Immigration, Asylum and Nationality Bill

moved Amendment No. 27:"Page 5, leave out line 1." The noble Lord said: The effect of the amendment would be to remove the Government’s power to repeal the clause. I am sure that your Lordships might ask why we are now opposing subsection (4), which gives the Government power to repeal a provision that we have just said is objectionable and ought not to be included in the Bill. I have to offer an explanation before I discuss the amendment. We are trying to get the Government to come clean on the reason for wanting subsection (4) as part of the clause. In Commons Committee it was shown that the Government were looking forward to a situation where the existing regime of international protection from torture may be seriously weakened. They want to persuade the European Court of Human Rights to depart from its jurisprudence that the prohibition on torture is absolute and that the prohibition on returning people to a country where they are at real risk of torture is also absolute. This matter is also discussed by the JCHR in its third report of session 2005–06 Counter-Terrorism Policy and Human Rights at paragraphs 123 to 152. A particularly important case that was cited by the committee was Chahal, where the Government wished to return to India a man who they had identified as being a threat to national security. The UK Government argued that the prohibition on return to a place where a person would be at real risk of torture was not absolute in national security cases and that removal of those who pose a threat on national security grounds should still be allowed. The Grand Chamber of the European Court of Human Rights rejected that argument in these words:"““Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhumane or degrading treatment or punishment . . . Article 3 makes no provision for exceptions . . . The activities of the individual in question, however undesirable or dangerous, cannot be a material consideration””." The court also rejected UK attempts to rely on assurances from the Indian Government that they would not torture Mr Chahal on return. I know that my noble friend Lord Lester, who has just entered the Grand Committee, intends to go into Chahal in much greater detail and with much greater legal knowledge than I have. In the mean time, I will give him a chance to catch his breath. As recently as 26 July last year in N v Finland the court followed Chahal, and the UK Government would like to persuade the court now to change its mind and have already sought to do so in a case against the Netherlands. The Home Secretary told the JCHR that it was not the Government’s intention to amend the Human Rights Act to give effect to the balancing test, although the committee noted that the Prime Minister had given evidence that was less reassuring. The Prime Minister wanted to get into a position where the European Court would be satisfied with the memoranda of understanding that we are signing with various countries including Jordan, Libya, Egypt and Algeria, countries which are not well recommended as being free of torture, and maybe other countries that are not on the list yet that also torture people. The idea is that in these memoranda of understanding it will be agreed that if we send people back to those countries they will refrain from torturing them. That is what Mr McNulty meant when he said in Commons Committee:"““Case law on article 3 may change in the near future to allow the risk of persecution to be balanced against the danger to national security. An assessment will be made on whether removal would breach article 3. As a result, SIAC may be required to examine the substance of the national security case””.—[Official Report, Commons Standing Committee E, 27/10/05; col. 300.]" As the JCHR noted in its report, there are no indications that the ECHR is at all likely to change its jurisprudence. Chahal was, after all, decided by the Grand Chamber in the specific context of the Government’s having judged the appellant to be a terrorist threat. One would like to know whether Mr Chahal has done anything since that judgment that has resulted in threats to national security. One would say, if he is living quietly in Birmingham or wherever, that that shows that the Government did not have a case to send him back to India. The recent House of Lords judgment in A(GC) and ors, on torture evidence, reaffirming the prohibition on torture and citing Chahal with approval, provides further reason to challenge the Government’s rationale for the subsection. We doubt whether it is possible to establish a system of memoranda of understanding, backed by effective monitoring arrangements and effective sanctions against breaches of MOUs that would satisfy the European Court of Human Rights. We fear that the Government are trying to undermine the global prohibition on refoulement to torture, which has existed since the Soering case in which the principle was established as long ago as 1989. I beg to move.