My Lords, I was not able to speak in Committee but, briefly, I will make a point that I think has not yet been made.
My noble friend the Minister reminded us, rightly, of the fundamental importance of national security and of combating the evil of terrorism by all effective means. I do not think that I needed to be reminded of that but he was right to remind us all the same. Equally, the noble and learned Lord, Lord Brown, reminded us of another fundamental matter, which is the parliamentary scrutiny of draconian powers before they enter the statute book.
If I were persuaded, as the Minister has suggested, that this debate and previous debates are adequate as a substitute for effective pre-legislative scrutiny, I would not support the noble Lord, Lord Pannick, but I am not persuaded of that. The issues are extremely complicated and even though I think that I am some
kind of international lawyer, I am certainly not going to analyse what Professor Guy Goodwin-Gill has said, even though I agree with him, or bore the House, as lawyers frequently could do, by going into a lot of technical detail.
What I want to do, and which gives rise to a question, is to deal with a point that the Joint Committee on Human Rights, of which I am a member, raised in our report and the way that the Government responded to it. In our report, we drew attention to the relevance of the European Convention on Human Rights and its various provisions, and we disagreed with the Government, whose position was that the European Convention on Human Rights had nothing to do with the issue. We went into the matter in paragraphs 45 and 46 of our report. In footnote 25 we referred to a case in which I was counsel for the applicants in the great case of the east African Asians against the United Kingdom.
That was a case which involved not national security but racism. It was a case where, to their shame, the then Labour Government persuaded both Houses of Parliament in emergency debates over three days and nights to take away from 200,000 British Asians, who were citizens of the United Kingdom and colonies, their right to enter and live in their only country of citizenship. By doing that, Parliament made 200,000 British citizens de facto stateless, even though a promise had been given to them by the previous Conservative Government that if they did not become local African citizens, they would be given the right to settle in this country. That promise was broken because of an extremely effective racist campaign mounted by Enoch Powell and Duncan Sandys, which led the Labour Government, with the support of both Houses, to pass that obnoxious legislation.
When we challenged that successfully before the European Commission of Human Rights, we relied upon two American cases. One was called Trop v Dulles. That was a case where under United States law somebody had been deprived of his American citizenship by Mr Dulles. The US Supreme Court said that under the American constitution, that was impermissible. The European Commission of Human Rights was impressed by that and it held that our Parliament had subjected British citizens to treatment that was racist and degrading.
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I say all of that—the noble Baroness, Lady Kennedy, is mistaken when she suggests that they could never have a case in America like it—because we alone among the 47 countries in the Council of Europe have no written constitution. We have no constitutional guarantees other than what is in the Human Rights Act and the Government are saying that the Human Rights Act has no application. In their response to the Joint Committee on Human Rights, they cite a SIAC decision called S1 and others v SSHD where apparently SIAC rejected the idea that Articles 2 or 3 of the convention would be engaged extraterritorially.
Let us suppose, for the sake of argument, that that decision by SIAC would apply in the context of the Bill and let us assume that the Government are right in saying that the European convention would have
no application. We have no written constitution. We have no constitutional court that would be able to rule upon the matter. Therefore the safeguards have got to be parliamentary safeguards. Judicial review could not review the compatibility of the Bill with the convention because, if the Government are right, the convention might just as well be written in water—it has no application. That makes me consider it absolutely vital that Parliament properly considers the Bill before this can go on to the statute book, in order to make sure that it is satisfied of the constitutionality of the Bill and its compatibility with human rights.
However well briefed the Minister is, he will not be able to answer these fundamental questions, which go way beyond arguments about international law, and I would not expect him to do so. However, his amendment and even the amendment of my noble friend Lady Hamwee do not provide the degree of scrutiny that in a parliamentary democracy lacking a written constitution only Parliament itself can do. We have not had that so far. To give it to a Joint Committee of both Houses to scrutinise first and for all these issues then to be discussed before them would be a way in which within our parliamentary system—of which I am proud—we can be sure that what is happening will be fit for purpose. For those reasons, I must disappoint the Government by saying that I strongly back the amendment of the noble Lord, Lord Pannick.