Anti-terrorism Review

– in the House of Lords at 11:30 am on 4 March 2004.

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Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 11:30, 4 March 2004

rose to move, That this House takes note of the work of the Privy Counsellor Review Committee on the Anti-terrorism, Crime and Security Act Review Report.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, in taking note of the Motion, I ask the forgiveness of the House if I pray in aid the substance of the remarks my right honourable friend the Home Secretary used in another place on 25 February, where I know that there was a detailed and balanced examination of the measures contained in the Anti-terrorism, Crime and Security Act 2001. I am confident that we will undertake this process in a like manner, and I am aware that many noble Lords will wish to contribute to the debate.

First, I thank the right honourable and noble Lord, Lord Newton, and the members of the Privy Counsellor Review Committee for their dedicated work. We in the Government all appreciate the time, energy and commitment they have put into the task that both Houses gave them in the 2001 Act.

I also thank the noble Lord, Lord Carlile, for his continuing work and his further annual report on Part 4 of the Act. This report will be of great assistance to us when we come to debate the renewal of the Part 4 powers next week. Finally, I thank the members of the Joint Committee on Human Rights for their timely report.

When we first introduced the ATCS Bill into this House, we deliberated at length and knew then that we had to face a new and unprecedented situation because of the threat posed to the very life of this nation. We had to consider and debate difficult issues and balances between the need to protect the life of the nation and the need to preserve individual freedoms and rights—issues that go to the heart of our democracy.

The issues that we face now are no less difficult, two years further on. We still face the same threats and the same dilemmas. The Privy Counsellors' review has been invaluable in terms of reflecting back to us all the issues that we raised then and the way in which we have implemented the powers contained within the ATCS legislation.

Neither the Government nor the committee have shied away from the fact that this is an extremely complex area which requires us to examine carefully how we interfere with some of the most fundamental rights of individuals in order that we might protect the wider communities in which we all live and work. In this case, the balance we must strike is to find a proportionate solution that best protects us from the threat that international terrorism poses to us and to our allies while interfering as little as possible with the rights of individuals.

I cannot promise that I will have all the answers today, but as my right honourable friend the Home Secretary has been at pains to stress, he wishes to engage across the full spectrum of views so that we can fully consider how we ensure that we continue, both now and in the future, to have the most effective measures to fight terrorism and to deal with international terrorists.

A report of the stature of that produced by the committee demands the most careful and testing scrutiny. I can assure the House that the report has received this level of attention. The report has been one of the principal means by which the Government have been able to test the validity of their approach to counter terrorism. As such, it has been, quite frankly, invaluable.

The process of examination that we have undertaken, both in the form of statutory reviews and the ongoing internal process of ensuring that we have the necessary measures in place to protect us have demonstrated that there are no perfect solutions. Noble Lords would not expect, I think, a government to accept without reservation all the recommendations in the report, no matter how august the membership. That is the case in this report.

A significant section of the report and its recommendations dealt with the Part 4 detention powers. I will return to these in detail but it is important to be clear that while we appreciate the genuineness of the report's recommendation that these powers should be replaced as a matter of urgency, we believe that they are still necessary and proportionate and that none of the suggestions so far put forward would offer a complete or more workable alternative. While we understand the basis for some of the criticisms of these powers, they have worked and have made the United Kingdom a more hostile environment for international terrorists. There are, however, other suggestions where we are in agreement with the committee, and I shall outline them shortly.

As the final document to inform our debate today, I commend to the House the discussion paper that the Government published on 25 February, which includes our formal response to the Newton committee's report.

My right honourable friend the Home Secretary has produced a document which outlines the threat and the challenges that we face and, against this background, invites contributions on how to deal with international terrorists and the threat they pose. The challenge is how we deal with terrorists while protecting our democratic life and maintaining our commitment to the principles of democracy, good government, justice and the presumption of innocence—the very values that they seek to undermine. The discussion must occur in an environment that allows us to address the issues calmly, sensibly and in an informed manner, as we are doing today and have done in previous debates.

The Government welcome a number of the suggestions that the committee has put forward. We are considering further the idea of specialist terrorist cash seizure hearings. Consultation on this issue is being taken forward.

The Government have agreed with the committee's recommendation that Revenue departments should include statistics on the use of disclosure of information cases under Part 3 of the ATCS Act. We have already published information relating to the individual SIAC cases and Terrorism Act arrest figures on the Home Office website, as recommended by the committee.

The Government have agreed to revisit and renew the "Australia list" in Schedule 5 of the Act. The Australia list is a common control list of dangerous pathogens and toxins, and we are happy to amend in line with the latest scientific opinion. This is in line with the recommendation made by the Newton committee.

The Government have also acknowledged the points made by the committee in relation to Special Branch facilities at airports and ports and has been working closely with the relevant authorities for some time on how the situation is to be improved.

The Government agree with the committee that there is a need for data retention for the purposes of fighting crime and, in the light of the review committee's comments, are considering whether mainstream legislation is necessary in this area. The Government agree with the committee's recommendation on Part 13 that the noble Lord, Lord Carlile, should keep Section 117 of the Act under careful review. Section 117, with which I am sure noble Lords are familiar, creates an offence of withholding information relating to a terrorist incident.

For many years, governments of various hues have been subject to intense criticism for the approach they have adopted in countering terrorism. One of the constant refrains is that whatever approach the Government adopt, it is not the right and proper one. The main recommendation of the report in relation to Part 4 of the Anti-terrorism, Crime and Security Act was that we should, as a matter of urgency, replace them. The report states:

"New legislation should: deal with all terrorism, whatever its origin or the nationality of the suspected perpetrators; and not require a derogation from the European Convention on Human Rights".

I am afraid that there are very real difficulties in doing that. We need to look back perhaps at why we introduced those powers and the threat that we faced and, regrettably, continue to face today.

My right honourable friend the Home Secretary, whose responsibility it is to reach those conclusions, believes that there is a continuing threat to the nation. His decision is based on information from a wide variety of sources and is kept constantly under review, but it is a real and continuing threat.

That threat has been most succinctly described by the director-general of the security services, Eliza Manningham-Buller, who recently said:

"I see no prospect of a significant reduction in the threat posed to the UK and its interests from international terrorism over the next five years and, I fear, for a considerable number of years thereafter."

Having made reference to Eliza Manningham-Buller to illustrate my case, I echo the Home Secretary in formally recording our thanks to the Secret Intelligence Service, to the police and to all the other intelligence gathering agencies for their efforts in continuing to combat terrorism and to make the United Kingdom a safer environment. One of the principal difficulties they face is that the major part of the fight—prevention—is never seen or acknowledged. It is only in the aftermath of tragedy that we see whether a system, process or security measure has failed. My right honourable friend has the privilege and onerous duty of seeing the evidence of what they are doing and how they are doing it and of accepting the political responsibility for dealing with it.

I make no apologies for reiterating those comments or for reminding the House of examples of the atrocities that have been carried out by those whom we believe to pose a threat to the United Kingdom: in Bali, where 202 people were killed; in Casablanca, where 44 people were killed; in Riyadh, where 34 people were killed; in Jakarta, where 12 people were killed; and in Istanbul, where, at the end of last year, more than 50 people lost their lives, including our Consul-General and members of his staff.

Those are continuing threats that are taken seriously by all democratic nations, and rightly so, given the tremendous threat from Al'Qaeda, repeated by Osama bin Laden on numerous occasions. In February of last year, he said:

"We also point out that whoever supported the United States, including the hypocrites of Iraq or the rulers of Arab states, those who approved their actions and followed them in this crusade war to fighting with them or providing bases and administrative support to them or any form of support, even by words, to kill Muslims in Iraq should know that they are apostates and outside the community of Muslims. It is permissible to spill their blood and take their property".

That is a direct and continuing threat—not in theory, but in practice—to our lives, to the well being of our country, to the values that we hold and to our democracy. Our assessment was, and continues to be, that the threat is predominantly, but not exclusively, from foreign nationals.

The Home Secretary asks that in our consideration of those issues, some of which are extremely important, we bear in mind the nature and level of the threat and what it means to all of us. However, like the Home Secretary, I freely admit to addressing noble Lords with some trepidation, because when this House passed the Act, we debated the substantial dangers involved in any democracy taking such powers as we did when we enabled the Special Immigration Appeals Commission, as a superior court of record chaired by a High Court judge, to deal with those cases in circumstances where we knew that information pertaining very directly to national security would have to be provided to a court. We therefore established facilities outside the normal criminal justice system.

Many Members of both Houses raised perfectly legitimate issues about the challenge that such a course of action posed to human rights and the presumption of innocence. I stress that that is not a criminal trial process. It is an immigration power designed to address the fact that the threat comes principally, but not exclusively, from foreign nationals whom we cannot deport.

I can only reiterate that we did not take that decision lightly. In all other ways, the position we are in today is not one that any of us would have chosen, but the events of September 11 have fundamentally changed both the threat and the way that we must view it. We introduced the powers in Part 4 of the Act because we believed at the time, and continue to believe, that given the nature of the continuing threat and the absence of any credible alternatives, they offer the only way of protecting our security from international terrorists and from non-British citizens whom we could not remove from this country. We have brought those measures into being as a response to the most extreme circumstances.

It is perhaps worth pointing out that we cannot remove those foreign nationals precisely because we respect international conventions and the human rights of individuals who would be put at risk if they were returned to their country of origin, where they face possible death or torture. Our desire to remain within international law led us to derogate from Article 5. That is expressly provided for under Article 15 of the European Convention on Human Rights to the extent strictly required by the exigencies of the situation.

I acknowledge that the rights of individuals have been affected by our decision, but one of the primary roles of the Government is to take decisions which, while they may not be popular, they judge to be necessary to safeguard the country, so long as we remain within the law. I hesitate once again to repeat myself before the House, but we believe that the powers in Part 4 are a necessary and proportionate response to the threat we face.

I turn to a specific point raised by the Newton committee. It will come as little surprise to the House that, in the absence of any viable alternatives, we do not require a derogation or accept the recommendation that the powers in Part 4 be replaced as a matter of urgency. However, as I indicated earlier, we do acknowledge that a replacement will be necessary by November 2006.

The powers remain an essential part of the UK's fight against terrorism. We believe that, on the evidence produced, the individuals concerned pose a continuing threat. The Home Secretary has used the powers sparingly to date. Sixteen people have been certified and detained, two of whom have chosen to leave the United Kingdom, as detainees are free to do at any time. One individual has been certified, but is currently detained under other powers. In addition, in practice, my right honourable friend the Home Secretary has himself applied a higher test than that of "reasonable belief" required by the legislation.

The noble Lord, Lord Carlile of Berriew, in his second report on the operation of Sections 21 and 23 of the Act, found that the powers were used appropriately. The Special Immigration Appeals Commission has been hearing individual appeals since May last year. To date, it has heard 13, delivering determinations in 11 of them. In all 11 cases, SIAC has upheld the Home Secretary's decision to certify. I understand that all the individuals involved are seeking leave to appeal to the Court of Appeal against the determination. The House will also wish to be aware that this House is to hear the detainees' appeals against derogation later this year.

The challenge in the months ahead is to explore whether we can make existing legislative measures work more within the criminal justice system. We have a wide experience of fighting terrorism that is reflected in a wide range of criminal and terrorist legislation. That has been developed from the hard-won lessons of Northern Ireland. I believe that the United Kingdom has a good track record in securing prosecutions of terrorists directly under terrorist legislation. However, the position that we face now is a very different one.

The challenge that we face post 11 September 2001, and will face again as we debate the issue in the months ahead, is how to deal with circumstances in which prosecution and detention are not viewed as a discouragement, where we pre-empt the actions being taken by those for whom prosecution and punishment hold no fear. There are no norms when dealing with the suicide terrorism generated by Al'Qaeda and the networks working with it, in the way that there were in the past with terrorist groups that had a negotiating position and whose members sought to preserve their own lives, even if they endeavoured to take the lives of others.

The Newton committee has sought to address the issues, for which we are grateful. Among the ways suggested by the committee—

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am sorry to interrupt the Minister in full flow, but I wonder whether in her opening speech she will address the strong concerns expressed by the unanimous Joint Select Committee on Human Rights, in addition to the Newton committee. Will she also explain why the Government have rejected all the main Newton committee proposals with regard to Part 4, or will she deal with that by way of reply at the end of the debate?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I hope that I shall deal with them fully by reply. I do touch on those issues; I have already explained the basis on which we took the view that the derogation was appropriate. It was very much based on the very lengthy debates that we had before the Act was passed. The situation has not, regrettably, changed—and I do say regrettably. It would have been a hope and expectation of all of us that we may have been in a slightly happier position in that regard than that in which we find ourselves. However, as I have said throughout my opening remarks, that is the reality in which we find ourselves.

Among the ways suggested by the committee was whether one could take the lesser criminal offence. We shall explore that matter, and noble Lords will know that the committee raised that issue. There are profound questions: can we get in at the sharp end, and can we pick up the low-level criminality that is associated with terrorism? Those are not proposals but issues that we want to hear from people about. There are a lot of issues that we need to debate. The Newton report, and the noble Lord, Lord Carlile, made other suggestions for dealing with low-level terrorist activity and association. Some legislative measures have been implemented abroad, long before 11 September. We shall consider those measures. While those examples might help to deal with low-level support activities, they could not offer an effective substitute for the protection offered by Part 4 powers.

We are currently conducting a review that will address the use of the intercept evidence and whether it can be admissible in court proceedings. That is one issue flagged up by the noble Lord, Lord Newton. We invite views on that, and other suggestions, in terms of responding to the challenges set out in the discussion paper. My right honourable friend the Home Secretary has been at pains to stress that this is an open invitation, with only one proviso. The proposals must offer the population of the United Kingdom the most appropriate level of protection commensurate with the level and type of threat with which we are faced. As for the timing of any replacement measures, I would not wish to mislead the House by offering any false deadlines. What I can do is to reiterate that the existing powers offer the United Kingdom a level of protection for which there are currently no satisfactory alternatives. These, however, must be replaced by 10 November 2006, and the debate that we have entered into will inform that process.

Before I end, there is one point on which we must all be clear. As I have said elsewhere, the Government's fundamental duty in this matter is to protect their citizens. We do not claim that the powers that the Act introduced in Part 4 are perfect, but we suggest that they have been effective in addressing a specific threat that we faced at a specific time—a threat that is still with us today. We strongly believe that we have powers that offer a proportionate and measured response to the threat that we face.

I do not doubt that there will be many noble Lords who wish to raise other issues relating to Part 4. I shall attempt to respond to those issues as fully as I can in the course of the debate. There will no doubt be many other points relating to the other measures in the Act. Again, I shall endeavour to respond as fully as I can to these points.

I formally commend the Motion to the House and thank noble Lords for the attention that they have given to these difficult and sometimes uncomfortable issues, and for the way in which they have approached them and, I am sure, will do in this debate. We in the Government look forward to a stimulating debate over the coming months and sincerely hope that those who wish to take part will rise to the challenge of coming forward with ideas that will help us to address the concerns that they raise with us and deal with the very real national security concerns that it is our duty to tackle.

Moved, That this House takes note of the work of the Privy Counsellor Review Committee on the Anti-terrorism, Crime and Security Act Review Report.—(Baroness Scotland of Asthal.)

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative 11:56, 4 March 2004

My Lords, it is particularly important that the Minister moved the Motion, because, as I was going to start by saying, it would be slightly disingenuous of me to welcome the debate in view of the fact that it is virtually essential for the Government to pass the Motion. Under Section 123 of the Act, the result of our report is that the whole Act would disappear into thin air were it not debated by this House. I say that in no spirit of suggesting that force majeure was necessary, as we actually made the recommendation in those broad terms. We decided that it was more sensible not to pick and choose bits of the Act, but to recognise that the Government would have a debate and to designate the whole Act for that purpose. Whether or not it is disingenuous to do so, I undoubtedly welcome the opportunity that the debate provides and the spirit in which the Minister spoke.

The first thing that I must do is to pay tribute to my fellow members of the committee, not only for the amount of time and effort that they put in but for the totally non-partisan way in which they approached the matter. Indeed, at one point I contemplated following the example of the noble Lord, Lord Ryder, when speaking about the BBC the other day, and going to a different part of the House to emphasise that point. On the committee there were nine Privy Counsellors, consisting of two former Conservative Ministers, of whom of course I was one, three former Labour Ministers, including a former Secretary of State, a senior Labour Back-Bencher, two widely respected Liberal Democrats and a distinguished Law Lord. Our conclusions and recommendations were unanimous. As I said when the report was published, I do not believe that if the proverbial fly on the wall had been present at our deliberations, he or she would have been able to tell which of us was coming from which direction, and which was our partisan allegiance. They might possibly have detected that the noble and learned Lord, Lord Browne-Wilkinson, was the Law Lord, but as for the mere politicians, I believe that they would have found it difficult to sort us out.

Against our collegiate and consensual background, I find it mildly ironic that the report has been so often short-handed as the "Newton report". That kind of imperialist grandeur is something that I tried to avoid, successfully for the most part, throughout my ministerial career. However, I seem to have got stuck with it on this one, no doubt because of the length of the alternative, which is the Privy Counsellor Review Committee on the Anti-terrorism, Crime and Security Act Review Report.

There was one other matter on which the committee was and is united: our appreciation of the heroic efforts of our small secretariat, comprising Angela Harris, John Pavel, Alan Pitt and Shabs Hariff. Anyone who has had the time to read the report as a whole will marvel at the amount that was done by only four people in the secretariat to support and help us. The amount and quality of their work was exemplary and the support that they provided to us was exemplary. Lastly, and to some possibly a little surprisingly, I would like also to thank the people from the Home Office, not least, and elsewhere in Whitehall, who contributed to our work. Whatever they thought or think of our report, they gave us a great deal of assistance in completing it.

I had initially anticipated that this might be a Select Committee-type debate in which my task would be to set out our stall. In fact, for reasons that I understand and do not complain about, it has taken a slightly different form. In any case, it would have been neither possible nor appropriate for me to deal in any detail with all 14 parts of the Act or all the nearly 60 conclusions set out on pages 10–17 of our report. We continue to hope that the Government are listening but no doubt it can be argued that the committee has had its say and should now itself listen as much as talk. Nevertheless I think it right, as chairman of the committee and in the context of this debate, that I should take a few minutes to set out what I see as the main thrust of the report.

I want to emphasise that there is no difference between the committee and the Minister, or indeed the Home Secretary in another place, in their views of the fact that there is a problem and of its overall nature. We took the view that it would be prudent to assume that the terrorist threat is of a nature that may warrant special legislation and that it is likely to be with us for a number of years to come. In considering whether particular measures were justified, we took as our starting points the rights of the individual to privacy and liberty and the duty of the state to maintain security, as did the Government, although we did not always reach the same conclusions. The nub of the issue, as the Minister said, is to ensure that the balance between those two imperatives is properly struck in cases where they conflict.

In general, we felt that, where possible, the mainstream criminal justice system should apply to terrorism, just as it does to crime that is motivated by more conventional objectives, such as self-enrichment, although many terrorists may commit such crimes. This may be a point of difference from some of the things that have been said by the Government. We recognised that special anti-terrorism law can be justified because of the way that terrorists operate, which makes them hard to catch and convict, and because of the risks that they pose. It needs to be principled and properly considered and to command broad support. We consider—this is the possible point of difference—that emergency anti-terrorist legislation, or even anti-terrorist legislation designed to last over a longer period, which is what we are really talking about now, should be segregated from the mainstream criminal justice law and should be accompanied by proper safeguards so that the balance between the rights of the individual and the need to maintain security can be preserved.

I see the noble and learned Lord, Lord Lloyd, in his place, which I very much welcome, as I welcomed the supportive comments that he made both during our deliberations and following the publication of our report. I mention the noble and learned Lord principally to observe that at the time that the Terrorism Act 2000 was passed the Government appeared to take the view that the right approach was anti-terrorism legislation that was separate and distinct, self-standing but linked in some ways with other legislation. We set this out on pages 28–33 of our report. The committee felt that it continued to be the right approach and that what the Government argued in relation to that Act is just as valid now as it was then.

The background to the report, and therefore to this debate, was the concern in this House at the time that the Act was passed that led to debate, I think, in the middle of the night. At any rate, the insertion into the Bill at a very late stage of the clause that led to our establishment gave the House some reassurance that there would be a review. That is what produced our report.

There is no point in me, any more than the Minister, disguising the fact that the most controversial and difficult issue raised by the Act is Part 4, which makes provision for cases where there is persuasive intelligence that a foreigner has links to Al'Qaeda but it is not useable in court, so that he cannot be prosecuted and where, although he is a foreigner, the authorities judge that it would not be possible to deport him, for the reasons on which the Minister touched. I have no doubt that a lot of the debate today will focus on Part 4. The Minister also made the point that it is well known that, since it is contrary to the right to liberty under the European Convention on Human Rights to detain someone pending deportation if there is no real prospect of deporting him, Part 4 effectively disapplies the right to liberty in this context and so requires a derogation.

We currently have an immigration-based framework for detaining without charge, potentially indefinitely, a narrow group of foreign suspects who it is thought cannot be prosecuted and who cannot be deported. This is the point that concerned us, which was acknowledged by the Minister. I continue to feel that this gives rise to several general issues which need to be addressed and I am not entirely comforted by what the Minister said today or by what the Secretary of State said in another place last week.

First, there is the fundamental question of whether the best thing to do with these people is to move them to somewhere else. It has been made even more of a question by the emphasis that the Minister placed today on incidents taking place abroad, some of them involving Britons and British property. Is this a sensible approach? It is a fundamental question because it is the basis on which this law stands. It is immigration law and it rests on the proposition that if someone can go somewhere else—and as we know, two individuals have chosen to do so—then that is the best outcome. I question that.

The second point is how the threat from British nationals suspected of involvement in extreme Islamist terrorism is handled by the authorities. How can that be tackled? I imagine that it will arise in the case of anyone returning from Guantanamo Bay. It would be interesting to hear more about how that is to be addressed. Although the Minister this afternoon put heavy emphasis on "predominantly but not exclusively" and then I think that she said "principally but not exclusively", I need to remind the House that we touch on this point in paragraph 193 of the report, where we say:

"The British suicide bombers who attacked Tel Aviv in May 2003, Richard Reid ("the Shoe Bomber"), and recent arrests suggest that the threat from UK citizens is real. Almost 30% of Terrorism Act 2000 suspects in the past year have been British. We have been told that, of the people of interest to the authorities because of their suspected involvement in international terrorism, nearly half are British nationals".

There is a real question there that I have not heard clearly addressed.

Then there is the third large question of why no other country has found it necessary to derogate from the ECHR in order to deal with extreme Islamist terrorism. I must add that, having read the document published a week ago and the two sections on how these matters were handled in France and Germany, it seemed to me that that question got larger rather than smaller. It needs to be addressed.

In the report we also touch on a range of questions on more specific issues relating to the fairness of the appeal and review procedure that currently operates. For the reasons set out on pages 48-62 of our report, we concluded that the shortcomings of the system are sufficiently serious for us to recommend that it should be replaced, as the Minister said, as a matter of urgency by one that is better able to meet the full extent of the threat and would be more acceptable in human rights terms.

We can, no doubt, debate at length the precise meaning of "matter of urgency". My experience of British government is such as to know that "urgency" in dealing with this kind of thing is not a matter of next week or even next month but of a longer period of time. The point is that we feel that the issue needs to be addressed urgently and as soon as possible. I do not know whether all members of my committee would agree with that slight rephrasing, but I think that that is the thrust of what we had in mind. As noble Lords who have read the report will know, and as indicated in the Minister's speech, we made a number of suggestions on the elements of a possible successor system, including, of course, reference to the possible ending—we think desirable ending—of the ban on the use of intercepts in court, on which the Government's review appears to be taking an interminably long time.

I should emphasise, however, that we do not see any one of these measures on its own as an alternative. We felt that a range of measures in some combination—perhaps with others that we did not think of but that the Government may be able to come up with—could form the basis of a more satisfactory approach.

Although I have concentrated on Part 4, as other speakers in the debate may well do, there are many other provisions here that apply in general to crime and security, and in particular to extra powers for the police, to disclosure and to a range of other things. Those have had relatively little attention so far, but I hope they will have a bit more in this debate. In most cases we felt that the powers were largely justified, but in several—notably the information disclosure provisions—we felt that additional safeguards were required. I know that the noble and learned Lord, Lord Browne-Wilkinson, wants to say more about that issue later in the debate. In general, we felt that, over time, as opportunity arises, most of these provisions should be more clearly incorporated in what we have put in shorthand as "mainstream" legislation.

I shall not attempt to discuss further those other matters now because it would take too much time. However, I should like to make one brief comment on Section 124 of the Act—which appears to me, and appeared to the committee, to be the ultimate Henry VIII power, and which I think will become even more difficult to justify in the context of longer-lasting legislation. In my view, it is not very justifiable at present.

The committee, like the Minister today, set out to be balanced, considered and constructive, recognising the real difficulties faced by the Government and not pretending, any more than the Minister did, that there were quick or easy answers. I hope that the House will feel that we successfully reflected that approach. We were, of course, somewhat disappointed by the tone of the Home Secretary's initial response and, in many ways, of the document published last week—a document which I am bound to say bore all the marks of being rather hastily cobbled together. However, just as the committee sought to concentrate not on complaining about how the legislation was passed in the first place but on how to get something better for the future, so I prefer to concentrate not on that, but on building on the far more constructive tone adopted by the Home Secretary in another place last week and, notably, by the Minister in this House today.

I can perhaps convey something of the flavour of that by quoting from part of what the Home Secretary said last week. He said:

"I intend to have extensive consultation over six months, in which we will invite Members of Parliament"—

I assume that "Members of Parliament" includes Members of this House—

"the public and those with a specific interest to come forward and to build on the propositions in the reports that I have mentioned and the challenges that we put in our paper".—[Official Report, Commons 25/2/04; col. 298.]

The Home Secretary made it clear that part of his purpose was not to wait until we are within a few months of the sunset clause that would put paid to Part 4 in November 2006, but to have a properly considered way forward worked out well in advance. That echoed the phrasing which I also very much welcomed in the document published last week. At page ii, it states:

"I therefore hope that this document will begin a wider debate over the next months. It is important"— this is the point I want to emphasise—

"that this process should be inclusive and genuinely consultative".

I agree with that in spades.

Whatever the differences between us, and I have to acknowledge that there seem to be quite a number of them, I welcome the fuller opportunity for reflection, consideration and greater engagement, both with Parliament and with other stakeholders, which I believe is essential if we are to achieve a more broadly acceptable, and therefore more sustainable, approach than it appears to the committee and myself that we have yet achieved.

The fact that the Government are now looking ahead in this more considered way and at least acknowledging the need to address some of the questions we asked is itself a significant advance on anything we detected during our review. I think that all of us who took part in it will welcome that. We shall not, of course, be able to take part as a committee, because we no longer exist; our secretariat, having published our report on 18 December, had disappeared by 21 December. However, I am sure that we shall seek to take part as individuals, as no doubt will other noble Lords to whose contributions we look forward today.

Photo of Lord McNally Lord McNally Shadow Minister (Broadcasting), Culture, Media & Sport, Deputy Leader, House of Lords 12:16, 4 March 2004

My Lords, I should—and I do so very willingly—pay tribute to the noble Lord, Lord Newton, his committee and its staff. As has been pointed out, that committee was very much a creation of this House and a condition for passage of the original Act. I can only say that it has done us proud. I associate those remarks also with the work of the noble Lord, Lord Carlile, whose report is also under review today.

My starting point may seem a rather odd place—it is the south Pacific, or, more particularly, the film "South Pacific". At one point, the doomed hero in that film, Joe Cable, says, "I know what I am fighting against—what are we fighting for?" Roosevelt and Churchill very wisely recognised that point during the course of the Second World War when they put into the Atlantic Charter the four freedoms: freedom of speech, freedom of belief, freedom from want and freedom from fear. They recognised that it was important that people knew what they were fighting for. It is worth reminding ourselves that, in that respect, we are fundamentalists, too. We believe in those four freedoms, not just for ourselves but for all humanity.

Of course, we also believe in parliamentary democracy. At a moment of exasperation during the Second World War, Churchill described Nye Bevan as "a squalid nuisance". But he never questioned his right to harry and probe, even in war time.

I think that this House fully understands and appreciates the heavy burden that Ministers carry in this area. Defence of the realm is the first duty of government. In Britain we have managed to combine ministerial responsibility for national security with appropriate parliamentary scrutiny and accountability. However, we need to keep under constant review the issue of whether we are getting that balance right. We on these Benches recognise the tensions and conflict in our position. As the Minister rightly says, if a terrorist outrage occurred, the first questions we would ask are how it happened, why, and what went wrong. Yet we also want to safeguard human rights, civil liberties, privacy and the rest. This review gives us the opportunity to examine whether we are getting the balance right.

I think the House recognises, and we certainly did in 2001, that there are dangers in emergency powers; there is a danger of shelf clearing, to which I shall return later. There is also the danger of what I would describe as elephant dust: a man is spreading powder outside his house and his neighbour asks what he is doing. He says, "This is elephant dust to keep the elephants away". His neighbour says, "There isn't an elephant for 3,000 miles." "Effective, isn't it!", the man says. There is always the danger of slipping into legislation powers that appear to defend us but are rather illusory.

The noble Lord, Lord Carlile, looking at the operations of the Act from his position, gave the Act a clean bill of health, but even he said,

"Continuing scrutiny should be given to possible alternatives to detention and to the consequences of the sunset provisions in 2006".

In other words, he advised—and I hope that the Minister's reply today indicates—that the time between now and 2006 has to be used constructively. As the noble Lord, Lord Newton, has indicated, his committee was less enthusiastic, particularly about powers under Part 4.

As your Lordships will see from the speakers' list, I have an array of QCs behind me—the noble Lords, Lord Goodhart, Lord Lester and Lord Thomas of Gresford—who will be making their contributions later. But the key point to remember is that this is a high-grade review, built into the statute as a condition of its being passed in the first place. I well remember the debates and why the noble Lord, Lord Carlile, was given his responsibilities and why this special committee of Privy Counsellors was set up. As the noble Lord, Lord Newton, has emphasised, what they came up with was a package of proposals to identify and remedy concerns and weaknesses but with no approach of finding a single magic solution.

Therefore, without dwelling on it, it is a matter of regret that the initial response from the Government and the Home Secretary looked like an exercise in rapid rebuttal and a pitch for renewal of Part 4 powers in advance of a proper discussion. If we are to have this new, constructive approach, I urge the Home Secretary in particular to match his conciliatory words with similar action. I urge the Government to use this debate and next week's on renewal for second or even third thoughts. They must realise that the British people are instinctively against detention without trial. They are uncomfortable with the UK requiring a derogation from the European Convention on Human Rights, and they do not like what we call "Henry VIII" clauses to amend without further legislation. As the report states:

"The powers of amendment . . . are particularly unwelcome in emergency legislation of this kind, and should be repealed".

I think the man in the street sees the anomaly that the noble Lord, Lord Newton, referred to, that these provisions apply to foreigners but not to equally dangerous British nationals.

Let us learn a few lessons. We should beware of what I call "parliamentary bounce". Paragraph 333 of the report states:

"Some of these provisions appear to have been included in counter-terrorist legislation in order to take advantage of its accelerated passage and limited scrutiny, in order to avoid the difficulties which had previously been experienced in securing parliamentary approval".

That is the shelf clearing that I referred to earlier. The Home Office, among all departments, is the most adept at that.

As the first contributions indicated, this is not a matter of party political difference. We accept that a real and present danger to national security is posed by Al'Qaeda and similar terrorist groups. We accept that there is information about terrorism and terrorists which requires protection on national security grounds and to protect operatives who are gaining intelligence on our behalf. We accept that intercepts and surveillance of communications are of increasing importance. I echo the inquiry of the noble Lord, Lord Newton, into what is happening to discussions with the industry and others on a code on this matter. But we urge the Government—this will be a recurring message from this House—not to retreat into a bunker or to see parliamentary scrutiny as an exercise by "squalid nuisances". We have to be partners in getting the balance right between now and 2006 which allows counter-terrorism to be more securely based, both within due process of law and under proper parliamentary scrutiny. As the committee of the noble Lord, Lord Newton, stated:

"Our starting point is that the ordinary criminal justice system and established security methods must remain the preferred approach to tackling the crime of terrorism".

That does not rule out special courts or changes to the approach to intercepts as evidence, or as my noble friend Lord Carlile suggests, a new offence of "acts preparatory to terrorism". What we need to do is to make that balanced judgment.

The Minister referred to the work of the security services. I think that we all recognise that this is a difficult, dangerous and often lonely task that they undertake on our behalf. It is also true that their work has been made much more difficult by the change in nature of the threat since Cold War days. I draw the Minister's attention to a letter I had from the British Society for Middle Eastern Studies, which stated,

"There are too few graduates in Middle East studies and languages to meet the needs of government and NGOs . . . The cadre of experts in Middle East and Islam in the UK is dwindling", and that the "UK is declining" compared with other countries in investing in Middle Eastern and central Asian languages. I wonder how that ties in with getting our security services prepared for this different kind of threat.

I also ask Ministers to beware. I was a little worried when the Home Secretary announced 1,000 extra recruits to MI5. If you expand a security service rapidly you have to be very careful that mavericks do not slip through the net. While piling the praise on the security services, our history since the Second World War is not entirely without blemish and there are dangers that government and Parliament should remain alert to. During this process I hope we can review again whether parliamentary surveillance of the security services is right and proper to the needs. The intelligence committee could be set up as a full parliamentary committee. Perhaps we could even reconvene the Committee of Privy Counsellors of the noble Lord, Lord Newton, although the security of Privy Counsellors is not always what it used to be.

I conclude by repeating what my colleague Alan Beith said:

"Many of the recommendations go far beyond terrorism, and I therefore put in a very strong plea for the extension of the spirit of consensus".—[Official Report, Commons, 25/2/04; col. 348.]

That is my message and the appeal I make from these Benches. The final call on national security must be with the Ministers of the day and it is a heavy burden that they carry. But in this area, above all, consensus and national unity are essential if we are to make clear both what we are fighting against and what we are fighting for.

Photo of Lord Browne-Wilkinson Lord Browne-Wilkinson Crossbench 12:29, 4 March 2004

My Lords, as the noble Lord, Lord Newton, chairman of the committee to which I also belonged, said, I was the only non-politician in that body. It was a position which I often found awkward, not improved by the fact that I was also the only lawyer.

That said, I hope that note will be taken of the constitution of the committee. It covered the whole spectrum of political belief from right to left. It was not comprised of a bunch of wets and this was not an emotional bleeding heart response. The committee comprised a group of people who one would not always expect to agree, nor, indeed, did they to begin with, but they came to agree. That in itself is to my mind a matter of great importance because they demonstrated in a semi-representative way an attitude that there must be some limit to the extent to which the security of the majority trumps the need to treat the few fairly. At the end of the day, we all of us thought that detention under Part 4 was not a tolerable system in a civilised community.

That said, I do not propose to say much about Part 4 because I know that it is the subject on which everyone else would speak; I also have an interest in Part 3. However, I am immensely encouraged by the recent changes in position that have been forthcoming. One of the significant things that struck a number of us during our inquiry was that, apparently, no steps, or very limited steps, were being taken to examine alternatives to Part 4. It was just allowed to drag on. The ideas in our report—good, bad or indifferent as you may think them to be—were self-generated ideas based on evidence brought before us. They were not matters under consideration by the Home Office, and for that reason if for no other I believe that the committee has done valuable work; namely, that it examined the matter to see whether there were any alternatives. Let us hope that that is of help.

I move on to Part 3. I am sure that it is very familiar to all your Lordships, but I remind the House that Part 3 conferred powers on a certain number of authorities under Section 17 and, more importantly, on the Inland Revenue and Customs and Excise under Section 19, to disclose confidential information which they had received under statutory powers. Noble Lords may know—I hope they consider that this is the case—that in the past the Revenue has been scrupulous in the preservation of confidence regarding what is communicated to it. What is introduced by Section 19 is a power for the Revenue to disclose the information in your tax return and mine to the security forces and the police. If that power to disclose had been limited so as to make available information required for anti-terrorist purposes, I think that few people would have objected. But your Lordships may remember that there was an earlier Bill in 2001, about which your Lordships made some difficulty, which contained those exact powers to disclose information. Your Lordships objected to them and, in order to get the Bill through, the Government withdrew the clauses conferring those powers. Then when they introduced this anti-terrorism Act under pressure of time, they put straight back into it the clauses they had just withdrawn from the earlier Bill. In both cases, the clauses empower the Revenue to disclose information if it is required for the investigation of crime.

That was to my mind a fairly extraordinary thing to do. Under the powers as now inserted the Revenue can be called upon to disclose information relating to any criminal investigation in the UK and in relation to certain investigations outside the UK. That is subject to the requirements of the Human Rights Act, which requires the powers to be exercised proportionately.

The fact is that now, for the first time, we ordinary individuals are faced with having information disclosed in a tax return or a Customs and Excise form, however trivial the crime under consideration. That is a major incursion into our freedom. The case has nothing to do with terrorism. The Government said initially that it was necessary to have the power in order to make the terrorism legislation work properly—that it could not be limited to terrorism—but our inquiries never disclosed any reason why that was so. It remains the position that these rights to demand information are there to be exercised by the criminal authorities.

I hope that I shall be forgiven for quoting the only statistics we have on the matter. The Revenue has immaculately kept records of its disclosures. Apparently, no other government department has done so, despite the gross intrusion involved. Out of just 20,000 disclosures made by the Inland Revenue in a period of nine months in 2002, murder accounted for 821, 4 per cent; sex offences, some of which were linked to Operation Ore—which is the large American investigation—accounted for 9,157; drug offences accounted for 4,848; terrorism accounted for 701—that is, 4 per cent of the total disclosures related to terrorism—financial offences accounted for 3,390; violent crime accounted for 372 and others for 620. It is quite clear that the confidential information is not being used, even primarily, for anti-terrorism purposes. The use of those statistics in relation to terrorist offences is minuscule.

I had hoped that we might get a more positive response on that aspect of the matter and I still have hopes regarding the noble Baroness's reply. However, I suggest that this is a matter that we should look at as a general matter of principle. We recommended in the report that anti-terrorist legislation should be kept separate from mainstream legislation. I am sure that some people would say that a similar right to disclose confidential information should exist in relation to sex offences. On the other hand, few people would say that there should be a right to disclosure of confidential information in relation to driving offences, and yet that right exists however trivial the crime under investigation.

This is a truly constitutional point and very distinguished constitutional lawyers are present who will put me right if I am wrong. The whole basis of the English constitution is that the Government can do nothing more than any private individual unless Parliament so authorises. Therefore, every time we in Parliament give extra powers of this kind, we are pro tanto cutting down the freedoms of the individual in a way that is irremediable. Under the Human Rights Act, nothing can be justified by government if it is an unlawful act. What this measure is doing is to render lawful what was previously unlawful. I hope that your Lordships will one way or another find some way in which this matter can be investigated so as to get rid of what strikes me at least as a gross anomaly, and to try to see that these excessive powers are not in future given quite so freely.

Photo of Baroness Hayman Baroness Hayman Labour 12:40, 4 March 2004

My Lords, I start by paying tribute, as did the noble Lord, Lord Newton, to the support that we received from our small but perfectly formed secretariat and the help and devotion that they gave to the task, which was extremely difficult, not least because of the diverse nature of the members of the committee. That posed particular problems for its chairman and I pay tribute to the noble Lord, Lord Newton, for the way in which he navigated a difficult course, held us together and produced a unanimous report. I am sorry that he did not come to sit on these Benches, because I could then have called him "my noble friend". As the noble and learned Lord, Lord Browne-Wilkinson, said, it was a unanimous report from diverse individuals from diverse backgrounds. That is a reflection that I hope the Government will take to heart when they embark upon the discussion that they have initiated.

I am particularly glad to follow the noble Lord, Lord Brown-Wilkinson, for two reasons. First, he was the only non-politician on the committee. I believe that it was something of a culture shock for him to sit with us over 15 months and there were matters that he found truly shocking—culturally or otherwise—in some of the attitudes that were expressed. Equally there were times when it was refreshing and stimulating for politicians to hear his clearly articulated views—and the House has heard them today. He and I might find ourselves possessing different degrees of "wetness" on some of the issues. What we agreed upon was the way they should be treated by Parliament and the importance of separating out terrorist legislation from non-terrorist legislation, as the noble and learned Lord described. I shall speak for a moment or two on that, before moving on to other matters.

I, too, thank my noble friend the Minister for the tone that she adopted in introducing this debate. But she will forgive me if I say that she, of all Ministers, is the most adept at spinning gold from straw in some areas. She managed to find for us many extremely minor recommendations from our committee with which the Government could agree. When one examines the fundamentals, if one looks at not the tone but the words of the discussion document, I am afraid that their words are dismissive, although the tone may be conciliatory. We have a job to do over the next six months to change the words as well as the tone. We may have made a start in another place in a debate last week and I hope that we shall continue that in your Lordships' House today and beyond.

However, I am afraid that on all three issues that I want to deal with today, the Government have set their stand against that of the committee. The first issue is that of mainstreaming, to which the noble and learned Lord, Lord Browne-Wilkinson, referred in terms of disclosure of information. He made that case clearly, but there were many other areas of the Act where we considered that the provisions were sufficiently detached from the immediate terrorist threat or sufficiently wide-ranging to warrant ordinary parliamentary scrutiny, not the accelerated procedures that were available to the House under emergency legislation.

As well as the disclosure of information provisions, there were also provisions relating to the aggravation of certain offences by religious hatred—a deeply contentious, important subject which needs the most careful scrutiny; there were the police powers regarding fingerprinting and removal of disguises; and there was the extension of the powers of the British Transport Police. I would not contend that the wrong thing was being done in any of those areas. We would readily reach agreement that paedophilia was a sufficiently important offence to warrant that type of disclosure of information. But we ought to debate that issue separately. It is not simply an academic point; it is important, given that we legislators may again face an emergency situation. We may be asked again to shift the balance between individual liberties and national security and we should be reassured that when we do that it is laid down in the narrowest terms possible.

I am not trying to bring an enormous legislative burden and distortion to the Government framework and its legislative programme, most of which would end up on the shoulders of my noble friend, as it always does. However, a commitment to mainstreaming and to taking those opportunities whenever possible is an important commitment that the Government should make.

The Home Office also gave a dismissive response to the provisions in Section 124. I was shocked by their wide-ranging nature, which I did not understand when we passed them. Anything in the Act could be amended or repealed—and indeed in other legislation—by statutory instrument using the negative resolution procedure. The House was not told that, because the Home Office memorandum that was sent to the Delegated Powers and Regulatory Reform Committee said that the provisions would be considered using the affirmative resolution procedure. I do not suggest that there was any ill will or malevolence; I believe that a mistake was made. In fact those provisions are all subject to the negative resolution procedure. As we understood the matter, our own committee, whose deliberations were central to the reason why the House agreed to the Bill, could have been abolished by a statutory instrument using the negative resolution procedure.

I am not for a moment suggesting that the Home Secretary would have thought of doing that. But it is not right that those arrangements remain on the statute book in relation to legislation of such importance. Equally, I assume that the same would apply to the sunset clause. We all assume that the sunset clause is there, but it could be changed using not primary legislation but a statutory instrument and the negative resolution procedure. My noble friend may tell me that I am wrong, but that is my understanding.

However, in the problem we have the solution. An easy legislative mechanism is currently available to the Home Secretary: using a statutory instrument approved by the negative resolution procedure, the arrangement could be changed to one involving the affirmative resolution procedure. He could table that, make the disbenefit into a benefit and we could all sleep easier in our legislative beds. I hope that my noble friend will take that as a constructive suggestion.

I turn to the central conundrum with which our committee wrestled for a long time—the threat posed by an individual against whom there is the gravest suspicion of involvement in actions preparatory to terrorist activity; where there is a mosaic of reports and intelligence that builds up a case that a reasonable individual would believe to be substantive; but that does not currently provide admissible evidence in criminal proceedings. Do those circumstances—where, as a result of terrorism, all of us are enemy combatants and where the Government have an enormous responsibility for the protection of society—warrant divergence from the normal criminal procedure and normal evidential standards? In relation to other circumstances—other crimes and instances of terrorism—there may be the deepest of suspicions but we know that it may be impossible to mount a prosecution. In my view, yes, those circumstances do justify that. It is overwhelmingly a responsibility for a government to protect their citizens from terrorism, and I do not think that one can be absolutely purist in saying that we will never change the evidential or juridical framework in which we look at these cases.

On the question of whether Part 4 provides the best balance we can achieve between protecting the rights of the individual suspect and the safety of all citizens, my answer is "no" for two different reasons. My noble friend said that Part 4 was "necessary and proportionate". If it is necessary to protect us from this level of threat from non-UK nationals, it is also necessary to protect us from this level of threat posed by UK nationals. If that is so, we must have measures competent to deal with UK nationals as well as non-UK nationals.

I have grave reservations about the idea of exporting terrorism—that the best way to deal with this sort of threat from a non-UK national is deportation. That is because, of the sad litany that my noble friend put forward of deaths from terrorism and UK nationals involved, all of them have taken place outside the United Kingdom. I am not comfortable with the idea that people who are this much of a threat are able to pursue their activities outside the UK or—because we know the problems of identity fraud—that they can then come back under another identity and work within the United Kingdom. Criminal prosecution must be a more satisfactory approach. We must try and facilitate criminal prosecution, and there are a number of ways we can do that. There are suggestions in our report, in the report of the noble Lord, Lord Carlile, and in the discussion document.

On the discussion document, I fear we may get a whole range of other additional measures—such as inchoate offences, bringing surveillance evidence into court, the use of intercepts, possible aggravation of offences linked to terrorism, possible restraining orders that would be followed by detention as a criminal offence—as well as, instead of or as an alternative to Part 4. We should not believe that there will be one single measure that will deal with all these suspects. We need a range of measures in the armoury. One of those measures will be additional surveillance and additional resources for the security services, and that is why I welcome what has been done in that area. Those are the measures that are being used at the moment against UK citizens, because Part 4 is not available.

En passant, I point out that it is important that we do not look only at the nature of the threat and fail to take account of the nationality of the threatener or their political allegiance. Another point that was not well understood during the passage of the provisions through your Lordships' House was that our derogation—these powers—deal only with terrorism related to Al'Qaeda. I do not know what has happened since I heard the news about France today. If there were a threat from a new group that did not have established links to Al'Qaeda, even if they were foreign nationals, Part 4 and this legislation would not be a satisfactory way of dealing with them. That is another reason why I do not believe the legislation deals with the necessity of the situation. We need a basis in law which will provide for the future threat, as well as the past threat. It is our responsibility to ensure that it is there.

I turn to proportionality: whether what we are doing in terms of detention without trial of non-UK citizens is proportionate. I thought it interesting that when the equality issue was discussed in the document published by the Home Office, the Home Secretary said,

"it would be possible to seek other powers to detain British citizens who may be involved in international terrorism. It would be a very grave step. The Government believes that such draconian powers would be difficult to justify".

I agree with that. But, actually, for the purposes of Part 4, foreign nationals are exactly the same as British nationals because they cannot be deported. They are people who have no alternative place to go and who cannot be taken elsewhere. If this is too draconian for UK nationals, I suggest that it is also too draconian for non-UK nationals.

I have spoken for too long. I urge the Government to look very carefully at a way in which we could substitute—I pay tribute to the SIAC process—what is a thorough, responsible, careful, detailed and fair review of an administrative decision based on reasonable belief. I refer to the need to change from a judicial review of an administrative decision to a fair trial, which is said to be non-negotiable in the introduction to the discussion document, that is conducted, perhaps, under very different circumstances, with many of the frameworks that are in place in the SIAC review, but which is actually a trial of whether someone has committed an offence, rather than the review of an administrative decision.

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative 12:58, 4 March 2004

My Lords, it is not inappropriate to attempt to recall the atmosphere in the Chamber in the autumn of 2001. I had been in France on September 11, and received a phone call from my daughter, advising me to turn on my television set. There, unusually—I think uniquely—we saw the dreadful events of that awful terrorist act taking place live. Generally speaking, fortunately, we are spared a live programme on terrorist events. The cameras come later, and show only the consequences. We all have our own memories of that situation, but it did create a fairly unique atmosphere in the Chamber. Because, of course, any government whose first responsibility is the security of the nation for which they are responsible were bound to review their security-related legislation. It had to happen. Not only were they bound to review it, but there would have been immense pressure on them to be seen to be doing something and to be seen to be doing it quickly. Those factors were very much in play as we considered the Bill.

Consideration of that Bill was unlike that of most Bills, which I find to be a learning curve. It was like the ascent of a precipice: it was hard work all the way and we were going up almost vertically. There was immense pressure to agree.

In fact, there was general agreement on all sides of the House that much of the Bill was necessary, but there was also much disagreement over many points of detail. It was a highly contentious Bill, but the insertion of Clauses 122 and 123 were essential. To corrupt an old phrase, we were in danger of legislating in haste and repenting at leisure.

I pay tribute to my noble friend Lord Newton and his committee, who had the task of reviewing the Act. The outcome is the complete justification of the insertion of those clauses. I would go so far as to say that the whole legislative process would probably be improved if every Bill had within it a clause requiring a review of fitness for purpose two years later. I do not apologise to my noble friend that he had to undertake the task. He was somewhat rueful when he reported to me that he had been "landed" with it. But he and his committee have served Parliament and the country well in the job they have done.

It is unsurprising that the report reflects in a remarkably good way the tenor of much of the debate that took place on the Bill that autumn. It was emergency legislation. There was a recognition that it might be flawed and that perhaps the drafting was not perfect. Those considerations were continually present during the debate. But also present was the need to gain agreement and to get something done. I take that to be the reason lying behind the report's consistent refrain that it would be better if many such matters, if not all, could be dealt with by consolidation into regular legislation.

That concern was expressed during the passage of the Bill and I remember it being argued on various subjects. If the Government take note of the committee's recommendations, that is the most significant. We should be past the stage where emergency legislation is seen to become permanent. We should put it into general legislation around which these matters are dealt with.

It is also unsurprising that the committee devoted most of its paper and a great deal of its time to Part 4 of the Bill, which was highly contentious during its passage. There were always the questions on the definition of "international terrorism" and how we dealt with the security services. There were problems also relating to the Human Rights Act, which had been passed only three years previously. Everyone wanted to see full compliance with that recent legislation and inevitably there were problems over detention, derogation and deportation. The European convention made the passage of the Bill much more difficult. I am unsurprised that we could not then find a solution to the issue of derogation and, as a result of our debates today, it looks as though derogation will be with us for some time.

On page 68, the committee reports the use that has been made of the Bill as regards investigation and the number of criminal charges that have resulted from those investigations. However, I did not see reported the number of charges which led to convictions. Perhaps it is just that the committee's report is not sufficiently precise, but I wonder whether in response the Minister can indicate how many of the charges reported on page 68 led to convictions. That is the real question to be answered.

We know that 16 foreigners have been detained and that two have been released to other host countries. What we do not know—and I suspect that we cannot know—is how many terrorist acts have been deterred as a consequence of this legislation. If we are considering fitness for purpose, that is a consideration that we must take on trust—unless the Minister has information, but I suspect not.

It is certain that, although some dreadful terrorist acts have been committed since the passage of the Bill, we in this country have been blessedly spared, as has most of the rest of the world. It would be nice to think that in part that relative peace is the consequence of the actions taken by the Government here and by those in other countries. I cannot help but wonder how far that situation arises because the Iraq war has given a different focus to Al'Qaeda and many other terrorist organisations.

I look forward to the debates in the coming months on the detail of the Bill which gave rise to this report. There we will really see the wisdom of the committee's report and I hope that the Government will respond positively to the refrain that as far as possible this emergency legislation should be consolidated into normal legislation.

Photo of Lord Holme of Cheltenham Lord Holme of Cheltenham Liberal Democrat 1:08, 4 March 2004

My Lords, as a member of the committee, perhaps I may remind your Lordships of the most striking aspect of our conclusions; that this disparate group of Privy Counsellors, with different affiliations, experience and perspectives, reached a unanimous conclusion. That is the effect not only of the evidence we received and the deliberations we shared but the way they were led by the noble Lord, Lord Newton, in a wise and consensual way. And, as other members of the committee have said, that was also facilitated by our admirable small staff led by Angela Harris.

From these Benches, I also want to pay tribute to my noble friend Lord Carlile of Berriew, not only for his very helpful evidence to the committee but also for his scrupulous review of all the anti-terrorism arrangements that are in place.

I can speak only for myself but I emerged from our efforts even more aware than I had been before of the threat which fundamentalist Islamist terrorism poses to our whole way of life. This is a serious threat which should be treated seriously in all debates and discussion. I believe that the committee did that, and I was very pleased to hear the noble Baroness acknowledge it in her opening remarks.

Within this consensus, which my noble friend Lord McNally and my erstwhile leader, the noble Lord, Lord Newton, have enjoined on us, I want to press the Home Office a little through the noble Baroness. I shall try to keep within this jolly consensual framework but I may test its boundaries just a little.

The first point that I want to reiterate—a point raised by other members of the committee—is the absolute desirability of treating all terrorist suspects in the same way at law, regardless of their origin, instead of dividing them into British sheep and foreign goats. I believe that, in a society such as ours, it is particularly vital to avoid the kind of easy scapegoating which says that our problems in general come from abroad and that our problems are always due to foreigners. I am very afraid that that assumption is almost implicitly built into using immigration and asylum procedures for these grave anti-terrorist problems.

I say to the noble Baroness that, frankly, I was astonished that page 2 of the Government's discussion paper still asserts that the threat comes predominantly from foreign nationals. The noble Baroness, skilled advocate that she is, nuanced that it came "principally" from foreign nationals. Although I believe it may have been possible to say that partly from ignorance when we did not know what we were up against in 2001, we received clear evidence, as colleagues of mine have already said, that very nearly half the people of interest to the security authorities are British nationals. As others have said, there is the case of Richard Reid, the shoe bomber, and other clear evidence that terrorism does not really recognise national boundaries.

Secondly—a point to which others have referred—I should like to ask the Home Office, through the noble Baroness, to stop piggy-backing and to stop taking emergencies and loading them into the dusty pigeon-holes of the Home Office to produce all kinds of other extraneous legislation not directly attributable to the emergency. We talked at length in our report about mainstreaming. Following the Omagh atrocity, when I had responsibility for Northern Ireland matters on these Benches, I well remember that we saw exactly the same phenomenon. A great deal of extraneous legislation was loaded in by officials, who were no doubt glad to see their pet priorities and wheezes on the statute book. But can we please ask the Government not to do that? It creates part of the problem that they have in getting legislation of a special nature through the House.

The third point, on which I know there is a widening consensus, is that there is a clear need to remove the total ban on intercepts so that far more cases can proceed in a more normal way in court. Consensus is now spreading from the noble and learned Lord, Lord Lloyd, and my noble friend Lord Carlile to, as the Minister will know, at least part of what we are now supposed to call the "intelligence community". At least part of that community knows that that would allow us to treat within the rule of law far more suspected terrorists. I simply say to those in the intelligence community who do not like this—I assume they are those who are so protective of signals intelligence—that they should reflect that in the United States, who are our partners, as I believe is becoming more and more well known through the newspapers, in most of what is known as "sigint" there is no such total ban. Indeed, intercepts are widely used and are admissible as evidence in court.

Finally on that point, I want to press the noble Baroness as to when the review of the removal of the total ban on intercepts will conclude. As others have said, we have been hearing about it for rather a long time. The issue is now pressing and it would be good to hear from the Minister when the review will be concluded and when there will be a clear ruling on it from the Government.

My final point is to ask that the Home Office be less dismissive of the committee's conclusions on Part 4 of the Act. Of course, we did not produce an alternative but then we were not asked to do so; we were asked to review the legislation, and in this respect we found the legislation profoundly unsatisfactory. We suggested a number of ways in which, perhaps in combination, the Government might be helped to find alternative solutions. However, it was regrettable, before the ink was dry on our report, that the noble Baroness's right honourable friend the Home Secretary attacked our conclusions on Part 4 and particularly misinterpreted one of the basket of proposals that we made—alternative approaches: electronic tagging—as being in some way the committee's answer to Part 4. It was never so, and I believe that it was misleading and inappropriate of the Home Office to do that.

The trouble with the kind of spin control which we saw at the time of our publication and with which, in other spheres, we are all too sadly familiar is that it makes far more difficult subsequent attempts at rational discourse, such as the February discussion paper, which we have now seen. It makes the arguments advanced there—they are still relatively thin—seem no more than ex post facto rationalisation of the original knee-jerk hostile reaction to our proposal. Therefore, it devalues the discussion paper, which is meant to mark the beginning of a more constructive way forward.

Nevertheless, I certainly hope that the Government's position, as enunciated by the Minister's right honourable friend in another place, of achieving a constructive dialogue and serious discussions to find a generally acceptable way forward will materialise.

Before I sit down, I should remind the House, as did the noble Lord who preceded me, that Parliament was so concerned about this Act that it allowed it through only with a watchdog attached to its trouser leg, and that watchdog was the Privy Council committee. The watchdog has barked and it has barked loud and clear. Therefore, I hope that the Government will pay attention. If not, Parliament will have to ensure that they pay attention, but I very much hope that we do not come to that point and that the Government will now reach out towards the committee rather than turn their back on its main conclusion.

Photo of The Bishop of Rochester The Bishop of Rochester Bishop 1:18, 4 March 2004

My Lords, I wish to focus on the question of hate crime and, in particular, on whether incitement to religious hatred should be an offence in its own right. Before I do that, I should like to acknowledge the review committee's recommendation that legislation should deal with terrorism, whatever the origin or nationality of those who are suspected of it, and also that it should deal with the matter in a way which does not require derogation from the European Convention on Human Rights.

The committee set out a number of ways in which those objectives could be achieved, and I hope that the Government are able to give them more attention than they appear to have done thus far. In the end, freedom and justice will not be served by denying them to some without due process, however few they may be.

Turning to the subject of legislation on hate crime, the committee is surely right in its view that this Act is not the place for it and that it should be reconsidered in the context of what it calls "broader mainstream legislation". It seems that the Select Committee on Religious Offences did not come to any agreement about legislation in this area—surprise, surprise. However, it points out that the existing legislation on blasphemy has a wider role in society as it also concerns a particular Christian basis for the constitutional heritage of the nation. That is a view that I had not heard before.

The Select Committee comes to two conclusions in that regard: first, that Parliament should reflect very carefully on leaving the blasphemy legislation as it is, and, secondly, that it should urgently seek ways of expressing in law the need for protection of all faiths. Whether both of those points can be held together is not a matter for me to judge.

Of course, the present provisions in the Act are a compromise. They provide for account to be taken of aggravation because of religious hatred in the committing of a crime. While that has the effect of providing some protection from attack for particular groups of people, their places of worship and their objects of veneration, it does nothing about those who may incite such hatred of religious groups that a breakdown in community relationships and even violence are the result.

It seems that there is widespread support among the faith communities for legislation on incitement to religious hatred. The Home Secretary in his formal response to the review indicated that he is sympathetic to that feeling among faith groups. For its part, the Church of England is still committed to support legislation on incitement to religious hatred with or without the retention of the blasphemy law. It recognises, of course, the importance of freedom of expression in our society and it would want any legislation to safeguard academic inquiry, legitimate criticism and vigorous discussion of competing truth claims. However, freedom is never absolute and cannot be at the expense of hurting, degrading and humiliating people of particular faith communities.

It appears that the best way of achieving the review committee's recommendation is for there to be a separate Bill on religious offences. That could also be achieved by the Government bringing forward a Bill on hate crime as such, but including incitement to religious hatred within its provisions, or perhaps by the noble Lord, Lord Avebury—I am sorry he is not in his place—reintroducing his Bill in due course. It should be made absolutely clear that such legislation would protect people and places from attack and not restrict free discussion of the merits or otherwise of various beliefs.

Finally, one matter that has caught my attention in the report is that of confiscation of terrorist cash and its return if a suspicion proves unfounded. The review points out that the provision in the Act for the cash to be held in an interest-bearing account for such a reason would be problematic for Muslims. The report refers to the suggestion made by the Forum Against Islamophobia that Muslims could donate any such income derived from interest to charitable and humanitarian causes. However, that would leave them out of pocket. I should like to hear the views of our Muslim Members on this issue, but I should have thought that the Government could easily devise a way that involved the return of capital plus an ex gratia payment calculated on the basis of a typical rate of return on investments. I understand that making a profit on capital investment is not illegal for Muslims. That would properly compensate those who had undergone the trauma of wrongful accusation.

The Privy Counsellors have brought some important issues to the attention of the nation and the Churches, for their part, are glad that this debate is taking place.

Photo of Lord Judd Lord Judd Labour 1:25, 4 March 2004

My Lords, I join with those who have expressed great appreciation to the noble Lord, Lord Newton, and his colleagues on the committee and to the noble Lord, Lord Carlile, for the thorough task that he undertook as well.

In the Joint Committee on Human Rights under the impressive chairmanship of Jean Corston, a Member of the other place, and with a strong cross-party representation, we have given very careful and lengthy consideration to the human rights implications of the Newton report. I hope that my noble friend will not mind if I say that I was somewhat surprised by her failure to deal with the observations by the Joint Committee on Human Rights, particularly as in the conclusions the committee was unanimous. It seems to me that if both Houses give a committee the task of looking at human rights implications of policy and legislation, and that committee then reports, it is incumbent upon Ministers to treat the recommendations and observations seriously.

The dangers that we face are grave and acute. I shall take second place to no one in recognising that. If I am allowed to put the matter in personal terms, I care for the safety of my wife, my children and my grandchildren as much as anyone else in our country. That places tremendous responsibilities and duties on Ministers. Sometimes it is too easy for us to take for granted the burden that they carry on our behalf. I for one want to say thank you as I know that it must be extremely taxing.

I am also glad that the Minister in her opening remarks paid tribute to the security service and to the police. I believe that they undertake a courageous and very crucial task on behalf of society and we do not record often enough how much we need that important work to be carried out.

I was just beginning to think, however tentatively, about the world in which I was living when the European Convention on Human Rights was drafted. It made a tremendous impression on me in my formative years. I grew up in a fairly politically articulate and conscious family. There had been much discussion and debate at Sunday lunchtimes about the horrors of the Second World War and the lessons that we should learn from it. The European Convention on Human Rights came out of the determination to build a sound and better society. It was not just an idealistic commitment to human rights and something that was rather nice; it was an understanding that human rights were a pillar of a decent, stable, secure society and therefore had to be put at the centre of public concern.

When we talk about the dangers of terrorism, what are we defending? Of course, we are defending ourselves and our families and friends—it would be nonsense to pretend otherwise—but surely we are also defending the way of life and the system of our society for which people have struggled over centuries, not least in the post-Second World War period because, in the end, that system is understood to be the best way of protecting all that we really care about and it enhances the quality of our existence.

Therefore, I unashamedly start by believing that it would be a major tragedy historically if we gave extremists and terrorists a victory by undermining those very principles that have become central to what we believe is important in our society. Either, therefore, we accept the principles of the rule of law and stand by them or we do not. If we do, in the battle for human hearts and minds, which must be central in the fight against terrorism, there has to be consistency.

When the pressure is most acute we have to show more clearly than ever what really matters in our society and our determination to stand by it; in other words, I start from the premise that there are some absolute standards which should be absolute. Once derogation has happened—whatever the pressures may have been—there is an insidious danger that we shall get into a habit of mind whereby these things are no longer absolute; that we all have to be reasonable and come to terms with their relative nature rather than their fundamental importance. That I think is a danger of which we have to be conscious.

Speaking in this debate is very intimidating for a non-lawyer. There are so many distinguished lawyers in the Chamber that one really does rise with a sense of humility, if not a sense of intimidation intellectually, to make any points. But I want candidly just to underline some points as a layman; as an ordinary member of society.

What is it that we look to in the law to protect us? There is the presumption of innocence, which is terribly important in British law. There is the principle of beyond reasonable doubt; not reasonable belief or suspicion, but beyond reasonable doubt. These are—I was using the word "absolute" a moment ago—absolutes, which are terribly important to ordinary people as being central to our legal system.

Against that background and analysis, I think we all recognise that we are faced with a situation—and that, of course, is what I am saying in effect—in which suspected international terrorists have been charged, convicted and sentenced to indefinite imprisonment without proper trial. I do not in any way cast aspersions at the Special Immigration Appeals Commission—of course not—but it is a fact that some of the evidence is taken in secret; and it is a fact that the special advocates cannot discuss with those they are defending evidence that is presented in the secret part of the proceedings. This is a big fundamental challenge to the principles to which I have been referring.

In the debate a number of your Lordships have referred to the fact that it is only non-UK nationals who can be dealt with by the procedures we are discussing. I align myself with many of the arguments that have been put forward. But I think that the Government must address more thoroughly the issue of how far this is a discriminatory act by making only some people subject to these procedures while other people enjoy the full safeguards of the law as it more normally operates.

There is another issue which is quite worrying. That concerns evidence. As I understand it, in the secret part of the proceedings in particular it has been accepted that evidence extracted from third parties, perhaps under torture, is admissible as evidence. I think that raises very big issues in terms of our commitments in other conventions about torture. It also in my view very much raises questions about—as we have seen in history—the reliability of evidence extracted under torture. I hope that we are not drifting into a situation whereby indirectly—and I am certain unintentionally—we are in fact condoning torture by others who use it.

There is also of course the issue of the intercepted communications and the ban on using information gained in this way from legal proceedings as things stand at the present. This really is becoming nonsense, I suggest, because we all know that central to so much of what we are discussing is the whole professionalism and art. Having been in government I believe that is an unfortunate necessity and it is there, but there is this task of interception. What we have got here is the challenge of how that can be regularised in a way that enables it to be more fully, if not completely, used in legal proceedings.

The noble Lord, Lord Newton, has referred, as indeed have other noble Lords, to the issue of those who are detained being free to leave. I find that a very irrational, if not cynical, provision.

I found, as indeed I think we all did in the Joint Human Rights Committee, the proposals in the Newton report on alternatives interesting. Personally, I was sorry that they seemed to be so quickly dismissed by the Home Secretary. I think they deserved better than that. I repeat one very interesting observation made by that much respected organisation Justice about the alternative provisions. It makes the point that the alternative arrangements themselves do not exonerate us from the need to observe the European Convention on Human Rights because some of them would raise the same issues, although perhaps in not such a draconian way.

Perhaps I could conclude—as my noble friend chose virtually to ignore the report's observations—with some brief quotations from the Joint Committee on Human Rights. I stress again that the committee was made up of lawyers and non-lawyers from both Houses and all parties under the extremely able leadership of Jean Corston from the other House. In paragraph 33 we state:

"We continue to doubt whether the very wide powers conferred by Part 4 are, in Convention terms, strictly required by the exigencies of the situation".

Paragraph 36 says that,

"we are nevertheless certain that a more satisfactory legal framework is urgently required which would be both effective and compatible with the United Kingdom's human rights obligations including full compliance with Article 5 of the ECHR".

And in paragraph 37 the committee states:

"If the Government argue that it is necessary to continue Part 4 in force this should be limited to six months and should be subject to a firm undertaking that the Government will actively seek, as a matter of priority, a new legal basis for its anti-terrorism tactics to be put in place speedily and in accordance with the principles developed in the Newton Committee Report".

In paragraph 40 we turn to the issues raised by the noble Lord, Lord Carlile, in his review in February last year of the conditions of detention. The people who are being detained have neither been charged in the normal legal sense of the word nor convicted of any offence. It is bad enough for them to be in a place like Belmarsh to start with, but are we certain that they are being treated with the respect and held in the conditions which people in that situation deserve? Do we believe that people are innocent until proved guilty, or do we not?

That is a matter of principle, but it is also a vital matter of the battle for hearts and minds because this is seen around the world. Do we live by the standards we express or do we just apply them selectively when it suits us? I think that we have to be very careful, just as the Americans have to be careful in Guantanamo Bay, about the provoking nature—the recruiting nature for extremists if you like—of the action that is being taken.

It has been said that the Newton committee was introduced during the deliberations on the Act as a way of ensuring a majority. I make no apology for saying that I would have had great difficulty in supporting what was being proposed if the Newton committee had not been introduced. It was certainly a decisive factor in my decision. The Government cannot play duck and drakes with the House. If a provision of that kind is introduced as a serious commitment, not just a face-saving formula, when a committee of that distinction, weight and representative nature reports as authoritatively as the noble Lord's committee reported, it is incumbent on the Government to respond with equal gravitas and seriousness and to put what has been said high in their deliberations on future policy.

Photo of The Earl of Northesk The Earl of Northesk Conservative 1:40, 4 March 2004

My Lords, I thank the Minister for her helpful introduction to the debate. I also congratulate my noble friend Lord Newton of Braintree and his committee. Like other noble Lords, I am struck by the quality of the report which, as has already been mentioned, gives ample justification for this House's decision to insert the appropriate amendment in the Act.

As the Home Secretary has observed, the Part 4 powers are the most controversial powers of the Anti-terrorism, Crime and Security Act 2001. Accordingly, Part 4 has rightly attracted the greatest attention. Indeed, I bow to the superior expertise and eloquence of those noble Lords who have already spoken so effectively about those aspects of the Act. None the less, the Act and the report that we are considering today contain other matters that in their own way are no less important. My interest, which will come as no surprise to your Lordships, is Part 11, on the retention of communications data. I might also have been tempted to touch on Part 3, but happily the noble and learned Lord, Lord Browne-Wilkinson, has already covered that ground effectively, and I agree with what he said.

I do not underestimate the threat that is facing us. The Home Secretary's analysis is to the point,

"The main threat to the UK and its interests overseas is international, likely to be of long duration, involving groups of people engaged in long-term planning, using sophisticated new technology, science and communications available to them, skilled in practising deception and evading surveillance, and using multiple stolen or fraudulent identities".

In light of this analysis, I do not underestimate how potentially useful Part 11 of the Act on the retention of communications data could be in limiting and defeating the threat. Moreover, I welcome the exhortation from the Home Secretary that:

"The Government's mind is open on the long term way forward. We are not advocating any particular course. It is the Government's ultimate responsibility to find a fair and effective balance between security and liberty but the rights we must balance belong to everyone. Ensuring a successful fight against international terrorism demands we all play our part in getting that balance right."

Against that background, your Lordships will be aware that I have long argued that the Government's proposals for data retention do not strike a proper balance. I need not rehearse the arguments from the Second Reading debate. It is enough to say that I continue to believe that the provisions of Part 11 fail four tests: effectiveness; necessity; proportionality; and consequence. At the heart of this is the simple fact that the statutory authority for the retention of communications data predates the provisions of Part 11 of the anti-terrorism Act. As the Explanatory Notes stated explicitly,

"Whilst the Regulations permit the retention of communications data on national security and crime prevention grounds, they do not give any general guidance as to when these might apply".

We also know that, in the immediate aftermath of the horrific events of September 11, the National Hi-Tech Crime Unit submitted a request to communications service providers that relevant logs of communications for the period should be retained for investigative purposes. On advice from the Information Commissioner that,

"the request from the NHTCU is lawful and proportionate in the circumstances",

CSPs complied with the request. The noble Lord, Lord Rooker, confirmed this during the Second Reading debate,

"Communications data has been central to the investigation into the terrorist attacks of 11th September. This data has been available because of the excellent co-operation shown by communications service providers".—[Official Report, 27/11/01; col. 152.]

All of this even before the Anti-terrorism, Crime and Security Act had its First Reading in another place.

It is salutary to reflect that the Act was an emergency response to a dire situation. Ministers constantly and rightly emphasised the sense of urgency attached to its provisions. It is to Parliament's great credit that it was scrutinised so expeditiously and diligently. However, implementation of Part 11 has subsequently progressed at something approaching a snail's pace. The relevant statutory instrument giving effect to the voluntary regime of data retention, the Retention of Communications Data (Code of Practice) Order, was not passed until 13 November last year, nearly two years on from the grant of Royal Assent to the parent Act.

This begs a number of important questions, with which I hope that the Minister might be able to help me. Do the Government still perceive the grant of data retention powers to be urgent? Has it been the case that, in the absence of the voluntary code provided for by the anti-terrorism Act, the information gathering and investigative talents of our security and law enforcement agencies have been unacceptably constrained? Or can we assume that, in the intervening period, they have had access to the facility of data retention and/or preservation from prior statutory sources?

In turn, insofar as they may now be operating under a previous statutory sanction for data retention, what useful purpose is served by pursuing the full implementation of the voluntary regime envisaged on the face of the Act? It is fair to say that the structure of a voluntary regime is now in place. However, your Lordships will be only too well aware of the considerable concerns that have been expressed about data retention over the past few years. In particular, CSPs continue to have grave reservations in respect of their potential legal liabilities when compliance with any retention regime is measured against the requirements of the Data Protection Act 1998 and the Human Rights Act 1998. It is to state the obvious, but a voluntary regime can only be successful if the relevant enterprises sign up to it. With that in mind, how many CSPs have done so? What criteria do the Home Office intend to apply to measure whether the voluntary code is operating satisfactorily? What is the time scale of any review of the effectiveness of the voluntary regime? What criteria are being contemplated as appropriate triggers for a switch to a mandatory regime?

Your Lordships will recall that a particular theme of Parliament's scrutiny of the anti-terrorism Act was the sense in which emergency powers were being sought to deal with what my noble friend Lord Dixon-Smith defined as the generality of crime. This tension has always been particularly acute in respect of data retention. In this context, the Committee's report states,

"We can see the case in principle for requiring communications data to be retained for a minimum period (which would vary with the type of data) for a defined range of public interest purposes such as helping in the prevention and detection of terrorism and other serious crime. These provisions should, therefore, be part of mainstream legislation and not special terrorism legislation."

This recommendation has my whole-hearted support. I can do no other than congratulate the Government on their response,

"The Government tend to agree with this recommendation and is considering putting Part 11 in an additional section to RIPA. The Government would also like to see data retained for the purpose of fighting crime generally. The current position creates a disparity, which needs to be addressed. At the moment data is held for the purpose of safeguarding national security but can be accessed for many reasons including national security. Expanding the purpose for which data is held to include crime generally would eliminate this problem."

How true that is. I find all that extremely helpful, but without wishing to be too churlish, it might have been better had the Government arrived at this view rather earlier in the process. That may well have engendered a speedier and more coherent data retention regime than the current muddle in which it seems to be mired.

Of course, it is always dangerous to make assumptions. None the less, the implication of the Government's response is that, to all intents and purposes, Ministers are keen to move to a mandatory scheme of data retention via the expedient of consolidating Part 11 of the anti-terrorism Act into the Regulation of Investigatory Powers Act 2000. Perhaps the Minister could tell me whether that is a reasonable interpretation of current thinking. I do not doubt that there might be little enthusiasm among your Lordships for a return to the Regulation of Investigatory Powers Act. None the less, and in all the circumstances, it strikes me as a most sensible and appropriate route to take.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 1:50, 4 March 2004

My Lords, I am particularly grateful to my former pupil, the noble Lord, Lord Thomas, for allowing me to go before him on this occasion. He usually goes before me and I usually find that I agree with everything he says. This time, it is the other way round.

I should also like to say what a very strong case was made by my noble and learned friend Lord Browne-Wilkinson on Part 3 of the Act, with which I am not familiar—it is not my field. The noble Baroness, Lady Hayman, made an equally strong case in relation to Section 124 and suggested a neat way in which the Minister could get out of that particular problem.

I shall confine myself to a single point only, a point made very well at the bottom of page 57 of the report about the interception of communications. I have been involved in the interception of communications business, if I may call it that, for nearly 20 years now, since the passing of the original Interception of Communications Act 1985IOCA, as it is called. During all that time, I have never been able to see the sense of using telephone interception to identify the criminals but not using the self-same telephone intercepts to convict them. Yet that is the precise effect of the notorious Section 9 of IOCA. I call it notorious because it was extremely difficult to understand, as drafted—so obscure, indeed, and so apparently silly in its purpose that it took three decisions of the House of Lords to decide exactly what it meant.

I first pointed out the inconvenience of the old Section 9 of IOCA in Chapter 7 of my report on terrorism. It meant, I thought, that we were fighting terrorism with one arm tied behind our back. I had another chance of saying the same thing when Section 9 was replaced by Section 17 of the Regulation of Investigatory Powers Act 2000. I spoke against the Motion that Clause 17 should stand part of the Bill. The Minister replying was the noble Lord, Lord Bach, and what he said is quoted extensively in the footnote in the Newton report. The noble Lord, Lord Bach, was kind enough to say—not once but twice—that he regarded the point as being very finely balanced. Indeed, at one point I had the impression that I might even have persuaded him.

Yesterday, the Library was able to pinpoint where I could find what I had said and then to produce, in a miraculously short time, what I had actually said. It is usually a mistake to reread one's former speeches on any topic, but, contrary to what I am sure is the experience of many of your Lordships in these matters, on this occasion I find that the matter appears to me now exactly as it appears to have appeared to me then. So rather than make the same speech again, it seemed that it would save time if I simply handed my copy of the speech which I then made to the Minister in the hope that she may read it before this time next week, because it says all that I need to say on the subject. The Hansard reference is 19 June 2000, column 106. It is an unusual course to take but, as I am sure she knows, the people in her team at the Home Office know my views on this topic—indeed, they are sick of hearing them.

I shall give just one example of the idiocy of Section 17. It concerned a conspiracy to import heroin from Holland to England. The Dutch conspirator was convicted in Holland on the basis of a telephone intercept by Dutch authorities, carried out in Holland. The question was whether the Dutch intercept could then be used to convict the English conspirator in England. Happily, it was held by the House of Lords that it could. So we have this extraordinary situation that an English intercept could not be used in proceedings in England to convict that conspirator, but the Dutch intercept of exactly the same conversation could be used. That, I suggest, makes nonsense of the argument so often put forward that we must not use telephone intercepts in court proceedings for fear of revealing our interception capabilities. Is there a serious terrorist in this country today who does not realise that his telephones are being intercepted?

On the 14 foreign nationals currently detained without trial, I have two questions only for the noble Baroness. Everybody agrees, I think, that they should be tried if they can be tried. Is the reason that they cannot be tried that there is not an available terrorist offence with which they can be charged in English law? If so, surely we ought to be thinking of amending the Terrorism Act 2000. But if the reason is evidential, then the question is: how many of the 14 could be tried now, and perhaps convicted, if we relaxed the rigour of Section 17? That is exactly the same question I asked the Minister a week or two ago, since when I am sure she will have the answer. If she has the answer, I see no reason for not revealing it, since I cannot see any security reason why that figure should not be given.

Finally, on the broader question of Part 4, I entirely agree with the Newton report summary on page 56 that we simply must find a way of dealing with the problem not only of asylum seekers but also of British nationals without derogating from the European convention.

I was not able to take part in the debate on the Anti-terrorism, Crime and Security Act 2001 because I was abroad for several months at the time. However, I wrote a personal letter to the Home Secretary expressing some views about what might be done in the aftermath of 9/11, and added that whatever we did, we ought not to derogate from the convention. I did not get an answer to that letter before I left the country, but when I came back, I found a letter from an official of the Home Office. It was addressed to Mr Lloyd and said that my views would be given very careful consideration by the Home Secretary. That was a useful lesson in humility.

I found, therefore, that the views expressed in the Newton report were like music to my ears, and I entirely agree with everything it says.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Minister, Home Affairs, Shadow Minister, Welsh Affairs 1:59, 4 March 2004

My Lords, the noble Lord, Lord Newton, and his committee have attacked this problem with the thoroughness and integrity that we hoped they would when we insisted upon the inclusion of the need for a review within the Act.

In his speech, the noble Lord referred to the balance of the rights of individual freedom and personal liberty against the state's proper interest in security. What has occurred is a rebalancing. In the name of security, the Government have increased their powers by diminishing the rights of the individual and by curbing the powers of the courts to do anything about it. It is what has been described in America as creating a "new normal". We have moved away from what was accepted normality into another situation.

That can be illustrated in a number of ways; for example, by looking at the burden of proof that is necessary under the Act; that is, the reasonable belief of the Home Secretary. It is illustrated also in the wider context of statements made by the Home Secretary; namely, that in other fields a lesser standard of proof than proof beyond reasonable doubt may be acceptable in criminal proceedings. We have seen that also in the denial of rights of appeal that is proposed in Clause 11 of the Asylum and Immigration Bill that we will debate next week. We know that judicial review is excluded. There is even a suggestion that habeas corpus will be excluded as well.

The noble and learned Lord, Lord Browne-Wilkinson, referred to Part 3 of the Act that we are considering; namely, the disclosure provisions via the Inland Revenue and Customs and Excise. He pointed to how rarely those powers have been used in terrorist cases. I was struck particularly by his reference to applications being made in 800 cases of murder, because that suggests to me, knowing the number of homicide cases that are investigated in this country, that the Inland Revenue and Customs and Excise are consulted as a matter of routine, no doubt by the simple filling-in of a form by investigating authorities when offences of that kind are under investigation.

The concept of the "new normal" was referred to in a report that was published in September of last year by the Lawyers Committee for Human Rights in the United States. It stated that the "new normal" is defined by,

"dramatic changes in the relationship between the U.S. government and the people it serves – changes that have meant the loss of particular freedoms for some, and worse, a detachment from the rule of law as a whole. As this report details, the United States has become unbound from the principles that have long held it to the mast".

Referring to the situation in Guantanamo Bay, the committee went on to state:

"Perhaps most marked of these changes, the new normal has brought about a sharp departure from the rule-of-law principles guaranteeing that like cases will be treated alike— other noble Lords in our debate have referred to that principle—

"and that all will have recourse to fair and independent courts as a check on executive power. In the two years since September 11, the executive has established a set of extra-legal institutions that bypass the federal judiciary; most well known are the military commissions and the detention camp at the U.S. military base in Guantanamo Bay, Cuba".

My information, gleaned on a visit to Washington where I discussed the matter with the American Bar Association and the National Institute of Military Justice, is that at the time of September 11 and in the aftermath, a White House council, not of great seniority, took down from a shelf and dusted off a document about the way in which a military commission was put together during the Second World War to deal with a group of Nazis who invaded America intent on mischief. Without consultation with the American Bar Association, the Pentagon or with the body of military lawyers, that was published, under presidential decree, as the way in which Guantanamo suspects were to be treated. It has caused a huge furore within the legal establishment in the United States, perhaps evidenced by the fact that defence counsellors, who have been appointed to attend the military commissions in Guantanamo Bay, have themselves, in recent days, come out and criticised the whole procedure. The military justice establishment in America is incensed that its introduction of due process by reforms in 1952 has been totally ignored in the military commissions that have been put forward.

However, it is interesting that yesterday, perhaps in response to some of those criticisms, the Department of Defense in Washington released a draft administrative review process memorandum, in which it sets out the right of each enemy combatant,

"to explain before an administrative review board of three military officers why he should no longer be detained. Specifically, he would be permitted to explain why he is no longer a threat to the United States and its allies in the ongoing war on terrorism. The enemy combatant would be assigned a military officer to assist him in presenting this information to the review board. The detainee's government and his family would also be permitted to provide information regarding the detainee under review".

The Government have quite rightly attacked the Guantanamo detentions and the way in which prisoners are dealt with, but I contrast yesterday's announcement by the Department of Defense with paragraph 200 of the report of the noble Lord, Lord Newton, in which he states:

"Given the novel and contentious nature of these powers we believe that there should be a continuous proactive effort to manage the individual cases of the suspects with a view to finding alternative ways of dealing with them (such as finding evidence that would support a prosecution). We were, therefore, surprised to learn that the authorities appear to have given no thought to what change in circumstances might lead them to conclude that an individual should be released or dealt with differently . . . We have been told that prior to the forthcoming post-appeal reviews, to be heard by the Special Immigration Appeals Commission . . . the authorities will be considering any relevant new evidence".

The committee goes on to recommend that some form of review is urgently required.

Therefore, our Government are criticising the procedures and the military commissions in Guantanamo on the one hand, yet, on the other, they have not gone as far as the American Government have now gone to provide for the possibility of a review of decisions that have been taken about people detained under the Act.

Under the Act, what is the "new normal"? How has it worked out? The noble Lord, Lord Judd, referred to the fact that before the special commission evidence obtained under torture is apparently admissible. I do not know whether that is true, but that is what has been reported. Those noble Lords who saw a film on television last week about the way in which SAS recruits are trained to withstand interrogation may have gained some flavour of the nature of the investigation that may be carried out against people who have been captured in Afghanistan or Iraq, or who have been detained in other parts of the world on suspicion of terrorist activities. If evidence obtained in that way is to be admissible in any form of judicial proceedings, it is a blight on our judicial processes.

Another problem that has emerged is that of disclosure. No disclosure is obviously made to the person who has been detained under Part 4 of the Act, but there is some form of disclosure to the special advocate who has been appointed. The noble Lord, Lord Carlile of Berriew—the Minister wrongly pronounced "Berriew"—points out in paragraph 86 of his report that no procedures similar to those in the criminal court have been published for ensuring that there is proper disclosure to the special advocate.

The concept of the special advocate itself was something that my colleagues and I criticised at the time when the provisions were considered. From the report of my noble friend Lord Carlile of Berriew, it appears that the special appointed advocate is very often an administrative lawyer with no criminal experience; that no training has been set out for such people; that he is not provided with proper assistance to perform his task; and that it is a huge burden on the individual special advocate even to attempt to carry out the very onerous tasks placed upon him.

Beyond that, the fundamental criticisms that we made when the Act was before us as a Bill have been fulfilled. I was surprised to discover, although it is perfectly consistent, that the special advocate may see his client and may take instructions from him but that, once he has seen any material, he is no longer entitled to talk to him at all and may not see him again. That is an extraordinary situation, and it seriously weakens the validity of the special adequate procedure. It is unthinkable in any other area of the law that an advocate would be unable to speak to his client when the information upon which he requires instructions in order to carry out his task has been placed before him in such a secret way.

Urgent consideration is required as to how we can bring terrorism and threats to security within the normal criminal justice system. In the courts, we are used to dealing with security problems, and public interest immunity applications are made daily in every court in this country. We should be able to trust our advocates and judges to keep the necessary information that they receive in that way entirely secret, as they do at the moment.

Some constructive ideas have been suggested in the report, which should be fleshed out. The noble and learned Lord, Lord Lloyd of Berwick, to whom I suppose I must refer as "the Master", as he always refers to me as his pupil, pointed out that there may be room for the development of a completely new set of offences, of acts preliminary to a terrorist offence—the sort of offence that my noble friend Lord Carlile of Berriew was interested in fleshing out himself. Alterations to the laws of evidence and the use of intercepts can be considered. Whether they will be very much use to a prosecution, for the reasons given by earlier speakers, is something that we can investigate. However, since so much of the intelligence on which we went to war was based on intercepts, it is perhaps conceivable that they may provide enough information to bring a prosecution against an individual.

If there are new offences and new laws of evidence and procedure within our normal justice system, which still fail to convict a person suspected of a terrorist offence, we should use new technology for surveillance of that person, release him into the community and keep a watch on him—whether by overt surveillance or tagging or covert surveillance, which would perhaps give a lead to other people suspected of the same thing. We must get away from the new norm that is being proposed by the Government and get back to the basic principles on which our criminal justice system has been built for centuries.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 2:14, 4 March 2004

My Lords, like everyone else who has spoken in the debate, I pay tribute to the Privy Counsellor Review Committee chaired by the noble Lord, Lord Newton. It is Parliament's watchdog in this matter, it is authoritative in its composition and it has taken evidence with great care. It had the great merit of including as one of its members a senior Law Lord, who is not a politician. I regard its report as the most important state paper that I have read during the 10 years that I have been a Member of this House. I should explain that I believe the Government's response to the Newton report to be unsatisfactory and inadequate. I should like also to express genuine sympathy for the Minister, who needs giant strength to carry the heavy burdens of collective responsibility on this and some other matters. She is the most humane and human Minister, whether of the Home Office or otherwise, in this Government, which must make her burden in some ways more difficult.

Going back to the mention made by the noble and learned Lord, Lord Browne-Wilkinson, of knee-jerk wet liberals, I should point out that I live in south London and not in Hampstead. I hope that the Home Secretary is told that in due course. I am not a Hampstead liberal—I have lived in south London all my adult life. I should also like to make it clear that I am in no sense wet about terrorism. When I worked with Roy Jenkins in the Home Office in 1974, we had to fashion the Prevention of Terrorism (Temporary Provisions) Act 1974, which was the first of such Acts. We had to deal with Irish terrorism and the Price sisters. I was involved in all that and I perfectly understand the dilemmas that terrorism gives rise to, as did Roy Jenkins. However, I would like to think that, if he were now the Home Secretary, he would not have reacted as the present Home Secretary has done.

The first thing that I would like to say about the present Home Secretary is that he had no business to broadcast, within almost minutes of the publication of the Newton committee's report, his knee-jerk reaction rejecting the report, or to suggest later that really these Privy Counsellors were not adding anything to the public debate that had not been said when the original legislation was enacted. That was disrespectful to the Privy Counsellor Review Committee, which spent a great deal of time under its special mandate, considering evidence before reaching its careful conclusions.

I also regret the fact that, when the discussion document was produced with great fanfare, as showing how open-minded the Government were, when one actually read it one discovered that, without any parliamentary debate, all the main proposals put forward by Newton were essentially being rejected, often with bare reasons or no reasons that withstand scrutiny. It is all very well for the Minister to come before us today to explain how open-minded the Government are, but they are not open-minded about the Newton committee's main recommendations. I agree with everything that the noble Lord, Lord Judd, said, as a fellow member of the Joint Committee on Human Rights; as he said, there is no recognition in the discussion paper of the force of our successive reports dealing with these matters.

All that is most regrettable, and it is not an example of polite or good government or proper respect for the will of Parliament in setting up the committee or the work done by the committee. But that is water under the bridge.

On Part 3, the noble and learned Lord, Lord Browne-Wilkinson, dealt with the matter with such force, reinforced by the noble and learned Lord, Lord Lloyd of Berwick, that I simply point out how grossly inadequate the Government's response has been thus far. I hope that the matter can be mended, either in the reply today or next week. The position is that, in paragraphs 165 and 166 of the report, the Privy Counsellor Review Committee endorsed the conclusions reached by the Joint Committee on Human Rights. In that committee, in an earlier report, we wrote that,

"there remains a significant risk that disclosures will violate the right to respect for private life under Article 8 of the ECHR, because of the range of offences covered, and the lack of statutory criteria to guide decisions and the lack of procedural safeguards to be followed when deciding whether it is necessary and proportionate to make a disclosure of personal information".

That was from the unanimous report of the Joint Committee on Human Rights. The Newton committee report stated:

"In our view the Government should legislate to provide independent external oversight of the whole disclosure regime, (e.g., by the Information or one of the other statutory Commissioners) to provide a safeguard against abuse and to ensure that rigorous procedural standards governing disclosure are applied across the range of public bodies, prosecuting authorities and intelligence and security agencies. It should also require the independent overseer to publish statistics twice a year on the use of Part 3 (both within the United Kingdom, and to overseas authorities)".

It seems to me that those recommendations are of enormous importance. How then did the Government deal with them in paragraphs 24 to 27 of this discussion document? In paragraph 24 they say:

"The supply of information about an individual by one public authority to another cannot, in the Government's view, realistically be regarded as being as intrusive as, for example, a search of that individual's home".

I am not sure about that. It seems to me that swapping information about me between two public bodies may well be as intrusive to my personal privacy. But it does not matter whether it is "as intrusive"; the fact is that it is a grave interference with personal privacy. They go on:

"The courts have also recognised that while they will hold public authorities to high standards of reasonableness in their assessments of proportionality, they will not interfere to impose their own judgement where they are satisfied that the decision is within the range of reasonable responses open to a reasonable decision-taker".

That is, of course, correct. It means that the courts defer to the public authority. But that is why we need a different kind of external monitor of the process.

They continue:

"Given these considerations, and the numerous occasions where public sector data sharing of this sort, and joined up administration"— that ghastly cliche of modern government—

"will be in the public interest in promoting legitimate aims, the Government cannot accept the Review's proposal of prior judicial control of information disclosure".

But the Newton committee was not recommending prior judicial control of information disclosure.

They then say:

"Nor does the Government discount . . . as 'illusory' the protection afforded by the Human Rights Act".

But that does not deal with the problem that the victim of an invasion of privacy does not know that his privacy is being invaded. It is only by having a positive obligation on the public authorities of the state with external scrutiny that there can be what the European convention requires, which is adequate safeguards against abuse. The Government do not propose any adequate safeguards against abuse. They simply refer to the Department for Constitutional Affairs having published guidance on the legal framework. The problem is that the legal framework is unsatisfactory because it does not have adequate safeguards. That will not do. An open-minded government do not close their minds to these central points and, unless I am much mistaken, that is what the discussion paper says has happened.

Part 4 has been concentrated on in the debate. I agree with the noble and learned Lord, Lord Browne-Wilkinson, that what it contains is not a tolerable system in a civilised society. It threatens the rule of law and it threatens fundamental rights and freedoms. The derogation is the only derogation among all the member states of the Council of Europe. In fact, it is the only derogation in the world since, as far as I am aware, neither Australia, the United States nor any other party to the International Covenant on Civil and Political Rights has derogated, even though they have some fairly tough laws. I believe that it can be very strongly argued that the derogation is not justified under the European Convention on Human Rights. That is a matter that will be dealt with by the Law Lords and, if necessary, by the European Court of Human Rights.

Let me reinforce what the noble Baroness, Lady Hayman, and other noble Lords said about the curious contradiction regarding British citizens and foreigners. Everybody agrees that there are some nasty terrorists or suspected terrorists who are British citizens as well as some who are aliens. The discussion paper says that the powers in Part 4 are too draconian to impose on British citizens. But if they are too draconian to impose on British citizens who are terrorists or suspected terrorists, then I do not understand how the Government can justify imposing them on foreigners, except on the legalistic argument that foreigners can be deported but British citizens cannot. The reason why that is a legalistic argument is because we all know that, in practice, foreigners cannot be deported and so they are being indefinitely interned without trial, just as we interned suspected IRA terrorists without trial under the regime that existed in Northern Ireland when I was young. That is another matter that will have to be decided by the courts. Effective measures that are irrespective of nationality are needed against British citizens as well as against foreigners who are terrorists or suspected terrorists.

My next point is that in paragraphs 205 to 234 the Newton committee imaginatively sets forth a whole range of new ideas about how to deal with the matter in a way that did not require derogation. That is very important if one is thinking of European convention ideas of proportionality because if other means can be used to achieve a legitimate aim, it is disproportionate to take unnecessary powers and use them. In her opening address, the Minister said that she recognised that the Part 4 powers were not perfect. I bet that in her reply she will not tell us in what respect the Home Office thinks that they are not perfect. It would be a very interesting exercise to discover that from her officials because if the powers are imperfect and people are being held under them, it is another example of the lack of a sense of proportion.

I am also very sorry that the Home Office document gives no response not only to the paragraphs to which the noble Lord, Lord Judd, referred, but also to paragraphs 19 to 21 of the Joint Committee on Human Rights report, as well as paragraphs 33 to 40. As, I think, the noble Baroness, Lady Hayman, said, there is great danger that the Home Office will simply cherry-pick those new powers being suggested by Newton, rather than cut back on unnecessary powers.

I shall say a word about SIAC, the Special Immigration Appeals Commission. I am one of those people who reluctantly supported setting up SIAC and I have appeared as counsel before its twin, POAC, which deals with proscribed organisation appeals where terrorist organisations are banned. I must put this very delicately: at the Bar, whether among special advocates or ordinary practitioners like myself, there are great concerns about the procedures operated and about the appearance of an independent and impartial trial in any normal sense. I know that the special advocates to whom I have spoken feel worried about that. It is not dealt with by the Newton committee, but I mention it so that the House knows. It is not a very happy situation at the moment.

Press reports suggest that the Home Secretary is a close personal friend of the Attorney General of the United States, John Ashcroft. That gives me real concern because of what has happened under his jurisdiction with the Patriot Act and, as my noble friend has said, in Guantanamo. The noble Baroness, who speaks better Latin than I do, will know what is meant by the maxim noscitur a sociis. One must be very careful about the contaminating influence on our own legislative regime of a lack of due process on the other side of the Atlantic.

Finally, I am sorry that the right reverend Prelate the Bishop of Rochester is not in his place. I do not agree with what he said about Part 5 on race and religion. The Newton committee put it moderately, carefully and sensitively in suggesting that the matter might best be dealt with by taking it away from this type of legislation and seeing whether the Public Order Act needs to be amended.

We know that the Select Committee on Religious Offences spent a very long time unable to reach any clear conclusion because of the problems that politics and law, free speech and religious diversity created. I represented the Satanic Verses book in the case with Salman Rushdie when an attempt was made by Muslims to extend blasphemy law to religions other than the Anglican faith. It convinced me that nothing could be more divisive in our society than to set Hindus against Muslims, Christians against Jews, secular against religious, by widening the anomalous and outdated offence of blasphemy.

So I would say to the right reverend Prelate that the first thing that would have to be done if one wanted to change the law, as the Law Commission long ago suggested, is to get rid of the offence of blasphemy, which is seen to be discriminatory, not by extending it to all religions, but by abolishing it all together. If that were done, then there would be a great deal to be said for including incitement to religious hatred and incitement to racial hatred and incitement to hatred, for example, against homosexuals in a general hate offence in the Public Order Act. However, I think that one has to tread extremely carefully if one goes down that road.

Photo of Baroness Whitaker Baroness Whitaker Labour 2:31, 4 March 2004

My Lords, I very much agree with the noble Lord, Lord Lester, about the inadvisability of the offence of blasphemy. But I rise to make a short intervention, you may be pleased to hear, on a discrete part of this Act, Part 12, which creates a new offence, that of bribery outside the United Kingdom. I remind your Lordships of my membership of Transparency International UK's advisory council.

The provision was widely welcomed, and, as the highly respected review says, is largely uncontroversial. It goes some way to implement the UK's compliance with the OECD convention on combating bribery, pending the comprehensive legislation which the Government are committed to. My concern is that the review also welcomed the repeal of Part 12, on the basis that there would be an anti-corruption Bill on the statute book which would be the proper home for such a provision and the others that are required to comply fully with all our international obligations in the world-wide fight against corruption.

But, my Lords, we have no such statute. The Government did present a draft, for scrutiny, and as a member of the scrutiny committee, I think I ought to say that the draft that we saw would not in our opinion have provided satisfactory compliance. This was echoed by our OECD witness, and indeed by the review itself. The Government accepted some of our recommendations, but have not as yet presented a fresh Bill. So if Part 12 of the Anti-terrorism, Crime and Security Act is repealed now as things stand, we shall have no offence of bribery outside the United Kingdom.

I do not need to tell your Lordships that overseas bribery is widespread, more so, probably, than domestic UK bribery. It is enormously destructive of development and democracy itself in developing countries. The USA has had legislation to counter bribery abroad for 30 years, and the recent succession of OECD, Council of Europe and United Nations instruments shows the priority the international community has chosen to give to the subject. So a lacuna in our legislation at this moment would not only prevent effective prosecution of highly damaging offences, it would send all the wrong signals to the rest of the world.

When I raised this point earlier (Hansard 4 February, col. 679), my noble friend agreed that Part 12 was important. I am grateful for that, and I am also grateful that my honourable friend Beverley Hughes said in another place in their debate on the review that,

"we would not want to lose the powers in part 12 until alternative legislation was in place".—[Official Report, Commons, 25/2/04; 378.]

But can I press my noble friend to be firmer? As my honourable friend Hugh Bayley said in that debate, the United Kingdom faces an evaluation by the OECD of our compliance with the convention this year, as well as one by the Council of Europe, on our compliance with the council's convention on corruption, ratified by our Government last December. We really need to show we are serious about this. Can she assure us that there will be no government proposal for repeal of Part 12 until a new corruption Act is in force?

It would, of course, be the most desirable of all to have the new corruption Bill. What can my noble friend tell us about its timetable?

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs) 2:36, 4 March 2004

My Lords, we have been presented with a very full and carefully considered report on the Anti-terrorism, Crime and Security Act 2001, of a committee of nine Privy Counsellors, four of whom are Members of your Lordships' House, all four of whom have spoken to great effect in this debate. Their report has been supported by speakers on all sides of your Lordships' House and has met with no serious criticism other than that from the Government Front Bench. I, too, and my party support the report. It makes it possible for me to be briefer than I would otherwise have been. I have been pruning my speech quite vigorously and hope to be able to finish well within my allotted time.

The report was, of course, unanimous. Not only that, but it was endorsed by a report of the Joint Committee on Human Rights, two members of which have also spoken in this debate. It has, however, met with a profoundly hostile response from the Government. When the Minister gave a list of points in the report which the Government accepted, she came out with four or five frankly minor points out of a report containing nearly 60 recommendations.

By far the most controversial element is Part 4 of the Act. However, other issues raised in the report also need to be looked at. If I may, I shall deal briefly with those.

The Bill included a number of provisions which had little to do with terrorism but were intended to extend general police powers. As the noble and learned Lord, Lord Browne-Wilkinson, and the noble Baroness, Lady Hayman, have pointed out, the report says that these issues should be taken out of the terrorism legislation and put where they belong, in general anti-criminal legislation. The Joint Committee agrees with that. I must say that I, too, agree very strongly with that conclusion.

The committee made some very sensible proposals on Part 3 of the Act concerning the disclosure of information held by public authorities for use in the investigation of crime. The Government rejected those proposals for the oversight and limited judicial control of those disclosures. I believe that, there again, it was the committee that was right.

Part 10 deals with police powers such as fingerprinting. Although those new powers are undoubtedly useful against terrorism, their impact and use goes far beyond terrorism. The committee said that the measures in Part 10 needed to be re-examined. Some of the provisions, the committee said, went too far and should be repealed or significantly amended. The Joint Committee once again agrees. The Government once again reject that out of hand.

Part 14 of the Act contains a particularly sweeping Henry VIII power to amend or repeal legislation by order. That order, as the noble Baroness, Lady Hayman, pointed out, is subject only to the negative resolution procedure. The committee says that that power should be repealed. The Government respond with a single word: "Disagree". It seems obvious that Section 124, in Part 14, should at least be subject to the affirmative resolution procedure when it is used to amend or repeal primary legislation.

I now turn to Part 4. Part 4 is, of course, extremely controversial. Some people describe detention under Part 4 as the United Kingdom's equivalent of Guantanamo Bay. That is not entirely fair. It is, for example, possible for detainees to leave the United Kingdom for their home country or a third country willing to accept them, and two out of the 16 people who have been detained have done so. Again, unlike the situation up to now at Guantanamo Bay, there is an appeal against detention to SIAC. That is not a proper trial, but it is at least a legal process which involves a review of the case by a judicial body chaired by a high court judge. But Part 4 still authorises detention for an indefinite period and does so without a criminal conviction. Part 4 undoubtedly breaches Article 5, and the United Kingdom has therefore had to derogate from that article.

The application of Part 4 to foreigners alone is disturbing. On the face of it that does appear to be discrimination, and indeed SIAC held that Part 4 amounted to unlawful discrimination which rendered the whole of the process unlawful. That decision was reversed by the Court of Appeal, but it is that decision in turn which is subject to an impending appeal to your Lordships' House.

I agree with the Newton report and, in particular, with the noble Baroness, Lady Hayman, and my noble friend Lord Holme and others, that we cannot say that home-grown terrorists are less of a threat than imported ones. So what is the justification for Part 4?

The Government said, at paragraph 36 of their response, which was a passage referred to by my noble friend Lord Lester of Herne Hill, but I quote it in full:

"While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism, it would be a very grave step. The Government believes that such draconian powers would be difficult to justify".

I believe that the powers that are now in Part 4 are equally draconian and equally difficult to justify. If the threat is so serious that detention is needed then the Government should apply it to domestic as well as to foreign suspects. If the threat is not serious enough to make detention of domestic terrorist suspects necessary, then foreign ones should not be detained either.

It is of course clear that we cannot abolish Part 4 today. In the debate on 25 February in the House of Commons that point was accepted in a thoughtful speech by Vera Baird, a distinguished lawyer for whom I have great respect, who can perhaps be described—and I hope she will not mind my saying so—as a realistic radical. What she said was this:

"When I asked my right hon. Friend the Home Secretary whether, if we work hard at expanding the capability of the criminal law, we will succeed in getting rid of Part 4, he said, very clearly, no. We have no option but to accept that today—everyone agrees that there is an emergency and a threat. We cannot possibly demand that the measure ends now, so we must vote for it tonight".

Then, omitting a couple of sentences:

"All of us who are consulted should aim to ensure that the criminal law can achieve the successful prosecution of British or foreign nationals who are terrorists. There is no other way in which we can persuade the Home Secretary that we can do without Part 4, and we must do so by letting the provision fall into disuse and using the criminal law more often".—[Official Report, Commons, 25/2/04; col. 367.]

That seems a very wise description of what I believe is the course at which we should aim.

Of course I recognise that there are serious problems. Evidence cannot always be produced in court because it might give away vital information about intelligence procedures and sources. My noble friend Lord Carlile of Berriew, in his recent review of Part 4, concluded that it was not a disproportionate response. But I agree with the Newton committee and with the Joint Committee on Human Rights that the time has now come to start the work of replacing Part 4. I agree that the replacement must apply to domestic as well as to foreign suspects. I agree that we should, as soon as possible, move to the end of derogation from Article 5. I agree that, as far as possible, we should use criminal law. In that context, one thing that has met with wide approval in the debate this afternoon is to allow intercepts to be used as evidence. That was particularly supported by the noble and learned Lord, Lord Lloyd of Berwick, who I am glad to see just returning to his place, who has exceptional experience in this matter and whose views are ones that the Government ought to take very much into consideration.

So long as any form of Part 4 procedure needs to be retained, we must also bring it closer, if we can, to the criminal trial. A starting point for this would be to raise the threshold for the exercise of the power to order detention under Part 4. Under that Act the threshold is the "reasonable belief" of the Home Secretary that there is a suspect who presents a threat to national security. In fact, the Government have made it clear that it is actually operating on the basis of a higher standard. The Home Secretary said so in the debate in the House of Commons on 25 February, when he said:

"We have used a higher level of evidence and lifted the test higher than the standard required by 'reasonable belief'".—[Official Report, Commons, 25/2/04; col. 295.]

That was the test laid down in this House just over two years ago. The same point was made in the consultation paper just published by the Government and by the noble Baroness, Lady Scotland of Asthal. It is obvious that raising the threshold would not endanger the system.

We need to achieve a correct balance between the protection of the public from terrorism and the protection of the civil liberties of suspects. We have not yet got that balance right. I hope that the Government will now come forward with substantial reforms to the anti-terrorism Act. In that context I have to say that I am deeply concerned by the negative response to the consultation paper, though slightly relieved by the somewhat more ameliorative line that has recently been taken. I am also concerned by the unusually long period which has been allowed for consultation. I fear that this may have been intended to ensure that no new legislation can be passed in the next 12 months, so that Part 4 will have to be renewed again, though admittedly for the last time, next year. I hope that this time next year my concerns on these matters will have been proved wrong.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative 2:48, 4 March 2004

My Lords, I join other noble Lords in thanking my noble friend Lord Newton and his colleagues for their report that we have debated today. As the House would expect from a committee of such distinguished Privy Counsellors, it has produced a report that is substantial, measured and constructive. The committee obviously put in a formidable quantity as well as quality of work, and did an enormous amount of research. Members of the committee have paid due tribute to the small team that assisted them, but I have no doubt that there was a huge responsibility on their own shoulders. They brought to their work a considerable level of expertise and experience from around the world of politics and from the very top of the world of law.

The committee made a number of serious recommendations worthy of careful consideration by the Government. I, too, was somewhat disconsolate when the Home Secretary made a rather rapid and unhelpful response, but, as is her wont, the Minister has today given a full and courteous introduction to this debate and I have absolutely no doubt that she will do the Home Secretary proud in her response. Whether it is a response that meets the points made by noble Lords is yet to be seen.

Matters as serious as the balancing of the safety of our citizens against the fundamental rights to justice of all human beings demand serious consideration. That is, indeed, just what they have received today. As my noble friend Lord Dixon-Smith pointed out, the context for the Anti-terrorism, Crime and Security Act 2001 was the tragedy of the events of 11 September 2001.

The Minister reminded us that since that date attacks have taken place in Bali, Mombassa, Riyadh, Casablanca and Istanbul, so no one can harbour any illusions about the strength of the terrorist threat or about the fact that we in the United Kingdom remain a serious target. No one who has spoken today has questioned that threat. Indeed, I have never heard a Member of this House do so.

The reality is, therefore, that we are not talking about a temporary measure when we discuss these issues today. So far we have, indeed, been fortunate. The Minister was right in her opening remarks—I join with her—to thank the police and the intelligence services for the work that they do to try to ensure that we remain secure. We need to have in place all the necessary measures to prevent attacks from succeeding in the UK. We acknowledge that we have to be united in the war against terror—and all in this House always have been. We agree, therefore, with the Newton committee that there is a continuing need for special counter-terrorist legislation. We also believe that terrorists should be given no special status and should be treated as criminals. As the noble and learned Lord, Lord Lloyd, set out in his 1996 review, so far as possible anti-terrorist legislation should approximate to the ordinary criminal law and procedure.

Above all, we need constantly to check the powers in the 2001 Act against three strict and rigorous tests. First, are we confident that the powers work to minimise the risk of terrorism? Secondly, do they undermine fundamental liberties to the extent that they do the terrorists' work for them? Thirdly, can we protect the public at least as effectively by any other measures that involve less harm to those self same liberties?

After careful consideration of those three tests, we support the 2001 Act overall but we believe that all anti-terrorist legislation should be subject to annual review and full debate by Parliament and, if necessary, to regular revision. I was grateful to my noble friend Lord Northesk for reminding us of the part of the Act that deals with the retention of communications data. I very much look forward to the Minister's responses to the questions that he posed.

One of the most striking aspects of the committee's report is the number of powers that it identifies in the 2001 Act that have been used sparingly or not at all. It gives the example of freezing orders provided for in Part 2. Everyone agrees that the power to freeze assets is, indeed, a key weapon in the fight against terrorism. Yet the committee states at paragraph 146:

"These measures are unlikely to be used against terrorism while the Terrorism (United Nations Measures) Order 2001 is in place, which already makes specific provision for freezing terrorist assets".

The committee goes on to cite a number of advantages that distinguish the United Nations order from the Part 2 powers and concludes in paragraph 149 that,

"freezing orders for specific use against terrorism should be addressed again in primary terrorism legislation, based on the well-tested provisions of the Terrorism (United Nations Measures) Order 2001".

In their response to the Newton report, the Government say at paragraph 13 on page 21 that they do not accept the proposal, stating:

"The fact that the power has not been deployed since the legislation came into force is not of itself an argument for setting it aside now, nor including it within primary anti-terrorism legislation".

That view was repeated by Beverley Hughes when she concluded the debate in another place and added that,

"the fact that some powers may not have been used much does not detract from their deterrent effect".—[Official Report, Commons, 25/2/04; col. 377.]

I have to say that we still find that a curious justification for rejecting the committee's perfectly reasonable proposal. We ask the Government to consider that particular issue again as much of the committee's argument is that the United Nations terrorism order is a better, more effective and more just law.

On the question of identity theft the committee says that it is not convinced that all the relevant measures in Part 10 address that effectively. I refer noble Lords to paragraphs 43 and 336 of the report. In his response the Home Secretary said at paragraph 107:

"The Government are assured that these powers are effective and proportionate".

The question is, how can that be the case when the committee has said that the problem is on so large a scale? The Home Secretary's response at paragraph 109 is that the problems will be addressed by the introduction of identity cards in the UK and by the use of biometric technologies. But under the Government's scheme compulsory cards will not be introduced until 2011 at the earliest, and will not solve the problem of credit card fraud. Therefore, I do not think that the Government's response addresses the committee's points directly. We need a more rapid and tailored solution than the one that the Government are currently offering.

We agree strongly with the committee's recommendation on terrorist property, particularly in relation to extending the power of seizure to non-cash items. The Government say that the powers in the terrorism Act already allow such seizures, yet the committee has clearly identified a problem. We believe that the Government need to give greater reassurance than that given in the published response which simply states that the current powers are adequate to tackle the problem.

We also agree with the committee's view at paragraphs 15a and 124:

"Open hearings in an ordinary Magistrates' Court are not the appropriate forum for handling cash seizures in terrorist cases".

The committee recommends that the terrorism Act be amended to enable cash seizure hearings to be handled in a similar way to warrant hearings under the legislation. The noble Baroness, Lady Scotland, said that the Government would look more closely at that proposal, and we certainly welcome that assurance.

The committee echoes and endorses concerns that were raised by my noble friends, for example, my noble friend Lord Dixon-Smith, during the passage of the Bill in 2001 on the Henry VIII powers in Section 124. That has received very proper attention from noble Lords today. The committee's recommendation could not be stronger. Paragraphs 58 and 442 state:

"The powers of amendment set out in Section 124 are particularly unwelcome in emergency legislation of this kind, and they should be repealed".

However, the Government dismissed the committee's recommendation; they are wrong to do so. We strongly urge the Government to reconsider their view, most of all on legislation such as this that impinges so fiercely on individual civil liberties. I, too, should like to commend the very careful and clever assistance that the noble Baroness, Lady Hayman, gave to her noble friend the Minister in pointing out that there is a straightforward resolution to the problem. I hope that the Government are able to seize upon her offered solution.

I turn now to the most controversial aspect of the legislation on which the committee echoes our view that was originally expressed during the passage of the Act. I refer to the detention powers in Part 4 that have received so much attention today. The committee's conclusion in paragraph 203 is unequivocal. It states that,

"the Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency".

During the passage of the Act my noble friends argued strongly that internment was not the best way of dealing with such cases. Regrettably, the alternatives that were put forward by the Opposition did not persuade the Home Secretary. As a result, as we have heard, under the detention powers some 14 foreign nationals are being held indefinitely without trial.

It is undoubtedly the case that such detention is a serious infringement of civil liberties. The Home Secretary is fond of saying on television and radio—he said it again on 25 February—that the detained persons can always leave the country. I do not find that a particularly persuasive argument. I very much welcomed the Minister's measured and accurate response today when she recognised that if those people returned to their countries of origin they could well face death. However, the other side of that problem was very properly pointed out by the noble Baroness, Lady Hayman; namely, that it is a very difficult matter to release such persons into the community here thus—one would expect—putting our own citizens at risk. Any government have to undertake the most excruciatingly difficult balancing act in order to make these decisions. We do not underestimate the problem faced by the Government in the matter. We recognise that the Government have had to take a tough decision on keeping those people in detention and we support them in the action that they have had to take.

Nevertheless, because it is such a serious infringement of civil liberty, the Government should heed the committee's request and seek an alternative approach. I welcome the Government's undertaking to review Part 4 over the next six months. The next question is which alternative approach would work? The committee offers several serious options. I shall seriously prune my speech at this point, as did the noble Lord, Lord Goodhart, because noble Lords have appropriately addressed those alternatives.

We support in general almost every proposal by the committee. Perhaps my noble friend Lord Newton will say that I ought to refer to one on which we do not agree with the committee—that is with regard to the use of electronic monitoring. There is a difficulty in proposing that people who are potential suicide bombers might be appropriately electronically monitored and released into the community. I believe that their lack of care about being followed or having their whereabouts known might lead to a tragedy before any electronic means might be taken to stop them from performing an illegal act. We accept the other recommendations almost without exception.

The Home Secretary has told us that we already have,

"a wide range of criminal and terrorist . . . offences that can be used to bring prosecutions. The Government is considering whether further offences should be introduced".

That is an interesting proposal, but senior police officers have told us that there are gaps in the law that create problems for them in their pursuit of terrorism. For example my right honourable friend David Davies invited the Minister in another place to say, when she wound up the debate, when we were likely to see such further proposals. The Minister Beverley Hughes did not take the opportunity on that occasion to respond to a point about conspiracy law and I would be grateful if the noble Baroness the Minister could do so today, or indicate whether she can write to me.

The powers that the House is examining today are exceptional. Under normal circumstances many of those powers would not even be contemplated, let alone approved by this House. Other noble Lords who have taken part in the debate had the opportunity at an earlier stage to debate the Act when it was passing through the House and have made clear the reluctance but realism with which they had to agree to such provisions—subject, of course, to those that made it possible to have this debate today.

Regrettably the threat of terrorism dictates that some extreme measures are necessary. We agree with the Government that without the powers of the 2001 Act our defences against international terrorism would be weakened to an unacceptable level. For that reason, despite our reservations about Part 4, we support the continuance of the Act. However, we call on the Home Secretary to return to the questions raised about Part 4 and to review most carefully whether changes in evidence could allow him to replace what is effectively internment with what we all want—a proper process of justice.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 3:03, 4 March 2004

My Lords, I straightaway express my gratitude for the way in which this debate has been handled and repeat my sincere thanks to the committee. I should also make some general responses to the issues that have been raised. I also accept that the report was unanimous and was undertaken by those involved in the process from all sides of the House. I reassure all noble Lords that that is a matter that the Government very much take into account. We also accept the sagacity of its authorship.

However, infallibility is an issue with which it is difficult to struggle and I agree with the comment of the noble and learned Lord, Lord Browne-Wilkinson, when, with great humility, he accepted that the committee which was entrusted with such an onerous task did not claim omniscience or omnipotence. Equally, the Government find themselves in the same position. That helps to explain what I mean when I say "perfect". We and the committee are both striving for a balance—not "perfect" in the sense that, as the right reverend Prelate the Bishop of Rochester made plain, freedom is not absolute and in balancing one group's interest against another one restricts the rights and liberties of one group, often to give voice to the rights and liberties of the other group. Regrettably, we do not find ourselves in a perfect situation because we have to accept, with due humility, that whatever we craft—no matter how we strive to make it fair and proportionate—it will not be perfect. All we can hope is to make it as perfect as we can.

I understand the sensitivities that may have been bruised by what may have appeared to be too hasty a rejection from my right honourable friend, the Home Secretary. But I hope that both he and I have made it plain that no discourtesy was intended to your Lordships. I thank my noble friend Lady Hayman for her kind words in relation to my ability to spin gold from straw. That is not an ability that I have yet crafted, but I thank her for that. Her advocacy was well demonstrated in he measured comments. I also thank the noble Lord, Lord Lester, for his kindness. I do not know whether that will prove to be a kindness, but I thank him none the less.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, it was intended to be a kindness and the noble Baroness is undoubtedly the best alchemist in the House.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I do not know what to say to such flattery and I accept it with as much grace as I can. I hope that the noble Lord understands, in relation to the report of the Joint Committee on Human Rights, that it was difficult to have a discussion on those matters. He will remember that the discussion paper was published on 25 February and so it was impossible to consider the report of the Joint Committee as it was published the next day, on 26 February, the day after the discussion paper, a draft of which was available only on 24 February. I know that many people believe that we can act with speed, but that report needed a deal of consideration.

I now turn to some of the main issues that were raised by a number of noble Lords in relation to the report. The first is the distinction that appears to have been drawn between nationals and non-nationals. That is an issue that was raised not only by the noble Lord, Lord Newton, but the noble Lords, Lord Lester and Lord Holme, as well as my noble friend Lady Hayman.

We have made clear the difficulty that that poses. The difference between the national and the non-national is particularly challenging for the very reason that we prosecute wherever possible. If there is evidence upon which we can prosecute for any offence, that is the Government's preferred course. In relation to international terrorists, there is a difficulty, which I am grateful that the House has accepted, over what one does about removal of that individual. Deportation, if possible, is the natural consequence of the fact that Part 4 powers are immigration powers. Detention is only permissible pending deportation and when no other powers are available. I hear what is being said, that there should be a change to bring the two together.

As with international terrorists who are foreign nationals, our first thought is to prosecute wherever possible. Where evidence of offence is not available, we seek to investigate and, hopefully, disrupt them in ways permissible by law. Part 4 is not available, by definition, but the question of what more we could and can do is raised by the Privy Council committee, and acknowledged in the discussion paper. The latter asks for ideas. I hope that noble Lords will see that the Government are trying to be open, are considering these matters, and will take into account the ideas that have been both raised in this debate and in the Newton report. I hope I have made that plain.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am grateful to the noble Baroness for giving way, and I shall not interrupt again. To take one specimen example, the Newton report recommends that the Government think about using the French procedure of the juges d'instructions to get over the difficulties of the Special Immigration Appeals Commission. Is that the kind of recommendation that the Government will now take really seriously, coming back with informed recommendations by August, or has that been rejected?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I cannot say that that has been rejected. On the options currently put forward, I accept entirely the comment made by the noble Lord, Lord Holme, that the committee was not asked to put forward solutions in this regard. It was simply asked to report, review and recommend. I have taken that very much to heart, and the Government have taken that very much to heart. But we are now in a position where what we have crafted appears to be the best possible option at the moment. We have made plain that we are willing to explore other options, other exceptions, to see whether a better way may be found. The legislation we currently have gives us a deadline in relation to November 2006 in any event. I can certainly reassure my noble friends that the sunset clause is there, it is robust and there is no question of not operating as far as the Government are concerned. I have listened very carefully to the ingenious suggestion put forward by my noble friend, Lady Hayman. I cannot make a commitment about it. Noble Lords will know that quiet reflection is always important in these situations. I commend my noble friend for her ingenuity, and we will consider her suggestion.

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, I am very grateful to my noble friend Lady Scotland. She chose her words carefully and said that there was no intention not to abide by the sunset clause. That, of course, I recognised in what I said. My assertion was that the power to remove that clause, by SI with negative procedure, was there, and that was something that we should change as a matter of principle. I am grateful for her assurance that the Government will look at that.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I should make it clear that we do not believe the way in which the provision is currently crafted is as negative as my noble friend Lady Hayman believes. The powers in Section 124 are more limited than she implies, and we consider it would be ultra vires to repeal the sunset clause. Perhaps it is not the most appropriate time, but I do assure her that we do not think the situation is quite as bad as she thinks, but we are going to look at the provision to make sure that it is as good as we think it should be.

These matters can now be looked at, and options considered. I do not say that at the end of that consideration any particular course will be predestined. We will look at it properly and openly. Even if the blanket ban on use of intercept evidence were lifted—and that possibility is currently under review—it would not be, if I may respectfully say so, a whole answer. The review should be concluded fairly shortly. I know that I have been pressed as to what "fairly shortly" is, and I cannot be more specific than that, other than to say that it is clearly understood that this matter warrants a degree of urgency.

Photo of Lord Holme of Cheltenham Lord Holme of Cheltenham Liberal Democrat

I am grateful to the noble Baroness for giving way, since it was I who pressed her on a specific date on which the review would be concluded. "Fairly shortly" in parliamentary terms has been known to extend over several years. Does the noble Baroness, Lady Scotland, think that "fairly shortly" would mean that this review by the Government would be concluded within the six months that her right honourable friend set for consideration of alternatives?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I would certainly hope that it would be concluded within six months. I would love to say much more in terms of certainty, but I would be very disappointed if at the end of July we were not in a position to give the sort of response the noble Lord would wish. The noble Lord knows, having been in these situations before, how difficult those dates are. I certainly assure the noble Lords that it is understood that this needs to be done in shorter, rather than longer, time.

Not all the intelligence material is, of course, derived from intercept. It is rarely used in court proceedings. It does not come in coherent chunks. There will always be problems in relation to proper intelligence sources, and how we use the intelligence material in court, particularly if the criminal trial defendant needs to know the full case against him. Any new offence cannot be retrospective. Even if Part 4 were repealed, it could not prosecute those detained for the new offence. All those issues are issues with which we are going to have to deal and consider very carefully.

The noble Lord, Lord Newton, asked why other EU countries have not derogated in this way. The events of September 11 were unprecedented, as we have all agreed, in terms of the loss of life and damage to property. The UK has, as your Lordships know, previously derogated from Article 5 in respect of the threat from terrorism. We consider the threat to the UK, as the closest ally of the United States, is such as to justify the derogation. It has been accepted that each country has to make its assessment of the threat posed to itself. It may be that different countries, for different reasons, will be placed at different levels of stress. But I can assure your Lordships that we are trying to establish a framework of agreement with potential destination countries of the kind suggested in paragraphs 254 to 257 of the Newton report. The purpose of the agreement is to protect the individuals who may be adversely affected and the human rights of individuals following their departure from the United Kingdom.

Many of those matters were echoed also by the noble Lord, Lord McNally, and I hope he will take my answers as answers to him, too. He raised one specific issue in relation to recruitment of staff for the security services, and we take very seriously indeed the comments he made regarding the historical arrangements. I can reassure the noble Lord that the security service has been planning the expansion for some time. The recruitment plan is well in hand and will not be affected by the announcements that we have made in relation to it.

The noble and learned Lord, Lord Browne-Wilkinson, commented on Part 3 of the Act, which allows the Inland Revenue and Customs and Excise to make disclosures for the purposes of criminal investigation. The Government believe that this is necessary in the context of these bodies because of the statutory restrictions on what they can disclose. Other departments and police forces can disclose, where information assists in the detention of serious crimes such as murder, sex offences and the like. It is right that Part 3 allows the Inland Revenue to disclose for Section 19(2) purposes, which include crime.

Your Lordships will know of the serious issues of a Soham-type nature—

Photo of Lord Browne-Wilkinson Lord Browne-Wilkinson Crossbench

My Lords, can the noble Baroness confirm that disclosure by the Inland Revenue and Customs and Excise can be made in relation to any crime—not just serious crime, but any crime—and if so, what is the justification?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, it is right that disclosure would have to be relevant to the crime and pertinent in satisfying certain elements of it. I am not able to tell your Lordships precisely, but I believe that these powers are used only in relation to very serious matters. I can write to the noble and learned Lord with clarification.

He referred to various figures but I am unable to respond to them either in relation to their accuracy or to say whether there are other contextual issues which would put them into a different light. I therefore hope that the noble and learned Lord will forgive me for not being able to deal with the matter as he might want.

My noble friend Lady Hayman asked whether detainees can leave and expressed her discomfort about them being set at large. I was trying to explain why that is understood and the work we are trying to do carefully with our partners to address that issue.

The right reverend Prelate the Bishop of Rochester raised the knotty issue of hate crime. The Government will consider whether the existing system of aggravated offences could be improved, but have not identified earlier opportunities for reform in the legislative programme to date. We remain attracted in principle to introducing an offence of incitement to religious hatred, analogous to the existing offence of incitement to racial hatred. We will listen most carefully to those views before reaching any decision.

The noble Earl, Lord Northesk, asked about the voluntary regime and its success. The public sector wanted the element of compulsion to justify disclosure, and the policy interests were clear. We will certainly give consideration to the noble Earl's comments.

I turn to the issues raised by the noble and learned Lord, Lord Lloyd. Various comments were made about the discussion paper, which asks for suggestions about possible new offences, as I hope I have outlined. The noble Lord, Lord Carlile, suggests a broadly-drawn offence that acts preparatory to terrorism, and the Government must consider whether that assists in filling the gap. We will take into account the other comments made today by the noble and learned Lord, Lord Lloyd, in relation to those other offences. We are looking at both ideas and at what other countries do; for instance, the French offence of association with a wrong-doer. We will follow that suggestion, together with many others.

The noble and learned Lord, Lord Lloyd, also asked about Section 17 of RIPA. Material on which these decisions are held comes from a variety of sources. It is not simply the intercept material and it would be wrong to assume that relaxation of intercept answers the problems entirely. Regrettably, it does not. I am not able to give your Lordships the precise nature of all the evidence held in relation to each of the 14 persons. I am sure that the noble and learned Lord understands why that is so.

I turn to the noble and learned Lord's able pupil, the noble Lord, Lord Thomas of Gresford. He raised the issue of insufficient case management. We do not accept the criticism made by the committee in terms of the individual management of cases. The first tranche of individual appeals took longer to come before SIAC because of the legal challenges made by the appellants to the derogation that had first to be heard. In preparation for the individual appeals each of the cases was considered. That included the threat posed by the individual and the ability to deport, as well as any other changes in circumstances.

The individual cases are kept actively under review. One individual has subsequently been convicted on criminal charges and another is currently being prosecuted. Both cases were based on evidence that came to light after certification. The first set of reviews will therefore start in April. These will be the first reviews six months after the determination of appeals. The reviews then have to be conducted at three-monthly intervals. All the information, as well as any new information on the detainees, including a threat assessment and any changes that have been made to ability to remove, will be reassessed.

I come next to the noble Lord, Lord Lester. I hope that many of the issues he raised have already been covered in my comments and that he will take that as an answer. If I find that there are other matters that I have not covered, I undertake to write to any noble Lord to whom I have been so discourteous as not to answer.

My noble friend Lady Whitaker rightly raised the whole issue of Part 12, its efficacy and the need to retain it unless and until we replace it with something else. I can give her the assurance that she seeks. The Government have no intention of repealing Part 12 until such time as a new corruption Act is in force. I hope that I have said that with sufficient clarity for her to feel comforted.

The noble Lord, Lord Goodhart, then raised several issues. I hope that he and the noble Baroness, Lady Anelay, will find that the comments I made earlier are a proper response to them.

This has been a testing issue and we will have an opportunity to answer many of the points more fully next week when we discuss Part 4. I therefore hope that noble Lords will find it appropriate that I have concentrated mainly on the other issues. I shall write to noble Lords in relation to any other matters that I have failed to address in full.

On Question, Motion agreed to.