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Baroness Scotland of Asthal: My Lords, I acknowledge the passion with which the noble Earl
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expresses his views. However, we are looking very carefully at what proportionate response we can make to these matters. We will look at the detail, and your Lordships will be able to do so too.
In relation to the countries with which we are having discussions, I respectfully suggest to the noble Earl that his caricature is unfair. We have had the privilege to negotiate in the past with a number of countries and have generally found that, when we have managed to come to an agreement, our partners have honoured those agreements. We hope that any future agreement made with an international partner would be similarly honoured.
Lord Goodhart: My Lords, given that detention of suspects will not be allowed under the new legislation to replace Part 4, will the Government oppose applications for bail from current detainees, subject of course to appropriate conditions being imposed on that bail? If so, how would they justify that opposition?
Baroness Scotland of Asthal: My Lords, it would be wholly inappropriate for me to talk about specific cases. The House will know that, under the provisions of SIAC now and for the whole time that they have been in place, it is and has always been open to those detained to apply for bail. When such applications are made, the Government have, in accordance with our duty, considered the nature of the threat and the application and have responded accordingly. We will continue to do so in the event of any application being made.
Baroness Ramsay of Cartvale: My Lords, is my noble friend aware that great satisfaction will have been felt among those who have experienced and know about interception from the Statement that my right honourable friend the Home Secretary will not change its use in courts? Does my noble friend agree that interception is a wide, complex and sensitive matterit does not mean only phone tapping, as the noble Lord, Lord Henley, seems to believeand that putting the product of any interception operation into the public domain inevitably reveals techniques and sources that have to be protected?
Baroness Scotland of Asthal: My Lords, I hear what my noble friend says, particularly given her wisdom and experience of such matters. I thank her for her support. We understand the wide complexity of intercept material. Those who seek to limit it simply to phone tapping indeed misunderstand it.
Baroness Kennedy of The Shaws: My Lords, I too have a mixture of responses to the Statement. I am grateful that the Home Secretary has acknowledged the judgment of our senior court. It would have been awful had we suddenly seen some kind of constitutional crisis develop, so I am content that we have had that more positive response.
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However, I share some concerns that have been expressed. We have just had a truly shameful episode in our history of unlimited detention of persons without trial. It was an affront to everything for which Britain stands in the world. It undermined our moral authority throughout the world, and gave encouragement to those with no respect for human rights. So I was hoping that the Home Secretary would accept some of the other suggestions that have been made by human rights organisations. I sat on a commission that was set up by the International Bar Association. Can the Minister say whether the Home Secretary considered its recommendations? It found that other European countries, including Sweden and Germany, have the same problem as we have. In those countries the activities of a number of persons suspected of engagement in or support for terrorism have been kept under very heavy surveillance and those activities have been emasculated. Has that been considered, because that would not involve derogation from the principles of the European Convention on Human Rights?
I am also concerned to hear the noble Baroness say that the standard of proof would be high. She mentioned that the current basis of certification is reasonable belief. That is lower than the civil standard of proof, never mind the criminal standard of proof, and has been criticised by members of the judiciary. So that is not a strict standard and would certainly not satisfy many members of human rights organisations. There should be a raising of the standard of proof. Might we not also consider alternatives to house arrest and could not bail be considered? There are other ways of dealing with such problems.
Baroness Scotland of Asthal: My Lords, I thank my noble friend for her contribution. I hope that I made clear that the Government were looking at the detail. We were considering whether the scheme that we put in place would need derogation or not and that there had not been a decision in relation to that, because we have not yet set out the specific detail in relation to it. Regarding the standard of proof, we will seek to put in place the appropriate test that will be applied in relation to obtaining the control order. Of course we have looked at other suggestions and will continue to look at suggestions that may better fit the position in which we now find ourselves. But I hope that my noble friend will accept that in making those difficult decisions, the Government have continued to strike a balance which is fair and proportionate in relation to the threat with which we are now faced.
Lord Glentoran: My Lords, as a non-lawyer among many erudite lawyers, perhaps I may ask question for clarification. Does this packet of measures seek to maintain the distinction between international terrorism and national terrorism, such as that pursued by the IRA and the UDA? Do the Government intend that the penalties for international terrorism will continue to be more severe than those applying to national terrorism?
Baroness Scotland of Asthal: My Lords, I hope I have made clear that we have had to take into account the consequences of the decision made by the Judicial Committee of this House in relation to the
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discriminatory nature of the distinction we made between foreign nationals and citizens of our country. The new provisions would apply to terrorists generally. We have not yet decided on the nature of the penalties, but those details will be in any proposed legislation that comes before this House and another place.
Lord Lester of Herne Hill: My Lords, I was member of the Joint Committee on Human Rights which scrutinised this legislation twicein fact more than that. Although I am no longer a member of the committee, I can say that it will very much welcome the Statement made in the other place, and repeated by the noble Baroness, as a vindication of the way in which the Human Rights Act has worked in this case.
First, it has worked because the Law Lords have given a judgment which is, I am sure, admired across the democratic world and which I hope will serve as some persuasive influence to colleagues on the American Supreme Court, when they consider a similar matter. Secondly, it has worked because the Home Secretary, instead of not obeying the ruling of the House of Lords, has wisely decided to do his best to comply with the judgments. That will be welcome to anyone who is concerned about human rights. Thirdly, the new Home Secretary, unlike his predecessor, has wisely looked at the Newton committee's recommendations and, instead of ruling them out, as happened in the discussion paper on the previous occasion, he has taken account of them. That is also welcome.
Like others, I respectfully disagree with the judgment about the use of telephone taps and intercept material. I cannot understand why that should be ruled out. Only Ireland and the UK do so. The Human Rights Committee took evidence from a senior French judge, who convinced us that one of the reasons we could not prosecute suspected terrorists was partly due to the exclusionary rule, which seemed to us not to be sensible.
I should like to ask the noble Baroness one question. What will be the position of the United Kingdom when the Belmarsh detainees go to the European Court of Human Rights, as they undoubtedly will, arguing that the declaration of incompatibility and the Minister's Statement do not give them any effective remedy? Do the Government have any idea in their current planning to avoid humiliation before the European Court of Human Rights? Are they considering any measures that will seek to provide a remedy to the Belmarsh detainees for their detention, which is, effectively, in breach of Article 5?
Baroness Scotland of Asthal: My Lords, the noble Lord knows perfectly well that it would be quite inappropriate for me specifically to comment about that case. Of course the Government are looking at their duty. I thank the noble Lord for the comments he made about the nature of my right honourable friend the Home Secretary's Statement. These are issues that will continue to provide the Government with anxious consideration.
The Lord Bishop of Chester: My Lords, I join others in recognising how difficult it is, in a democracy, for the Government to shape anti-terrorism measures. The responses to the two major points made by the
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Law Lords seem to extend to all our citizens a watered down version of the powers to detain people without trial. This is a serious matter. It may not quite be the internment to which the noble Earl, Lord Onslow, referred, but it is in that territory, especially if the orders strongly controlled someone in their own home. Issues would then arise about the right to work, how they will be sustained and other such questions.
Is the extension of these powers, which were not thought necessary when the Anti-terrorism, Crime and Security Act itself was passed, simply to address the issue of discrimination, or do the Government anticipate that our citizens will be detained without trial in their own homes, which would be a new development? Regarding the control orders, can the Minister assure us that the lightest possible touch will be used, with all the advantages of modern technology, to keep any constraint on the liberties of folk to an absolute minimum?
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