Prevention of Terrorism Bill
Lord Lloyd of Berwick (Crossbench)
My Lords, as always, it is a pleasure to follow the noble Baroness. Save for one important respect, I agree very much with her remarks.
Five years ago, Parliament passed the Terrorism Act 2000 after full discussion and with all-party support. That is how things should be done—and that Act has served us well. A year later, in the immediate aftermath of 9/11, Parliament passed the Anti-terrorism, Crime and Security Act 2001, containing the now notorious Part 4 powers under which 16 terrorists were detained without trial at Belmarsh. That Act was passed in a very great hurry, and it would have been worse than it is had improvements not been made by this House.
In December 2003, the committee under the chairmanship of the noble Lord, Lord Newton, recommended that Part 4 of the 2001 Act should be repealed and replaced as a matter of urgency. But that was not done while there was still time to do it; for some reason, the Government waited until they were forced into action by the decision of the Law Lords on
My starting point is the nature of the present threat. It is clearly very serious but it is not new; it did not start with 9/11. I dealt with the international threat at some length in my 1995 report and it was dealt with at great length by my colleague, Professor Paul Wilkinson. Since 9/11, there have been some 35 terrorist incidents worldwide, only one of which was in Europe—the atrocity in Spain—and none of which was in the United Kingdom. In October 2001, the Government told us that there was no evidence of a specific threat to the United Kingdom; they repeated that view in March 2002. In March 2004, in reply to the Newton committee report, they said that to extend executive detention to British subjects would be a grave step, and that such draconian powers would do much damage to community relations and could not be justified in the circumstances. Those were their words, not mine. Yet here we are, less than a year later, being asked to give the Government just such draconian powers.
What has changed in the past year to justify such a change of view? That is a question that the Home Secretary has repeatedly been asked and has never yet answered. I shall answer it—nothing has changed; the threat is still the same as it was in March last year and the same as it was in the aftermath of 9/11. All that has changed is the decision that the Law Lords made in December; it is that perfectly correct decision, which the Government now fully accept, that has put the Government and all of us in this very difficult position. The Government were described in the other place as being between a rock and a very hard place; and so they are, but that is entirely their fault for not acting on the recommendation of the Newton report at a much earlier stage.
I shall add one more brief word on the nature of the threat. Last week, Professor Wilkinson, to whom I have already referred, chaired a seminar in the Jubilee Room on the subject of international terrorism. The panel consisted of three professors from St Andrews University and Southampton University and five other experts who specialise in the subject. They all agreed that the threat was very serious and continuing but that it was no different now from what it was in 2001. It has not got worse; indeed, they said that if anything the threat has diminished because of the effect of the war in Afghanistan, which has gravely disrupted the activities of Al'Qaeda worldwide.
I turn from the threat to the proposals in the Bill. I shall assume that the Government will win the vote on their amendment to interpose the decision of a court rather than of a Home Secretary. I accept that the new Bill deals with one ground of the Law Lords' decision; it deals adequately with the question of discrimination. This Bill is not discriminatory. But it entirely fails to deal with the other ground of the Law Lords' decision, which was that the measures proposed in the 2001 Act were not proportionate to the threat to which we were exposed. On that ground, they quashed the order. Exactly the same reasoning will apply to this Bill, if we pass it. Exactly the same fate will therefore befall the Bill.
It is helpful to follow through and see why that is so. Suppose that the Home Secretary comes across a group of suspected terrorists, whom he regards as so dangerous that they must be subjected to immediate house arrest. What does he do? First, he must make a derogation from the terrorists' rights under Article 5. Unless a derogation order is in force, neither he nor the judge has any jurisdiction to make a control order taking away the terrorists' liberty. The Secretary of State, then, applies to the High Court for a control order, as is now suggested, to place the suspected terrorists under house arrest. The High Court is a public authority within the meaning of the Human Rights Act 1998. It would be obliged to apply the provisions of Article (5)(1) of that Act. The judge, looking at that article, would find that terrorists cannot be deprived of their liberty unless they have been convicted by a competent court. Detaining somebody on suspicion is not the same as conviction by a competent court.
The Secretary of State will then say "That does not matter, because we have derogated". However, the judge will then say: "But you must satisfy me that you were entitled to derogate. We must either be in a state of war or face a public emergency which threatens the life of the nation". The judge would give those words their ordinary meaning; yes, there is a serious threat which may result in great loss of life—and many hundreds of people may be killed. However, can we seriously say that there is a threat to the life of the nation? That is the question which the judge will have to answer if he is going to make a control order. I suggest that he would, very probably, answer that question: "No". Certainly, if I were the judge in those circumstances, I would answer that question in the negative. I agree wholeheartedly with the view expressed in December by the noble and learned Lord, Lord Hoffmann.
Yet suppose the judge takes a different view, holding that—for some reason—he thinks there is such a threat. That decision would be subject to appeal. It would come to the House of Lords and, probably, end up in the European Court of Human Rights. Can one imagine that court deciding that there is an emergency facing this country which is not also facing 46 other nations which are party to the Convention? None of them has found it necessary to make a derogating order. Can one believe that the European Court of Human Rights would decide that we alone are the exception? I do not believe we can accept that. What would happen is that this Bill will fail, in exactly the same way as the previous one.
David Trimble was quite right, in the other place, when he said that these so-called judicial proceedings, which are to find a place in the Bill as a result of the amendment, are a charade. They are not judicial proceedings, as we understand them, at all; they are a sham. Judges are there to make decisions in court. They are not there to apply expertise in what was earlier called risk assessment. To require a judge to make this sort of decision would be to require him to do something in which he is not expert—and which no judge has ever been asked to do before.
I asked the noble and learned Lord the Lord Chancellor whether he had any knowledge of previous occasions when a judge had been asked to make such a decision. He could think of none, except upon an application for bail. Yet bail comes after a charge and before a trial. It is not a decision which may result in a suspected terrorist being confined indefinitely to house arrest. Such a decision is one in which judges ought not to be involved. It is essentially a political decision which would expose judges to a political backlash of just the kind from which it is our duty to protect them. I am deeply opposed to the Bill—for much the same reasons as those given by the noble Lord, Lord Waddington—and I hope that we will, in due course, say so.