My Lords, with the leave of the House, I shall repeat in the form of a Statement the Answer to an Urgent Question in another place. The Statement is as follows:
“The Government take their responsibility to protect the public seriously. We have been consistently clear, where there is evidence that crimes have been committed, that foreign fighters, for example, should be brought to justice in accordance with due legal process, regardless of their nationality. The specific process followed will always be dependent on the individual circumstances of the case.
The case of Alexanda Kotey and El Shafee Elsheikh is ongoing and obviously sensitive. In handling this case, the Government have complied with the ECHR and due process, and we must be mindful to protect the integrity of the criminal investigation. In this instance, and after carefully considered advice, the Government took the rare decision not to require assurances in this case, and it would be inappropriate to comment further on that specific case. Foreign fighters detained in Syria could be released from detention without facing justice. We have been working closely with international partners to ensure that they face justice for any crimes they have committed.
There is little further detail I am able to provide to the House beyond what the Government have already outlined in previous Statements. However, I can reassure the House that our long-standing position on the use of the death penalty has not changed. The UK has a long-standing policy of opposing the death penalty as a matter of principle regardless of nationality, and we act compatibly with the ECHR. In accordance with the Government’s Overseas Security and Justice Assistance Guidance, we have taken into account human rights considerations. The OSJA provides that where there are strong reasons not to seek death penalty assurances,
“Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance”.
On the issue of Guantanamo Bay, again our position has not changed. The UK Government’s long-standing position is that the detention facility at Guantanamo Bay should close. Where we share evidence with the US, it must be for the express purpose of progressing a criminal prosecution, and we have made that clear to the United States. We have planned and prepared for the risk posed by British nationals returning to the UK as Daesh is defeated in Iraq and Syria, and we are using a range of tools to disrupt and diminish that threat in order to keep the public safe. Each case is considered individually to determine which action or power is most appropriate.
I cannot say more about individual cases in this circumstance. However, the Government have set out the extent to which these tools have been used in our annual transparency report. We will also be introducing new offences in the Counter-Terrorism and Border Security Bill, which is being debated by parliamentary colleagues and which will strengthen our terrorism legislation to increase our ability to prosecute returning foreign fighters in future”.
My Lords, that concludes the Statement.
I thank the Minister for repeating the Answer to the Urgent Question.
Last Friday, the Minister wrote to me, on behalf of the Government, on the Crime (Overseas Production Orders) Bill, and said:
“With regards to death penalty implications, it is the long-standing policy of the UK to oppose the death penalty as a matter of principle. We will ensure that the operation of any agreement, including with the United States, is consistent with this position”.
Why, then, are we accepting a request by the United States to share evidence on the two individuals in question under mutual legal assistance, on the basis—to quote the Home Secretary’s letter of 22 June to the US Attorney-General—that,
“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought”?
Contrary to the content of the Answer to the Urgent Question, why did the Government not come to Parliament a month ago to disclose this complete change of approach and any reasons for it on a matter of basic human rights norms, however heinous the alleged crimes—a change of approach which is also contrary to the Minister’s letter to me of just four days ago?
My Lords, I reiterate that we oppose the death penalty in all circumstances. The Crime (Overseas Production Orders) Bill is about outgoing requests. It gives UK law enforcement authorities the power to request electronic data stored abroad where an international arrangement exists for use in UK investigations and court cases. We will ensure that any future international agreement is consistent with our long-standing policy of opposing the death penalty.
Perhaps I may also comment on the change of approach. We have not changed our approach. I refer noble Lords to the Overseas Security and Justice Assistance Guidance, which incidentally is long-standing. Part a) says:
“Written assurances should be sought before agreeing to the provision of assistance that anyone found guilty would not face the death penalty”.
Part b) reads:
“Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed ‘High Risk’ and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance”.
My Lords, we are told that the UK did not want to try these people in the UK because we were concerned that we did not have enough evidence. Clearly, the Americans also thought that they did not have enough evidence—otherwise, why would they seek assistance from us? If UK and US pooled intelligence is sufficient to convict the accused, the Home Secretary could have avoided this political and moral dilemma by asking the US for its intelligence and agreeing to try the accused in the UK. Why did he not do so? Did the Home Secretary and the Prime Minister decide that the death penalty should be an option?
My party’s position is clear: we oppose the death penalty in all circumstances in accordance with the European Convention on Human Rights Article 2 and Protocol 13, to which the UK is a signatory. We take a principled position on this issue. Can the Minister please clarify the Government’s position?
My Lords, does my noble friend agree that, whatever position one might take on capital punishment, the good people of the United Kingdom will be bemused by the sensibilities being shown at the moment? Any obstruction put in the way of the prosecution of these murdering terrorists by the British Government would not be understood.
My Lords, hard cases never make good law, however horrific these allegations are. Despite what the Minister has said, has not the principle of not sending anyone abroad to face trial where there is a possibility of a death sentence been abandoned? How will the Government deal with the cases of other British citizens who face the death penalty? How will they ever again be able to make representations on their behalf?
My Lords, I declare my interest as co-chair of the All-Party Parliamentary Group on the Abolition of the Death Penalty. As the noble Baroness will know, the APPG has for years worked for abolition, alongside the Government, and has been proud of the Government’s commitment to seeing the end of the death penalty everywhere. Death penalty campaigners from all over the world express gratitude to the UK and are grateful for what it does to assist them in the countries in which they work. This development will be a huge blow to the death penalty abolition movement, and will be widely publicised. Is it possible that there will be some statement or reassurance or explanation—preferably an explanation—as to why this case is so different that it requires the Government to overturn a policy that has been maintained for so many years?
My Lords, eight days ago, the Human Rights and Democracy report from the Foreign and Commonwealth Office said:
“It is the long-standing policy of the UK to oppose the death penalty in all circumstances as a matter of principle”.
When agreeing to send people abroad to stand trial in a country where the Government have not given a categorical assurance that the death penalty will not be used, how can that principle be upheld?
My Lords, I want to be clear on this. Is the noble Baroness saying that Her Majesty’s Government may or will provide evidence or information to the prosecuting authorities in a case that could lead to the death penalty? If I have understood that correctly, is she not dancing on the head of a pin when she says that we oppose the use of the death penalty in all circumstances, because this is a circumstance in which the death penalty could occur as a result of the direct actions of Her Majesty’s Government?
My Lords, I absolutely refute the implication that the Government would provide information that would lead directly to someone facing the death penalty. As I have outlined, the guidance is very clear about not seeking assurances, as opposed to sending somebody to face the death penalty in certain circumstances. The Government are quite clear that justice needs to be served.
My Lords, can the Minister shed further light on reports in today’s Telegraph that death penalty assurances were also waived in a case under David Cameron’s Government? How does that fit with the assertion that the UK still has a policy of opposition to the death penalty? She said there were strong reasons for waiving the seeking of assurances in this new case. Will she undertake to publish the assessment carried out under the policy on overseas security and justice assistance that approved the Home Secretary’s position, so that we can try to probe whether this is just angels dancing on pinheads and whether the UK has any policy whatever on this?
I assure the noble Baroness that a very similar question was asked in the other place, and the Security Minister has committed to write out on matters of precedent, as she has asked. The guidance is long-standing, having been in place for eight years.