My Lords, it is a pleasure to follow the noble Lord, Lord Faulks. Before I say a word or two in the light of what he just said, I should explain that I put my name to Amendment 26 and support what the noble and learned Lord, Lord Falconer of Thoroton, said about it, but I also have my name to the Motion to oppose Clause 12—in other words, to propose that it should not stand part of the Bill.
I add just a word to what the noble Lord, Lord Faulks, said about the al-Skeini decision. As he will appreciate, if the decision of the Appellate Committee over which Lord Bingham presided had remained without further recourse to Strasbourg, we would not be discussing Clause 12 at all. I did not sit on al-Skeini, but I sat on a later case called Smith, which I know the noble Lord is aware of, where we had to consider a decision by the Strasbourg court in effect to reverse Lord Bingham’s decision. Indeed, the noble Lord referred to it. It was a very difficult decision for us because we had to analyse exactly what the Strasbourg court was talking about. One thing that emerged from our study of that decision was that it did not really believe that the whole of the convention rights could apply in a situation such as arose in Iraq. There were rights there that simply have no point whatever. It talked about it
being a slightly tailored approach to the convention for the particular situation in which our Armed Forces were placed.
We considered the matter very carefully, and one of the features of Smith is that, although we were divided on the issue as to the application of the Human Rights Act invoked by relatives of deceased servicemen, we were unanimous in the view that we could not escape the decision of the Strasbourg court. The current state of play, which the noble Lord, Lord Faulks, very rightly calls in question, is that, for the moment, there is a decision by the Supreme Court that we must follow the al-Skeini decision in Strasbourg and the Human Rights Act—the convention rights, in effect—so far as relevant, applies in the case of operations offshore.
I cannot escape from the fact that in the other part of the Smith decision, we, by a majority, declined to strike out the claims of the servicemen, one of which was referred to earlier this afternoon by the noble Lord, Lord Hendy, and, eventually, those claims were settled. Had we struck them out, we probably would not be as troubled by Clause 12 as we are now, but Clause 12 is there, so we must address it.
That brings me to my real point. I find it hard to know what to make of Clause 12. At first sight it is simply unnecessary. As has been mentioned, the power to derogate from our obligations under the European convention by means of a derogation order under Section 14(1) and (6) of the Human Rights Act 1998 already exists. It has been exercised from time to time, notably in 2001, by an order which would have allowed the indefinite detention of non-national suspected terrorists who could not be deported.
I use the words “would have allowed” because that order was set aside on an appeal to this House. That was because it unjustifiably discriminated against non-nationals on nationality grounds in comparison with UK nationals who were suspected of terrorism. We did not think it right in any way to interfere with the Secretary of State’s decision that the overall test of a state of an emergency affecting the life of the nation was set aside, but we did think that it was a disproportionate exercise of the power.
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I mention that case because it serves as a warning that derogation orders are open to judicial review, so the power is not something to be exercised lightly. But that is not the real point that I wish to concentrate on today, because I question the need for this clause. Where there is a power, as there is here, there is already a duty to consider whether, should circumstances require, it should be exercised. So why should the clause refer to that duty? It adds nothing to the existing law—so why is it there?
The Explanatory Notes shed little light on this mystery. They do make the point that there is a threshold that must be crossed if the order is to meet the criteria in Article 15 of the convention. Clause 12 says that this is where the operations “are or would be significant”. Article 15, on the other hand, says—as the noble and learned Lord, Lord Falconer of Thoroton, has reminded us—that derogation may be resorted to only:
“In time of war or other public emergency threatening the life of the nation”.
I found it rather hard to see how conducting operations overseas in themselves, if that is what we would be doing, could satisfy that test, even if they were or would be significant. The fact that the clause shrinks from using the words of Article 15 makes one wonder whether the meaning and effect of Article 15 has been properly analysed. There was no such problem in the case of the 2001 order. The suspected terrorists presented a very real risk to the safety of the public, and thus to the life of the nation, if they were not capable of being detained. For the moment it is enough to say that I wonder whether this clause is really facing up to what would be needed to justify derogation in this kind of case where we are operating overseas.
There is no sign either in the wording of the clause or in the Explanatory Notes that the Government have appreciated the other limitations in Article 15, to which the noble and learned Lord, Lord Falconer, referred. That provision states that no derogation from Article 2, the right to life, can be made except in respect of deaths resulting from lawful acts of war, or from Article 3, the prohibition of torture and inhuman and degrading treatment, or from Article 4.1, the prohibition of slavery, or from Article 7, no punishment without law.
There remains Article 5, the right to liberty and security—the only reasonable situation in which the power referred to in the clause could be exercised. That is what the 2001 case was about. Is this the purpose of the clause? Is it there so that our Armed Forces can lock up any people whom they happen to detain during their operations without trial indefinitely? If so, why does it not come out into the open and confine its scope to that article, which is really all that can be achieved?
As for vexatious claims, I suspect that almost all of them were directed to the ground covered by Article 3, the prohibition of torture and inhuman or degrading treatment—and, of course, that is something from which no derogation is permitted.
I therefore ask the question: is Article 5, the right to liberty, what this clause is all about? Or is there some other purpose? Is it there simply to send a message? If so, to whom, and why, and what is the message? These are vital questions and, unless the Minister can give clear and convincing answers to them, I suggest that the clause should be removed from the Bill.