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Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for her reply. I understand exactly what she has said, but does she agree that it is in the public interest of the inhabitants of both our nations if the due process of law is applied by the United States courts to fill what our English Court of Appeal has described as the "legal black hole" that now exists in relation to the detainees in Guantanamo? Does she also agree that the concept of the due process of law is deep-rooted in our Anglo-American legal heritage, and that it is very important in terms of the wider interests of diplomacy that we demonstrate to the wider world that we apply that process on both sides of the Atlantic, even to suspected terrorists or people designated as enemy combatants?

Baroness Symons of Vernham Dean: My Lords, the Government always espouse the importance of the rule of law, no matter which country we are talking about. As we have previously discussed in your Lordships' House, one major difficulty about the Guantanamo Bay detainees has been the question of their status. We discussed this on 15 October, and the noble Lord, Lord Howell of Guildford, said that it was a difficult situation that needed to be resolved. The question now before the United States Supreme Court is a matter of United States constitutional law. The Supreme Court of the United States must decide by due process what is right on this question of jurisdiction.

Lord Howell of Guildford: My Lords, if, as is rumoured, some of these detainees who are British nationals are returned to this country, the Minister will agree, like all of us, that they could not conceivably be held without charges. Has the Minister heard the suggestion in some legal circles that some of these detainees, by taking up arms against this country as British nationals, could be charged with the ancient crime of treason? Treason can be committed on foreign soil, as all precedents in the law courts here prove. Either way, will she assure us that the appropriate authorities are finding out now, in anticipation of this move, what the alleged crimes of these British nationals are, and are preparing the ground before these individuals arrive back here and, as a result of no charges, are immediately released? That would raise serious questions for terrorism and public security.

Baroness Symons of Vernham Dean: My Lords, I have heard a number of suggestions about what might be done. Some of those suggestions are fanciful; others are serious. The noble Lord is right to draw our attention to the issue of security. There are important issues concerning the fair trial, if it was to take place, of any of the Guantanamo Bay detainees. There are also important issues about security. In discussing this question, it is wrong for us to focus entirely on one of

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those sets of issues and to ignore the important issues that the noble Lord has raised. I am grateful to him for doing that.

I expect that he will be anticipating the answer that the question of any charges is clearly not an issue for Her Majesty's Government. I am sure that the appropriate authorities will look at a whole range of issues, but that is not a question that is for me or for any of my colleagues as Ministers to decide. In this country we have the appropriate separation of powers.

Lord Hylton: My Lords, negotiations have been going on for months between Her Majesty's Ministers and the American authorities. Will the Minister say whether the Government have yet succeeded in obtaining evidence against the British citizens and former residents, which might enable them to be charged with crimes? Have the Government obtained the intelligence from the American authorities that would enable proper precautions to be taken in this country when these people are returned to this country, which I hope will be soon?

Baroness Symons of Vernham Dean: My Lords, the individuals involved have been detained for a long time—about two years. The two-year point passed just a few days ago. However, we have not been in negotiations for those two years; we have been in negotiations since the designations were made over Mr Abassi and Mr Begg earlier this year. I want to stress to the noble Lord that at no point have those negotiations been about the evidence. They have been about trying to secure a fair trial. The question of evidence is not a matter that would be appropriate for the Government to be negotiating on. As the noble Lord would expect, I am not able to discuss matters of intelligence from the Dispatch Box. I remind him that my right honourable friend the Prime Minister, when asked in an interview with Sir David Frost on 11 January 2003 about the length of time that it has taken, said that he hoped that one way or another the issue would be resolved in the next few weeks.

Lord Goodhart: My Lords, I must declare that I am one of the 175 Members of both Houses on whose behalf my noble friend Lord Lester of Herne Hill is acting. Is the Minister aware that the USA has applied its environmental protection laws to the base at Guantanamo Bay, with the result that the rights of endangered species of lizard are protected by American law, while the rights of prisoners, so far, are not? More importantly perhaps, what is the Government's view on the extent to which the circumstances at Guantanamo Bay comply with American obligations under international law, particularly under the International Covenant on Civil and Political Rights, to which the USA is a party?

Baroness Symons of Vernham Dean: My Lords, the noble Lord goes to the heart of the issue. I understand why he raised the fact that the United States has applied environmental law, and I take his point about the juxtaposition of lizards on the one hand and human beings on the other. This goes to the heart of

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the issue that is going before the Supreme Court. The question that the noble Lord asked about the application of American law elsewhere, in relation to Guantanamo Bay, is the question of jurisdiction and where the legal writ runs. I am not an extremely able and clever lawyer like the noble Lord. But even I can see that the point in the noble Lord's question is highly prejudicial to the overall point that is now going before the Supreme Court and which the noble Lord and many able parliamentarians will be a party to arguing before the Supreme Court.

Lord Monson: My Lords, will the Minister confirm a claim made in yesterday's Financial Times by a director of Amnesty International that many of the Guantanamo Bay detainees were not captured in Afghanistan, but were seized in countries as far apart as Bosnia-Herzegovina, the Gambia and Pakistan, and therefore are not, strictly speaking, enemy combatants. If that is so, do any of the British detainees fall into that category?

Baroness Symons of Vernham Dean: My Lords, that goes back to the whole question of what we mean by an "unlawful combatant". An "unlawful combatant" need not necessarily be someone captured on the field of combat, it may be someone in a supporting role. I do not wish to get into this difficult question, which has not been resolved, about the definition of what we mean by "unlawful combatant". The noble Lord is right; a number of individuals have been detained in a variety of circumstances and some have claimed that the ways in which they were detained were unlawful, and some have claimed that the ways in which they were detained meant that they were mistreated. I am aware of a range of issues that are claimed by those who are detained in Guantanamo Bay.

Patents Bill [HL]

Lord Davies of Oldham: My Lords, on behalf of my noble friend Lord Sainsbury of Turville, I beg to introduce a Bill to amend the law relating to patents. I beg to move that this Bill be now read a first time.

Moved, That the Bill be now read a first time.—(Lord Davies of Oldham.)

On Question, Bill read a first time, and ordered to be printed.

Justice (Northern Ireland) Bill [HL]

11.38 a.m.

The Lord President of the Council (Baroness Amos): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Amos.)

On Question, Motion agreed to.

House in Committee accordingly.

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Clause 1 [Transfer to Secretary of State of functions relating to Judicial Appointments Commission]:

Lord Kingsland moved Amendment No. 1:

    Page 1, line 5, leave out "Secretary of State" and insert "Lord Chancellor"

The noble Lord said: I understand that the expression "Secretary of State" in Clause 1 is intended to mean Secretary of State for Constitutional Affairs. I should be most grateful if the Minister would confirm that when he replies. We have no objection to the Secretary of State for Constitutional Affairs having these new responsibilities set out in Clause 1, as long as the Secretary of State for Constitutional Affairs is also the Lord Chancellor. The Lord Chancellor is constitutionally the member of the Cabinet responsible for the selection of the judiciary. He is also the head of the judiciary.

However, we are aware from various statements in your Lordships' House and from observations made in the press that there is an intention to remove the Lord Chancellor from his current constitutional responsibilities and replace him by the Secretary of State for Constitutional Affairs.

That is only an intention; we do not know whether it will come about. Even if it does, we do not know what will be the scope of the constitutional responsibilities of the new Secretary of State for Constitutional Affairs with respect to the selection of judges. In those circumstances, we believe that our amendment to replace "Secretary of State for Constitutional Affairs" by "Lord Chancellor" in Clause 1 is appropriate.

I have one other question to ask the Minister on this clause. The Explanatory Notes to the Bill state that the intention for the change in Clause 1 is to establish a Judicial Appointments Commission. Yet if your Lordships glance at the scope of the amendments to the 2002 Act in Schedule 1 to the Bill, you will see that they extend not only to Section 3(2)(b) of the 2002 Act, but also to Sections 5(3), 5(4), 5(6) and 5(7). That suggests that the Bill's scope is intended to apply not only to the appointment of the Judicial Appointments Commission but to the operation of the process of selecting judges in Northern Ireland once it is set up. I beg to move.

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