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Baroness Scotland of Asthal: My Lords, I thought I had answered that point. I apologise if I did not. I swept it up in the alternative issues that we were considering on the review. Noble Lords will remember
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that we had a quite trenchant debate on the Newton committee review, and some noble Lords raised issues in relation to the seven recommendations. As I said at the time, we shall continue to look at those issues. Clearly they deserve and will continue to have consideration in the review.
Lord Campbell-Savours: My Lords, is it not true that if amendments that were considered by the House on 29 November 2001 had been more sympathetically considered by Ministers and civil servants, we might not have been in the difficulty that we are in today? I refer, in particular, to the amendments dealing with the rights of the special advocate to discuss sensitive information with appellants, recognising that special advocates are perfectly capable of understanding where national security should not be breached.
Baroness Scotland of Asthal: My Lords, when we had the debate on the Newton committee's report, I understood the anxiety and perhaps affront suffered by some who thought that the committee's report was simply dismissed. I said on the previous occasion that it was not dismissed; that it was taken seriously. I certainly attempted to give a full and frank answer in the debate. I hoped that we had settled it that they were issues which were going to be considered. I do not agree with my noble friend that if we had settled on an agreement on 29 November all would have been well. It would not have been because we are still struggling with the same issues. They are not easy, but the fact that we are attempting to deal with them is of great importance.
Lord Tebbit: My Lords, is the Minister aware that at least I on these Benches have considerable sympathy for the difficulties in which the Government find themselves? I have a great deal of understanding of the noble Baroness's replies today. For the better understanding of the public outside, will she emphasise what she has already said: that the people whose appeals were upheld recently are free at any time whatever to leave detention; that the door is wide open to them? It is just that they would not be permitted to enter the United Kingdom.
Is not the problem that the ECHR both prevents the Government deporting those people and prevents the Government detaining them in the interests of the security of the British people? Does not the Minister agree that the final arbiter of such matters will not be Parliament because there can always be an appeal to the court in Strasbourg—which, as I understand it, overrules our domestic law?
Baroness Scotland of Asthal: My Lords, I thank the noble Lord for his understanding. I am happy to repeat what he so rightly said: all those detained are free to go under their own steam at any moment. Indeed, two have chosen to do so and have left the country. The door is wide open for those detainees to leave at any time they wish.
The noble Lord is also right to say that the reason why we have not felt able to deport them is the breaches of human rights that may occur if they are
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returned back to the member state or the country from which they came. But it is right that if they could find another country which is happy to take them they could go, and go swiftly.
However, Parliament will always be the final arbiter on what our law is because it will decide which conventions we do and do not apply. I do not accept that sovereignty in that sense has been transferred to anyone other than the other place, where sovereignty and the will of the people are best expressed.
Lord Judd: My Lords, does my noble friend accept that the judgment not only endorses the findings of the very distinguished committee of Privy Counsellors but also the findings of the Joint Committee on Human Rights, which represents both Houses and is cross-party? Does she not therefore agree that it is very urgent and important that the Government give careful consideration to the judgment because the institutions of Parliament itself have spoken and spoken in line with what the judges have said?
Does my noble friend further accept that in protecting this country—which is a crucial, critical and central issue—the risk in pursuing current policies is that by increasing embitterment and disillusion among people in this country they increase the dangers? When the provocation is greatest is the very time that we have to demonstrate that we are resolute in standing by those institutions and principles that make our society worth defending and so different from the activities of those who act outside the law, not least through terrorism.
As to the issue of intercept, is my noble friend prepared to look at the way in which other countries have dealt with the difficult issue of security and the way in which they handle intercept material in court?
Baroness Scotland of Asthal: My Lords, of course we will look at how other countries handle such material. It is also important that we consider how that material can be utilised properly in our system and the dangers that may be inherent in disclosing information that would put at risk those who work very hard to keep our country safe.
We are giving the issue urgent attention. I hear what my noble friend says about protecting people and preventing embitterment and disillusionment, but I emphasise that it is for that reason that the legislation has been so judiciously and restrictively used. We are talking about its operation in only 16 cases. It has not been used in a wholesale or disproportionate way in a huge number of cases. I understand the difficulties, but we have tried to restrict its use to cases where it is absolutely necessary.
This country has a long, proud history, and we are resolute in standing by our institutions. I say it again: the detainees are able to leave under their own steam at any stage. Where the interests and safety of our
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nation are at risk, we will not be forgiven by the people of this country if we play fast and loose with that safety.
The Earl of Onslow: My Lords, if these gentlemen and the Government decided to ignore the House of Lords warning—
Lord Evans of Temple Guiting: My Lords, I am sorry. We are out of time.
Constitutional Reform Bill [HL]
Proceedings after Third Reading resumed on Clause 15.
[Amendments Nos. 16 and 17 not moved.]
Clause 16 [First members of the Court]:
Lord Lloyd of Berwick: My Lords, it may be for the convenience of the House if I say that I shall not be moving any of the amendments that were dependent on the vote on the Supreme Court having gone the other way. That includes the whole of this group; Amendments Nos. 28 to 33; Amendments Nos. 35 and 36; Amendments Nos. 40 to 45; and Amendments Nos. 48 to 51. That is as far as I have got in seeing what I am not going to move. Putting it the other way, I shall be moving, I think with the assistance of the noble Lord, Lord Maclennan, Amendments Nos. 148 and 149, which stand on a different footing. Given a few minutes, I should be able to say what other amendments I am not moving.
Clause 17 [Qualification for appointment]:
Clause 18 [Selection of members of the Court]:
[Amendments Nos. 21 to 26 not moved.]
Clause 22 [Exercise of powers to reject or require reconsideration]:
Clause 24 [Oath of allegiance and judicial oath]:
Clause 26 [Salaries and allowances]:
Clause 27 [Resignation and retirement]:
Clause 28 [Medical retirement]:
[Amendment No. 33 not moved.]
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[Amendments Nos. 34 and 35 not moved.]
Clause 31 [Supplementary panel]:
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