Lord Keen of Elie (Con)

My Lords, I welcome the opportunity to respond to the Government’s Statement on separation centres and the independent review by Jonathan Hall KC. While the review itself contains important material, we must be frank about several critical issues that have been raised both in and out of Parliament. First, on the fundamental question of what threat we are talking about when discussing the need for separation centres, the reality is clear. Islamist extremism remains the predominant form of extremist offending within our prison estate. As the shadow Justice Secretary pointed out in the other place, Security Service statistics show that Islamist-related threats form the majority of the counterterrorism focus, and most terrorist prisoners in custody are convicted on Islamist-related charges. This is not a matter of debate but an acknowledgement of the practical threat that separation centres are designed to contain, and it must inform both policy and parliamentary scrutiny. Secondly, we have concerns about the Government’s stated intention to look at litigation based on Article 8 of the European Convention on Human Rights. While that may offer superficial reassurance, it is in fact Article 3 of the convention that is the real legal barrier. Article 3 is absolute. There are no exceptions, no public order or national security carve-outs and no limited derogations. It prohibits inhuman or degrading treatment or punishment in the strongest terms, as that may be interpreted. We have already seen its damaging consequences in our own courts. In the case of Abu v Secretary of State for Justice, the High Court found that prolonged segregation of a convicted terrorist, who was already in a separation centre, amounted to inhuman or degrading treatment, in breach of Article 3. It was found that Ministers had failed to account for his mental health needs adequately before imposing those conditions. This was a binding judicial judgment, applying the European convention directly to the operation of separation regimes in England and Wales. Let us be clear: Article 3 cannot be overridden or restricted by statute or ministerial policy; it is absolute. No amount of legislative tweaking proposed by the Justice Secretary will permit separation conditions that our courts find contravene Article 3. If the Government’s strong desire is to insulate separation centre management from litigation, they will find that Article 3 presents the true legal limit, far beyond anything provided by Article 8, which is a qualified act. I therefore ask the Minister to confirm precisely what steps the Government intend to take in relation to Article 3. How, in practical and legal terms, do they plan to deal with the fact that the law, as it stands, prohibits what is interpreted to be inhuman or degrading treatment, even in the face of compelling public safety arguments? In these circumstances, while we want to ensure that our prisons are safe, that our staff are protected and that dangerous offenders cannot radicalise others or cause greater mayhem, clearly there is a fundamental problem with the legal constraints imposed by the convention, and the Government need to address these.