lord Holme, to decide whether to put the amendment to a vote, but I want to thank him for having brought the issue to a head. I accept what the noble Lord, Lord Newton, said about the issue being partial in terms of the total concerns of his committee, but it was important that the noble Lord, Lord Holme, put it so firmly before us. I am determined that I do not want to be part of giving wicked, sinister, manipulative extremists any kind of victory by the erosions of what I believe to be central to the rule of law and the well being of our society.
12.30 p.m.
The Lord Bishop of Southwark: My Lords, your Lordships' House is asked to renew the powers of government to hold foreign nationals without trial. Belmarsh prison lies within my diocese and I know it well. I would not want any person to be incarcerated there for an indefinite period without fair and transparent legal procedures.
The Minister, in her introduction, indicated that she does not envisage the state of public emergency ceasing to subsist. Surely, then, in the event of the public emergency continuing indefinitely, legislation is needed which deals with a situation that is becoming normative. In the mean time, although I do not envy the Home Secretary the weighty decisions he is called on to make, we might observe that where statements are made and decisions are taken which need to be taken on trust, someone somewhere needs to have the evidence on which the core for that trust is based. The country was persuaded to trust Her Majesty's Government and the intelligence services when, not so very long ago, firm assertions were made concerning the possession and deployability of weapons of mass destruction by Iraq. We went to war on that basis.
If errors were made over weapons of mass destruction, and it seems that they were, is it too implausible to suppose that they may be made over individuals also? As the noble Lord, Lord Judd, said, last night five UK citizens were released without charge after being held for two years at Guantanamo Bay because, I presume, the security services regarded them as a possible threat. Perhaps the security services have changed their minds in those two years. However, in a situation where mistakes can be made, I urge at the very least that, if powers granted to the Government are to be renewed, anonymised information should be published about the detainees.
If governments may err, so, too, may democratic peoples. I believe that we need to balance the safety of society against the honour of society. Those who elect to office people of liberal and noble views and who grant them extensive powers may yet be surprised if those powers are used differently under a government as yet undreamed of. I do not say that that is probable or even likely, but those who enjoy their citizenship in the land of the free and who rejoice in an honourable tradition of welcome to people of other nationalities will be very concerned about jeopardising the freedom of the future in the name of the safety of the present.
If it is anticipated that dangers will beset this country for the foreseeable future, emergency powers are not the appropriate way to proceed. And if Britain is to maintain her human rights record, it is questionable whether ongoing emergency legislation should be used to deny to the citizens of other lands the protection that we afford to those of this country. It is not that protection against a possible terrorist threat is unnecessary but, if it is to be a long-standing threat, perhaps the way forward is to attend to the amendment of the noble Lord, Lord Holme of Cheltenham, and to seek a way to respond to such a threat which does not require derogation from Article 5, or any other article, of the European Convention on Human Rights and which gives due regard to risk, to human rights, to evidence and to the kind of country in which we wish to live.
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