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Baroness Williams of Crosby: My Lords, in her remarks on the Statement, the noble Baroness made a comparison between the rights of the nation and the rights of the individual. First, does the Minister accept that that is a false analogy? In this country, the rights
 
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of all the citizens are an implicit part of what it is to be this nation and include as their very basis a fair trial system and habeas corpus.

Secondly, the Minister referred to what she described—I wrote her words down—as "finding a pathway" through this admittedly very difficult dilemma. Can she therefore explain why the former Home Secretary dismissed almost immediately the extremely wise and thoughtful report of the Newton committee without giving it full consideration, although it included many suggestions for ways in which the trial of those who are detained today at Belmarsh prison could be dealt with through a trial system and not by indefinite detention?

Finally, as a distinguished lawyer, does the Minister agree that one of the most fundamental rules of the legal system is that which says that nobody and nothing is above the law and that, without doubt, includes governments as much as it includes individuals?

Baroness Scotland of Asthal: My Lords, of course I agree with the noble Baroness that no one is above the law, and that is why we have processes in place. The noble Baroness will know, for instance, that on this legislation it is the onerous duty of those who sit in this House and those who sit in another place to determine which pathway we choose on behalf of the people of our nation. The other place has a mandate from the people, but we have an equally onerous burden to discharge in relation to our public duty to make sure that individuals are kept safe. So I agree with the noble Baroness and perhaps I may say very clearly that we do not propose in any of our actions to be above the law; we are working absolutely within it.

I also agree that citizens are of course an integral part of the nation state, but there are huge issues at stake here. Whether we like it or not, the threat of terror has changed the paradigm. Most of us do not like it, but that is the reality in which we now live, and therefore we have to make difficult choices. I think that a Member of the other place said that the most important human right is that of the right to life. If one does not have that, nothing else which flows from the European Convention on Human Rights can hold true.

That is one of the things that we have grappled with, and there have been sincere differences along the way in that debate. Honourable views on both sides of the divide have been voiced, but it is important for us to recognise that, ultimately, the onerous responsibility that rests primarily on the shoulders of my right honourable friend the Home Secretary is that of keeping this nation safe. We must remember that we will not be forgiven for failing to discharge that duty. I do not suggest that this is an easy situation. If it was, we would have settled it a long time ago.

Lord Clinton-Davis: My Lords, does not my noble friend agree that the original answer given in another place ought to have been much more emollient because there is no future in a continuing row between the judiciary and the executive? If so, does my noble friend
 
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also agree that at this stage there is an urgent need for an olive branch to be held out by the executive in terms which the whole House would recognise—those which my noble friend has given voice to this afternoon, in marked contrast, if I may say, to the original answer?

Baroness Scotland of Asthal: My Lords, of course I hear what my noble friend says and I hope that both here and in the other place no attempt has been made to create any bad feeling between the executive and the judiciary. Both have to discharge their duties, and those duties are different. The judiciary is there to express its view without fear or favour, and in discharging its duty, that is what the Judicial Committee has done. It is our duty, in considering what is right and proper for the safety of this country, to look at the issues, consider them very seriously and then respond in a proportionate and proper way. That is what we intend to do.

Lord Mayhew of Twysden: My Lords, in the light of what the noble Baroness has just said, was it not particularly unfortunate that the Foreign Secretary was reported to say that the eight Law Lords in the majority were "simply wrong"? Is not the embarrassing position in which the Government now find themselves a direct consequence of having imported into our domestic law, when it was not necessary to do so under the terms of the convention, the convention itself? Is it the position of Her Majesty's Government that the question whether the measures taken to deal with the exigencies of emergencies that present a threat to the life of the nation should be quite unchallengeable in any court of law—not as a matter of opinion, but unchallengeable as to the route by which the Government's opinion has been reached? Is that the opinion of Her Majesty's Government? If so, the sooner we know about it, the better.

Baroness Scotland of Asthal: My Lords, it is not unchallengeable. Your Lordships and the noble and learned Lord, Lord Mayhew, know that the whole purpose of setting up the SIAC system was to enable proper challenge to be made. When this legislation went through both Houses of Parliament, it was clear that if it came to the point where there was a statement of incompatibility settled on by the courts, it would be Parliament which, on behalf of the people of this nation, would finally determine what we should do thereafter.

Of course I hear the argument which says that the ECHR should never have been incorporated into our legislation, but noble Lords know that that is not the view of this Government. Our view is that the ECHR was appropriately incorporated so that we could repatriate those rights home to the United Kingdom, and the UK judiciary would have the privilege of adjudicating on those matters in a manner consistent with our own jurisprudence. That has been done.

We have to accept that the Law Lords have spoken. We have to consider what they have said and look to see what, if anything, we can do in the future to take into account the pronouncements made therein. As I said earlier, these are complex and difficult issues, but the Government are absolutely committed to looking into them. If we find that there is no other way forward but
 
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that which we have already alighted upon, it will be our duty to come back to this House and to the other place and let Parliament decide where we go from there.

Lord Kilclooney: My Lords, I should like to think that the initial reply of the noble Baroness was correct, and she has stressed that the European Convention on Human Rights is incorporated in our legislation. Does that mean that there can be no challenge in Strasbourg to the ruling given last week?

Baroness Scotland of Asthal: My Lords, it does not mean that. It would be open to the applicants, if they disagreed with any part of the judgment or, indeed, if they disagreed with an action taken by the Government after the judgment, to take the matter to Strasbourg.

We do not say anything about that at this stage. As I have made plain, the Government have not settled on their response. We are giving the issue our most anxious and careful consideration. It is every part of our desire to settle on a resolution to this difficulty that is fair, transparent and workable. However, I would stress that the final decision will be taken to safeguard the people of this country. That is the first concern of my right honourable friend the Home Secretary.

Lord Dubs: My Lords, my noble friend is surely right to say that the threats we face from terrorism are serious and unprecedented, but those threats are also being faced by other countries that operate the rule of law and have respect for democracy and human rights. In considering their approach to the difficult dilemma in which the Government find themselves, will they take into account the fact that, with the exception of Guantanamo in the United States, no other country has taken the same approach as us in practising detention without trial? Would my noble friend care to comment on that and, as I have said, will the Government take the point into account when considering their response to the difficulties they are in?

Baroness Scotland of Asthal: My Lords, of course I hear what my noble friend says, but I should say to the House that one of the beauties of the 25 states forming the European Union is that we are all different. Our structures and laws differ, as do the procedures under which we operate. Therefore it would be quite difficult to compare one with the other because we are not considering like with like.

Lord Maclennan of Rogart: My Lords, whether inadvertently or not, the Minister did not reply to the specific question posed by my noble friend Lady Williams of Crosby. Will the Government, in reconsidering these issues and the alternatives to detention without trial, look again very closely at the seven practical and sensible suggestions advanced by the committee chaired by the noble Lord, Lord Newton?

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