§ The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)
rose to move, That the draft order laid before the House on 23rd January be approved [9th Report from the Joint Committee].
The noble Lord said: My Lords, I beg to move. Before September 11th, the UK had already built up 30 years' experience of dealing with terrorism and terrorists. This meant that there were proven counter-terrorism measures and legislation in place. However, the September 11th attacks in New York, Washington and Pennsylvania were on an unprecedented scale and of a different nature to what we had so far faced. We needed to address that difference swiftly and effectively. We introduced the Anti-terrorism, Crime and Security Act 2001, including the Part 4 immigration and asylum powers.
The 2001 Act built on and updated as necessary the tough counter-terrorism provisions already in place. It was designed to ensure that the Government had the necessary powers to counter all forms of terrorist threat while ensuring the protection of individual rights and consistency with our international commitments.
The detention powers in Sections 21 to 23 of Part 4 of the Act were considered essential in the light of the particular public emergency facing the life of the nation, and proportionate to that threat. They address the very specific threat from suspected international terrorists present in the UK who are further suspected of involvement in terrorism of the sort which led to the events of September 11th. In short, it involves individuals who would not normally be permitted to remain in this country but who cannot be deported for legal or practical reasons.
Those measures required a derogation from Article 5 of the European Convention on Human Rights (ECHR). This was not something that was undertaken lightly, but we believed—and continue to believe— that, based on the mass of evidence available to the Government, there is a public emergency threatening 1292 the life of the nation within the meaning of Article 15 of ECHR and that the measures we have taken are strictly required by the exigencies of the situation and are proportionate.
Having reviewed the open and the closed evidence, in its judgment in July 2002, the Special Immigration Appeals Commission (SIAC) agreed that there was a public emergency facing the life of the nation and that the measures were strictly required by the exigencies of the situation. However, the SIAC found that the powers were discriminatory, as they applied only to foreign nationals. The subsequent Court of Appeal judgment in October 2002 held, unanimously, that the derogation was lawful.
I can confirm that in my view the provisions of the order are compatible with the convention rights.
The detention powers that we took under Part 4 of the ATCS Act, in response to the public emergency, closed a very specific loophole. There are present in the UK a number of foreign nationals who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism of the kind which resulted in events of 11th September 2001; being members of organisations or groups so concerned, or having links with members of such organisations or groups; and who are a threat to our national security.
Where it is possible to remove or deport from the UK a foreign national suspected of terrorism, we make every effort to do so. But removal is precluded for some of these foreign national suspected terrorists because of the important safeguard in Article 3 of the ECHR to prevent removal if they might face torture, inhuman or degrading treatment or punishment.
Of course if it is possible to prosecute we will do so, and that would always be the preferred course of action. But it is not always possible to prosecute.
The Government have to achieve a difficult balance between our international commitments and our duty to safeguard the security of this country. The Government have reviewed closely and regularly the need for the detention powers and ECHR Article 5(1) derogation, as well as the feasibility of other possible options. We concluded that there was no responsible or indeed effective alternative but to maintain powers to detain, and the ECHR derogation. That view was upheld in the Court of Appeal in October.
The Government have also reviewed closely the application of detention powers to foreign and not UK nationals. We believe they are entirely justified, for the following reasons. The threat comes predominantly, though not exclusively, from foreign nationals present in the UK who we are not able to remove. The preferred course of prosecution may not be possible because the evidence needed for successful prosecution may be unavailable or not usable. It would be deeply damaging if the UK was seen to be unable to take action and consequently as providing safe haven, weakening the international fight against terrorism. 1293 Finally. unlike UK nationals, who have the right to be in the UK, foreign nationals are ordinarily subject to removal if they represent a threat to national security.
The Court of Appeal upheld our position on the need for these powers in its judgment in October last year, and agreed that they were not discriminatory and comply with ECHR.
To date, 15 foreign nationals have been detained under Sections 21 to 23 of the Act. Of those, two have voluntarily left the UK. The other 13 remain in detention. The decisions to certify and detain these individuals were based on detailed and compelling intelligence and other material. That material will be examined by the SIAC, as provided under ATCS Act.
All those detained have had access to legal ad vice throughout the detention period and there is no limit on the number of legal visits that detainees may receive. Those detained have immediate right of appeal to the Special Immigration Appeals Commission against the certificate. All but one of the detainees have already exercised that right. The ATCS Act provides for the SIAC regularly to review certificates, and it may overturn them. Detainees also have the right to apply for bail to the commission at any time and several have done so. This is not internment. It is open to the detainees to leave the United Kingdom, and two have done so.
Individual detainee appeals will be heard by the SIAC, starting in May. We believe these would have been heard much sooner had it not been for the legal challenge mounted by defendants to the detention powers—powers which the Court of Appeal upheld in October. We are clear that they must proceed as early as possible without any necessity to await the final outcome of the derogation challenge to the House of Lords, if leave is granted.
The Home Secretary stated in the House of Commons:I do not think that there has ever been an Act or part of an Act that has been subject to as much review, scrutiny, renewal and cancellation as this—and rightly so".—[Official Report, Commons. 3/3/03; col. 586.]The noble Lord, Lord Carlile of Berriew, is the independent reviewer of the Part 4 powers. His report on the workings of Sections 21 to 23 of the ATCS Act was laid before the House on 12th February. We are most grateful to the noble Lord for his detailed, thorough and challenging work. We are pleased to note that the noble Lord, Lord Carlile, is satisfied that the Home Secretary has certified persons under the Act only in appropriate cases and that he has exercised his independent judgment in each case, having given due regard to advice from officials.
We welcome the noble Lord's recommendations. We are considering his points in detail and will reply to him shortly. The Home Secretary has already agreed in principle to the noble Lord's recommendation for detainees to be held in a separate facility within the Prison Service and scoping work is proceeding on this. I should emphasise that the decision to go to a separate unit, when it exists, on the part of the detainees will be voluntary; there will not be, and must not be, any sense of compulsion over this.
1294 The order extends for a further 12-month period the powers in Sections 21 to 23 of the Act. Those powers will then lapse, unless we propose renewal for a further period of up to 12 months, and if that proposal is then approved by both Houses of Parliament. In summary, the effect of the order is to continue in force, until 13th March 2004, the powers under Sections 21 to 23.
In the light of the events of the last 18 months, including recent weeks, we are absolutely convinced that the public emergency continues. For so long as it does so, when a foreign national suspected of terrorism of the kind which resulted in the events of September 11th and of being a threat to national security, and when we want to remove or deport them but removal is not possible, we believe it is necessary and proportionate to continue to provide for extended detention under immigration powers pending eventual removal. That is why I am seeking this House's approval to extend the powers in sections 21 to 23. I commend the order to the House.
§ Moved, That the draft order laid before the House on 23rd January be approved [9th Report from the Joint Committee].—(Lord Filkin.)
§ Viscount Bridgeman
My Lords, as the Home Secretary said in another place, Part 4 of the Anti-terrorism, Crime and Security Act 2001 is surrounded by a great raft of reviews and sunset clauses. My right honourable friend Mr Oliver Letwin pointed out that they are largely in place thanks to the persistence of the opposition parties in both Houses, who insisted on them during the passage of the Bill.
Having made that point, we are here to give general support to the order. I join the Minister in paying tribute to the excellent report produced by the noble Lord, Lord Carlile of Berriew, whom I am pleased to see in his place. The main points flagged by the noble Lord on Part 4 were the removal of the word "links" from Section 21; the implementation of the SIAC procedural rules and substantive hearings by SIAC before the final determination of the challenge to derogation from the ECHR; the question of special advocates; the provision of facilities more suitable to persons who after all have not been charged with any terrorist offence; and, finally, the particular sensitivities of the Muslim community to the fact that, as it happens, all those detained so far have been Muslims. I shall briefly speak to each of those.
On the question of "links", we are pleased to note that Ms Beverley Hughes stated that the Government are prepared to reconsider the clause. I would draw the Minister's attention to the excellent wording in an amendment suggested to Section 23(2). My right honourable friend Oliver Letwin said that he was surprised that he had not thought of it during the passage of the Bill. However, he also pointed out that the noble Lord, Lord Carlile, was employed by the Home Secretary, and my right honourable friend would not have been able to afford his fees.
1295 The noble Lord, Lord Carlile, referred to the equivocal position posed by the question of special advocates. We note that he gives it as his opinion that there is,a reasonable balance between fair proceedings and the reality of life-threatening risks to the public and to the law enforcement agencies".I should like the Minister's assurance that the noble Lord's recommendation that these statutory inhibitions be kept under review will at all times be fully before them.
We are grateful for the Government's confirmation that the SIAC may proceed as at present pending the derogation hearing and also for the Home Secretary's decision that the special status of these detainees should be recognised in the conditions in which they are detained.
The noble Lord, Lord Carlile, also made reference to the fact that, as I stated, it so happens that all the detainees so far have been Muslim. I draw noble Lords' attention to the noble Lord's comments in his report, which states:There is a sense that it causes real resentment among parts of the Muslim community who are both residents and nationals of the United Kingdom and possibly makes some aspects of policing more difficult".With commendable frankness and honesty, he goes on to say:One could not sensibly claim that the balance is easy or the solution is clear".That is a challenge ever before us. I would suggest to noble Lords that the quality of Muslim Peers in this House makes this place a particular forum for continually addressing that very sensitive issue.
Finally, I should like briefly to refer to the application of this order to Northern Ireland. Let us be thankful that the main provisions of the Act have not to date had to be applied there. However, while my party has demonstrably supported the Prime Minister in the immensely difficult decisions he is required to make with regard to Iraq, I would suggest that he and his Government should be aware that in the matter of delaying tactics, Saddam Hussein has picked up a trick or two from the IRA.
We support the Government in their reasonable endeavour to give effect to the effective operation of the 2001 Act.
§ Lord Goodhart
My Lords, before I get on to the subject of this order, I should like very briefly to say how pleased we are to see the noble Lord, Lord Kingsland, back in his place on the Conservative Front Bench.
I cannot go quite as far as the noble Viscount, Lord Bridgeman, in saying that we welcome this order. I think that the best I can do is to say that we do not oppose it. However, we do have a number of comments and questions. The issues with which we are here concerned were covered in detail both by my noble friend Lord Carlile of Berriew in his review made under Section 28 of the Act and also by the very 1296 thorough report of the Joint Committee on Human Rights. There was also a brief from the Law Society, which is welcome though it relied largely on the two documents already mentioned.
In the debates on Part 4 of the Act, when it was a Bill going through your Lordships' House and through another place, we on these Benches opposed the concept of detention without trial. However, we did achieve some important improvements to the Bill in conjunction with the Conservatives, such as the sunset clause and the provision for the review of the whole Act by a committee of Privy Counsellors. So I do not think that it is appropriate, and I certainly do not propose, to reopen the main issues at this stage. I should, however, like to draw attention to the criticisms by the Joint Committee on Human Rights of the procedure adopted by the Government in November 2001 of derogating first before the Bill that introduced the procedure which was incompatible with the European Convention on Human Rights was passed. Like the Joint Committee, I hope that that will not be repeated. It is surely clear that it would have been much better if the order for derogation had been introduced at the end of the debates on the Bill so that we already knew what the derogation would give effect to.
There are a number of reasons why we accept a continuation of Part 4 for another year. First, there is no reason to believe that the terrorist threat is any less serious than it was 14 months ago when the Bill was passed. Secondly, the Court of Appeal has decided that derogation from Article 5 to enable people to be detained without trial was valid—in that case having overruled the original decision of SIAC, subject to leave to appeal to your Lordships' House being given, and then, perhaps, to a further appeal to Strasbourg. The presumption now is that the derogation was valid. However, if there are contrary decisions either in the House of Lords or Strasbourg, the outlook may of course be very different in the future. Thirdly, we have noted with interest that the Joint Committee on Human Rights believes that there is no serious objection on human rights grounds to the continuance of Sections 21 to 23 for a further year.
We do, however, have a number of criticisms, three of which stand out in particular. First, both my noble friend Lord Carlile of Berriew and the Joint Committee have pointed out the profoundly unsatisfactory nature of the special advocate procedure. It is most unsatisfactory, for example, that an advocate cannot question the person on whose behalf he or she is acting. We realise that there may be exceptional cases where that is justified because of the importance of the protection of sources and not disclosing too much about what we know. However, the closed procedure, as it is called, should be adopted only where it is absolutely necessary, and evidence should wherever possible be open. Furthermore, where the special advocate procedure is used, it is absolutely essential, as the Joint Committee and my noble friend have pointed out, that the special advocate should be allowed to appear not only before 1297 SIAC but also in the Court of Appeal and the House of Lords, if necessary sitting in camera in order to hear the closed evidence.
Our second particular concern was the criticisms made by my noble friend about the conditions in which the detainees were being held, particularly at Belmarsh. He said that detainees should be held in remand conditions; should be held together as a group, if that was their wish; and should be allowed to associate with each other. We welcome the fact that the Government are now undertaking to consider giving effect to that recommendation.
The third main problem thrown up by the report was the refusal of SIAC to hold substantive hearings while the question of the validity of the derogation was being litigated. That led to extended delays and we believe was unjustifiable, particularly after the Court of Appeal overruled SIAC's own earlier decision. It was perhaps understandable when SIAC itself had held that the derogation was invalid, but not after the Court of Appeal had come to a different conclusion. That is a matter for the courts and not for the Government. However, we welcome what. I understand is now the decision of SIAC to proceed to hear the substance of the cases even though proceedings are still pending. If leave to appeal is given or if the matter is taken to Strasbourg, those proceedings may be pending for a very considerable time to come.
The Joint Committee on Human Rights also raised doubts about the adequacy of the legal advice given to the detainees. Are the Government satisfied that that criticism is being given proper attention?
The circumstances suggest that the Government should look again at the ban on the use of intercepts in prosecutions. That might well have made it possible in many cases to bring detainees to trial. I understand the reasons why intercepts are not at the moment used as evidence in trials but other countries use them without seeming to run into intolerable difficulties. I have seen suggested in the press that the Government are thinking again about that issue. I should be interested to know whether that is true.
Both my noble friend and the Joint Committee criticised the drafting of the Act. Although those perhaps are not the most important points in either report, I understand that the Government—as I have already indicated—will consider the possibility of correcting the drafting. If that is the case, the Criminal Justice Bill could be the appropriate vehicle to carry those amendments which would be quite short.
On the credit side, I am glad that my noble friend Lord Carlile of Berriew had no criticism of any case in which a detention order had been made. It is welcome that the number of detention orders is small and totals only 15. It is also welcome that the Human Rights Act and the European Convention on Human Rights have shown through the recognised derogation procedures a flexibility which has made it possible to meet the Government's objective of detaining people who 1298 cannot be deported but are a threat to the security of the United Kingdom without committing a breach of the convention.
As I said, we do not oppose the order today but I warn that the position may be different next year. We shall certainly need to be satisfied that the threat from terrorism then is still serious enough to justify a further continuance of the detention powers under Part 4 We shall also need to be satisfied that the criticisms made in the two admirable reports have been fully recognised and dealt with.
§ Lord Carlisle of Bucklow
My Lords, I believe that the passing of the Act by the Government was both necessary and right as the Government's fundamental task must be to provide for the safety of the people of this country who are under threat of terrorist attack.
Having said that, the sections we are discussing give enormous powers to the Secretary of State through his own certificate to provide for the detention of those whom he suspects of being a risk to the nation's security and of being involved in terrorist acts. That detention may be without limit of time. I believe that we would therefore be failing in our duty as a House to scrutinise the acts of the Government if we did not—as this order enables us to do—examine how those powers are being used.
I accept entirely what my noble friend Lord Bridgeman and other speakers have said. I, too, am sure that the Government will take good heart from the report of my near namesake, the noble Lord, Lord Carlile of Berriew, who accepted that the procedures followed by the Government and the Home Secretary in this area are wholly in accord with the principles of the Act.
I have two questions for the Government. One concerns the Special Immigration Appeals Commission. I refer to the odd concept of the special advocate who is entitled to receive evidence and papers which cannot be shown to the defendant or, in this case, the detainee. That evidence or those papers cannot be disclosed to the detainee in any way by the person who is appointed special advocate to act on his behalf. As I believe that the overwhelming duty is to protect the sources of information of those from whom we get our information, I see no other way in which such an appeal can be dealt with. I think I am right in saying that the position is in some ways similar to that which applied in Northern Ireland at the time of detention without trial, but it is an odd situation.
I understand that for some reason the power to appoint a special advocate apparently does not apply should there be an appeal against the tribunal's decision to the Court of Appeal on a point of law. The Minister shakes his head. I must therefore be wrongly advised on the matter and I happily withdraw the comment. However, I was going to say that if that were the case, I should very much hope that the Minister would reconsider the matter.
1299 As my noble friend Lord Bridgeman said, we would be failing in our duty if we did not pass the order tonight and extend the powers for at least another 12 months as they are essential to the general security of this country at this time.
§ Lord Filkin
My Lords, I thank all noble Lords who have spoken. The House recognises the sensitivity of the issues we are discussing. We are essentially balancing the liberties of an individual whom we believe to be a terrorist against the rights and the need for peace and security of our own citizens. That is a difficult judgment to get right in that one is balancing one set of rights against others.
We appreciated the support expressed by Her Majesty's Opposition and, in more guarded terms, by the Liberal Democrats, for the proportionate necessity of the powers. As regards the point of the noble Viscount, Lord Bridgeman, about the scale of reviews, the review will also be undertaken by the noble Lord, Lord Newton of Braintree, who is present. As the House knows, that review will be carried out by nine Privy Counsellors. They will examine anything that they think is of relevance to the legislation. They are requested to report by December 2003. I appreciate the calls on the time of the noble Lord, Lord Newton of Braintree. The House is grateful that he has agreed to undertake the review.
The noble Viscount, Lord Bridgeman, referred to the links mentioned in the report of the noble Lord, Lord Carlile. We believe that that issue is dealt with in Section 21(4) which defines links as meaning supporting or assisting international terrorism. We do not believe that there is a problem there but we shall reconsider the issue with an open mind, as was signalled in another place during the debate on the order.
I refer to the matter that so far all detainees have claimed to be Muslims. I am particularly alive to the sensitivities of that matter as in my other role as Minister responsible for race and faith I am in regular contact with many members of the Muslim community and discuss their particular sensitivities as British Muslims at this time. We are aware of that matter. The fact that someone claims to be a Muslim is no reason whatever for not detaining that person. One cannot discriminate on that basis. On the other hand, we have made it absolutely clear that generally to equate Muslims with terrorism is wrong and is a denial of the central tenets of the Islamic faith which is a peaceable religion.
We believe that the procedure as regards special advocates is fair and necessary. We will keep the issue under review. A point was raised as to whether the special advocate can be heard in the Court of Appeal. We believe that it is clear that they can do so if they proceed from SIAC to the Court of Appeal, and one can well see why there are good grounds for them wishing to do so.
The noble Lord, Lord Goodhart, made some points about the sunset clause. I would not deny that there are occasions when the House improves legislation, and 1300 perhaps those are some of the measures that have done so. I mentioned the review of the whole Act. The sunset clause will be a particular challenge, and we will have to look at it in a few years time but not immediately. I very much hope that he is right that it will be more difficult persuading the House in a year's time that there is not a continuing threat to the security of the nation. However, I cannot say I am optimistic about that, but we will come to it when we come to it.
It has already been noted that we have moved on Belmarsh. As the noble Lord said, the judgments were not those of the Government but of SIAC. We are glad that it is not delaying hearing such appeals now. There was something on the radio this morning that may have led to some confusion—it certainly did in my mind—as to whether the subject of intercepts was relevant. An announcement was made about consideration of the intercept evidence in court. In fact, there was confusion, and it was not in any way related to the order. I will clarify that with a note to the noble Lord.
The noble Lord also noted that there had been a small number of cases. Also, the flexibility of the ECHR made it possible to derogate while still standing firm to its other elements.
I am grateful to the House for the way in which it has supported the continuation of the order. It will be good when we are no longer in a position to feel that it is necessary to continue it, but we are not there yet. It may be some time before we are.
§ On Question, Motion agreed to.