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Lord Thomas of Gresford: My Lords, is the noble Baroness aware that the proceedings of the military tribunals have been condemned by the American Bar Association, the National Institute of Military Justice and the National Association of Criminal Defense Lawyers? Is she also aware that military tribunals have a disgraceful history, having been used to suppress the Sioux in the Indian wars of the 19th century? Many were condemned to death then, and they were reprieved only by the intervention of President Lincoln.

Will the noble Baroness confirm that the Government will press as hard as possible to ensure that the tribunals are opened up to the public and are held in public as far as is possible; that there are independent observers; and that the requirements of

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Article 14 of the International Covenant on Civil and Political Rights, which demands an independent and impartial tribunal at the first instance, are fulfilled?

Baroness Symons of Vernham Dean: My Lords, I am aware that some strong reservations have been expressed by the United States legal associations that the noble Lord mentioned. I am also aware that military tribunals are, in many countries, regarded as not being sufficiently cognisant of the separation of powers between the military authorities and the judicial authorities.

When I dealt with defence matters as a Minister in your Lordships' House, your Lordships spent a lot of time on the question of where the authority of military power ended and where judicial powers had to be invoked in our laws. I am bound to say that our justice system would not allow us to engage in a trial such as is proposed for anybody suspected of much less serious crimes.

All those issues are being raised by my right honourable friend. I was able to tell your Lordships in the Statement that I repeated that my right honourable friend had spoken this weekend to his opposite number in Washington. I assure your Lordships that he proposes to do so again later this week. I have seen a lawyer representing one of the British people who have been designated, and I shall be happy to see anybody representing the other individual concerned. All that is being fed to my right honourable friend for his discussions with Colin Powell.

Lord Morris of Aberavon: My Lords, I regret that I was not here for the beginning of the Minister's Statement. Does she know of any precedent for the proposals being put forward by the United States Government? How long did it take us to get consular access to the British citizens concerned?

Baroness Symons of Vernham Dean: My Lords, I do not know the direct precedent. We had some particular arrangements for the Lockerbie trial, but that is not a precedent. From time to time, in a world in which international terrorism is such that crimes are committed against a country's nationals right the way around the world by individuals from different jurisdictions, there may be one-off arrangements. It is not surprising that there is no precedent for what is being discussed here, but that does not relieve any country of the capacity or the responsibility for dealing with a trial as fairly as possible. On the issue of precedent, it is not surprising that we do not have anything direct.

A noble Lord: My Lords—

Baroness Symons of Vernham Dean: My Lords, I beg your Lordships' pardon. I did not answer the second point raised by my noble and learned friend as regards consular access. There has been no consular access because these are unlawful combatants. They were not in the position of nationals who might find themselves

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in prison on ordinary criminal charges. However, they have been seen by British officials five times since becoming inmates at Guantanamo Bay.

Lord Williams of Mostyn: My Lords, the noble and learned Lord, Lord Ackner, first.

Lord Ackner: My Lords, can the noble Baroness tell us, knowing how unsatisfactory this position has been for a long time, why we were prepared to ease the restrictions on extraditing in favour of the United States—a subject which was recently raised in this House? Why was that not used, for instance, as a bargaining position in order to achieve some helpful resolution of the current problem?

Baroness Symons of Vernham Dean: My Lords, as I understand it, those two issues are very different. These individuals were not extradited from the United Kingdom. They are individuals who were taken into custody by the United States outside the United Kingdom's jurisdiction from various parts of the world. Now, possibly, they are to be charged with terrorism. They have not been extradited from the United Kingdom.

The Earl of Onslow: My Lords, is it not true that the whole of the Guantanamo Bay issue brings United States' justice into disrepute? Does she not agree that military tribunals without the right of access—locking up for years and years—go against the whole tradition of Anglo-American justice? Would she muse a tiny moment on the prospect of peradventure the noble and learned Lord, Lord Williams of Mostyn, was in Opposition? I can hear his mellifluous Welsh tones thundering against the injustice of these cases; I would have been in complete and utter agreement with him. This brings the whole of United States defence of democracy, defence of liberty and defence of justice into disrepute.

Baroness Symons of Vernham Dean: My Lords, I made the point a moment ago that it is in the interests of the United States to listen very carefully to what its friends are saying. It is in the interests of the US because if it is not able so to do, I fear that many individuals and perhaps some Governments around the world will draw the conclusions that the noble Earl, Lord Onslow, is drawing. It is sometimes possible to thunder about these issues and at other times to speak in a measured but, none the less, forceful tone about what we now expect to happen. There is a great deal of work to be done. I suspect that there will be many conversations about this. It is the measured calmness of diplomatic and ministerial representations that are likely to get us closer to the types of measures that constitute a fair trial.

Lord Richard: My Lords, I think that I can assure my noble friend that the Government will have the support of almost everyone in this House for the actions that they take. Clearly, it is an appalling state of affairs. Those of us who have looked at the situation

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have come to the conclusion that it reflects badly on the United States, on its history and, indeed, on its traditions. I have one factual question: how many other British subjects are there in Guantanamo Bay who may find themselves in a similar position?

Baroness Symons of Vernham Dean: My Lords, I am grateful for what my noble friend said. Altogether, there are nine British subjects housed at Guantanamo Bay; that is, seven in addition to the two designated in this process.

Lord Avebury: My Lords, is not the best way of ensuring that our citizens get a fair trial to demand that they be handed over to British authorities for trial in our courts under the Terrorism Act 2000? If they have to be tried in the United States, would the Government ensure that the final rule—the regulations—which will govern the military tribunals are subjected to British legal experts for their comments? Particular issues are that the lawyer who will be defending not just our citizens but others too is a former military aide to President George Bush Senior; that the defendants, apparently, are to be offered the choice between pleading guilty and receiving a 20-year prison sentence, or the death sentence; and that the conversations between defence lawyers and their clients are to be monitored. Does she think that all those provisions are in accordance with the international standards that we are demanding?

Baroness Symons of Vernham Dean: My Lords, that is why the Government are voicing such strong reservations. I find it hard to disagree with many of the points raised by the noble Lord, Lord Avebury. The monitoring of conversations is certainly something that we would find unacceptable. The plea bargaining process in the United States applies to its criminal law; that is being applied now to these cases, very much in the way described by the noble Lord. It might be argued that it puts undue pressure on individuals to own up to crimes for fear of finding themselves exposed to the death penalty if they do not do so. I absolutely understand the point made by the noble Lord. It is a point that would strike anyone who looks at these papers.

On the question of demanding that the individuals be handed over, in the preliminary discussions we examined a number of different options with the United States, including the one mentioned by the noble Lord. Indeed, my right honourable friend the Foreign Secretary made that clear some months ago in another place. The United States has been clear back to us that that was not an option.

Lord Lester of Herne Hill: My Lords, has the Minister or her colleagues made it clear to the United States' authorities that the way in which a trial would take place in this country, under the Terrorism Act, would ensure a fair balance between open justice and the need to protect the security of the intelligence and security sources—that being Option A? Option B would involve the United States' federal courts, with

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their fine reputation for the due process of law, conducting a trial according to their ordinary procedures. Option C would be an international tribunal that was independent and impartial, established under international law to satisfy the requirements of the International Covenant on Civil and Political Rights. Have those three options been—or will they be—put forward as possible options to the United States?


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