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Lord Thomas of Gresford: My Lords, normally it is customary to thank the Minister for a Statement made in this House, but the one delivered today is wholly inadequate. It behoves us to look back to the very beginning to see what was said then and whether the judgment of the House of Lords Judicial Committee could have been anticipated.

On 15 October 2001, having heard a Statement from the noble Lord, Lord Rooker, on the proposals for legislation, I said,

The quality of the thinking that went into the Government's response then can be gauged from the answer that the noble Lord, Lord Rooker, gave. He said:

The noble Lord's reply seemed to suggest that I was complaining, not about a person being arrested and imprisoned without trial, but that as lawyers my
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colleagues and I would not get the fees for being engaged in a trial. It was the most extraordinary response, which I have never forgotten.

Subsequently, in November, the Human Rights Act 1998 (Designated Derogation) Order 2001 was debated in this House. My noble friend Lord McNally moved an amendment asking the House to decline to approve the order until the Bill had received Royal Assent. I hope that noble Lords will forgive me if I refer to what was said on that occasion. I quoted Blackstone, from the 18th century, who said:

That 18th century observation was echoed and emphasised in the judgments of the Law Lords last week. My noble friend Lord McNally, in concluding his remarks on the order, said,

The Government seemed to regard what we said then as something that could be dismissed. They seemed to think that we were not raising any serious objections to what was going on. The reverse has now been shown to be true. Given that the Statement today simply refers us to the Statement made on 19 December 2001—around the time that the statements to which I have referred were made on our side—I ask whether the Government have learnt anything at all. What are they going to do?

I am sure that a habeas corpus application has been launched already in respect of those imprisoned at Belmarsh. What response do the Government intend to make in the courts to an application for habeas corpus? Will their answer be simply that the Act is supreme and above the European Convention on Human Rights, the derogation from which has now been quashed; or will it be that they do not mind acting contrary to the obligations that they have entered into and contrary to the Act? Those are questions that I put to the Minister, and I look for answers.

Baroness Scotland of Asthal: My Lords, it is clear from the short debate that we have had already that this is a difficult and complex subject. There are no easy answers. We would need to be completely satisfied that we have made a better choice of those matters than we have already.

It is right to say that the appeal was about the compatibility of our domestic law with the ECHR. But it also raised some more fundamental questions: how we balance the rights of an individual with those of a nation; how we do so without undermining the fundamental principles of a democracy. My right honourable friend's role as Home Secretary is to protect this nation's security and to ensure the safety and security of this country. That is his first and primary duty. In so doing, he will need to consider with the Government how we balance the rights
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of individuals against those of society and how we ensure safety and security in a democracy without undermining the values that are at the very heart of it. We remain firm in our belief that there is a public emergency threatening the life of this nation.

The noble and learned Lords who sat on the matter in the Judicial Committee, with the honourable exception of the noble and learned Lord, Lord Hoffmann, agreed with the Government on that issue. But, of course, the Law Lords found that the derogation was not compatible, as the noble Lord, Lord Kingsland, made clear, with the ECHR Article 5, the right to liberty and security, and Article 14, the prohibition of discrimination.

We need to study the judgment carefully. Of course, it overturned the earlier judgment made by the Court of Appeal, which unanimously upheld our position that the provisions were compatible with our obligations under the ECHR. I do not say that to find fault with noble and learned Lords who made up the Judicial Committee but simply to illustrate the complexity and the difficulties involved in the case.

It is ultimately for Parliament to decide whether and how we should amend the law. The Part 4 provisions will remain in force until Parliament agrees the future of the law. Accordingly, we will not revoke the certificates or release detainees who we have reason to believe are a significant threat to our security—a judgment that was upheld by the Special Immigration Appeals Commission, chaired by a High Court judge.

Derogation is not something that any government—I repeat, any government—enter into lightly. We undertook when the legislation was introduced that the powers had to be used sparingly, as promised, and that Parliament would have an opportunity to scrutinise it. Noble Lords are aware that to date 16 individuals have been certified and detained under Part 4. Another individual has been certified but is detained under other powers. Of those, 12 remain in detention. Two have chosen to leave the country, as those detained under Part 4 powers are free to do at any time. So we have honoured that commitment to use the powers sparingly and, of course, the safeguards that noble Lords know only too well were put in place.

With regard to the recommendations made by the Newton committee, noble Lords will know that we made a commitment that those issues would remain under review. I am sure that noble Lords will remember the debate that we had on renewing the powers, the consideration that was given at that stage and the injunction that I remember ringing in my ears given by noble Lords on various Benches that the matter would continue to be scrutinised before any refreshment of that order next spring. Anxious consideration has continued to be given to those issues.

Those who have been certified and detained under Part 4 powers are detained because they have been certified as a threat to our security. That considered assessment is supported, as I said earlier, by the security services and has been tested through a
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superior court of record with access to all the relevant security and intelligence information. This could not be a more serious issue than the one with which we are now faced.

The noble Lord, Lord Kingsland, asked whether the Government had any intention to take remedial provisions to make legislation compatible. Of course, we will continue to look at those issues. I think that my right honourable friend the Home Secretary has said that we will continue to consider what provisions or alterations will arise as a result of the consideration given to the judgment.

It is right that the noble Lord, Lord Kingsland, should refer to the 100 pages of the judgment and also perhaps to the fact that it took 11 weeks for nine Law Lords to come to that decision. That is not a criticism: it is simply a demonstration of how difficult the issue is. If it was easy, we would have found a pathway through before now. The last issue relates to quashing the order regarding the derogation. Section 23 remains effective. Detention remains lawful under domestic law, as the House of Lords has recognised.

We will come back to Parliament to renew the legislation in the New Year. As I say, we are studying the judgment carefully together with the responses to the consultation exercise launched earlier this year to see whether it is possible to modify our legislation to address the concerns raised by the Judicial Committee. The ATCS Act Part 4 powers have made an important contribution to protecting this nation from terrorist threat and remain necessary. We cannot simply abandon them without having viable alternatives.

I know that the noble Lord, Lord Kingsland, has pressed us in relation to intercept evidence. The noble Lord will know well that intercept evidence is no panacea. There have always been issues about whether it is safe and proper for those who give us information to have that information disclosed because lives may be put at risk. Those are serious and anxious issues to which the Government continue to give proper consideration, but I am not in a position today to give our final view on that. Of course, we will have to bear that in mind, together with our proper and full response to the issues raised in the judgment.

To the noble Lord, Lord Thomas of Gresford, I say that these are not issues that we take lightly. We very much take into consideration all the comments that were made, not only as far back as 2001, when the legislation was first mooted, but also most recently in 2003 and the debates that we have had this year. That will continue. When we come back before the House for renewal, obviously we will have to answer for any change that we propose and justify to this House and to those in another place why we are making changes or why we have found it impossible so to do.

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