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Baroness Scotland of Asthal: My Lords, I have tried to make it as clear as I can that these issues are included in any discussions that we shall have as a result of the discussion paper. I hope that your Lordships will find that the discussion paper is very open. It does not prohibit any issue being raised by any other party, who may say, "We need to consider the following".

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However, I also need to say that the issue of what we do about our own nationals has always, to date, been dealt with separately because we have an irrefutable problem: we have no capacity to ask our own nationals to leave this country. They will be dealt with within our borders. They are British citizens and they have a right to remain.

Baroness Hayman: My Lords, I thank my noble friend for giving way. I am sorry, but she provokes me on this point, which I made last week. These particular foreign nationals are in exactly the same position as our citizens. In effect, because of the provisions of the European Convention on Human Rights and because we cannot deport them, they must be dealt with within our own country, which is exactly the same as with UK citizens.

Baroness Scotland of Asthal: My Lords, I understand the point that the noble Baroness makes in that regard. I understand that she would say that we have to look very particularly as to the procedure that we therefore adopt in relation to foreign nationals to cure that mischief. I know that the noble Baroness understands that the Government currently believe that one cannot conflate the two. We have made it plain that the discussions we shall have as a result of the discussion document produced by my right honourable friend the Home Secretary will allow us to look now at what other options there may be to address the issues on which we are clearly divided.

I am unable to say what the outcome of those discussions will be. I hope that we could craft something together which everyone would think was robust and which would be supported on all sides, not least because we are all in agreement that, first, there is a threat; secondly, we have to respond proportionately to that threat; and, thirdly, we need to ensure that the ordinary rules that we would expect to apply will not be deviated from unless it is absolutely necessary. Those are things on which we agree. We are therefore saying that that is a discussion which now has to take place, and will take place.

The noble Lord, Lord Holme, asked me a number of questions about timetabling. I shall now turn to those because I need to be clear about what the next 12 months are likely to bring about. The suggestion is that we are going just to kick this into the long grass, come back in 12 months' time and say that we want the provisions to be reaffirmed.

I and, I am sure, all my noble friends will have listened clearly to what this House has said; namely, that we have been put on probation for 12 months and we will be dealt with and sentenced in 12 months' time. I hear that stricture. I reassure noble Lords that it will be heard by anyone who has either listened to this debate or reads it in Hansard.

As your Lordships know, the Government's response to the Newton report was published on 25 February. It formed part 2 of the discussion paper on counter-terrorism powers. The response indicated where the Government wanted to look further at the committee's recommendations. It also, for example,

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raised the issue of whether any further offences could be created. Your Lordships will remember that the noble Lord, Lord Carlile, suggested a broadly drawn offence of acts preparatory to terrorism. Is that something which could assist us in this regard?

The discussion paper invites further ideas. We have heard many ideas in last week's debate and in today's debate. I remind noble Lords that the consultation period will continue until 31 August. So we have a period to get further ideas that can be scrutinised. We are also looking at whether the restriction on the use of intercept materials should be changed. The review is under way. It will report shortly. The noble Lord asked whether it would report six months from today. I would be bitterly disappointed if we did not have the results of that review available within the next six months.

Can I say, hand on heart, written in stone or blood, that it will be there in six months to the day? The answer is "no". Will we ensure that we do everything to encourage and enable it to be delivered as quickly as possible? The answer is "yes". Noble Lords who have had the advantage of standing at the Dispatch Box, and others, will know that sometimes our disappointment is expressed, but there may be little that we can do about it. That is something which will be energetically pursued.

The noble Lord, Lord Holme, also commented on numbers. I hope that your Lordships will understand when I say that the Government are clear that the threat now comes predominantly from foreign nationals. I am not in a position to go into the details, but that is the clear information that the Government have, and that is the position. In addition, I need to say that numbers themselves are not the determining factor. The powers tackle the adverse effects for the country in meeting the emergency arising from the continuing and unrestricted presence in the United Kingdom of suspected terrorists who cannot be removed to third countries. We think that it is not necessary to extend the measures further to include UK nationals.

Lord Holme of Cheltenham: My Lords, I am sorry to delay the noble Baroness, but have I got what she is saying right? We quoted from evidence given to us by the authorities that approaching half of those suspected of terrorism are British nationals. Is the noble Baroness saying, "Well, if you weight it for the potential seriousness of the terrorism, it is the foreigners who are more likely to do the serious things than the British suspected terrorists"? Is she saying that it is a matter of weighting the quality of terrorism rather than the numbers of suspected terrorists?

1.30 p.m.

Baroness Scotland of Asthal: My Lords, no. That is not what I am saying. Of course, I appreciate that noble Lords have used figures in this debate. I am not able to comment on figures for very obvious security and other

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reasons. I am therefore obliged to indicate to your Lordships that the Government's information makes it clear that the dominant, major threat comes now mainly from foreign nationals. That is our assessment; it is not simply a numbers game. I hope that your Lordships will understand why I cannot go further.

The noble Lord, Lord Holme, and the noble and learned Lord, Lord Lloyd, asked about SIAC. I hope that I have acknowledged, both last week and today, that we believe SIAC is working very well. That does not mean that we unequivocally agree with every decision it makes. There is, of course, a case in point where we do not believe that SIAC have got it right. I know that the noble and learned Lord, Lord Lloyd, was teasing me when he asked whether we were appealing on fact. The noble and learned Lord knows that the only basis on which we could possibly appeal would be a point of law. That is why I say to the noble and learned Lord that on this occasion we believe that SIAC has got the law wrong. Even the most noble and learned judges are not infallible.

The noble Lord, Lord Newton, raised a number of points which were echoed by the noble Lord, Lord Holme. He specifically questioned the issue of exporting terrorism, a theme raised by my noble friend Lady Hayman. It is not an issue that we take lightly. However—it hurts one almost to say so—our major concern must be the protection of the United Kingdom. I hope noble Lords will understand that we work very closely with all our security colleagues around the world in relation to these issues.

The noble Lord, Lord Lester, and my noble friend Lord Judd asked about the status of other European countries and why they have not derogated. I hope that what I have said and what my noble friend Lady Hayman has said goes in part towards the answer—not least because we have to make an individual assessment of the threat, and that individual assessment has caused us to believe that the derogation was necessary. I absolutely accept that there may be a different view in that regard. I think my noble friend Lady Hayman is right: it may not be that other countries have not derogated in fact; they just have not derogated de jure, in law, whereas we have found it necessary.

It is not a comfortable position in which we find ourselves. But, as I have said, the Government have not closed their mind and we will continue to consider whether this is the best way forward. The noble Lord, Lord Lester, asked a very specific question about whether we accept, or agree with, the Court of Appeal definition or test in relation to proportionality. It is the correct test. However, we do not consider at present that there is any less intrusive measure which would meet the exigencies of the public emergency. That is where, perhaps, there is a difference of view.

That does not mean that we are not prepared to continue to keep these issues under review; it does not mean that we have closed our minds. I tried to make it clear on the previous occasion, and I repeat today, that no solution we come up with is likely to be perfect. We are all trying to get the best solution we can. No matter

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what solution we come up with, many will still feel some anxiety about it. The Government are clear that we need to continue to look at this issue.

I turn now to some of the specific points raised by my noble friend Lord Judd on the whole issue of secret evidence. I hope that noble Lords will not mind me reminding the House that we adopted the SIAC-type process following the European Court at Strasbourg ruling in Shahal. It was adopted precisely in order that we might address the concerns about secret evidence. Again, we have not suggested that it is a perfect solution, but it is the best we have available to us to enable the courts to consider secret intelligence.

As I said earlier, we are looking at whether the restrictions on the use of intercept material could be relaxed. When the review is published we shall, of course, be able to consider that issue further.

My noble friend Lord Judd also asked about SIAC and the issue of the use of torture and interrogation. Your Lordships will know that SIAC has adopted the common law approach to evidence which may have been obtained elsewhere through the use of torture, save for evidence that is obtained from a party—usually the defendant—in a criminal trial, where all the evidence is admissible however unlawfully obtained. However, where material may have been obtained by torture, the means by which that information is obtained will bear on the proper weight to be given to the information.

I turn now to the remarks made by the right reverend Prelate the Bishop of Southwark. He asked about anonymised information on detainees and whether or not it should be published. I can assure the right reverend Prelate that anonymised information is already made available, as recommended by the committee of the noble Lord, Lord Newton, on the Home Office website.

The right reverend Prelate asked about SIAC and the decision that we have made. I hope I have explained why we are appealing that decision. He also referred to the replacement of the temporary nature of the legislation. I hope that I have dealt with that, too, in terms of where we may respond.

The noble Baroness, Lady Williams, asked for a clear indication that the Government will not come back for a further renewal in a year's time. I think that I have dealt with that as best as I am able in terms of the approach that we hope we will be able to take in due course.

I thank noble Lords for the rigour with which they have approached the debate. It is right that there should be a rigorous scrutiny of the measures we are taking into account today. I very much welcome the assent of noble Lords to the continuation of these unfortunately very necessary powers, in the interim and for the next 12 months.


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