Immigration, Asylum and Nationality Bill

I apologise that I could not be here for half of the speech by my noble friend. I put my name to the amendment to give me an opportunity to explain why the Government are misconceived in exercising their undoubted right to go to Strasbourg to seek to persuade the European Court to dilute or reverse its judgment in the Chahal case. It is an unfortunate thing to be doing, although the Government are perfectly entitled to do it. I do not think that seeking to do so sets a good example by a country with a very fine record. On my recent travels I did not get the impression in other European states that there was the slightest enthusiasm for what the Government are doing, even in countries that for political reasons have agreed to ally themselves with the British Government in their intervention in the Dutch case. Perhaps I could explain extremely briefly, especially because my noble friend has covered most of the legal ground, why I take that view. Anyone who wishes to see more detail will find it in the opinion that was expressed by the Joint Committee on Human Rights, of which I am a member, in our third report, HL Paper 75-1, particularly in the section between paragraphs 147 and 151. The basic proposition is not difficult to understand—the prohibition against torture is absolute; there are no exceptions. The Government accept that that is so. That absolute prohibition is part of our common law, Scottish common law, English common law and goes right back to the seventeenth century, as the noble Baroness, Lady Kennedy, pointed out in our recent debate. Article 3 of the European Convention on Human Rights probably owes as much to that British tradition, north and south of the border, as it does to a wider European tradition. It is perfectly clear that the prohibition against torture is not only written in the European Convention on Human Rights and in several treaties including the International Covenant on Civil and Political Rights and the UN Convention Against Torture, by which we are bound, all of which state it in absolute terms, but it is also binding now in customary international law, the law of nations, which does not require a treaty. It is what is known in Latin as jus cogens, a binding international legal standard. The question is: how on earth can that absolute prohibition be qualified when it is unqualified in customary international law and unqualified in international treaty law? My view, which is supported fortunately by the Grand Chamber of the European Court of Human Rights, is that it cannot be qualified. There is no balance between the prohibition against torture on the one hand and the threat to national security on the other, in legal terms. Fortunately, the issue has been decided not only by the European Court in Chahal and subsequent case law and in the UN treaty bodies, as my noble friend has pointed out, but it has also been decided after detailed argument last summer by the Supreme Court of New Zealand of seven judges headed by Chief Justice Sian Elias, a formidable jurist of a great court. It considered all these questions and looked at the only case in the Government’s favour, a Canadian case called Suresh, and it unanimously concluded that you could not balance the absolute prohibition against torture, even when confronting really evil people who are threats to the national security of the nation. You cannot submit them to the risk of torture if sent to another country. That leaves altogether out of the equation the separate question that my noble friend has raised, which is a more difficult question. The easy question is, ““Will the Government possibly win in Strasbourg?””. The easy answer is, ““No, they will lose””. They must know that they are going to lose, and they are going through the motions. The reason it is going through the motions I suggest is because after the atrocities in this country the Prime Minister said that the rules of the game must change, and the noble and learned Lord the Lord Chancellor said that judges might have to be instructed to interpret Article 3 differently. As a cosmetic device it was decided to go to Strasbourg in a quixotic way to tilt at windmills. That is what the Government are doing, and, unless I am very much mistaken, they are bound to lose. I see the Minister shaking her head. She and I are in an important contest against each other as to which of us is Peer of the year, and therefore we must be careful how we stake our reputations. Although she should certainly win that contest—and I will probably be shown to be an idiot here—but on this issue I predict that the Government will certainly lose, at any rate by a large majority in the Grand Chamber. The more difficult question is about memoranda of understanding. I do not take the completely dogmatic position that is taken by human rights NGOs. I think that there are circumstances in which a very difficult question has to be faced, which they do not face. The difficult question is this: suppose you have a really evil person, and suppose that person is someone who you have evidence against but not sufficient to try them in this country, and suppose they are alleged to have committed very serious crimes in a horrible other country, and suppose that country has in the past practised torture, but suppose that country then were to agree that under no circumstances will it do so and it will give clear conditions of a fair trial. Would that be something that violated our international human rights standards? That is before the Joint Committee on Human Rights at the moment, and that is one of the reasons we have recently taken trips to Paris and Madrid to see how those issues are confronted in France and Spain. Speaking purely personally and not on behalf of the committee, I was disappointed in hearing some of the evidence from some of the NGOs. When asked, ““Would you take part in monitoring these agreements?”” the answer was that under no circumstances would they do so. If that position is being taken by the human rights movement, of which I am a part, the practical question is, ““What would you do? Would you lock such a person up indefinitely without trial? Would you put them under house arrest? Would you tag them? Would you put them under close surveillance? What would you do, given those assurances?”” That question is not raised by Clause 7 at all. As I understand it, that clause is there in the event that the Government were to win in Strasbourg. If I were the advocate against the Government in Strasbourg, I would use Clause 7 as part of my argument, because the very way in which Clause 7 is structured shows the danger of a government victory on this question. It would weaken the prohibition against torture where national security interests were involved, and it would do so procedurally in a way that would, in my view, be destructive of the protection given by Article 3 of the European convention and Article 3 of the torture convention. In a way that is beside the point because I am not now saying whether it is sensible to have it there. It is not sensible, and I would prefer not to have it there for the simple reason that we should come back to it through primary legislation and debate it properly if that arose. At this stage, all that I am saying is that it is a very great pity in terms of our international reputation that we are seeking to undermine one of the truly great landmark jurisprudence cases, Chahal, in Strasbourg, for short-term partisan, political reasons. That damages our credibility in the rest of the world. It is very hard to explain that on the one hand we are totally against torture—we have a fine record—but on the other we want to qualify the prohibition by balancing it against national security. If the Minister thinks that I am wrong, I beg her to read the judgments of the New Zealand Supreme Court, which I hope will convince her. If they do not convince her, I certainly hope that they will convince the judges in Strasbourg in the way that they have convinced the judges in New Zealand. For those reasons, I support the thrust of the amendment.