Arresting issues?

On Sunday, 30 January, 2005, Sir David Frost interviewed Lord Falconer the Lord Chancellor.

Please note "BBC Breakfast with Frost" must be credited if any part of this transcript is used.

Lord Falconer the Lord Chancellor

DAVID FROST: Today's Sunday Times reports that there was a heated discussion at Cabinet last Thursday over government plans to bring in sweeping new powers for house arrest.

Draconian powers, they were described as by some, internment, by others.

Under the proposals the Home Secretary can issue a controlling order putting any British citizen under house arrest, indefinitely, without giving any reason.

The new measures are designed particularly to deal with suspected terrorists like those who have been held without trial at Belmarsh Prison.

The man in charge of the whole of our legal system is the Constitutional Affairs Minister and Lord Chancellor, Lord Falconer, Charlie, good morning to you.

LORD FALCONER: Hallo David.

DAVID FROST: Very good to have you with us. Let's start right there on that subject, since it's in the papers today and so on, and the thing is that that ruling, that rule, Lord Goldsmith is reported as saying here in the paper, but it might be anybody else as well I suppose, that he warned that the challenge might be made on the human rights grounds in the same way that the Law Lords overruled the detention of terror suspects held without charge at Belmarsh Prison, and this was an epic debate and Charlie Clarke is alleged to have overridden Home Office lawyers who told him they were opposed to that. Will, will these plans get through?

LORD FALCONER: We are going to bring forward proposals, I believe that they will get through. The position is that we as a nation do face, I believe, a very severe terrorist threat which since 9/11 has been different and much stronger than other terrorist threats. We, as a government as one of our main obligations, have to protect the public from that threat but we've got to do it within the law.

What the Home Secretary's proposing is that now that the Law Lords have said that the imprisonment of foreigners without any trial is beyond that which is allowed, he is saying let there be control orders, which means in effect certain conditions, such as having to report to the police or a curfew, will apply, in exceptional cases where there is evidence to support it and subject to a High Court judge saying that that is right.

Now that is not internment, that's not a police state, that is a sensible measure. A government has got to strike a balance between proper protection but ensuring that our basic liberties are protected.

DAVID FROST: But I mean it is draconian powers, nevertheless, I mean it can be done on the say so of the Home Secretary, that no one else has to approve, that Parliament doesn't really have to approve, that people can theoretically be there forever, that any one of our viewers could be picked up like that and no, no evidence would have to be given anywhere.

LORD FALCONER: No but that's a, that's a, that's a totally misleading, not deliberate I'm quite sure -

DAVID FROST: Of course.

LORD FALCONER: - a totally misleading account of it. First of all Parliament has got to approve the new powers. Secondly, the Home Secretary has got to have evidence on which he acts. Thirdly, it's got to be approved by a High Court judge. And finally, and we are the government that introduced this, if the judges think it's going too far then they can strike it down like they did in relation to the ...

DAVID FROST: But the fact - but at the moment though, at the moment, I mean no evidence has to be made public, does it? You can put a house arrest on somebody but no evidence has to be made public.

LORD FALCONER: That bit which needs to be kept secret for national security reasons will be kept secret. But a High Court judge has got to say it's okay or not. The fact that the Law Lords struck down the previous laws, which we fully accept, doesn't absolve us as a government from seeking to strike that balance.

And we've got to do that. We introduced the Human Rights Act which made sure the judges can look at the merits or otherwise of the proposals, but as a government we've got to try to strike that balance and that's what we're doing.

DAVID FROST: But at the same time I mean it does sound to most people like these are the sort of anti-general public measures that are brought in in time of war. And a war is a situation where one side tries to invade or conquer the other and we may be having a struggle against al-Qaeda but no one's suggesting it's a war - they're not about to invade us, they're not about to conquer us, it's an overreaction.

LORD FALCONER: Well I don't think it is an overreaction, we need to go through the detail of it but what do you do, for example, when you've got intelligence from, say, another country, which suggests there will be a brutal attack on, say, some public place.

If the way that you foil that is to make sure that there is some restrictions on what the individual can do, subject to approval by the courts, that does not seem an overreaction. We've got to strike the balance. We can't, as it were, walk away from the obligation to protect the public.

DAVID FROST: What about Guantanamo, Charlie? Are you, are you uncomfortable about what those four guys went through with Guantanamo? Are you unsure about it?

LORD FALCONER: Well I, I - I was extremely uncomfortable about the fact that for a period of time those in Guantanamo weren't subject to court control - ie: the courts didn't reach there at all. I'm very glad that they've come back now and they're subject to the court arrangements in this country.

Because at all stages, in our system, the rule of law applies and the court determine whether or not the state is acting in excess of its powers. And that's the great protection.

DAVID FROST: Are they, are they free men now? Are they free men in this country, or are they on some form of preparation for a house arrest?

LORD FALCONER: Well I'm not going to comment on what specific arrangements may be made, there are no charges against them.

DAVID FROST: There are no charges against them, so in that sense they are free men. And did we have to promise the Americans we would do anything about them in order to get them to release this, were there any promises?

LORD FALCONER: There are no arrangements of any sort. They are back here and they are subject to our laws.

DAVID FROST: And what about the whole subject which came up today, the House of Lords being kicked into the long grass and so on and Baroness Amos's words about that. You had said the thing about you hoped it would all happen early in the third term, but she says there's a lot of work to do and it's going to take a lot of time and we still haven't decided what the powers of the House of Lords should be so we can't decide what the membership should be. It sounds as though your target is slipping.

LORD FALCONER: No I think, I think we need to look very carefully at the relationship between the Lords and the Commons. Our democracy is hugely enhanced, I think, by having a second chamber that can scrutinise and make proposals about amendments to legislation. How it interacts with the Commons is a very, very important issue. We need to watch this space in the manifesto.

DAVID FROST: And so will it be a manifesto commitment?

LORD FALCONER: Well you'll - I mean I don't want to precede what the manifesto may say.

DAVID FROST: But you did reject it in the House of Lords.

LORD FALCONER: I said we need to address the issue in the manifesto. So you'll have to wait, I'm afraid David, until the manifesto comes.

DAVID FROST: Well I'm waiting - I rush round to the newsagents every day saying "Is it here yet, is it here yet. My favourite reading." On the subject of hunting, is the situation, as of today, after the rejection of the Countryside Alliance and before a possible appeal on February 8th, as of today, at the end of the month of February the ban will go into effect.

LORD FALCONER: That's the position as of today. The divisional court, the first instance court rejected the proposal to say it wasn't consistent with Parliament Act. There's going to be an appeal on the 8th February. What the appeal says we'll have to wait and see what the judges say there.

DAVID FROST: And what about if it was the, if it went to one of the European courts, as it were, does that also hold up the ban being put into effect? You would hold up the ban very gratefully, preferably 'til May 5th, but you would hold up the ban if legal action was in process here, would you also hold up the ban if it was in process in Brussels?

LORD FALCONER: Look, it's for the court to decide what order they make if there are further court proceedings going on. The court, so far, has made no order, but that's because the Court of Appeal is hearing it on the 8th of February.

We've just got to wait and see what orders, if any, the courts make in relation to that, even orders pending an appeal to a further appeal court.

DAVID FROST: And there is an authoritative sounding report today that they would not be, people arrested for going against the hunting bill would not have a criminal record.

LORD FALCONER: If, if they break the law, and hunting has been made a criminal offence, if they break the law they would have a criminal record.

DAVID FROST: Let's go to Moira for a moment, after this tour de raison.

[NEWS]

DAVID FROST: Charlie, coming back to you on that, what's your reaction to what we've been hearing from Iraq?

LORD FALCONER: Well we've obviously got to wait and see how the day goes. It is obviously democracy under assault but it's also the first steps in democracy. It's a very historic day for Iraq. We've seen so many people on the television during the course of this morning saying how very, very pleased they are to vote.

They'd never voted, sometimes in their lives, or in some cases for the last 50 years. If there is to be democracy in Iraq, and that is the aspiration, I believe, of the vast majority of the Iraqi people, this is the first step.

DAVID FROST: And do you think they'll be called free and fair elections, allowing for the obvious security contingents you have there?

LORD FALCONER: There's an independent electoral commission, the UN are there, they've been involved, there's the attacks we've been hearing about but they are free and fair elections. We obviously need to hear the judgement at the end of the process but it's a very, very important day.

DAVID FROST: And in terms of that, do you feel it's like a day of righting the wrongs and mistakes of the past year and half and so on, or do you feel this is a positive step forward? Or do you just feel it's a holding moment?

LORD FALCONER: We need to wait and see what happens by the end of the day and in the weeks and months ahead but it's a very, very important step towards the Iraqi people deciding for themselves their future. They are keen that there be democracy and so are we. They have been very brave so many of them.

DAVID FROST: And as a government, so you're responding today with hope.

LORD FALCONER: With hope, with real optimism but again we need to see how the day progresses.

DAVID FROST: Thank you very much.

INTERVIEW ENDS

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NB: this transcript was typed from a recording and not copied from an original script.

Because of the possibility of mis-hearing and the difficulty, in some cases, of identifying individual speakers, the BBC cannot vouch for its accuracy.

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