Immigration, Asylum and Nationality Bill

I have already cast my vote, but I am not sure that I can say the same. I say to the noble Lord, Lord Avebury, that it is not about the Government coming clean. The noble Lord is absolutely right about what we are seeking to do, and it was put eloquently by him and by the noble Lord, Lord Lester, in explaining precisely what the Government are seeking to do. The noble Lord, Lord Lester, talked about damaging our reputation. One of the areas of work for which I am responsible is that I am a justice Minister as part of the Justice and Home Affairs team in Europe. With the Home Secretary, I spend some of my working life talking to my colleagues across the European Union. This has been one of the issues that I have discussed in a number of counties in visits that I made during our presidency. Though not every country would see this as a priority for them, the noble Lord will know that as well as the UK joining the Dutch case, Lithuania, Portugal and Slovakia have also joined it. It is not fair to say, certainly among European Union colleagues, that our reputation has been damaged. People may not believe that it is the right thing to do, and others may not think that it is appropriate for them to do, but they have understood what we are seeking to do and have taken a positive view about the UK having the right to do that. Certainly in terms of the European Union I would challenge that. The noble Lord sent me the New Zealand judgment some time ago. I wish I had brought it with me, but it is at home. I had forgotten that the noble Lord would raise it; no doubt the noble Lord has got it with him. I am sure that the judgment is an important factor, but only a factor, in the deliberations that will take place in the European Court. I have something else to say about the original Chahal judgment from the perspective of the Government. Noble Lords more closely involved than myself will know the judgment was made in 1996. It was about the absolute nature of Article 3. There were 17 judges in the Grand Chamber, and seven of them took a different view. Their statements in part have led us to decide to join in the Dutch case, because those statements suggested that there was an alternative view that should be thought of. Seven out of 17, I submit, is a suitably large number on which it is right and proper to consider carefully what that minority view has said. The case that is currently going through is from the Netherlands, and the Justice Minister Piet Hein Donner, who has been a good friend and colleague of the UK for as long as he has been a Justice Minister, has discussed this with us and he has participated in allowing us to join in that discussion. It is clear that we are there to look at whether there is the ability to have the balancing test. This is an important opportunity to deal with this. I understand that the Dutch Government have been given until 24 January to respond to a variety of interventions that have been made in this case by a number of non-governmental organisations. We do not know what will happen: the Chamber could consider the case on the basis of the documents that they have already received, have oral hearings, or relinquish it to the Grand Chamber. Either of the latter options would result in a delay. As the noble Lord, Lord Lester, will know far better than I, the issue would need to come before the Grand Chamber if Chahal is to be overturned, if the Chamber considers the case as an opportunity to consider an appeal to the Grand Chamber. We take our national security responsibilities as seriously as noble Lords would expect us to do. Our position has been clear: we would not remove individuals contrary to our obligations under the European Convention on Human Rights. But we are equally clear that where individuals threaten our national security, and we can remove them compatibly with our international obligations, it should happen as quickly as possible. The noble Lord, Lord Lester, supports, and was kind in putting that forward to the Committee, the work that is going on in memoranda of understanding. I pay tribute to my noble friend Lady Symons of Vernham Dean, who has played a role in that, as noble Lords will know. Memoranda have been agreed with the governments of Jordan and Libya, and negotiations are underway with Algeria and Lebanon. The purpose of the memoranda is to make sure, on a case by case basis, that we are able to get reassurances about the treatment of an individual who would be returned. It would be for our courts to determine whether they are satisfied with the evidence that we put forward on that basis. That is an important safeguard in the memoranda, and we take it very seriously. They are evidence to be weighed up alongside any other evidence, but it is important to have them. In being able to say to the courts, ““We have an agreement that if the individual is returned to their country they will not suffer degrading or inhumane treatment or torture””, and that that agreement has been well made and the appropriate monitoring arrangements are in place, the courts would be able to look at that as evidence. We think that that is right and proper. We see no reason why it should not be the basis on which good discussions can take place and where the courts can take that into account. The agreements are made at the highest level and should be treated with the seriousness with which I am sure your Lordships’ House would treat them. In addition, we felt it right to intervene in the case to test whether the minority judgment, as it was, could be reviewed and the court come to a different decision. The noble Lord, Lord Lester, is absolutely clear in his own mind that the Government will fail. We thought very carefully before we intervened, but, on reflection and on looking at what the seven judges said, we believe that this issue needed to be tested and that if it were tested it would enable us to consider the question of national security. There is nothing that a government is more challenged to do: I would argue that the first duty of a government is the protection of its citizens. We would be wrong not to consider this issue properly. The noble Lord, Lord Avebury, is right that the purpose behind the subsection is that if the case were successful it would enable us to deal with the new case law from the European Court of Human Rights. I ask Members of the Committee to consider that the basis on which the Government are doing this is right and appropriate. We are working closely with our partners across Europe and beyond to deal with terrorism as effectively as possible. It is right and proper to consider carefully judgments in Strasbourg, not only in the context of the majority view but also the substantial minority view and to test that out. In dealing with a few individuals who could potentially be extremely dangerous to this nation, we must take those responsibilities seriously. That is what we have done. Win or lose, the Government are right to consider this. If we are successful, it is right to use this mechanism to enable us to enact what would be the new case law in Strasbourg. I hope that I have answered satisfactorily and that the amendment will be withdrawn.