My Lords, on behalf of my noble friend Lady Scotland of Asthal, I beg to move that this Bill be now read a second time.
In my opening remarks I should explain precisely to your Lordships in what form the Bill has left the House of Commons. That way I hope we can avoid confusion on this point and have a properly informed Second Reading debate. Yesterday, the other place debated the Prevention of Terrorism Bill in Committee on the Floor of the other place and at Third Reading. As noble Lords are no doubt aware, my right honourable friend the Home Secretary told the other place that he would propose amendments to the Bill.
The Home Secretary explained that he had been considering very carefully all the representations that had been made to him. He was prepared to contemplate making changes, so as to create as wide a consensus as possible across Parliament to support this Bill. The Home Secretary also said that the necessary amendments to the Bill would be tabled in time for Committee stage in this House, which will be done. The amendments will be ready for 9.30 a.m. tomorrow and will be available through the usual channels.
This Bill needs to be seen in the context of the scale of the continuing and serious threat to the security of the United Kingdom from terrorism. A primary issue raised by this Bill is whether, in the light of the threat that this country faces, it is appropriate and necessary to introduce a process which goes beyond the powers of the normal criminal prosecution process to protect the nation against terrorism. It is the Government's view that there is such a requirement to introduce such a process and to impose restrictions on individuals where absolutely necessary. But it is also the Government's view that we should ensure that such powers are subject to stringent safeguards.
Perhaps I may quote from simply one observer on the current position in relation to the threat. I choose the noble Lord, Lord Carlile of Berriew, a Member of this House, who has reviewed the terrorism legislation. He said:
"I am too the independent reviewer of the working of the Terrorism Act 2000. In that capacity I carry out a programme of relevant visits, and make comparative studies of counter-terrorism legislation in the UK and elsewhere. I try to keep myself fully informed as to risk levels and the basis for them.
Taking into account the closed material I have seen in both my reviewing roles, I have no doubt that there is an existing and unpredictable risk within the UK, and to UK assets abroad, from Al Qaeda linked terrorists. Some such terrorists are likely to be UK citizens, other foreign nationals.
My assessment is that there is a real level of risk of attack on places of mass aggregation—airports, football stadia, music venues and the like. Evidence from AQ attacks abroad (e.g. . . . 9/11, Bali, Madrid) supports the opinion that generally they are more interested in body counts than targeting individuals. The consequence is that the burden of responsibility of the UK government to protect the ordinary citizen in almost any crowd situation is heightened by the identified risk as I have described it. Further, AQ is very different from many other terrorist groups, in that it appears to be a loose connection of associated associates albeit with shared purposes, rather than a paramilitary structure. This difference makes it more difficult to pin down exactly what AQ is at any given time, and who is or may be involved in it or under its penumbra".
That was the assessment of an independent reviewer. It is a view shared by very many people.
Some believe that the absence in this country of a terrorist outrage, such as 9/11, Atocha or Bali means that the terrorist threat has somehow passed us by or failed to materialise. The Government do not take that view. We take the view that there is a threat of mass casualties in this country and overseas. The threat is made worse by three particular aspects: first, the willingness of those engaged in terrorism to cause cataclysmic events, such as 9/11; secondly, the well funded nature of the terrorism; and, thirdly, the fact that people are prepared to die in the course of exercising those terrorist atrocities.
A principal responsibility of the Government is to protect this country and everyone within it as best they can, but consistent with the rule of law and human rights obligations. The Government are determined that consistent with the rule of law we will take the steps which are necessary to ensure our safety.
The Government have made it clear repeatedly that wherever possible our priority will always be to prosecute suspected terrorists through the criminal courts. Therefore, as I said at the outset, the vital question is whether we can leave the problem that I have described to the normal police and criminal procedures or whether additional measures are necessary. We believe that we cannot leave it simply to the ordinary processes. It is the view of the Government, on the advice of the security services, that the provisions in this Bill are a necessary component of our weapons to fight terrorism.
In that context there has been much debate about the potential benefit of the—
My Lords, I apologise for interrupting. Perhaps the Minister can help me with something that has been puzzling me. Of course I accept that there is a serious threat, but the provisions which were challenged by the Law Lords originally applied only to foreign nationals and not to British citizens. So if there is such a serious threat from British citizens, why did the Government act only following that challenge? Why was it not necessary to take action before then?
My Lords, the provisions introduced in Part 4 were introduced within a matter of weeks of 9/11. As I think everyone has learnt since, the threat comes, as the noble Lord, Lord Carlile of Berriew, says, not just from foreign nationals but also from UK nationals. One can see that from various prosecutions that have taken place.
We need to take account of what we have learnt since September to December 2001, when we initially introduced Part 4. We also need to take account of what the Law Lords said. So, we have learnt more; we know more about the threat; and we must also comply with what the Law Lords said. That is why we are proposing change measures now and why they include UK nationals as well as foreign nationals.
Going back to intercept evidence, it has been said that you could resolve the problem of resorting to a process that is not the normal criminal process by allowing the admission of intercept evidence. As the Government have made clear, we consider that to introduce intercept evidence in criminal proceedings would cause great danger to the method by which we intercept the activities of criminals, and reveal informers.
However, putting that issue to one side, we also believe that intercept as evidence will not transform results against either the most serious criminals or, as is pertinent to this case, terrorists who tend to be the most security-conscious in their use of communications. In building cases against those people, intercept provides only a part of the intelligence against individuals—sometimes a small part. Its main value is likely to continue to be to help intelligence agencies and law enforcement to deploy other techniques—for example, surveillance, eavesdropping or use of informers—in effectively obtaining other evidence which can be used in court. It does not stand alone and we can—where other supporting evidence is available—convict people now without having to admit that intercept helped in bringing them to justice.
To revert to my first point, noble Lords will know that in the context of the Special Immigration Appeal Commission (SIAC) hearings, intercept material was available to the judge and his lay advisers who had to reach conclusions in relation to that. In relation to all the intercept material made available to the SIAC hearings, none of it was thought to be appropriate by the judge to make available to the subject matters of those proceedings. The judge accepted the argument that to make it available to the applicants would damage either ability to use intercept material because it would reveal method or because it would reveal informers' identities.
So, both on the basis that it would not obviate the need for processes other than criminal proceedings and because it would endanger both method and informants, I do not believe that intercept material is the solution. The Government will, as they always have done, keep under review how best to support the work of the intelligence agencies, law enforcement and the prosecution of serious criminals and terrorists. But the conclusions of the recent review did not support the contention that a lifting of the current prohibition on intercept as evidence would have a big impact on the conviction either of serious criminals or the terrorist targets that so threaten our nation.
There have been further suggestions that a solution is to bring forward new offences under which individuals can be charged. We are exploring—my right honourable friend in another place has made this clear—whether there are gaps in current provision which might usefully be filled. However, the introduction of new offences per se would not easily overcome the evidential problems in proving the link between the individual, his activity and terrorism, for the reasons that I have already described. We must face up to the problem that whatever changes in the law one makes, whatever additional evidence one makes admissible, there will still be a gap in respect of which the criminal process will not provide the answer.
As I have already indicated, our first response was the provisions of Part 4 of the Anti-terrorism, Crime and Security Act 2001, which the noble Lord, Lord Forsyth, referred to in his intervention. However, as I made clear in my answer to that intervention, the threat from terrorism has continued to evolve and we have learnt so much more about it since then. As I have made clear, we have accepted the Law Lords' ruling that the powers are incompatible with ECHR, and we must also act to deal with that.
As I have said, the purpose of the Bill is to protect citizens of this country against the actions of terrorists whose aim is to launch devastating attacks upon our whole way of life. In order to do that, it is necessary, in certain circumstances, for us to place restrictions upon their activities. That is to be achieved through the imposition of the regime of control orders that I shall shortly describe.
In approaching this very difficult area, the Government accept that we must act within the convention, as given effect in our law by the Human Rights Act. As noble and learned Lords will know, fundamental to the convention is the concept of liberty, which is protected by Article 5:
"Everyone has the right to liberty and security of person".
Article 5, of course, allows for an individual to be deprived of his liberty—provided it is in accordance with a procedure prescribed by law—in a variety of situations, including conviction by a competent court, restraint of persons of unsound mind, or detention pending deportation or extradition. But the convention, drafted as it was in the world of the late 1940s, contains no provision to deal with the kind of terrorist threat planned and perpetrated by groups such as Al'Qaeda. It contains a mechanism, in Article 15, for a contracting party to the convention to derogate from Article 5 in time of war or other public emergency threatening the life of the nation.
The view of the Government is that we are clear now—as we were clear in 2001—that derogation from Article 5 is justified on the basis of the threat that we currently face. As my right honourable friend said in his Statement in the other place on
However, on the second criterion for derogation—the necessity for measures amounting to a restriction of liberty under Article 5—my right honourable friend has been advised by the police and security authorities that they consider that the regime of control orders established under Clause 1 will be sufficient to deal with the individuals of whom we currently know.
Of course, circumstances may change in the future, and may change quickly. Any future derogation order will, under the procedure established under the Human Rights Act, be subject to the affirmative resolution procedure in both Houses of Parliament. But, because of the volatility of the security situation, the Government believe that it is necessary to establish now the procedures that would apply were it to be necessary for us in the future to introduce measures amounting to preventive home detention to deal with particular individuals. These are set out in Clause 2, subject to the amendments that I shall refer to in a moment.
The non-derogating form of control orders is dealt with in Clause 1. These make possible a variety of restrictions upon the activities in which an individual may engage, some of which—as has been pointed out—may be quite onerous, some of which may not be that onerous. But—and this is a very important point—no combination of restrictions contained in an order made under Clause 1 may breach the Article 5 threshold of a deprivation of liberty. If it were to do so, the order containing it would be quashed by the court.
Instead, the restrictions contained in Clause 1 deal with interferences to the other rights set out in the European convention, particularly Article 8, which relates to the right to respect for private and family life, and Article 11, which relates to freedom of assembly and association. Here, the drafters of the convention recognised that the rights of individuals must always be held in balance with the rights of others. All the rights set out in Articles 8 to 11 of the convention,
"may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society", for a range of purposes, including the protection of the rights and freedoms of others and, in the case of Articles 8, 10 and 11, national security. In other words, in legal terms, those rights are qualified rights, subject to a test of proportionality to determine their legality.
I have dwelt upon this distinction at some length, because it is profoundly important to the Government's approach, particularly to the way in which the roles of the Executive and the judiciary are in play in relation to control orders. To read much of what has been written, one would imagine that the Government have proposed orders of both types and that they could both be made on the whim of a government Minister without any effective oversight by the judiciary. Nothing could be further from the truth.
In relation to Clause 1 control orders—non-derogating control orders—Clause 7 sets out the procedure. The order is quite rightly made by the Home Secretary since the choice of the particular conditions requires balancing the advice of the police and security services against the overall security situation and selecting the least intrusive or oppressive way in which the danger posed by an individual can be controlled. But the individual can appeal to the High Court, which will determine on judicial review principles whether the Home Secretary was right to suspect the individual of being involved in terrorism; whether it was necessary to make a control order; and whether each of the obligations contained in the order is justified.
Criticisms were made last night in the other place that a judicial review-type test was too weak in these circumstances, but the Government do not agree. Concepts of reasonableness and proportionality are at the very core of the concept of judicial review. It is absolutely the appropriate yardstick against which to judge the interference that a Clause 1 non-derogating control order would make to a suspect's rights under Articles 8 to 11 inclusive of the European convention.
Different considerations apply to Clause 2 derogating control orders. Here, the right to liberty is in play. For that reason, the Government proposed—this is subject to the amendments that came later—not only that the Home Secretary should be required to take his decision on the balance of probabilities, but that there should be very rigorous judicial scrutiny of his decision in an inter-parties hearing within seven days to consider whether there were adequate grounds for the making of the order in the first place, and after that seven days hearing—this is the proposal before the commitment to amendments—there should be a full hearing at which the High Court would conduct its own hearing of each of the matters that fell to be determined by the Home Secretary.
At that hearing, the court would place itself, in practice, in the position of the Home Secretary and decide whether to accept his order, to vary it, or to quash it. That is a very high level of judicial involvement, and one that, in many cases, would be regarded as taking the courts too far into the province of the Executive. But we believe that it is justified in the particular instance of derogating control orders, because of the importance, both under our common law and the European Convention of Human Rights, of the right to liberty.
There was much debate on the correct method to start those proceedings. Was it right that the Home Secretary should decide and within seven days the matter should return to court? After representations were made the Home Secretary indicated yesterday that in relation to derogating control orders he would introduce a requirement that said in practice a judge had to make the order on an ex parte basis before it became effective. We accept that that is the position, and we will table amendments to that effect by 9.30 a.m. tomorrow.
My Lords, can the noble and learned Lord the Lord Chancellor think of any single instance in our history in which a judge has been given the power to deprive a citizen of his liberty without a conviction by a jury?
Yes, my Lords; the only comparable case is bail or deprivation of freedom pending a trial where there is no conviction.
My Lords, in contrast to the point made by the noble and learned Lord, Lord Lloyd, can the noble and learned Lord the Lord Chancellor tell us how many times the executive has suspended habeas corpus in the past 200 years—which, I believe, is more than people think—and allowed the executive to decide to make those decisions? It has been an article of English history, although I do not know whether it did any good. We governed Ireland by coercion.
My Lords, it is done extraordinarily rarely; I cannot identify precisely the number of times that it has been done. We proceed on the basis that it is done extremely rarely. For it to be done there has to be a sufficient degree of risk to justify particular measures of the sort that we have described. We think that the balance, which we feel an obligation as a Government to seek to strike, has to be struck in order to balance the right to protection that people have against the freedoms that the people in this country have traditionally enjoyed.
My Lords, in relation to derogated powers the reason we think it necessary for the judge to intervene at the outset—that is, before the order is made—is because the order's effect is to deprive the citizen of his liberty. The effect of the non-derogating order is not to deprive the individual of his liberty; therefore the consequences on the individual are fewer. That is the distinction on which we rely. We accept that in certain circumstances the effect of a non-derogating order could be onerous for the individual. That is why the Home Secretary also made it clear that within a matter of days it is important for the matter to go before the court.
The reason for the distinction between the two sorts of cases is the effect or impact on the citizen. Where the impact is as onerous as it is in a derogating control order, we think it right in the light of representations that have been made that the judge should make the order in the first place.
I have indicated what the effect of the amendments and the effect of a derogating order should be. Consistent with a traditional Second Reading speech, I shall indicate briefly what the Bill contains. Clause 1 provides the basis on which the Secretary of State will be making non-derogating control orders; it also sets out the sorts of order that a non-derogating control order will contain.
Clause 2 provides the basis for the Secretary of State making a derogating control order: a control order that amounts to a deprivation of liberty under article 5. It also sets out the significant judicial role in which there would be an automatic hearing of the merits of the case on an inter partes basis. That will remain the case even where the amendments make it clear that before the order becomes effective a judge must have ordered it on an ex parte basis.
Clause 3 sets out the duration of control orders and the process for renewal. Clause 4 sets out the duration of derogating control orders; Clause 5 sets out the process for modification, notification and proof of control orders; Clause 6 sets out offences linked to breaches of a control order; Clause 7 sets out the judicial process for reviewing non-derogating control orders; Clause 8 sets out the judicial process for hearings concerned with modifying derogating control orders.
Clause 9 is concerned with the jurisdiction of the court in respect of control order proceedings; Clause 10 is about the effect of the court's decisions on convictions; Clause 11 is about the process for reviewing the application of the Act; Clause 12 is concerned with interpretation of the Act; and Clause 13 provides for other supplemental provisions. The schedule to the Bill provides for proceedings in the court.
I know that many within this Chamber will continue to ask whether we are going too far in introducing these measures. Noble Lords who have raised the uniqueness and unusualness of the process are right to do so. No government would introduce such measures unless they felt compelled to do so pursuant to the duty to protect the people of this nation. We feel compelled to do so on the basis of the threat to the nation, but we are extremely conscious that in doing so we must be consistent with the rule of law and with our obligations under the European Convention on Human Rights.
I make three other points: first, as my right honourable friend pointed out in the other place last night, there are very many outside Parliament who would ask whether we are going far enough. The new forms of international terrorism pose a grave threat to the security of our country and other countries. We would all prefer simply to rely on criminal prosecutions before using measures which deprive people of their liberty, or interfere with other convention rights; but we believe, consistent with the responsible protection of the people in this country, that we have to strike a balance. The pressure is on us to make the judgment and I hope that we can persuade the House that we have made the right judgment.
Secondly, because of the passing of the Human Rights Act, we have provided ourselves in government and in the courts with a template for measuring the proportionality of our response, and ensuring that the measures we take against any individual are, in the case of deprivation of liberty, strictly required by the exigencies of the security situation; or, in the case of interference with other convention rights, necessary in a democratic society in the interests of national security, or for the protection of the rights and freedoms of others.
Some have argued that these tests were already latent in our common law, and that the Human Rights Act did nothing to advance them. We on these Benches profoundly disagree and regard the Human Rights Act and the European convention, which it incorporates, as providing a living and fundamental guarantee of our freedom under the law.
Thirdly, the existence of the Human Rights Act and the ability it offers the courts—including the Appellate Committee of this House—to scrutinise the actions of the Government and the laws we pass against the yardstick of the European convention provide a new and powerful guarantee of the rule of law. I therefore begin where I started: we are introducing this Bill in order to address the findings of the court and its decision in A and Others in this House.
We are introducing measures consistent with the convention and remedying the defects of previous laws that we introduced. I hope we all accept that a regime of preventive controls of the type set out in the Bill is urgently necessary both to protect our citizens from terrorist attack and to right the wrongs identified by the House of Lords in the case to which I referred. We must have available measures to deal with the threat but we must equally put the law into a state consistent with the European Convention on Human Rights. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
My Lords, we do not underestimate the difficulty of the problem facing the Home Secretary. There is indeed no difference between us on the determination to protect our public from terrorism. We know that there are no easy answers but, as I made clear last week, we believe that the Home Secretary has settled on the wrong answers, which may sacrifice essential and long-standing British principles of liberty and justice in a way that is unlikely materially to enhance the security of our people. The Government have quite properly, and laudably, put into effect measures to prevent the radicalisation of groups in our society; these laws, and the sense of injustice that they may create, could completely negate those efforts.
It is shocking that Parliament, and especially another place, has been given so little time to scrutinise this important Bill, one that the Government themselves agree raises serious and difficult issues. Yesterday, the Home Secretary wrote to my right honourable friend, David Davis, to announce that he would table amendments in this House with regard to the derogating orders, to which the noble and learned Lord the Lord Chancellor has referred today. Yesterday I watched the debate in another place; I saw Members around the House ask the Home Secretary to agree to a short adjournment so that those amendments could be tabled and debated, but that did not happen. Another place was denied the chance to debate vital government amendments in Committee, which means that the only time when another place can consider them is when the Bill returns to that House for the briefest consideration of Lords amendments. That in itself assumes that this House will pass those amendments unaltered. That was a shocking way in which to treat the elected Chamber by a Home Secretary legislating in such haste that we face the very real danger of getting the proposals in the Bill wrong.
We have offered the Government the opportunity to have the time to consider carefully the proper way forward. Today the noble and learned Lord the Lord Chancellor has dealt with some of our proposals and dismissed them by saying that there is a gap between security and what they would provide. In Committee, we shall need an opportunity to look at the alternative proposals in detail and in a manner that is constructive and—I believe—helpful to this House and to the Government.
We said that we were willing to support the renewal of Part 4 of the Anti-terrorism, Crime and Security Act 2001, for a limited period, specifically to allow time to get right the provisions that we need today to combat terrorism. The Home Secretary has said that he does not believe that that would work—but that still begs the question, regardless of what the noble and learned Lord said today, why the Government tabled that statutory instrument just a few weeks ago.
We are willing for a limited period to co-operate in primary legislation that limits the bail conditions that SIAC can allow, effectively guaranteeing that the control orders that the noble and learned Lord outlined today would apply to the remaining Belmarsh detainees until properly considered legislation comes into effect. That would give the Government the certainty that they are seeking for foreign nationals.
We made other practical proposals, too, with regard to allowing intercept evidence in court. Of course, I note what the noble and learned Lord said today, but we have also referred to the fact that it would be helpful to take up the Newton committee proposals that we should put in place a procedure using an investigating judge to sift, assess and present a balanced set of all sensitive evidence, including intercept and other intelligence-based evidence, in such a way as to protect our security services but also to be fair to the defendant.
The Government have said that they are now considering taking up the idea of introducing a new charge relating to acts preparatory to terrorism. We have always said that we would consider very positively such a proposal. So there are alternatives that can and should be considered in Committee, but for the moment the Government seem set on only one course: that of the control orders in this Bill.
The Bill that faces us today is, of course, unamended, and we shall not see the Government's proposals until tomorrow. It gives the Home Secretary the power of imprisonment, either at home or in government-run property, as well as powers of isolation, search, electronic tagging and removal of belongings. The Home Secretary can impose those orders on anybody whom he reasonably suspects of terrorism-related activity. Such powers go far beyond any previously known British law and have never been accepted in peacetime. He could do that on the basis either of the balance of probabilities or even simple suspicion. He could do it for reasons and on evidence that may not even be known to the British subject who loses his liberty.
We were told in the Statement last week, and it has been repeated again today, that a state of emergency exists. Last week I made it clear that when the Home Secretary tells Parliament that there is a state of emergency, we accept that statement. We also know that the Home Secretary has not sought to persuade the House that the level of that state of emergency has altered within the past 12 months. We are told, too, that the Home Secretary has been advised by the security services that they do not need as yet to use the full extent of the powers in this Bill.
I believe that the Government argument in favour of the necessity of the whole of this Bill as an emergency measure now, pushed through Parliament in a mere two weeks, is fatally wounded by their own ready admission that they do not propose to use those measures that require derogation—at least, not just yet. We are told that they will be left to some later, unspecified date, when the Government would if still in power introduce them by order. So the very people whom the Government say need to be targeted by the Bill—those held in Belmarsh for so long—will walk out of those prison gates within the month.
I turn now to the substance of the Government's concessions floated in the letter yesterday to my right honourable friend. As the noble and learned Lord said today, the proposal is to amend the Bill to provide for derogating control orders to be made by a judge in the High Court rather than, as now, by the Secretary of State. I shall be brief on this matter because my noble friend Lord Kingsland will be able to tackle it in more measured detail after we have listened properly to the debate, when he winds up at some much later time today. I am sure that he is pleased with that surprise parcel from my left hand!
The most substantive concern about procedure in the Bill, though not my only concern, has been that a British citizen could lose his liberty on a decision of the Home Secretary, on suspicion alone and on evidence that the accused person never sees. But my concern throughout, since I heard the Statement last week, has been simple—that all of us, politicians and the media alike, have been caught in the glare of the Government's headlights, dazzled by the shock of proposals for the Home Secretary to have the power to put British citizens in detention.
The result, I fear, is that none of us has spent enough time examining the other extreme proposals in the Bill—for example, on the rules on evidence, the burden of proof and the impact of so-called level control orders, which will also cause a significant limitation and restriction on liberty. Paragraph 4(3)(c) of the schedule means that rules of court must ensure—not may but must—that the Secretary of State is not required to reveal any evidence upon which he does not rely in proceedings for a control order. So if he has evidence that undermines his case and might tend to show that the person was not in fact engaged in terrorist activity, he can keep it secret and use in court only that evidence that appears to raise suspicion of guilt. Surely that cannot be right. Paragraph 4(1)(a) leaves rules of court to determine the burden of proof in control order proceedings. What is the excuse for avoiding putting the burden of proof in the Bill in these important matters?
Last week, I restricted myself to only two questions on the Statement, for once, but the noble Baroness, Lady Scotland, was even more restrictive in her response and answered just the one—the easier one.
My Lords, the noble Baroness rehearses the danger of allowing a Home Secretary to lock people up without due course of trial, but that has been going on for 20 years. I locked people up without trial; the paper was put before me and I would sign it after making my own investigations. That happened under the Conservative administration beforehand. So why the outcry now, when it did not seem to matter with regard to citizens of the UK and colonies or Northern Ireland?
My Lords, the noble Lord has a very distinguished history as a Home Secretary, one that is almost second to none. I say "almost" only because I do not wish to praise other Home Secretaries less. I assume that his reference is to the situation in Northern Ireland, which all of us found extremely painful. Whatever may have happened in the past, in different circumstances, in Northern Ireland, I look today at what should be done this year, in these circumstances, in our British society, and what is the right thing to do now.
I was reminding the noble Baroness, Lady Scotland, that she had answered one of my two questions, but not the second, which was about non-derogating orders. I asked whether the Government considered that, taken together, these might also lead to a requirement of derogation. I note the argument put forward today by the noble and learned Lord the Lord Chancellor about non-derogating orders. I can only assume from his presentation that the Government are rejecting any idea that a combination of non-derogating orders, as we are calling those at a lower level, could lead to a requirement of derogation. We will need to press that strongly in Committee. I am concerned about burden of proof and judicial backstop powers with regard to non-derogating orders. I note that the noble and learned Lord and the noble Baroness, Lady Scotland, are nodding their heads. I look forward to some constructive discussions on that.
My problem is that, at present, a common thread runs through these proposals. It is a willingness to abandon proven principles of British justice, without a proven advantage in addressing the security threat. We should recognise that the problem we face arises as a result of poorly drafted previous legislation, drawn up in haste in the aftermath of 9/11. That mistake was, of course, understandable; but we should not try to repeat it now.
We need to examine all the issues to see whether, and how, the Bill can be amended to make it acceptable. The haste of the Government in another place meant that a vast list of vital issues failed to be debated in the time available. My honourable friend Dominic Grieve listed those issues in full at col. 773 of Hansard of
We must ensure that here, at least, the Bill is properly scrutinised and improved. We are, after all, trying to achieve the right balance between liberty and the protection and security of the British public. Our argument today is that the Government have still got that balance wrong in the Bill. How can we turn the Bill into something which, while consistent with long-standing traditions of British justice, will also be a valuable weapon in the fight against terrorism? That is the question we face. I give my commitment that I and my noble friends will devote all our energies to achieving the right answer in this Bill.
My Lords, we on these Benches agree that the security of the country is certainly the prime duty of government. However, that duty is not exclusively theirs. It is shared with the judiciary, the police and security services, the military and many others. The Secretary of State is rightly concerned with the prevention of terrorist acts which may be planned for the future. Government must be vigilant and rigorous in the interception and use of intelligence—and in the surveillance of suspects. It is essential for efficiency that their methods and techniques are kept secret. Yet this is nothing new. We have 30 or more years of mainland terrorism behind us in this country—not to mention the daily, dangerous and dirty war in which the security services are involved with the drug cartels.
The courts have developed techniques whereby the identity of informants and security service personnel can be absolutely preserved. The methods of surveillance may not be disclosed. This can be further refined, as the Newton committee pointed out in its report. The products of surveillance and intercept, in all such cases that come before the courts today, can be—and are—redacted or summarised to preserve the usefulness of the people and systems employed. Security is no justification for the breach of a fundamental principle which underpins our democratic system; no deprivation of liberty by ministerial say-so, no secret midnight knock on the door, no gulags—whether in Siberia, Guantanamo Bay or anywhere else.
I will spare noble Lords from the Magna Carta, but I will refer to Charles I. I am sure my late noble friend Lord Russell would not wish me to forget that period. Under Charles I, the security services were controlled by the Privy Council, the executive Secretaries of State at that time. They used the Star Chamber, here in the Palace of Westminster, as a political tool. For those who think we should adopt the continental way and abolish juries, the Star Chamber court was inquisitorial. It accepted evidence obtained by torture. It inflicted mutilation and punishments, with fines for seditious libels and other offences, upon the political opponents of the King. So Parliament abolished it. The great 18th century jurist Blackstone then said that,
"effectual care is taken to remove all judicial power out of the hands of the . . . privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. Nothing"— said Blackstone—
"is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state".
Another example comes later on. In 1765 the Earl of Halifax—the Charles Clarke of his day—issued a warrant to be executed, not by constables, but by his messengers who, with force of arms, broke into the house of a publisher, Entick, to search for treasonable libel. They found nothing. It emerged in court that,
"enormous trespass and violence had been done on a mere surmise".
Entick's lawyer submitted that a power for the Secretary of State,
"to issue such a warrant as this is contrary to the genius of the law of England".
The Lord Chief Justice, Lord Camden, agreed and declared,
"our law is wise and merciful, and supposes every man accused to be innocent till he is tried by his peers".
That is something which you will hear today in every court in this land—and a rather more ringing statement of principle than we heard from Ms Hazel Blears last week. The Minister described the Bill with a phrase straight from the Blair bumper book of jargon, when she said:
"The Government provides a legislative framework to enable stakeholders to deliver the frontline measures which"— we may fill in the blanks—
"ensure an effective counter-terrorism response".
That is the way in which the Government of today deal with issues of principle.
Deprivation or restriction of liberty by executive order is contrary to the genius of the law of England. That genius was taken by our forebears to all the colonies and dominions of the British Empire where, in the inheritance of our common law, it has taken a deep and unshakeable root. It was the basis of the Fourth Amendment passed in 1791 in the United States. There have been many examples. The noble Lord, Lord Merlyn-Rees, referred to internment in Northern Ireland. That was not a success; it did not achieve its purpose and was withdrawn.
My Lords, internment in Northern Ireland was introduced by the Ulster government. It was withdrawn not by the Ulster government but by a Labour government. There are still people locked up in Northern Ireland under that heading in the way to which the noble Lord refers.
My Lords, I am aware that it was Mr Faulkner who, as the then Prime Minister of Northern Ireland, introduced internment there. However, coming to today, why were so-called enemy combatants locked up in Guantanamo Bay? So that they could be confined, interrogated and tortured on foreign soil by executive order—away from the paramount requirements for due process that is the glory of the American judicial system.
The detail of the Bill proposes two separate processes. One is for a control order which violates Article 5 of the European Convention and which cannot be employed unless Parliament, by statutory instrument passed by both Houses, formally derogates from the convention. It has been conceded that house arrest will violate the convention. That is the derogating order. The second process does not necessarily mean deprivation of liberty, but restriction of liberty by the imposition of a series of obligations. That is the non-derogating order. It is conceded by the Secretary of State that a combination of such obligations could amount to the deprivation of liberty which would as things stand be quashed by the courts. The Bill itself completely fails to identify the dividing line—what number of obligations would breach Article 5?
The Secretary of State informed us in the Statement last week that he does not think it necessary to seek the approval of Parliament for a derogation at the present time. So house arrest is not immediately an issue. Nevertheless the Secretary of State seeks to persuade us that he needs this machinery. His great concession yesterday was that for the derogating orders, which he does not intend to introduce, he must apply to the court for the judge to decide on a balance of probabilities whether the evidence put before him by the Secretary of State justifies the making of a control order. Why does he need this machinery now in this Bill when he does not intend to use it? What does it say for future scrutiny if all that the Secretary of State has to do at some future date is to put a single statutory instrument through two Houses—a process which is very difficult to block—to put this machinery into action?
However, for the non-derogating orders, which the Secretary of State intends to introduce next week, there is no concession. We heard nothing yesterday. There is no movement on that. As from next week the suspect's liberty may be curtailed by the Secretary of State if he merely reasonably suspects a person to be engaged in terrorist activities. He may impose such obligations as he thinks fit. This is the Entick case all over again. The Minister makes an order without judicial involvement because here the only judicial involvement is if the suspect makes an application for judicial review. The Secretary of State does not go to court; the suspect has to go to court. The Secretary of State then only has to show to the judge that he was acting within the widespread powers granted to him by this Bill. The judge will have no role in deciding whether the control order is merited.
The noble and learned Lord, Lord Morris of Aberavon, asked the question which we should all be asking—why cannot the machinery which the Secretary of State proposed yesterday for the derogating orders, which he does not mean to bring into effect, be used for non-derogating orders to ensure that it is a judge who makes the decision to deprive a person of his liberty, at least in part? That is the fundamental issue that we have to face with this Bill.
However, there are further problems. First, the Bill says nothing about prosecutions. The Director of Public Prosecutions plays no part in the Secretary of State's decision. No order should be made, whether by a judge or a Minister, unless the Director of Public Prosecutions certifies that a prosecution is not possible on the evidence that he has before him. Secondly, the schedule gives to a member of the government, the Lord Chancellor, the power to make special rules about the mode and burden of proof and about the evidence that can be produced at these hearings. Perhaps the Minister when she replies will tell us whether evidence obtained by torture will be admissible provided it is some other country that does the dirty work. Are those the sort of rules of evidence that it is proposed to introduce? The rules may provide not just that the suspect will have no idea of the allegations against him, or the evidence upon which they are based, but even that he may not know the reasons for the Minister's or the judge's decision. He will not even know why his liberty is being curtailed.
The worst aspect of these provisions, and a matter which my noble friend Lord Carlile underlined in his recent report, is that the Secretary of State need not disclose even to the court whether at first instance or on appeal any material in the possession of the security services which helps the accused. That is contrary to every principle of disclosure that we have developed in this country over the past 50 years. How can it be argued that that is consistent with the right to a fair trial, because it amounts to a trial—
My Lords, I apologise for interrupting but there is guidance which says that exculpatory material must be disclosed to SIAC. That guidance has been approved by SIAC. I am not aware of the part of the report of the noble Lord, Lord Carlile of Berriew, to which the noble Lord refers, but the practice is accepted by the court that exculpatory material must be disclosed.
My Lords, if that is the present position under SIAC, why is it not in the Bill? Why is it not on the face of the Bill that full and fair disclosure must take place? As I was saying, how can these provisions be consistent with the right to a fair trial at common law, never mind about the European Convention? It is a blatant abuse of what we have known as the proper processes of justice.
Thirdly, the Government intend to maintain in place the special advocate procedure which the Joint Committee on Human Rights has said would breach Article 6. Two special advocates have already resigned in disgust at what they have been required to do. In written evidence to the Constitutional Affairs Committee published today, nine other special advocates wrote:
"Special Advocates have no means of knowing whether the appellant has an answer to any particular closed allegation"— that is, one he cannot hear—
"except insofar as the appellant has been given the gist of the allegation and has chosen to answer it. Yet the system does not require the Secretary of State necessarily to provide even a gist of the important parts of the case against the appellants in the open case which is provided to the appellants. In these situations"— said these experienced special advocates—
"the Special Advocates have no means of pursuing or deploying evidence in reply. If they put forward a positive case in response to the closed allegations, that positive case is inevitably based on conjecture . . . The inability to take instructions on the closed material fundamentally limits the extent to which the Special Advocates can play a meaningful part in any appeal".
Yet it is on this special advocate system that the Government rely as a safeguard for the appellant who is brought before the court.
Fourthly, there is no provision in this Bill, as there was in Section 30 of the 2001 Act, for a judicial determination of the legality of any future derogation from Article 5. The noble and learned Lord the Lord Chancellor referred to the case of A against the Secretary of State. The Judicial Committee of the House of Lords had jurisdiction in the case of A because it was specially provided for in Section 30 of the previous Act. It is not repeated in this Bill. Nor is there any provision in this Bill for the appointment of a committee of Privy Counsellors to carry out a review of the kind conducted by the Newton committee. Nor is there a sunset clause, or anything resembling a sunset clause, within the Bill.
I summarise the basic principles: where it is impossible to prove guilt by due process, we on these Benches say that Article 5 should be maintained—its integrity should be maintained. There should be no deprivation of liberty, whether by court order or executive order. Restrictions on liberty not amounting to full deprivation may be imposed by a judge on the application of the Secretary of State in exceptional circumstances. Those circumstances must be proved to the satisfaction of the court in a contested hearing which is consistent with a fair trial. In particular, the suspect must know the nature of the allegations that he faces, and be provided with at least a summary of the evidence, as redacted under the guidance of the court. Disclosure of exculpatory material is essential.
This Bill can probably not be put into any acceptable form by amendment. We will do our best to co-operate with the Government, but the kindest thing may be to get all those stakeholders together and invite them to drive their stakes through the heart of the Bill. With proper time, and beyond the constraints of a pending election, all parties could come to a consensus on the best way forward to protect our security in these dangerous times, and to maintain the way of life that we enjoy, which is underpinned by liberty.
I recall the words of my late and noble friend Lord Jenkins of Hillhead in the debate on the previous Bill. He said:
"Above all, something should be done within a framework of respect for the rule of law and an awareness of the need for those at the hinge point between the security of the state and the freedom of the individual—and no one is more at that hinge point than the Home Secretary of the day particularly when there is public clamour—to remain as calmly judicial as possible".—[Hansard, 27/11/01; col. 200]
That is what we need: calm consideration with time to achieve a consensus that we all seek.
My Lords, there are many in this Chamber more qualified than I am to speak about the detail of this Bill. I speak bearing in mind the responsibilities that I associate with the privilege of speaking from these Benches. These Benches have resounded with the words of people who have remembered that the most repeated text in the scriptures is the words "fear not". They have therefore remembered that terrorism is not just a series of unacceptable, revolting, disgusting actions. It is also a system of belief that the best way to achieve your ends in life is by terrorising people through fear.
I also speak as a person with a vivid childhood memory of my parents describing to me what it was like the day my father was interned at the beginning of the Second World War.
I am therefore glad to speak about the privilege of living in a country with a certain spirit—"spirit" is the word I would use. The introduction by this Government of the European Convention on Human Rights into domestic law contributed massively to my sense of the good spirit of this country. The Government deserve and receive continued congratulations on having done that.
In this debate, I am most of all concerned that this Bill does not become what it currently has every sign of becoming: a victory for the terrorists. I am concerned that we are faced with legislation which is part of a transformative process in our society, progressively undermining its spirit, to which so much effort has been directed and which has cost so much to secure.
The events of the last week—and in this building over the last couple of days in particular—are a sign of the capacity of terrorists to undermine our capacity for calm and considered reflection. In that sense, if there are terrorists abroad in our society, they will be delighted that we are discussing this measure.
What contributes to their victory is not the reassurances offered by the noble and learned Lord the Lord Chancellor—and which will no doubt be offered again by the noble Baroness, Lady Scotland of Asthal, when she speaks—but the rhetoric which is the public background to a Bill of this kind, to which I have referred in other debates. We hear constant use of the word "emergency", although when it is used it is also said that there is currently no need for the non-derogating orders in this Bill.
The language of emergency always creates a certain atmosphere, and it is not the best atmosphere for reflection on the quality of your spirit as an individual or a society. We have heard it said, by people in very high places, that safety comes before civil liberties at a time like this. That is all very well when it is your safety you are thinking about, and other people's civil liberties. It is not so good when you find yourself in the position of Pastor Martin Niemöller, who found that there was nobody to protest about his civil liberties and safety, because all the people who might have protested had already been disposed of.
I recall the comment of the Leader of the House of Commons that it is terrorists who pose the main threat to our civil liberties. That remark illustrates the muddled thinking we can be led into by constant talk of emergency. Civil liberties are only endangered by the state. There are other dangers posed by terrorists, and they are extremely serious. I do not minimise them. There is something altogether different, however, when the state begins to turn on its people, or awards itself the power to do so.
I shall make two points before I sit down. Paragraph 9 of the Joint Committee's report refers to the derogations orders—that is a very good example of my point. It says that it is questionable whether it is legally possible under convention law to take the power to derogate without actually derogating when you do it.
I am not a lawyer, and I would not begin to comment on whether that is legally possible. What I do know is that, by taking the power to derogate, you have morally already derogated. You have constituted a society in which derogation is an existential possibility. You have already changed the spirit of our society, of which I spoke. This House should consider very seriously what that means, and whether it is important that an amendment is introduced to make it clear that, if we are going to talk about derogation, we had better do so now, when we are debating the primary legislation. Our spirit as a society will already have been changed if we give the Government this power.
My second point is about the non-derogation orders. It is constantly said that those orders do not constitute a direct attack on the liberty of the subject. As you read them individually, that is undoubtedly the case. What happens if, of the 15 possible restrictions that this Bill would allow the Home Secretary to place on an individual, say 10 of them are introduced in relation to a particular person? Shall we then, if we read these possibilities seriously, consider that person to be at liberty? Would not their life be rather like the lives of people who used to live in Iron Curtain countries? Did we call that liberty?
In short, I see this Bill as posing serious dangers of a spiritual kind to the society in which we live. I do not deny for one moment the seriousness of what was done, what has been done, and for all I know what is being planned by people of murderous intent. We need to arm ourselves with the resources of the spirit to stay clear and rational and not to give in to terror even in this Chamber.
My Lords, I begin by declaring an interest as the member of the Metropolitan Police Authority with particular responsibility for the national and international functions of the Metropolitan Police, in particular counter-terrorism. Given the discussions that I have had and the information that I have received, I am convinced that a number of serious attacks on this country have been averted in the past two or three years as a result of the actions and work of the Metropolitan Police, the security services, and others engaged in that work.
This Bill is necessary for a number of reasons. The first is the House of Lords judgment, which means that this issue must be revisited. Secondly, one of the issues that the judgment particularly highlighted was the distinction between overseas terrorists and those who are born in this country and are British citizens. We had the example yesterday of the conviction of the so-called "second shoe bomber". He was a home-grown British citizen found by the courts to be engaged in terrorism—an indication that that is the nature of the problem that is now faced and that the Bill needs to extend in that direction. No doubt those who are avid followers of conspiracy theories will believe that there is a coincidence between that conviction yesterday and the fact that this Bill is here today. My understanding is that the trial was not expected to reach a conclusion yesterday, and it was entirely fortuitous that that has happened.
The main reason why this Bill is necessary, which has already been referred to by my noble and learned friend the Lord Chancellor, is that we are now dealing with a completely different order and nature of terrorism compared to five or 10 years ago; compared to the challenges faced by my noble friend Lord Merlyn-Rees in his time as Home Secretary and prior to that as Secretary of State for Northern Ireland. I highlight three factors. The first is the willingness and readiness to commit suicide as part of a terrorist act, which transforms the nature of what you need to do to detect and prevent that. Secondly, there is the willingness to cause substantial if not enormous loss of life, and the willingness and readiness to use biological, chemical, or conceivably nuclear weapons. That has not been present in the past, and there is a significant change to the response that is needed by the state in seeking to protect the liberties and lives of its other citizens.
Thirdly, perhaps the most important point is to recognise that these acts of terrorism are not about seeking to persuade our population of anything. Perhaps unlike what happened in respect of Northern Ireland, which was about creating a debate and discussion, this is not about convincing the British people of anything; it is altogether different. When some people say that we should not be passing legislation of this form in the next few days, I wonder what their response would be and how they would defend a situation in which Parliament had not taken steps to respond to the House of Lords judgment in this way.
I shall pose a hypothesis, in which the intelligence services receive intelligence from a previously known and reliable source, but one that is vulnerable, about the specific activities of specific individuals planning some operation. Perhaps those individuals were not previously known to the intelligence services; certainly there is no existence of surveillance data or other material on how that attack will be confronted. How long is it permissible to try to maintain such individuals under surveillance rather than intervene? The balance of risk alters if you are talking about individuals who may be prepared to countenance massive loss of life. In that situation, the balance of risk is different from when someone simply wants to blow up a car.
My Lords, I am grateful to my noble friend for giving way. Does he accept that under Section 41 of the Terrorism Act police have the ability to arrest without a warrant and then to detain for up to 14 days before charging someone against whom there is a reasonable suspicion of being a terrorist? The control orders deal with someone who the Home Secretary has reasonable suspicion is a terrorist. Is the emergency situation not dealt with by the amendment that was envisaged yesterday by the Home Secretary?
My Lords, the risk is that that is detention for a fortnight while investigations proceed. There are clear indications that a fortnight may be insufficient under certain circumstances. Maybe that is a different way in which you could approach this issue. If you are facing that sort of investigation, where the material is not such that could be brought before the court because it would prejudice the intelligence source that has hitherto proved reliable, how long do you carry on before intervening? The intervention that my noble friend Lady Hayman talks about is a temporary intervention; it does not necessarily stop what is happening, and it may not succeed in that end. I wonder how many Members of your Lordships' House would be prepared to stand up afterwards and say that because we were not content to allow this Bill to go forward, we allowed some devastating terrorist act to take place. Those are real dilemmas, and this Bill is an honest attempt to try to balance the realities of the situation that we have before us.
The argument has been made that if only intercept evidence could be allowed in court, all those problems would disappear. My noble and learned friend the Lord Chancellor has addressed that in his remarks. The example that I have just given is not about intercept evidence; it is about material that is obtained from a source under different circumstances. Even as far as intercept evidence is concerned, there is a passing reference in the Congressional 9/11 report to the trials following the 1993 bombing of the World Trade Centre, and the fact that modes of communication between terrorists changed after that because of the publication of intercept evidence and the realisation of what was then possible with intercept evidence. This is not an easy thing.
Much of the discussion in the other place, and I suspect much of our discussion here today, will concern the role of judges. I have the advantage of being neither a solicitor nor a barrister—so perhaps I do not have a belief that judges are the fount of all wisdom. However, it is worth reflecting on the question of accountability. The noble Lord, Lord Thomas of Gresford, gave us some interesting historical examples of the abuse of powers by the Privy Council, the Court of Star Chamber and so on. All of the examples that he cited were in the era before universal suffrage. I personally feel more comfortable when decisions about liberty are taken by someone who is publicly accountable through the electoral process rather than someone who is not.
My Lords, is the noble Lord therefore suggesting—as the inference clearly is from what he says—that sentences for ordinary crimes should be imposed by a member of the government?
No, my Lords, that is not the inference. There is the assumption that substituting a judge for a politician is somehow better. I do not think that that follows. I do not see that there is a particular sanctity in that regard.
Nevertheless, the Bill spells out a number of clear processes by which there can be judicial oversight and review of decisions. For example, I do not agree with the belief of the noble Lord, Lord Thomas of Gresford, that somehow the courts will have little to say on non-derogating orders. Clause 7(5) makes clear that the test is whether the Secretary of State's decision was flawed where his decision was that the order was necessary. That means that it is not simply the process which is challenged but the decisions taken as a result.
My Lords, that suggests that the noble Lord does not follow what judicial review is about. Judicial review looks to see whether the Minister has followed the correct procedure in arriving at his decision. Is his decision flawed in that way? It does not seek to substitute the judge's view of the merits for that of the Secretary of State.
My Lords, I accept that. But it requires the court to consider whether the Secretary of State has misdirected himself or herself; whether the Secretary of State has taken into account factors which should not have been taken into account; and whether the Secretary of State has taken into account all the factors which should properly have been taken into account in reaching that decision. That seems to be a safeguard to which we can all subscribe.
Finally, the first element is that the legislation can be only part of a process of tackling terrorism. It is clear—the experience of internment in Northern Ireland demonstrates it—that if the power is used in a widespread or indiscriminate way, that will increase the alienation among those who, potentially, will become terrorists. Therefore, it must be a sparing power. The Home Secretary indicated that clearly in his speeches in another place.
Secondly—again the indication has been given by government Ministers—prosecutions should take place wherever possible. Again, that clear commitment has been given. The third important element is that the country, the Government, Parliament, and so on, do all in their power to start to redress those senses of fundamental grievance which fuel the way in which some young people are disaffected and drawn towards the path of terrorism. That means, for example, wishing the best for the peace conference currently under way a few hundred yards from here. It means tackling some of the longstanding grievances, whether in Kashmir, Chechnya or wherever they are. I believe that the Government are committed to that. It has to be part of a wider attack on terrorism. The Bill is necessary and should receive a Second Reading.
My Lords, as the former chairman of the Newton committee, to which some reference has been made in these proceedings, perhaps I may make a couple of preliminary points. First, although I speak from these Benches I shall, as always on these matters, seek to speak in a totally non-partisan way. Secondly, I need to make this clear, especially as at least one other member of the committee is in the Chamber. I cannot speak and do not seek to speak for the committee. It has had no existence since about
I intend to speak briefly, first, because of the number of speakers; and, secondly, because I have had my say on some of these matters on a number of earlier occasions, quite apart from what was said in the report by myself and eight others. I shall not spend too much time on regrets but shall record three in the wake of the work we undertook on the committee. First, there does not appear to have been much active consideration, despite what our report said, of possible alternatives to Part 4 until after the Law Lords' ruling last November—almost a year after our report. That legal judgment was not one which we could have made or sought to make. However, no one who read our report would have been surprised by the judgment which followed a year later and we should all have been in a somewhat better position if more thought had been given earlier to an alternative to Part 4.
My second regret—it was expressed by my colleague, the noble Baroness, Lady Hayman, when the Statement was made in this House—is that in this acutely difficult area where careful scrutiny and balance need to be the name of the game we now find ourselves, for the second time, considering legislation on an emergency timetable with all too little opportunity for that scrutiny. Quite apart from what has been said from the Front Benches on this side of the House, I have little doubt that the House would have readily agreed to a short extension of some months of the Part 4 order to allow time for legislation to be considered properly in a more normal timetable. That would have been my view.
My third regret is perhaps linked. Everyone in all parts of the House is agreed that the best course wherever possible is a proper prosecution. I regret that not more in this package is directed to increasing the probability of successful prosecution. I know that there has been talk of continuing to keep intercept evidence under review. I shall not rehearse all those arguments. There is now a suggestion that further legislation will bring forward new offences along the lines suggested by ourselves or the noble Lord, Lord Carlile. I welcome that. But I should welcome it even more if we were considering legislation which brought all these matters together enabling us to judge a balanced package which sought to meet the different objectives. Those are my regrets.
However, we are where we are and I do not wish to dismiss the problem which the Government seek to address. Therefore, I make three comments. First, although it is not a matter directly for the Bill, I welcome the greater efforts evidently being made in discussions with foreign governments with regard to deportation of those incarcerated currently in Belmarsh, because it is said that they cannot be deported without involving the human rights concerns which have led to that position.
Secondly, I remind the House of what we said in our report which for me is a quite important part of the background to this debate. At number 25 of our consolidated conclusions on page 11 we said:
"We strongly recommend that the powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should:
"a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; and
"b. not require a derogation from the European Convention on Human Rights".
I at least should acknowledge that however imperfect and, in respect of the European convention, potentially incomplete the Home Secretary's proposals may be in some respects, they clearly represent an attempt to address those concerns. That was perhaps made inevitable by the Law Lords' judgment, which reflected the same concerns, but is nevertheless something that I ought to acknowledge.
Thirdly, enough has already been said, both in this place and in another, to know that the proposals as announced were capable—at least—of significant further improvements to meet the concerns that we all share. Happily, the Home Secretary yesterday indicated his intention to bring forward amendments, described by the noble and learned Lord the Lord Chancellor earlier, to meet one aspect of those concerns. From what I have heard so far this afternoon, I have to say that I will take some convincing that it is not possible to go the further step in respect of the non-derogation orders, as was suggested by the noble and learned Lord, Lord Morris of Aberavon, at an earlier stage. I hope that that will be given further consideration.
Most important of all, and in line with what I said at the beginning, I want to welcome warmly the extent to which those on all the Front Benches—certainly on these Front Benches—have placed the emphasis on constructively seeking to improve the proposals and trying to enlarge the area of agreement. I am sure that that is how we should proceed. It is certainly how I shall proceed in any contributions that I am able to make in Committee.
My Lords, I recognise the serious problems facing the Government. Since 9/11, we have been faced with a terrorist threat that is indeed more serious than the threat that we faced before. Part 4 of the Anti-terrorism, Crime and Security Act 2001 has now been declared incompatible with the Human Rights Act. The Government would probably be acting unlawfully, and certainly politically unwisely, if they simply extended Part 4 for a few more months; I quite understand why they do not wish to do that.
I accept therefore that we need new primary legislation to replace Part 4, and that such legislation may involve procedures that are different from our traditional court procedures. I would have supported a Bill that introduced control orders if that Bill provided proper safeguards and achieved a proper balance between the security of the community and the liberty of the individual. This is not such a Bill.
What is wrong with the Bill? First, as has been pointed out already, it provides for the control order to be made by the Home Secretary, not the court. In the case of a derogating order—a house arrest order—the new proposals announced yesterday by the Home Secretary, and intended to be formulated in an amendment to be tabled tomorrow, go a considerable way to meeting our objections. That is not so in the case of the non-derogating control order—the basic type of order, which is likely to be made far more often than the house arrest order.
The basic order does not automatically go to court; the subject of the order must apply for a hearing. Much worse, he will get judicial review, not a reconsideration on the merits. The court will be able to quash that decision of the Home Secretary only if the procedure has been defective or if the decision is irrational—a decision that no reasonable Home Secretary could have reached. Even with some recent Home Secretaries in memory, that is quite a high hurdle to cross. It is surely a basic principle that, where a loss or restriction of liberty is involved, the Government make the rules but the courts apply them to the individual cases. Neglect of that principle is the starting point on a road at the end of which lie the gates to the gulag.
I accept that there is, of course, a need for some emergency procedure when instant action is needed—for instance, if it is discovered that someone is going abroad apparently with the purpose of attending a meeting of terrorists. However, the final decision must be made by a judge in court. In its present form, the Bill is unconstitutional and unacceptable.
Secondly, the Bill imposes too low a standard of proof. Only in relation to a derogating order does it require even a balance of probabilities for the order. That means that the basic control order can be made against someone who, on the balance of probabilities, is not involved in terrorist activities. The suspicion of the possibility of involvement—not probability—is enough under the Bill to justify a control order. That cannot be right. It leads to the likelihood of control orders being made against innocent people, with all the dangers that that has to the good will of the community from which that person comes.
Thirdly, the Bill contains no sunset clause or any requirement for renewal. Control orders are an exceptional power to meet exceptional circumstances. They should not be left on the statute book for ever. There must be provision for at least an annual renewal of the contents of the Bill by a resolution of each House of Parliament.
Fourthly, the Bill contains no restriction on what a control order can do. Under Clause 1(2), the Home Secretary can impose on an individual any obligation that he considers necessary to prevent or restrict the involvement of that individual in terrorist-related activities. Clause 1(3) contains a long but non-exhaustive list of what control orders can require. It is entirely wrong that the Home Secretary, or indeed the court, should have power to restrict liberty in ways that are not specifically authorised by Parliament. If the list in subsection (3) is to be added to, that surely must be done by an order approved by each House of Parliament.
Fifthly, the Bill is being rushed through much too fast. It needs detailed scrutiny. For example, the schedule contains power to make rules of court. As the Delegated Powers Committee says, the rules are likely to be unusual and controversial. In particular, it is those rules which will contain the provisions about the special advocate procedure and restrictions on the right of the subject of the control order to see the evidence against him. Those are matters that have caused and continue to cause serious concern. There is a need to debate the rules for control order cases, and to decide which of them should be spelt out to a greater extent in the Bill and whether they should need affirmative procedure for approval.
Because the Bill is being rushed through, it is also incomplete. It should include a new offence of acts preparatory to terrorism, authorise the use of intercept evidence in trials, and forbid the use of control orders where there is a reasonable prospect of a successful trial. In the latter case, I hope that we will see the amendment that the Home Secretary has said that he is considering.
Those are five clear reasons why the Bill is unfit for the statute book. The Government need to sit down with the opposition parties and work out what they can legitimately do in the 10 days before Part 4 of the anti-terrorism Act runs out of time. What they cannot do is force the Bill on us; that would be an affront to the constitution.
My Lords, I share many of the misgivings about sacrificing highly prized and ancient liberties in the search for greater national security. Both propositions have degrees of shading. Nothing is absolute about either liberty or security. The measure of the former is far better understood and catalogued over centuries than any possible measurement of the latter—that is, of security. There is no realisable or deliverable absolute about security.
Whatever yardstick of inadequate security or of terrorism is adopted, be it numbers killed or murdered, high death tolls among women and children, major damage and destruction of buildings and facilities, wide scale disruption of the necessities of life, such as power, water or communication, or the threat to perpetrate one or more of these outrages, I cannot see it as a realistic or practical aim to safeguard the nation against them all. Some protection, and hopefully prevention, yes, but not some place or dome under which the nation can safely be sheltered from the threats and outrages of terrorists.
Inevitably the Government cannot be precise about what threats to national life have been forestalled. I understand the argument that if nothing is done—or if less than might have been done is found, after an outrage, to have been insufficient—such inadequacy can severely damage public trust in the competence of the Government and their security agencies. But I still think it is better for governments to argue for the benefits of liberty, and to stress that their preservation is so important. If ill befalls, the risks of it were acceptable. The ill must not be allowed to take, or be given, greater importance than the preservation and values of our liberty. That would only play into the hands of the terrorists.
The statute book already contains a raft of measures to tackle terrorism and criminal behaviour. Is it really the case that, neither singly nor in concert, these are so inadequate that this latest Bill has to be added to them? Moreover, if the Bill, or something like it, becomes law because of the extreme concern about today's threats to national security, who will be brave enough to say that the serious threat is diminished, removed or gone away, so that this draconian law is no longer required, need not be renewed and can be repealed? Part 4 of the 2001 Act is not going without replacement. Even more stringent measures than were required in the aftermath of 9/11 are deemed vital. Turning down the wick is not even contemplated.
All experience of responses to threats leads to the view that, while something can perhaps be justified in the heat and circumstances of the moment, and be put in place if the will is there, it is much more difficult to back away at some later date and withdraw the response—particularly to such a nebulous but multi-faceted thing as global terrorism.
Then there is the argument that to withdraw sends a message that you are no longer intent on maintaining your guard. You are perceived to be signalling weakness or lack of resolve. The decision to withdraw HMS "Endurance" from Antarctica was seen by the Argentinians as a loss of UK interest in the Falkland Islands, so they invaded. Now we are locked into a far more expensive posture to protect the Falkand Islands than the cost of keeping "Endurance", or a replacement ship, nearby. Cutting back is a really difficult decision to take, and can be argued to be a false economy. No change takes place.
I ask the Government: what is their exit strategy from this Bill? Do they have one? Have they thought about the long-term impact and limitations of the Bill? Surely they prize freedom and liberty highly; highly enough to wish to see their pre-eminence recognised in statute and restored to their rightful place in safeguarding our national way of life. Will this Government, or any successor government, be prepared to run the strategy, even more risky for their reputation and public support, of repealing this Act, only to be faced with recriminations in the aftermath of some terrorist outrage?
Too often do we embark down a new road, but do not give adequate thought to where it will take us, or to the need for an exit strategy. I should like to hear more from the Government about how they view the likelihood or prospects for a climate sufficiently benign, a war against terrorism won, that repeal can safely be contemplated and achieved. If the realistic prospect of repeal is not foreseeable, for me that is another strong argument for not rushing this Bill on to the statute book in the first place. Precious liberties are at stake, possibly in the longer term as well as today. I urge Her Majesty's Government to think again.
My Lords, I should preface my remarks by saying that I am a member of the Joint Committee on Human Rights, and therefore I share and indeed endorse the assessment of the Bill produced by that committee at great speed last week. There will be another assessment, due later this week.
Since I shall be critical of the some of the provisions of this Bill, I want first of all to record my areas of agreement with the Government's case. First, I accept that the Bill is a genuine and, in some ways, imaginative attempt to grapple with the Belmarsh judgment. It provides a more flexible framework than Part 4 of the existing legislation. It also tries to provide a framework that would not, at least at present, require a derogation from Article 5 of the ECHR, and that supporters of the Bill claim would otherwise be convention compliant. Given that it covers both UK and foreign nationals, the Bill also overcomes the discrimination problems in Part 4 of the present Act.
I accept that there is a persistent terrorist threat. I am also prepared to accept that contemporary terrorism is different in kind from previous forms. Religiously inspired terrorism combined with a desire for martyrdom raises unique security problems. I also agree with the Government that some policy of pre-emption may be necessary in relation to terrorist suspects. In that context, I welcome the Home Secretary's proposal in his Statement last week to bring forward legislation to cover actions engaged in the commission, instigation and preparation of terrorist acts. My only comment on this, apart from expressing support for it, is that it seems long overdue, as the noble Lord, Lord Newton, said.
I also accept that it may not be possible in all cases to prosecute suspected terrorists in open court, although I welcome the Government's commitment to do so where possible. I would like the pressure to be kept up on the Home Office to agree to the use of intercept evidence. I accept that this may make a difference to prosecutions only in a small number of cases, but even those would be important in the overall attempt to make the anti-terrorism regime as compliant as possible with the rule of law, and with convention rights.
In his speech, my noble and learned friend the Lord Chancellor prayed in aid the views of the noble Lord, Lord Carlile of Berriew, on a different issue. I would like to pray him in aid as well: I approved of what he said during his interview on the wireless this morning about keeping up the pressure to get such evidence produced before the courts. I also strongly approve of the proposal of the committee chaired by the noble Lord, Lord Newton, to provide a distinctive legal space within which that evidence might be used.
It is important that the decision to prosecute someone who is suspected of being a terrorist be taken by the Director of Public Prosecutions, and not by the Home Secretary advised by the security services and by the police. I believe it should be the DPP. It seems to me that that would make the terrorism prevention regime much more compliant with the rule of law.
Finally—in favour of the Government's view—I accept the point made by the Home Secretary that it is the Government's and his specific duty to protect the nation's security. However, while I agree with all of those points, they do not seem to me to point wholly in the direction of the powers granted in the present Bill.
First, I believe that while the Home Secretary has to take the lead in relation to applying for control orders, and that that approach is consistent with his obligations in respect of national security, I do not believe that it should be the Home Secretary who makes such orders rather than a judge. I say that, first of all, on separation-of-powers type of grounds, about which I have spoken before in your Lordships' House in respect of the Constitutional Reform Bill. Also I think that the European Court is not likely to find that the granting of all the types of control orders by a member of the Executive will be ECHR compliant.
There can be no objection to a judge having access to all the information on which it is proposed to issue the order, as the Bill, as it now stands before amendment, allows a judge to look at a derogation order and to reject it. That implies that he is in possession of all the facts and the evidence on which the order was first made, and in the case of non-derogation orders, there is a power to review judicially such orders.
Given the current state of judicial review—although I realise there are people in the Chamber much more au fait with this than I am—and following the passing of the Human Rights Act, judicial review will come far closer to an assessment of the merits of the case, rather than just issues of procedural fairness, unreasonableness and legality. That is because of proportionality. Surely, the only way that a judge could review an order in terms of proportionality would be if he had access to the evidence on which the order was made.
There is the counter-argument put by the Home Secretary in his interview with the Human Rights Joint Committee, that such an approach will be inefficient and not sensitive to time constraints. I find that a very weak argument. It cannot be beyond the capacity of the Executive and the judiciary to arrive at an agreed time-limited procedure. Indeed, it looks as though that will happen via government amendments to their own Bill.
I think that there should be judicial involvement in all control orders, whether or not they involve derogation. That is partly for the reasons that I have given already, but for two other reasons as well. The first of those—I realise that this is delicate ground and that I shall not be thanked for this—is that, at the moment, whether we like it not, we have to recognise that following the WMD fiasco, there are major problems in the country about trust in both the current state of intelligence and its interpretation by Ministers and those who advise them. There is also the well researched and attested possibility of what is usually called "group think", arising among a small group who have access to secret information. I believe that some independent view about this evidence is crucial both in terms of getting the best view of the veracity of the evidence and also to ensure that "group think" does not become established. That will be the role of the judge.
In addition, in relation to intelligence, people have been detained in Belmarsh on orders signed by the previous Home Secretary. Those orders were based on intelligence material. When one of those people was let out under severe restrictions by SIAC, I believe I am right in saying that the then Home Secretary derided the decision as "bonkers". Now we are told that the present Home Secretary does not believe that it will be necessary, when the Bill becomes an Act, to apply for derogation orders, as at present there is no one who needs to be kept under house arrest.
I am very pleased with the present Home Secretary's view about that, but it has to be acknowledged that it will leave people very puzzled indeed about the quality of the intelligence that led to those people being incarcerated in the first place. If that is so, I believe that it is even more reasonable to have judicial involvement in the granting of all orders, not just derogation orders, as while the non-derogating orders may strictly speaking restrict liberty rather than deprive someone of it, some of the restrictions will be quite draconian and will be based on a standard of proof that falls even below the civil level.
While I very much welcome the Home Secretary's decision to table an amendment which will lead him to apply to the courts for a derogation order, I do not think that this goes far enough. I would certainly support amendments that would require application to the courts for all types of orders.
On the standard of proof itself for non-derogation orders, the Home Secretary said in his evidence to the JCHR that there was no reason of principle why the standard of proof should not be at the civil standard in terms of the balance of probability. The reasons for not accepting the civil standard were, in his view, to do entirely with practicalities.
Given the gravity of the claim made against someone who is to be the subject of a non-derogating control order, it seems to me vital that the standard of proof should be sufficiently high to match the gravity of the claimed involvement in terrorism. Being subject to such an order may well, in effect, destroy the life and livelihood of a family. It seems to me that at the very least the civil standard of proof should prevail and that any issues of practicality ought to be sorted out so that a defensible standard of proof may be introduced. I would certainly support any amendments along those lines.
In the case of derogation orders, which, by definition, require deprivation of liberty and derogation from Article 5 of the convention, surely the standard of proof ought to be at the criminal standard, given that someone may be placed under house arrest indefinitely as matters stand in the Bill on the civil standard. It seems to me that that is very difficult to defend.
I am also worried about the range of obligations that the Home Secretary can impose on people. He can impose any obligation he considers necessary for the purposes set out in Clause 1(2). The examples given in the Bill are just that—examples; they are not an exhaustive list. I would be much happier if the legislation itself set out what obligations may be imposed by control orders. Indeed, my happiness or otherwise may have nothing to do with it, as these will be orders that, because they do not imply derogation from the ECHR, may well be found incompatible with ECHR because they infringe other than Article 5 rights. I would suspect that that is very likely to happen.
Finally, I ask the Minister a very direct question, which mirrors one put to the Home Secretary when he appeared before the Joint Committee on Human Rights; namely, whether evidence against individuals which is known to have been acquired through torture in other jurisdictions, or is likely to have been so acquired, will be disregarded. Given the low standard of proof required for non-derogation orders, it seems to me absolutely vital that such contaminated evidence which, given the circumstances I am envisaging, may not be worth the paper it is written on—even if it is written on paper—should not be used with such a low standard of proof.
My Lords, I have to confess that on
The Appellate Committee was applying the Human Rights Act passed by this Government, and the Government have had to take the consequences. Unfortunately for the Government, however, we now know that there are plenty of well informed and intelligent people who believe that the present legislation also offends against the Human Rights Act and are of the opinion that if it is allowed on to the statute book, even after amendment on the lines proposed by the Home Secretary, it may well get a similar mauling from the judges.
In these circumstances one wonders whether the Government are doing themselves justice when they proceed with such haste. They certainly would not be in quite as big a mess as they are today if they had not insisted on rushing through the Committee stage and the Third Reading of the Bill in the Commons in one day.
I am bound to say that if the Government had come to the House now and said that the powers of house arrest were urgently required on security advice, I would have wondered about the reliability of that security advice—a point touched on by the noble Lord, Lord Plant. I would have pointed out how odd it was that for months the Belmarsh detainees should have been kept in prison on security advice that they were a threat to our security and yet on release they were not even going to be put under house arrest.
But the Government are not coming to the House and saying that they need power urgently to put people under house arrest. They are not saying that they are seeking the necessary derogation to bring such powers into immediate effect. And the Government have certainly not explained to my satisfaction why, if there is no such urgency, they are trying to force through the Bill with all speed. Surely they are not seriously arguing that the whole safety of the state depends on the power to put non-derogating control orders in place by the time the old legislation lapses on
I think that the Bill is deeply flawed. One of our most treasured traditions in this country is that a person's liability should not be restricted save as a result of due process of law. It is certainly not in our tradition for a politician to be able to decide that a person's liberty should be curtailed. But neither, we have always thought, is it for a judge to decide that a person should be detained other than for a defined period while it is decided whether there is evidence to bring him to trial.
I am deeply worried about the idea of a judge, who is not in possession of all the facts and has not heard the defendant's side of the story, being given unusual powers, whether under the Bill as originally drafted to confirm an order made by the Home Secretary or under the proposed amendment to make the order in the first place. The risk is that it may appear that the judge carrying out this unusual role has been enlisted not to act in a truly judicial capacity, but to put a veneer of respectability on the plans of politicians. That point was touched by my noble and learned friend Lord Mayhew of Twysden in an intervention when the Statement made by the Home Secretary was repeated in this place a few days ago.
I have done my best to study what happened in the other place yesterday. Until we see the amendments, which are promised, we cannot be sure on what basis the judge will decide that a person should be placed under house arrest. But it seems that on an ex parte application he will merely study the material in the hands of the Home Secretary and decide whether there is a prima facie case for an order. If so, it serves to reinforce the point I was earlier making. We certainly do not want this sorry tale to end with the judges being granted wholly unusual powers and appearing to some as tools of the Executive.
Going back to the beginning of the Belmarsh saga, I have to say that I had no objection then—and have no objection now—to immigration powers being used to stop foreign nationals, whom we cannot get rid of, causing mischief. I sincerely hope that another government will once again take control of our borders and few such undesirables will get here in the first place.
But while I am prepared to see people detained under immigration powers, I have the gravest objection to the idea of a British subject losing his liberty other than by due process of law. The Government clearly thought the same when they had to make grave decisions after the attacks on America on 9/11. They never then sought powers to limit the liberties of British subjects; and I find it incredibly difficult to accept that that happened just because the legislation was rushed and without mature thought, as seemed to be suggested by the noble and learned Lord the Lord Chancellor earlier this afternoon. But, of course if the legislation condemned by the Appellate Committee was defective because it did not receive enough thought immediately after 9/11, that underlines the risk the Government are taking now by rushing through this legislation.
Of course it is true that since
My Lords, as someone who has studied terrorism intensively over the past few years, I should like to say something about what I take to be the backdrop to this debate.
In my view discussion of terrorism in this country, and, indeed, in some European countries, has been undermined by a failure to draw a distinction between two types of terrorism. The first type of terrorism—for want of a better word—I call "old-style" terrorism. Old-style terrorism is the kind of terrorism that we have been familiar with for many years in this country. It is the terrorism of the IRA, the Basque separatists, the separatists in Sri Lanka, Kashmir and many other countries around the world. Old-style terrorism might have international connections, but it is fundamentally local in character. It is concerned with nationalism and establishing a state in nations that do not have a state.
All episodes of terrorism are horrendous because innocent citizens lose their lives, but the level of violence involved in old-style terrorism is usually relatively low. Old-style terrorists can be negotiated with and, as we know, there have been episodes in the world where those who have been condemned as terrorists have found themselves lauded as the members of a nationalist government later in the day.
I would submit that new-style terrorism is absolutely different from this previous form. The object of the Bill is to grapple with new-style terrorism. New-style terrorism is a creation of globalisation. It is an expression of the massive acceleration of the interdependence of the world in which we now live. New-style terrorism is a child of the global age.
I hope that it will not offend any noble Lord if I say that one can draw a certain parallel between new-style terrorist organisations such as Al'Qaeda and global non-governmental organisations. Al'Qaeda is like a malign global NGO, driven by a sense of mission. It has groups in many different countries and probably about 10,000 activists still in cells around the world affiliated to it. It is a network organisation, as is an NGO.
There are four differences between new and old-style terrorism that are crucial to discussion of the Bill. The first is in respect of its aims. New-style terrorism has aims that are geo-political. Al'Qaeda seeks to achieve nothing short of the rolling back of modernity and the reconstruction of world society. Bin Laden wants a Caliphate that stretches all the way from Pakistan, through the Middle East and North Africa to the southern part of Spain. Such demands are not negotiable in the way that old-style terrorism was.
The second difference is in organisational capacity. New-style terrorism, very much like NGOs, makes use of the whole panoply of modern communication systems to produce action at distance; 9/11 would have been inconceivable without the use of modern technologies—mobile phones, the Internet, computers and so forth. That gives a completely different scope to new-style terrorism in the world today.
The third difference, as noble Lords said earlier, is ruthlessness. Bin Laden has said that he wants to kill millions of Americans. There is no limit to the destructive intent of new-style terrorism, very much in contradiction to the forms of terrorism that we have known before.
The fourth difference is weaponry. We live in a world where, through the Internet, access to destructive weaponry is readily available to anyone who takes the time to learn the procedures involved. Destructive weaponry can be built by people with limited knowledge and facilities. We also know that a large amount of nuclear material has gone missing, a lot of it from the ex-Soviet countries. We do not know where it has gone; we do not know whether it has fallen into the hands of new-style terrorist organisations, but it may have done.
In recent years, there has been a tendency to normalise 9/11. I read an article by the journalist William Pfaff in the Observer this weekend that said, "Well, 3,000 people died in 9/11. That is about the same number as died in the Troubles in Northern Ireland. What is the difference?". The difference is massive. The argument is completely false. 9/11 was aimed at the three main centres of American global power—economic power, political power and military power. If the two planes that hit the twin towers had brought them down more quickly, 50,000 people could have died in New York on that day. If the plane that hit the Pentagon had hit it in another area, the military capacity of the United States could have been at least temporarily paralysed.
From the 9/11 report, we know where the fourth plane was targeted. It was targeted at either the White House or the Capitol. It was brought down only through the bravery of the passengers. Imagine what could have happened if the plane had hit the White House, largely destroyed the building and killed most of the people in it.
Many people today say, "Well, there has not been another 9/11. It was said to us that a terrorist attack in London was inevitable. There has been no such terrorist attack. Why are you scaring us unnecessarily?". People start to call it the politics of fear and feel that the Bill is somehow driven by an illegitimate politics of fear. It is not; that argument is specious, for two reasons.
The first, if your Lordships will forgive me, I will call the phenomenology of risk, which applies not only to risks of global terrorism but to other risks. In order to manage risk, you must scare people, because you must alert them to the reality of the risk that they face, even if that risk is what one might call a low probability but high consequence risk. You must alert people to the dangers. You must scare them to do that. But if you scare them and action is taken to minimise the risk and reduce its potential impact such that nothing happens over a certain period, people will say, "Why were you scaring us in the first place?".
That is a generic problem for governments and other agencies trying to manage the large-scale risks that we face in the world. To me, it is interesting to notice a certain similarity between the arguments deployed by some on the liberal left in this country to play down the risks associated with new-style terrorism and the argument used by the Bush regime in the United States to deny the reality of global warming.
The second reason why the argument about the politics of fear is specious is because of the consequences of the risks that we face from new-style global terrorism. One should not call it international terrorism, because that sounds as though the terrorists come from abroad. Global terrorism has a completely different structure and is much more menacing and threatening than the form of terrorism that existed before.
Noble Lords will remember that, a few years ago, one of the leaders of the IRA said to the security services, "You might be right 99 per cent of the time, but if you are wrong 1 per cent of the time, we will wreak havoc in your cities". That threat is now much more severe, given the nature of the weaponry that can be deployed. A dirty bomb in London would cause havoc in the city. A dirty bomb is relatively easy to build and detonate. It would not kill a lot of people, but it would kill people and contaminate an area of the city and cause panic in whatever city it was set off in.
Against the background of what are massively elevated risks from those that we faced in the past, even 10 years ago, I do not see how anyone can cogently argue that those risks can be handled by orthodox judicial process. Of course we want to bring terrorists to trial whenever we can and, whenever we can, convict them but, as the Bill states, there are bound to be areas where we cannot directly prosecute but where there is clear and present danger and where that danger, in some circumstances, may be extreme and devastating.
As I understand it, the core of the debate as it will unfold in the two Houses is about what should be the relationship between the government, the Home Secretary and the judiciary. Many people are saying that the judiciary, the judge, should have the prime role in taking the decision. I am not at all convinced of that argument. We are talking about risk assessment where the risk is very serious and where highly destructive consequences could ensue. It seems to me that government must assume ultimate responsibility for managing the outer edge of large-scale terrorist activity. It could not be left simply to a judicial decision.
As the debate unfolds, I ask all noble Lords not to use the argument that they accept the reality of new-style terrorism and new risks, but that we can still sustain our traditional procedures. I do not believe that we can, therefore the Bill is crucial to the country. We must get it right because it is not fanciful to say that hundreds or thousands of UK citizens could lose their lives if we get it wrong and all of us sitting in this House would bear a certain portion of the ultimate responsibility for such a thing—supposing, God forbid, it came to pass.
My Lords, I had the great good fortune on
"My Lords, the Minister has very fairly accepted that judicial review is not a process of appeal. It is a procedure to ensure that the Government have not exceeded their jurisdiction. It is a jurisdictional matter and a procedural matter.
When it comes to the derogation orders, the Minister says that the merits of the decision, which cannot be considered on judicial review—or very rarely—then can be scrutinised. If the merits of the decision can be scrutinised after the Minister has made his decision, why cannot they be considered before the Minister makes his decision? Why cannot the Minister go to the judge and say, "I propose to do this. Is this, on the merits, a right and valid decision?".
The noble Baroness, Lady Scotland, first referred to an answer that she had given to the noble and learned Lord, Lord Mayhew, which no longer has any relevance. Then she said:
"because of practicality. It may be that information comes before my right honourable friend the Home Secretary or his counterpart in any future government that clearly demands immediate action. In those circumstances, it would be simply practical and easier for that decision to be made and for it to be very quickly reviewed".—[Hansard, 22/2/05; col. 1115.]
That seems to overlook the fact that a duty judge is on duty all the time.
A letter was published a short while ago about a judge who was woken up at three o'clock in the morning to set aside an injunction to order a person who had been a confounded nuisance to everybody to leave his premises. I remember being woken up at midnight by Sir Louis Blom-Cooper. It happens. There is no need to worry about the practicalities of which the noble Baroness, Lady Scotland, spoke; they are already provided for. I have little doubt that a number of judges could be deputed to take on this type of work. One would for a particular day or period act as the duty judge who would deal with any calls between, let us say, eight o'clock in the evening and eight o'clock in the morning.
What is the urgency for the Bill? Why should the matters not be dealt with in the next six months, while Part 4 of the Anti-terrorism, Crime and Security Act 2001 continues to apply? That is only a limited period, but we are in a fevered state already at the prospect of the campaigning that will precede whatever date is decided for a general election. Most people think it will be
The defendant is not to be told even the facts relied upon. That seems to be totally inequitable. Why should he not be told the facts relied on, so that he has a chance to rebut them? Robin Cook pointed out in the other place that what is proposed runs the risk of being counterproductive. That was the case in Northern Ireland. If it happens here, one may end up provoking sympathy.
The fact that all or most of the special advocates seem to have resigned or explained why their position is impossible shows that, even with special advocates, one cannot achieve the justice that is necessary.
My final point echoes that of the noble Lord, Lord Plant, and is on the onus of proof. When one is dealing with the orders that are to be made to keep a person in his own house or accommodation—in other words, when one is basically destroying his liberty, albeit for a short time—the burden of proof should be the ordinary criminal standard: beyond reasonable doubt. A house arrest order is a very serious order to make, and it is thought to risk being contrary to human rights legislation. In this case, probability is not an appropriate standard.
For those reasons, I hope that your Lordships will say that all orders made should be subject to judicial safeguard and recommend how the safeguards should be applied. What the court is expected to do should of course be properly defined. It is not at the moment.
My Lords, I hesitate to enter a debate of such legal complexity and controversy, but, as somebody who has no legal background, I felt that my opinion would perhaps have some validity. As has been said in a variety of ways, the scales of justice are a balance between the rights of the individual and the need to protect society as a whole.
I listened carefully to the noble Baroness, Lady Anelay, who talked about abandoning proven principles. She then referred to the question of the liberty of the individual versus protection and security. I looked at what the Government said on that. They state in their background briefing paper:
"The Government's preferred course of action is always to charge and convict as many of these potential terrorists as possible. From
That does not seem to me to be a government who have "abandoned proven principles".
Some noble Lords have said that we have always faced a risk. The noble Lord, Lord Giddens, made it clear that the risk that we face today is of a fundamentally different nature. I admit to finding it puzzling that, in the light of events in Madrid, Bali and Mombasa—to name just a few—we should imagine that we have seen the risk previously.
I turn to the question of whether the orders should be made by the judiciary or the executive. The noble Lord, Lord Thomas, who seemed to be verging on hyperbole, talked about no deprivation, no Gulags, no Guantanamo Bay. Are we really suggesting that the legislation proposed by the Government will lead to that? I find that something of an exaggeration.
Some Law Lords have expressed the view that it is inappropriate for the decision on the safety of the country to be taken by the judiciary rather than the executive. Even that is not such an open-and-shut case, as we have heard today.
We have also heard reference to the fact that there is no sunset clause, based on the assumption that the Government will continue without any review or reporting to Parliament. Again, I quote:
"More generally, the Secretary of State will be required to report to Parliament every three months on the exercise of his powers to impose control orders, and the operation of the legislation will be reviewed annually by an independent reviewer".
That may not be absolutely a sunset clause, but nor can you say that it is an unbridled or an unfettered continuation without any examination whatever.
We were also told that there was public clamour to remain "calmly judicial". If that is so, I must admit that I have yet to hear it. In an interesting YouGov poll in the Daily Telegraph on
Of course, it is right that both Houses should examine carefully a departure from proven procedure into this legislation. I was interested in the remarks made by the right reverend Prelate the Bishop of Worcester on what would be a victory for terrorists. I hope that I am not paraphrasing, but I believe that the right reverend Prelate said that a victory for terrorists would be if we undermine the capacity for calm and considered reflection.
A victory for terrorism would be to underestimate the risk, and then face a catastrophe. A real victory for terrorism would be the failure to act. The right reverend Prelate went on to quote from Pastor Niemöller, but are we really saying that this is a comparable situation to fascist Germany? I do not think that it is. Again, that is an unfortunate exaggeration.
I was also interested in the comments made by a number of noble Lords about whether the legislation is appropriate. Are we acting in haste only to repent at some legislative time in leisure? The noble Lord, Lord Newton, said that we could and that it would not be a problem to extend Part 4. The noble Lord, Lord Goodhart, said that we could not possibly extend Part 4. I tend to take the same view as the noble Lord, Lord Goodhart—even if the Government tried to extend Part 4, it would be legally challenged. We have been told that there is no reason for urgency. Clearly, that must remain a matter of opinion. Certainly, the Law Lords have deliberated. Part 4, in the opinion of many, cannot be extended.
For me, the question is: have the Government listened to the critics? In my view, they have. They have responded to criticism of the powers of the Secretary of State and to the view that on derogations there would need to be a judicial review. Responding in a number of ways, the Government have endeavoured to find a consensus. There have been a number of consultations outside the House, which is right and proper.
In the circumstances, given the threat that we face—no one in this Chamber has said that there is not a threat—the legislation is necessary and is the result of considered judgment and amendment.
My Lords, I am afraid that I cannot agree with the conclusion of the noble Lord, Lord Giddens, who has just sat down. I hope briefly to explain why. It is important to remember that throughout our modern history what might be called our sea defences against unfair executive power have been serially attacked by the threat, at any rate, of erosion.
I do not think that that is an unjust metaphor: the executive, like the sea, will always come back. The executive has always had seductive and plausible reasons for each attempted inroad. Sometimes it has made a breach. We are all familiar with the famous case of Liversidge v Anderson in the pressures of the last war when the majority of the Appellate Committee in this House effectively and regrettably held that, with Cicero, amid the clash of arms the laws are silent.
That decision and the criticism that it engendered gave rise to the process of judicial review—the ingenious and wonderful creation of the independent judiciary, which has been developed to this day. But its true character needs to be understood. I very much agree with the noble Lord, Lord Plant, who said that whatever is provided for in this Bill, even as it is now proposed to be amended, it is not judicial review.
In the case of this Bill, we are told by the Government that the danger is presented by international terrorism—I entirely take the point made by the noble Lord, Lord Giddens, about the new character that it presents to us—the dangers are such that procedures quite contrary to our principles of liberty and justice are demanded, if the rights of the greater number are to be preserved. They tell us that the heads of the various agencies that protect us are of one mind—those powers are needed.
I do not doubt that we are told that by the heads of the agencies, which needs, of course, to be given great weight. But should it be given decisive weight, as I rather think that the Government are giving it? I think not. It is no disrespect to those very admirable agencies, including the police, to say that there will be a natural tendency for them to wish to make their difficult and often dangerous jobs easier and less dangerous, as they suppose, and the lives of their opponents more difficult. Again, the speech made by the noble Lord, Lord Plant, like many others, needs to be read with care in that connection.
Those people are at the sharp end, and very glad of them we should be and are, but provisions that permit such wide incursions into liberty as these need to be examined by other minds as well, not least because the provisions could very well enhance, albeit at one remove, the dangers that we are told we face. Here I agree, again, with the right reverend Prelate the Bishop of Worcester.
For example, we resorted in the 1970s, as has often been mentioned today, to detention in Northern Ireland. The arguments for it were respectable and not unlike those that we hear today. But when implemented—I know that they were implemented incompetently—its character gave great comfort and assistance to our enemies and their friends. It was very wisely abandoned by the noble Lord, Lord Merlyn-Rees, the subsequent Secretary of State.
When this Bill comes under dispassionate examination, one is almost blinded by warning signals. Time is very tight, so I commend to the Government and your Lordships only the speech made in another place by Mrs Barbara Follett, the Labour Member for Stevenage, at Second Reading. She said in another place that the provisions of this Bill for restrictions even under a non-derogation order,
"do bear an extraordinary resemblance",—[Hansard, Commons, 23/2/05; col. 401.]
to the pass laws in apartheid South Africa. That is a pretty unsavoury comparator.
Mrs Follett ought to know for she lived in South Africa under the apartheid regime. She said that the General Law Amendment Act, on introduction in 1963, allowed people to be detained without trial, initially for 12 days. Two years later, it had been extended to 90 days. A bit later, it was extended to 180 days. Finally, it became indefinite, by amendment. That is what tends to happen when a wedge is driven by the executive—any executive—into the principle of liberty. The noble and gallant Lord, Lord Craig of Radley, asked, very pertinently, who will be brave enough to say that we no longer need it. That is an important consideration.
Mrs Follett went on to say that in 1971 her first husband, who advocated votes for the blacks, was, without trial, put under an instrument called, by chance, a "control order" because the state believed that he was a threat to its security. She said that he probably was. It provided for his house arrest and it prevented him working and earning his living for five years. His experience of that legislation ended shortly before the expiry of that period when, by whatever person and for whatever reason, he was shot dead in the presence of his daughters.
It is fair to add that Mrs Follett said that she recognised the case for a control order, but that the Home Secretary should get a judge to implement the orders in the Bill and to consider how far to use intelligence evidence in court. Whatever the Home Secretary's intention about adding to the judicial jurisdiction, he does not propose to do that, so far, at any rate.
I have a few concluding points to make briefly about those matters. First, no matter that a judge has a role in derogating orders, the procedure embeds an undemocratic principle in our law—as it happens, another phrase of Mrs Follett's. The judge has to consider whether the matters relied on by the Secretary of State to justify the making of his order were capable, if not disproved, of constituting reasonable grounds for him to make the order he did: look at Clause 2(2). But the controlled person—I might almost call him the victim—is not allowed to disprove them because matters are not fully disclosed to him. The facts are not disclosed to him, and it is that which is so unfair.
Unless upon full deliberation we can find another way, I consider that this is no way for us to proceed. This is not judicial review and, in any event, it is a most undesirable role for judges, since it will properly be seen as quasi-executive, at least, in its character.
At least one component of another way is already available: that is, to make intercept evidence admissible in court. The noble and learned Lord the Lord Chancellor said that there would only be a tiny number of cases in which that would have any effect. I do not regard a tiny number of cases as fit to be ignored when the liberty of the individual is concerned, so let us look at that. In any event, I think that the origin of the exclusion of intercept evidence was a desire, many years ago, to palliate the sense, in some fastidious quarters, that eavesdropping was always bad form. We can no longer afford such delicacy.
There may be other ways, but there may not be. In that case, let us proceed accordingly. But there may be other ways in which, upon full deliberation, we can, by agreement, hit upon some acceptable, fair judicial procedure to build in to the protection of the state against current dangers. But full deliberation is precisely what we have been denied, giving rise to the astonishing scenes in another place last night. The excuses for not taking power to renew, for a few months, Part 4 of the ATCS Act 2001 do not stand up for a minute. I hope that the noble Baroness, Lady Scotland, will recite them when she winds up.
The ECHR provides for a reasonable time to be available for a state to get its house in order after an adverse ruling and that is the course that the Government should take in maintaining the sea walls. They should stop trying to ram through Parliament a bad law that will give rise to worse cases. In the mean time, I say to the noble Lord who raised the question that I shall resolutely bear my share of any responsibility for any attack—God forbid—that may occur.
My Lords, I am a member of the Joint Committee on Human Rights and I completely concur with the findings in its preliminary report that was published last week.
The events of the past few days have placed a real burden on Members of this House in terms of our role in defending the civil liberties of our fellow citizens and/or being complicit in not taking the terrorist threat seriously enough in our resistance to the measures in the Bill.
As a relative newcomer in these matters, I find this task daunting. The fact that the community from which I come—the Muslim community—is the one most likely to be affected by this legislation makes this task more complicated. But, to me, the overall principles are clear: we cannot hope to secure the well-being of the majority by riding roughshod over the rights of the minority.
Let me say from the outset that the minority in question—those, on the whole, from the Muslim community, as the Government have themselves identified in the background briefing papers—is aware of the responsibility it has in this matter. Many of us have been reflecting on these matters since 9/11. That we have failed to combat extremism in our midst is a matter for deep self-reflection. That we fail many of our young people educationally and economically is a matter for regret, not least because of the opportunities lost. That we have failed some of them in terms of their moral outlook and their perception of justice and of their place in the wider human family is something that we cannot explain. It will be some time before we arrive at the reasons why that has happened.
It is absolutely clear that while a small number of extremist Muslims, or non-Muslims, may pose a terrorist threat, the powers contained in the Bill will have the potential disproportionately to affect all of us in the Muslim community, as well as every other British citizen. A diminution of human rights, the loss of hard-won civil liberties and the egregious assault on due process in the Bill cannot be the right way to deal with that other wrong. The general approach of the Home Secretary in not establishing a process whereby those involved in terrorism-related activity are charged and tried in a court of law following established legal principles is to be regretted. We therefore find ourselves in a position where we have no choice but to try to improve a Bill that should have no place in our constitutional framework.
Given the time limitations, at this stage I shall confine my remarks on the Bill to three areas. The first is the procedures in cases where deprivation of liberty is found necessary. How can it be considered just that those accused of these offences are not told of the allegations against them at any stage of the legal process? We have seen SIAC special advocates resign rather than continue with the sham that this process represents any sort of fair trial.
The Joint Committee on Human Rights addressed this in its preliminary report on the Bill. It found that it seemed unlikely that the use of a special advocate procedure, in which the individual does not see the material on the basis of which the order against him is made, would be compatible with the right to a fair trial, as set out in Article 6 of the ECHR.
My second concern is the differential and low standard of proof, as set out in Clause 1, for making control orders. It is sufficient for the Secretary of State to have reasonable grounds for suspicion in terms of the range of non-derogating orders.
Those orders can ultimately, in extremis, result in restrictions on liberty through curfews, infringe other rights such as freedom of movement, or cause loss of employment, and it cannot be right for them to be subject to such a low threshold. I urge the Government to use the same standard as that proposed for derogating orders and to apply the normal evidential rules. They work, as we have seen in the trial of Saajid Badat, which is currently ongoing.
My final concern is the process of scrutiny of the legislation. When the noble Baroness, Lady Scotland, repeated the Statement by the Home Secretary in this House on
So, the Home Office explained, the reason that the Bill was being rushed through in such haste was because that legislation was to expire on
We also hear from the Benches opposite that the consequences of not passing the Bill could be catastrophic. That is the implication of what was said by the noble Lords, Lord Giddens and Lord Young, in attending to charges of the politics of fear. I wonder whether the Minister concurs with those sentiments and, if so, will she tell us when she winds up what might happen if we passed this Bill and yet saw a terrorist outrage?
Finally, if the threat to the life of the nation is so grave, we might be prepared to accept the argument in good faith as we have no other basis of judging. But should not the Government be making the time available for us to deliberate properly; to scrutinise thoroughly; and, above all, to do justice to our forebears in this country who have made such sacrifices for these liberties, which are under so much threat today?
My Lords, the noble Lord, Lord Newton, my erstwhile chairman on the review committee on the Anti-terrorism, Crime and Security Act 2001, spoke eloquently. He said that he did not speak for the whole committee, but he expressed almost exactly my regrets that we are in the situation we are in today. I shall not detain the House by repeating what he said, but it is important we recognise in our debates on the Bill that the issue did not arise simply on
Ever since, trying to strike the right balance has been a matter of the gravest concern and has deserved attention over a proper period of time because it is not easy to decide exactly where those lines should be drawn. My noble friend Lord Giddens—whom I regret is not in his place—said that he did not want to hear from anyone, "I accept the nature of the terrorist threat, but—". I am afraid that he is going to hear exactly that from me. That is not an ignoble or an illogical position to take.
I accept the nature of the terrorist threat and that the normal judicial process—as I think he described it—will not give us adequate protection. I accept that exceptional measures have to be taken; I just do not accept that the Bill has got them exactly right. In defence of taking that position, I have to say to my colleagues on the Front Bench and to others that it is not an immovable position of the Government that this is the right package. Until the Law Lords' decision, they were arguing cogently that nothing less than full-scale detention in prison would meet the threat posed by those detained; and that the threat was predominantly if not exclusively from foreign nationals and not UK citizens.
So since 2001 we have had nothing in place except the normal criminal law to deal with UK citizens. I remember the response on our report to some of the suggestions about curfews and tagging; their suitability was treated with derision by the Government at the time. I also remember that in the Home Office document that explained why Part 4 was essential and had to be kept, the issue of British citizens was dealt with.
The statement was made that,
"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. Experience has demonstrated the dangers of such an approach and the damage it can do to community cohesion and thus to the support from all parts of the public that is so essential to countering the terrorist threat".
I do not wish to make cheap points. I want simply to demonstrate that it is possible to reach different conclusions at different times. Our responsibility is not to be consistent all the time, but to justify our inconsistencies and to give proper scrutiny to the detail of what goes on.
My position is that this is not an absolute choice between either exposing the population to enormous risk or having exactly what was in the first version of the Bill; that is not the situation. We have to make judgments. It has been suggested—I am sure that the evidence from the polls is correct—that the population as a whole supports draconian measures against terrorists or suspected terrorists. I suggest to the House that that places an additional responsibility on us in respect of civil liberties and getting the balance absolutely right. I do not believe that we have got the balance absolutely right.
I agree with many others who have spoken that since the principle has been conceded about prior judicial involvement on one set of orders, it should be conceded on the set of orders for which we are legislating today. It is a theoretical concession about derogatory orders because we do not have them, but it would not be a theoretical concession for ordinary orders.
I would normally have a great deal of sympathy with comrades who say to me, in the vernacular, "What's so wonderful about the judges?". I have to say that what is so wonderful about the judges is that they are not politicians. There is a profound difference of view about the responsibility of the executive.
I understand and absolutely respect my right honourable friend the Home Secretary's view that he is accountable for national security; but I believe that that accountability is in terms of proposing to Parliament the right legislative framework and putting in place the resources and structure in the security service and the police. That is where our protection and security will come from—through surveillance and detection, not simply by the detention of people who are already involved.
However, there are limits to that responsibility. The limits are in deciding not who should be recommended for control orders but who should have control orders imposed on them. That crosses a line that goes to a judicial function rather than an executive function.
We need to minimise the number of cases where control orders exist. I believe that there will still be some cases, but it is almost taken as given that we cannot change the current prosecution rules. I do not believe that that is correct. I would certainly be willing to engage in debate about how we have a coherent base for trying terrorist crimes which will not be normal judicial procedures. It will not be trial by jury or in open court, and it will not have disclosure of all the evidence under the normal PACE rules, but by considering the new offence that has been suggested and the question of intercept evidence we could provide a way in which to prosecute more people. That will not be easy; I happen to support an investigative judge approach, which will not find favour with everyone who prefers the common law approach. But it is essential that we do it.
Returning to the Bill, I would have supported an extension of Part 4 because I believe that it is important that we legislate with the greatest care and take the greatest number of people that we can with us on this. But I have to accept that the regime for control orders is preferable to Part 4, not least because it is not discriminatory. I have limited support for those who are interested in the civil liberties of these provisions only with regard to British citizens, and not to non-British citizens who have been kept in detention for so long. We must look at the nature of the threat, not the nationality of the person who poses it.
I would support those measures, but only as an interim measure. Contrary to the remark of my noble friend Lord Young of Norwood Green, I do not believe that a report every year is good enough. We are unlikely to get these provisions absolutely right in the timescale of these proceedings. This Bill ought to have a sunset clause within it, and when that sunset clause expires it should be brought into another piece of terrorism legislation, because sadly terrorism will be with us for a long time in the future. That Bill should make it easier to prosecute as well as have control orders.
My Lords, as always, it is a pleasure to follow the noble Baroness. Save for one important respect, I agree very much with her remarks.
Five years ago, Parliament passed the Terrorism Act 2000 after full discussion and with all-party support. That is how things should be done—and that Act has served us well. A year later, in the immediate aftermath of 9/11, Parliament passed the Anti-terrorism, Crime and Security Act 2001, containing the now notorious Part 4 powers under which 16 terrorists were detained without trial at Belmarsh. That Act was passed in a very great hurry, and it would have been worse than it is had improvements not been made by this House.
In December 2003, the committee under the chairmanship of the noble Lord, Lord Newton, recommended that Part 4 of the 2001 Act should be repealed and replaced as a matter of urgency. But that was not done while there was still time to do it; for some reason, the Government waited until they were forced into action by the decision of the Law Lords on
My starting point is the nature of the present threat. It is clearly very serious but it is not new; it did not start with 9/11. I dealt with the international threat at some length in my 1995 report and it was dealt with at great length by my colleague, Professor Paul Wilkinson. Since 9/11, there have been some 35 terrorist incidents worldwide, only one of which was in Europe—the atrocity in Spain—and none of which was in the United Kingdom. In October 2001, the Government told us that there was no evidence of a specific threat to the United Kingdom; they repeated that view in March 2002. In March 2004, in reply to the Newton committee report, they said that to extend executive detention to British subjects would be a grave step, and that such draconian powers would do much damage to community relations and could not be justified in the circumstances. Those were their words, not mine. Yet here we are, less than a year later, being asked to give the Government just such draconian powers.
What has changed in the past year to justify such a change of view? That is a question that the Home Secretary has repeatedly been asked and has never yet answered. I shall answer it—nothing has changed; the threat is still the same as it was in March last year and the same as it was in the aftermath of 9/11. All that has changed is the decision that the Law Lords made in December; it is that perfectly correct decision, which the Government now fully accept, that has put the Government and all of us in this very difficult position. The Government were described in the other place as being between a rock and a very hard place; and so they are, but that is entirely their fault for not acting on the recommendation of the Newton report at a much earlier stage.
I shall add one more brief word on the nature of the threat. Last week, Professor Wilkinson, to whom I have already referred, chaired a seminar in the Jubilee Room on the subject of international terrorism. The panel consisted of three professors from St Andrews University and Southampton University and five other experts who specialise in the subject. They all agreed that the threat was very serious and continuing but that it was no different now from what it was in 2001. It has not got worse; indeed, they said that if anything the threat has diminished because of the effect of the war in Afghanistan, which has gravely disrupted the activities of Al'Qaeda worldwide.
I turn from the threat to the proposals in the Bill. I shall assume that the Government will win the vote on their amendment to interpose the decision of a court rather than of a Home Secretary. I accept that the new Bill deals with one ground of the Law Lords' decision; it deals adequately with the question of discrimination. This Bill is not discriminatory. But it entirely fails to deal with the other ground of the Law Lords' decision, which was that the measures proposed in the 2001 Act were not proportionate to the threat to which we were exposed. On that ground, they quashed the order. Exactly the same reasoning will apply to this Bill, if we pass it. Exactly the same fate will therefore befall the Bill.
It is helpful to follow through and see why that is so. Suppose that the Home Secretary comes across a group of suspected terrorists, whom he regards as so dangerous that they must be subjected to immediate house arrest. What does he do? First, he must make a derogation from the terrorists' rights under Article 5. Unless a derogation order is in force, neither he nor the judge has any jurisdiction to make a control order taking away the terrorists' liberty. The Secretary of State, then, applies to the High Court for a control order, as is now suggested, to place the suspected terrorists under house arrest. The High Court is a public authority within the meaning of the Human Rights Act 1998. It would be obliged to apply the provisions of Article (5)(1) of that Act. The judge, looking at that article, would find that terrorists cannot be deprived of their liberty unless they have been convicted by a competent court. Detaining somebody on suspicion is not the same as conviction by a competent court.
The Secretary of State will then say "That does not matter, because we have derogated". However, the judge will then say: "But you must satisfy me that you were entitled to derogate. We must either be in a state of war or face a public emergency which threatens the life of the nation". The judge would give those words their ordinary meaning; yes, there is a serious threat which may result in great loss of life—and many hundreds of people may be killed. However, can we seriously say that there is a threat to the life of the nation? That is the question which the judge will have to answer if he is going to make a control order. I suggest that he would, very probably, answer that question: "No". Certainly, if I were the judge in those circumstances, I would answer that question in the negative. I agree wholeheartedly with the view expressed in December by the noble and learned Lord, Lord Hoffmann.
Yet suppose the judge takes a different view, holding that—for some reason—he thinks there is such a threat. That decision would be subject to appeal. It would come to the House of Lords and, probably, end up in the European Court of Human Rights. Can one imagine that court deciding that there is an emergency facing this country which is not also facing 46 other nations which are party to the Convention? None of them has found it necessary to make a derogating order. Can one believe that the European Court of Human Rights would decide that we alone are the exception? I do not believe we can accept that. What would happen is that this Bill will fail, in exactly the same way as the previous one.
David Trimble was quite right, in the other place, when he said that these so-called judicial proceedings, which are to find a place in the Bill as a result of the amendment, are a charade. They are not judicial proceedings, as we understand them, at all; they are a sham. Judges are there to make decisions in court. They are not there to apply expertise in what was earlier called risk assessment. To require a judge to make this sort of decision would be to require him to do something in which he is not expert—and which no judge has ever been asked to do before.
I asked the noble and learned Lord the Lord Chancellor whether he had any knowledge of previous occasions when a judge had been asked to make such a decision. He could think of none, except upon an application for bail. Yet bail comes after a charge and before a trial. It is not a decision which may result in a suspected terrorist being confined indefinitely to house arrest. Such a decision is one in which judges ought not to be involved. It is essentially a political decision which would expose judges to a political backlash of just the kind from which it is our duty to protect them. I am deeply opposed to the Bill—for much the same reasons as those given by the noble Lord, Lord Waddington—and I hope that we will, in due course, say so.
My Lords, this is as serious a business as we are ever likely to engage upon. It would be helpful to remember, for a moment, the Writ that summons us to this House at the beginning of each Parliament. The words speak of imminent perils. They require each one of us to treat and give our counsel on such matters, in particular with regard to the safety and defence of our kingdom. That Writ requires of us a loyalty that overrides party and requires us to observe the interests of the nation—through its constitution's fundamental principles and in the balance to be struck in the campaign against terror. We should eschew the phrase "we on these Benches" in this debate.
There are many present who question—as I will, in a moment—some aspects of the Bill, yet who fully support the Government's determination to combat terrorism. That campaign against terrorism has to be achieved on many fronts. I have three questions about matters other than those in the Bill. First, when are we to discuss legislatively the enactment of a crime of "an act preparatory" to engaging in terrorism? The very phrase "an act preparatory" is extremely broad-ranging—and should capture in the prosecution process many who were not previously subject to it. When is that to come?
Secondly, on interception: I live in Gloucestershire, near to GCHQ. What is it there for, if not to help us dominate terrorists? Consider the state of the law, as I understand it. With that panoply of technical knowledge and control, one imagines, over many aspects of our life—faxes, telephone calls, e-mails and so on—how can it be a proper law which says that if, in such an interception process, somebody admits to a terrorist act or to a course of conduct which would be highly probative of a terrorist crime, that it is not admissible in a court of law? I cannot conceive of any interest of national security or justice which explains that state of affairs.
Lastly, I welcome control orders—provided that they are ordered within a due process of law. So when we question the Government, as many of us do, we do so enthusiastic for stronger powers to combat terrorism.
I sympathise with the Government's task. It is not easy to strike this balance between national security and fundamental principles of justice, but it is not a safe or a convenient analysis first to describe the severity of the risk because then, almost ex hypothesi, any curtailment of justice has to be justified because of the gravity of that threat. So when I ask the questions that I now will about this Bill I do so constructively. First, as regards the use of control orders, it is a most unusual precedent for us to accept that henceforth a Minister can come to Parliament and attain an Act of Parliament about something he might do in the future which might involve a derogation of the Human Rights Act. On the face of it, it deprives this House of debate about the use of such powers at the time they become necessary to be used.
Secondly, if the derogatory powers—I can identify only one clear one; the house arrest provision in Clause 1(3)(e)—are not to be exercised and yet protection is to be given in the event that they might, how on earth can one justify the position of saying, "You cannot have a similar protection in respect of the powers that we do intend to use"? It seems difficult to follow. The powers that are to be used in Clause 1 are not exhaustive. There are some 14 of them apart from house arrest. Even Franz Kafka would have been challenged in chapter one of The Trial to work out the degree of control that the state could organise over his victim without house arrest. Look at the powers. They invade almost every aspect of life. So we have a state of affairs where the person is protected in the case of a power that is not to be used but where the person is not given the same protection in the case of a power that is to be used. Where powers are to be used, the protection is judicial review—a test of the process, not a test of the merits. What factor of national security or the campaign against terrorism requires that imbalance? I can think of none.
My next point is surely important. If there are to be control orders, they should be ordered inside a due process. Noble Lords will remember that the 2001 Act, which I shall discuss in a moment, was the subject of major debate about the connection between the judicial process and the powers the Government were then given. Why cannot we ask for the following protections in terms of fair process of control orders? First, the advice of the Director of Public Prosecutions that a prosecution is not feasible. What is wrong with such a request? Secondly, there is no problem regarding a judge acting in stead of a Minister because, as was said a moment ago, he is not a politician, nor is he acting on his own caprice or idiosyncratically. The judge applies a legal process which is absent from these non-derogation orders at the moment.
Thirdly, why is there not a single regime? Why is the burden of proof different? Why should it not be the same? Finally, so far as I know, and I am not presently practising criminal law, there is no criminal process in this jurisdiction at the moment that allows this kind of investigatory examination by Minister or judge to take place without the defendant knowing the case against him. The only example I have been given concerns public interest immunity hearings which affect the admissibility of evidence not the merits of the case. If we want a fair process, what is wrong with the questions that I have asked? What damage would it do to national security to introduce those protections into this Bill?
My third and final topic concerns independent oversight. Where there is a tension between the state and the citizen—as there will be under this Bill—we thought in 2001 that called for independent oversight. In 2001, we thought it necessary to have the independent reviewer playing his part. We thought it necessary for there to be a review by Privy Counsellors. We thought it necessary to put in a special clause giving the courts jurisdiction to determine whether a derogation was justified. We put in a clause saying, "This Bill will come to an end unless we in Parliament say that it should continue". Is any one of those not reasonably applicable to this Bill? Only one of them figures in it—the role of the independent reviewer. There is no mention of Privy Counsellors, no special jurisdiction given to the court and no sunset clause for a review by Parliament. Why is that the case? If it was good enough in 2001 for foreigners to have those protections, why cannot British citizens also enjoy them under this Bill?
I conclude by making two short points. When, as here, the Government seek to safeguard our national security and we question the extent of the powers that they seek to use, each side can appear determined. That should not become obduracy either on our part or that of the Government. A Bill of this kind achieves public acceptance and constitutional significance when it represents the consensus of all regarding the proper balance. We were privileged to hear from my noble friend Lady Hayman the exemplar of a speech that sought balance through consensus. All the questions that I have asked can be answered favourably without causing any significant damage to this Bill. I hope that this week and next the Government will work for the consensus which we all wish to achieve.
My Lords, it is a pleasure to follow the noble Lord. I agree with much of what he had to say, particularly in respect of the need to look again at the whole question of using intercept as admissible evidence in cases of the kind that we are considering.
Of course, I accept that there is a special and new threat, not least because we are dealing with people who are prepared to sacrifice their own lives in pursuing their dreadful cause. I put my name down to speak in this debate knowing that there would be a large number of speakers who knew far more than I about this subject—although as a former Minister I was responsible for intercept approvals both north and south of the border—because I am outraged at the way in which the Executive is handling this matter. The performance in the House of Commons yesterday and last week was quite inexcusable. I refer to one Labour Member's comments on this Bill during its Second Reading—a Labour Member who is probably as far to the other side of the political spectrum from me as it is possible to get. He said:
"As we move towards a system of justice that found favour with the South African Government at the time of apartheid and which parallels Burmese justice today . . . the unthinkable, the unimaginable is happening here".
I do not go quite so far as Mr Brian Sedgemore, making his last speech after a very long career in the House of Commons, but I think that the Government ought to take account of the anger that exists in the other place at the way this matter has been handled. There were 165 amendments yesterday and six hours in which to discuss the whole Bill. That is hardly enough time to read the amendments, far less to discuss them. It is a contempt of Parliament to treat it in this way on a matter of such seriousness. Weak governments are created by weak Parliaments. The same Member of Parliament also said:
"Liberty, without which democracy has no meaning, and the rule of law, without which state power cannot be contained, look to Parliament for their protection, but this Parliament, sad to say, is failing the nation badly".—[Hansard, Commons, 23/2/05; col. 365.]
The Government, with their huge majority in the other place, saw it reduced to 14 last night. On the "Today" programme, I hear that Ministers are going to make no further concessions. So we are all wasting our time making speeches in this debate, because Ministers have already decided that they are not going to make any further concessions.
The speed of consideration leaves me mystified. As the noble and learned Lord, Lord Ackner, observed: what is the hurry? Why is there a rush? What is driving this process? Why are they only allowed one day to consider all the remaining stages beyond Second Reading in the other place? Why is this House given two days to do so? Why do we have a Home Secretary who, faced with serious and well intentioned points, responds by saying that he is fed up with being "patronised by lawyers"?
There is another aspect to this. I hesitate to mention it because this House is broadly non-partisan, but there have been flavours of it today. One Member of this House, a Labour Peer who shall remain nameless, said to me "If your lot vote against this and something happens, we are going to blame you". That is the most disgraceful attitude. It is a partisanship which should have no part in measures which concern terrorism and the protection of our country.
I was brought up to believe that when Ministers wish to bring in highly sensitive legislation of this kind, the right thing to do was summon the party leaders under Privy Council terms and talk to them about the issues, finding a way forward that commanded support. It is not to taunt them at Prime Minister's Questions and in other arenas about who is softer, who is harder, who is more committed to defending our country against these very real threats. I agree with the noble Lord, Lord Brennan, who said that this should not be a matter of partisanship, but one for which a consensus and a way forward are sought.
I genuinely have a problem. I have read the Bill, I have read the material, and I am finding it very difficult to understand not just the speed, but also the logic of the position. The Anti-terrorism, Crime and Security Act 2001 set up the committee chaired by my noble friend Lord Newton of Braintree. He recommended that powers to detain foreign nationals be replaced as a matter of urgency, and suggested that we proceed by criminal prosecution instead. That was debated in this House in March 2004.
The joint parliamentary committee agreed with the committee of my noble friend Lord Newton of Braintree, and said that the experience of other countries suggests it must be possible to deal with this by criminal prosecution. That advice was rejected by the Government. The Lords judgment came along and, as I understand it, rejected Part 4, arguing that it was discriminatory in that it only applied to foreign nationals. Most importantly, the second part of that judgment was that the provisions in the legislation were not a proportionate response to the threat we faced.
The Government's response at the time was that detainees would continue to be detained until Parliament decided whether or how to amend the law. If this farce in which we are now engaged is Parliament deciding how to amend the law, then I am a Dutchman.
We are now told that the nature of the threat is such that it is necessary to extend these provisions beyond those that were previously only thought necessary for foreign nationals. Is it a coincidence that, following the Lords judgment—the noble and learned Lord the Lord Chancellor gave me an answer in response to my intervention today—the Government suddenly realised that British citizens represented a threat? Or are we not being given a straight tale here?
The Government have also said that they could not possibly just extend the existing powers. Am I deceiving myself in seeing on an Order Paper that the Government tabled a statutory instrument in the other place to continue the powers for a further nine months? Indeed, they published an explanatory memorandum. What changed the Government's minds? Why, if they were prepared to table the statutory instrument, is that not possible now? Has the timing of the general election got something to do with this, I wonder? It is hard to reconcile these facts without coming to a nasty conclusion.
We now have a measure which seeks to deprive people of liberty without knowing who made the allegations or, indeed, what the allegations are. Innocence or guilt should be a matter for the courts to determine, not for the Secretary of State. I am mystified by the distinction made by the Home Secretary between derogating and non-derogating orders. Taking powers to stop someone pursuing their livelihood, to stop them meeting their friends, making their homes open to search at any time—these are dilutions and deprivations of liberty.
The Government would be in a much stronger position if we had not had the experience of the dossier on Iraq, or if we had not been told that the 17 people detained in Belmarsh were a threat. Of the 17 people held under Part 4, four have been released—two on the grounds of insufficient evidence—and the control orders, we are told, will not apply to them anyway. So why were they detained for three years? Why are these control orders necessary if they are not going to be applied?
The noble and learned Lord, Lord Hoffmann, said something in his judgment that was so strong that I had to read it twice. He said:
"The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these".
Any Minister reading that, or the comments made by their colleagues in the House of Commons, should think very carefully.
I remember the noble Baroness, Lady Kennedy of The Shaws, in one of our debates when we were seeking rather more modest encroachments on civil liberties, reminding us that when tyranny comes it does not always come wearing jackboots. It can come in an Armani suit, she said.
I say to the Government—and I give them honest, impartial advice—if they seriously want to tackle terrorism in this country, let them withdraw this Bill. Let them seek agreement from all parties on the way forward. Let them establish a consensus, and let them put the interests of the country first.
My Lords, we all accept that this is a hugely difficult measure with which to contend. When Mr Blair says that the first human right is the right to one's physical security, one must admit that he would probably win a public opinion poll on that, as the noble Lord, Lord Young of Norwood Green, correctly said. What matters is how we act on that assertion. Public reaction in terms of fear is not always—and not in this case—a primary consideration which should engage us.
Occasionally, it is the job of parliamentarians to legislate in a way which will, temporarily at least, displease the public. I cannot resist quoting from John Stuart Mill's 1959 essay "On Liberty", in which he said:
"Let us suppose, therefore, that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate".
Nothing that we do or say or legislate can assure the public of safety in relation to the sort of terrorism that we are dealing with here. There is no sure answer.
I want to concentrate on hearts and minds, and the impact that this Bill will have—not just on terrorists or would-be terrorists, but on would-be informers. It is worth remembering the situation in Northern Ireland at the height of the IRA crisis. Then, the IRA was protected by its community. Compare that with the events of this week, with many Catholics in Northern Ireland rising up against the IRA's conduct, now absolutely unacceptable. What has changed? Their long-standing grievances have largely been attended to.
As so many in this House said in our great Iraq debate before we went to war, terrorism is rooted in sentiment. In shaping sentiment, the attitudes and actions of the state are apt to be formative, or at least highly influential, with those inclined to terrorism or its support. Thus I believe that framing anti-terrorist laws in a way that is manifestly fair, which minimises wrongful detention, which minimises martyrs and which belies extremist myths is likely to win hearts and minds.
In any event, the terrorist mentality is often fluid and relative; it ebbs and flows. Whether someone actually gets to the point of doing something dreadful depends on many influences. I get the impression from the shoe bomber case reported this week that the young man concerned could have been pushed into more decisiveness and could have acted much earlier, with devastating consequences. Who knows what held him back? It may well have been the protestations of someone in his community or family whom he was close to, who in turn was benignly influenced by their perception of how we, the host community, are dealing with these intractable problems. Who knows how many violent acts have been indirectly frustrated by our libertarian ethos?
What my noble friends Lord Thomas of Gresford and Lord Goodhart and others have said about the powers to make non-derogating control orders is plum right. If one were to take the worst case, in libertarian terms, of Clause 1—and that is never a bad thing to do—one might find this with regard to freedom of speech, which has not been mentioned. First, the rights on the part of the Secretary of State are couched in a way that is more appropriate for civil law than criminal law, yet the nature of the powers, unlimited as they are—as my noble friend Lord Goodhart mentioned—is certainly criminal in impact and feel.
Sir Nigel Rodley, the distinguished human rights lawyer and chairman of the Human Rights Centre at Essex University, pointed out that the Strasbourg court, and probably our own courts, will so find on the basis of what is called "autonomous meaning". Where will the Bill stand then? For the Secretary of State can act on suspicion; he can act in anticipation of any terrorist activity; he can act without evidence of criminal intent, and worse, there need be no terrorist activity at all for the full force of a control order to be invoked. It is sufficient that there is, or is the prospect of, "terrorism-related activity". That is defined in Clause 1(8) in the broadest possible terms and catches, for example, conduct that gives encouragement to or facilitates acts of terrorism. As far as I can see, that conduct need not be knowing or intentional in giving such encouragement or facilitation. I refer to what the noble Lord, Lord Brennan, said.
Finally, that encouragement need not be of a specific act of terrorism, but of terrorism generally. The noble and learned Lord, Lord Mayhew, mentioned Liversidge v Anderson 1941. Those powers are considerably wider than even the Defence (General) Regulations 1939, which was the legislation around which that case revolved. The writings of a journalist who was passionately critical of, for example, government policy vis-à-vis the Iraq invasion and the Middle East could be stamped on under the Bill. He or she would thereby on one view be constrained under Clause 1(3)(d) in that their association and communications could be restricted, and under Clause 1(3)(c) in that their work and occupation or business could be restricted. It may be argued that a judge would never agree, or that the Human Rights Act or the European convention would come to the aid of the journalist concerned, but the rights of judges under this Bill are strictly constrained to judicial review limits and by the provisions that I have referred to and others. What is more, Article 10 of the European Convention on Human Rights is notoriously difficult to interpret, given that it expressly allows without derogation restrictions on freedom of expression,
"in the interests of national security or public safety".
Some of your Lordships may remember the case of Purcell in 1989, where the Government were upheld in preventing TV interviews with members of the IRA and Sinn Fein, and the subsequent case where Gerry Adams failed before the Strasbourg court to get the order lifted that prevented him taking his seat in the House of Commons. I repeat that we are all groping in seeking a balance between public safety and individual liberty. For the reasons that I have advanced I, and many of your Lordships who have spoken, err on the side of manifest fairness and proportionality. That is the best long-term defence against the evils with which we are contending.
I agree with the famous judgment of Lord Atkin in the Liversidge v Anderson case. That was based on the 1939 regulations, where noble Lords will be interested to know that there was a requirement for a monthly report to Parliament for the exercise by the Home Secretary of his rights under the regulations. I read from the famous Section 18B of the regulations, about the chairman of the advisory committee that reviewed orders made by the Home Secretary:
"The chairman (has) to inform the objector of the grounds on which the order has been made against him and to furnish him with such particulars as are in the opinion of the chairman sufficient to enable him to present his case".
We were rather more forward then than we are now. Lord Atkin closed with those famous words:
"In England amidst the clash of arms the laws are not silent"— this was in the year in which this very Parliament was bombed by the Luftwaffe—
"They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law".
And so say I.
My Lords, an appalling terrorist outrage happens and inevitably the question is asked, "Could the government have done more to prevent it?". The answer is "Yes, if the government had reasonable grounds for suspicion and had acted on those suspicions sufficiently effectively".
The approach that advocates prosecution or nothing is fundamentally flawed in the case of terrorism, or potential terrorism. Because of the nature of those crimes and of the individuals involved in those crimes, a precautionary strategy cannot be sensibly so narrowly confined. There are a number of reasons why prosecutions on their own are inadequate. First, they relate only to what has already happened. Secondly, they relate only to what can be proved to a very high standard and beyond reasonable doubt. Thirdly, they relate to what can be proved by admissible evidence. Fourthly, evidence often cannot be used because of a legitimate fear of endangering sources and techniques.
There is another reason. An international terrorist now present in our country may have previously committed terrorist offences elsewhere in the world. It will be argued that our courts lack jurisdiction to bring that person to trial in this country. In this situation, the government are placed in a bind. They have every justification for deportation or for refusal of admission, but every country in the world, save one, refuses to accept the individual concerned. For the same good reasons, we do not want him. The one country that will have him is his country of origin. Indeed, it may positively want him for serious crimes that he has allegedly committed there. We cannot send him back because of doubts over the nature of the regime.
That may be reason for not extraditing or deporting him, but it is not a reason for allowing him to remain here and be able to escape any sanction, even if the evidence could be made available to us, for example with the assistance of video links. Even if our courts and jurisdiction try him, it would often be impossible to obtain the necessary evidence from overseas. The practicalities of prosecution cannot be ignored. The case for having precautionary measures that fall short of prosecution and punishment, but are subject to judicial review, is overwhelming. The Bill has an entirely legitimate and balanced aim. Those who seek to obstruct it should have open in front of them the most recent report of the independent reviewer, the noble Lord, Lord Carlile of Berriew, QC, especially at paragraphs 57 and 59, and ask themselves the following questions. First, do they accept that in each of the cases he has seen over the past three years it was clear that the person was properly suspected, on strong grounds, of being a member or supporter of, or assisting, an international terrorist group? I do. Secondly, do they accept that there remain in the United Kingdom individuals and groups who pose at present a real threat to the safety of the public here and abroad? I do. Thirdly, do they accept that the public safety context includes the unavoidable premise that it may be difficult to predict likely methods or targets of terrorist attacks? I do. Fourthly, do they accept that the risk of chemical or biological attack is completely realistic and the consequences potentially horrible? I do. Fifthly, do they accept that in this extremely dangerous context in which new groups can appear suddenly, public protection against international terrorism must be flexible? I do.
If anyone disputes any of those conclusions of the independent reviewer, we shall be interested to learn the basis on which they do so. If they accept the conclusions, they must then ask themselves the question whether prosecution alone, with all its limitations, is the adequate response. The answer to that question is manifestly no.
Other controls are needed and they are needed now. That is why I say that the approach which advocates prosecution or nothing is fundamentally flawed. I believe that it is time to pay attention to the threats and dangers we are facing.
My Lords, it is a great pleasure to be able to follow a fellow Scot. As noble Lords are aware, we are dealing today with laws for the whole of the United Kingdom. Therefore, the contributions from the different parts are of significance.
I hesitate to contribute further to the arguments about the content of the Bill. However, in contrast to the noble Baroness, Lady Goudie, it seems to me that we shall end up with a very different Bill from the one before us today. For most of the past generation, in particular in this country, we have been clapping ourselves on the back and taking great pride in the concept that we were dismantling the hypocrisy of previous generations who tried to pretend that everything they had to deal with was lovely when full of prejudices, inequalities and injustices. Before we become too pleased with ourselves, perhaps we should consider whether that is being replaced by an unstated arrogance that our civilisation has found all the answers and that our mores in society are the pattern to which everyone should adhere.
It would be interesting to ask those who do not immediately find themselves of our persuasion which attitude they find most distasteful. The reason I raise the issue is that there is bound to be among those communities a potential breeding ground for those who wish to espouse violence. Focusing on that should be the central preoccupation of our discussion today. One of the greatest challenges that the West faces is to maintain an open discussion with those who disagree which shows both understanding and a determination to strive towards a proper consensus without unilaterally compromising our central convictions.
I hope that many noble Lords will be inclined to agree with me that there are many valid criticisms of the Government's style and procedure. That is amply illustrated by the presentation of the Bill before us. But the public will not thank any of us in this Chamber if we use the debate for anything less than strengthening the UK's security for which we are all responsible. That security depends on drawing the best out of each community just as much as curbing the worst.
A matter of concern to me is how the proposed measures will affect life in Scotland. For instance, the Muslim community in Glasgow is widely recognised as a contributor to the social, commercial and political health of the country. It has supported many measures deemed necessary by the UK Parliament to safeguard society as a whole provided those are shown to be fair and applied across the board. Noble Lords may have noted yesterday in the press a comment on how the haste with which we are being asked to proceed added considerably to concern at a public meeting among the Muslim community. There was considerable unrest. The truncating of the procedure, which only yesterday produced such a storm of protest in the other place, is already a recipe for confusion in this House. I give one small illustration. Today at Second Reading we debate a Bill that the Government have already notified in writing in the other place they will amend materially. The amendment was never considered by the other place. In his opening speech, the noble and learned Lord the Lord Chancellor drew our attention to that point. However, the effect was that when I went this morning to collect the official papers for the Bill, the Printed Paper Office had no idea that the two documents put out yesterday by the Home Secretary were still a necessary part of our discussion. I had to go and dig them out from the Library.
On a slightly wider issue, when we seek to understand the mechanisms likely to be used in implementing those undevolved powers in Scotland, the provisions are not entirely clear and rather difficult to follow. It seems that the Home Secretary will not have power to direct the judicial process in Scotland. Are the Government satisfied that they can rely on the powers of the Lord Advocate in the Bill to have the controls which they wish implemented in an expeditious manner or do they have any other process in mind?
Again, when considering the provisions introduced in the schedule, the Government wish that the courts should be subject to new and special rules. The Explanatory Notes indicate that the court in Scotland will be the Court of Session. I believe that the only person who can make rules of court for the Court of Session is the Lord President. What will the new rules consist of? Have the Government consulted the Lord President on this matter? Has he suggested that he would be in agreement with their scope?
It is a grave responsibility to be considering circumstances which may result in the deaths of others, or even of ourselves. I hope that your Lordships will forgive me if I speak about an ancestor of whom I was reminded. He had a reputation as a man of principles—perhaps some of which are not popular nowadays. However, having stuck to his principles, he was hanged, drawn and quartered on the Royal Mile in Edinburgh. In anticipation of that event, he wrote a poem. I believe that the final lines have some message for us:
"Scatter my ashes, throw them in the air, Lord (since thou knowest where all these atoms are) I'm hopeful, once thou'llt recollect my dust And confident thou'llt raise me with the just".
My Lords, as I see it, the outstanding feature of the Bill, is the extraordinary difference between the way in which derogating orders and non-derogating orders are made and dealt with. Perhaps I may go quickly through that. A derogating order is limited to six months. It is not renewable. The Home Secretary, or whoever, has to start again to produce a new order. A non-derogating order is limited to 12 months instead of six and it is renewable. One does not have to think again; one just decides whether there has been sufficient change to justify some changes.
Again, turning to the question of the intervention of the courts, a derogating order must be referred to the court immediately it is made by the Home Secretary and the court is required to start consideration of it within seven days. That consideration is on the merits, it is of vital importance to notice. It is a full appeal. It is not concerned, as is judicial review, with whether the Secretary of State had the power to make the derogating order. Whether or not he was right to do so is another matter altogether, one with which the consideration is concerned.
The non-derogating order is not referred to the court. It is left to the person subject to the order to decide whether he wishes to appeal. However, his only right of appeal is to persuade a court that the Home Secretary had no power to make the order, which is a very different matter from being persuaded that he should not have made it. It is said that proportionality redresses the balance, but I do not believe that it does. In this area, a judge would have no idea what was proportionate or not; he simply would not have the information.
What entitles there to be such a huge difference between the derogating and non-derogating order? According to the Government, it appears that the question that has to be asked is, "Is the order that we propose to make compatible with Article 5?". It is clear that the Government have answered that question by saying, "If it is a full arrest—a full detention—it is not compatible with Article 5 and you have to make a derogating order, but anything less is all right".
I do not agree with that, but I understand how the Government have got themselves into that position. They have looked at Article 5—we must remember that it was produced in, I think, the late 1940s—and found there exceptions where someone is completely arrested, if I might use that rather odd expression. There are the usual exceptions necessary in relation to criminal charges and bringing someone to court after an arrest in the street. Put before a magistrate in reasonable time, that is all right. That is the only situation that arose in those days. Now we face an entirely different process in which arrest in the conventional sense, although very common, is not the only way in which liberties can be interfered with.
I cannot understand how the Government have persuaded themselves that a partial restriction—by a curfew, for instance—in relation to an individual is not an interference with his liberty. I do not want to take up the time of the House unduly, but I invite those who are interested—particularly the Government, who really ought to have done it themselves and perhaps have—to go through the various forms of order set out in Clause 1(3). There are 15 or 16 of them, and it is made perfectly clear that they are merely representative. They are not exclusive in any way; it is not a comprehensive list. I have looked down the obligations and I do not think that any of them would not involve an interference with my liberty, if they were imposed on me.
I may be wrong, but I am very certain that the provisions are not limited to a total deprivation of liberty. That is not really arguable. If the Government are to persist with the division on that basis, in the very near future someone will ask the courts to set the matter aside. That will go to the House of Lords, no doubt, where I should be very surprised if the Law Lords did not say, "No—this won't do". Where they will draw the line, I do not know, but it will not be where the Government have drawn it.
We now face a different matter about to be introduced, apparently, by a government amendment. I have not had the advantage of being a politician, so am not supplied with letters between politicians. I therefore do not know precisely what is in mind. I think that it is proposed that judges will not be involved in non-derogated orders, but I may be wrong. It is certainly said that they will be involved in derogating orders but, again, I have a doubt.
The noble and learned Lord the Lord Chancellor is normally very clear in what he says, but perhaps I was not listening properly or he moved too fast, as I was not entirely clear whether—in the case of derogating orders or any other orders with which the judicial intervention will be concerned—he said that the judge gives leave for the Home Secretary to make the order or, as is sometimes said, that the judge makes the order. If the judge is to make the order, someone needs to have a good look at Clause 1, apart from anything else, where they will find—substituting "judge" for "Secretary of State"—that the judge,
"may make an order . . . against an individual if he . . . has reasonable grounds for suspecting that the individual is or has been", and so on. It would mean that the judge would have to consider whether,
"it is necessary, for purposes connected with protecting", and so on. That is extraordinary.
It is much less extraordinary but totally unacceptable for the judge to sit, metaphorically, beside the Secretary of State, have a chat with him about the matter and then say, "You go ahead, Home Secretary". The provision is an affront to the fundamental position of judges, which is that they are umpires. They do not play. The provision involves them putting on their football boots and playing. Incidentally, they would play for a bit and, within seven days in the case of a derogatory order, take their boots off and start refereeing on the widest possible basis. That does not make any sense.
Not only does that not make any sense, but it brings the judges into a sphere that they were never appointed to enter. They were appointed as non-politicians, not as members of the executive. Now they are being asked to act as politicians and as members of the executive. It is a complete affront, and I hope that we will not allow it to be passed. I would be very disappointed if we did, because I was on radio yesterday morning saying that the Home Secretary was absolutely right to retain present provisions. Various members of the Government were kind enough to thank me for that, but by the evening I found that the Home Secretary had retreated and the whole thing had been consigned to the waste-paper basket. It has happened before, but it is very perilous to proceed with the idea.
In ordinary life, the question of deprivation of liberty is decided by different people at different levels. PC Plod will have a right of arrest, which he exercises in a vast variety of cases. He does not ask a magistrate; he does not ask anyone, necessarily. At rather more serious levels, you will find that the police will not detain people in custody before they have consulted the prosecution service. When they get an answer from it, they will release or not. The Crown Prosecution Service is much less political, as is the Attorney-General. In some statutory offences, people cannot be prosecuted without the leave of the Attorney-General. In those respects, the Attorney-General and the Crown Prosecution Service act as judicial officials, and do so without complaint so far as I am aware. So why do we have to move in someone who occupies a job where they have never been asked to wear two hats—the executive hat, and the judicial hat? This is wholly deplorable.
I apologise, I should have finished a minute ago. I will finish with this. It has been said over and over that we need time. Of course we do. I cannot understand why we cannot have a one-line Bill to extend Part 4 and then, having done so, look at the people affected by it and decide that, as a matter of discretion, we will not object to applications for bail on terms that would have been covered by the orders in consideration under this Bill. We would then have the best of both worlds. There would be time to consider the issues properly and consult on them, and those affected by Part 4 would be no worse off than if this Bill were passed.
My Lords, by any standards, the terrorist threat being what it is, the dilemma facing our Government, and indeed any democratic government, is a nightmare. My noble friend Lord Giddens described that clearly. However, I also join my noble friend Baroness Hayman in saying there has to be a "but". It is not simply a matter of saying "there is a dilemma, and therefore anything goes that the Government want to happen". It is right that we should be critical in a constructive way about what is before us.
I am concerned by the speed with which the legislation is going through, more in the other place than in this House. I understand, though, that the Home Secretary's concern is that, if we were to delay and try and renew Part 4 first, there might be an appeal to the European Court of Human Rights on behalf of the people in Belmarsh. If that succeeded, the Government would have to release people without any other measures in place. I do not know about the timing, but I understand that that is the view.
I welcome the Government's clear commitment to prosecution as the preferred option. However, I am critical of them, although I am unhappy to be so because of the dilemma they face. I note that the Government are examining the option of deporting people who are not British citizens to their countries of origin. The Government would, of course, have to get assurances that there would be fair trials, no death penalties and no torture or inhuman treatment, and that their well-being would be independently monitored.
Of course there is a balance between civil liberties and security, but there is another issue that has not been mentioned much in today's debate—the question of hearts and minds. Those of us who have followed Northern Ireland in some detail will know that that question is fundamental to dealing with terrorism. If we behave in such a way that we put security above all else in terms of this type of legislation, we are missing the opportunity to try and win over hearts and minds, because we may be alienating people who will then become enemies of our society. The thought that there are young Muslim men in our society who feel alienated from this country is surely an enormous challenge to us. I hope that any measures we take in this Bill will not weaken our effort to win over young men who might otherwise find their allegiances elsewhere. We are talking about a minority, but we must bear in mind the importance of dealing with hearts and minds, as well as with criminal law.
When I was in Northern Ireland, in common with many other Ministers who have served there, I had at that time to sign extension orders. These were orders that held people in detention; not for very long— sometimes for 48 hours, sometimes for 72—while further examination could be made, usually of ballistic or forensic evidence. However, it seemed odd to me even then that a Minister should sign such orders. Not too long after that, the responsibility was rightly and properly given to judges. Not that I ever quarrelled with any of the extension orders—they seemed well presented and clearly put forward, and so I signed them without too many qualms. I still felt, though, that doing so was a function not for Ministers but for judges.
The reason why it is right that judges have a key part to play in all the control orders is twofold. One is, as my noble friend Lady Hayman said, that they are independent of Ministers. The other is that they represent a process that is independent of government. We have to set some store by that, even if there are concerns about the way judges might operate, as the noble and learned Lord, Lord Donaldson, said in his speech this evening.
We all have to be concerned about the control orders, because they do not represent a fair trial, there is no presumption of innocence, they represent lengthy detention, and they can be onerous. I agree that a curfew, tagging and even house arrest, if it is introduced, are all better than a high-security prison, but nevertheless still represent severe punishments.
One of my concerns about control orders is how they can ever be brought to an end. If there is an argument for putting people under such orders, and if there is no judicial process that says they should be applied, how can we then undo the process and say "That's all right, we can let you go"? That would be difficult. Under the circumstances in the Bill the orders can be renewed, but we all know that renewal is not such a difficult thing to stop, and indeed Parliament would not have the evidence on which to stop it. Is there an end to the process? What can happen? Although control orders themselves are not as serious as being put in a high-security prison, they can be very easy to break. Contact with an individual with whom the person under the order should not have contact could represent a breach, and then the full force of the criminal law could be made to apply.
I followed with interest the argument about intercept evidence. I have been involved in discussions about this for many years. The Home Secretary is currently minded not to allow such evidence in court, but he has made it clearer that he will go on looking at the issue. Even considering it today, though, other countries use intercept evidence without the adverse consequences we are told might apply here. Many eminent people in this country support its use. The noble and learned Lord, Lord Lloyd, did so in his 1996 review, as have done the noble Lord, Lord Carlile; the Newton committee; the new Metropolitan Police Commissioner, Sir Ian Blair; some of the previous heads of our security services; Javier Solana, the EU high representative on common foreign and security policy; and non-governmental organisations such as Liberty and Justice.
I understand the difficulties. There are times when the use of such evidence might give too much away to terrorists and weaken the security services. On the other hand, no one is saying that intercept evidence should be used on every occasion. If it is used judiciously, where it is appropriate and the consequences on the security services would not be as adverse as some people think, there is an argument for intercept evidence. It would strengthen the judicial process, and I hope the Government will consider soon whether they can use such evidence. I repeat, other countries with similar systems to ours, such as the United States, use such evidence, and I cannot understand why we are saying no at present.
Some people have said that the continental system of investigative magistrates makes it easier to use intercept evidence. Frankly, if it were necessary for a fair trial to move terrorist offences to such a system, I would not be averse to that. In a reply in yesterday's Hansard, I notice, the Home Secretary said that he would look at that in the fullness of time. It would not be a high price to pay to depart from our traditional judicial system for terrorist offences. After all, we are already departing from it in many ways in this Bill, and in the previous legislation.
I have two other points to raise. I share the concern that the definition of terrorism in Clause 1(8) is very wide. Clause 1(8)(c) and (d) are very wide indeed. Paragraph (c) says:
"conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so"— which is not easy to prove—and paragraph (d) says:
"conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity".
The person whose conduct is in question may be fairly remote from any terrorism, but he could still be caught by this definition, so one would urge care.
I worry about one other aspect of the Bill. The Bill extends to Northern Ireland. There is a terrorist threat in Northern Ireland and I hope it is a relatively small threat compared with the threat in the past. Nevertheless, I believe that if one were to apply the measures in the Bill to Northern Ireland, the consequences would be very adverse. I believe that it would stir up all the old antagonisms that we had managed to lessen. By no means am I saying that all is well in Northern Ireland, but we would not want to do anything to worsen the situation. I feel that to apply some of these measures in Northern Ireland would not help the situation and indeed it would be distinctly counterproductive.
I believe, as others have said today, that this Bill is not the end of the process. I believe that it is a stage in the process and I would not be surprised if we were to see further legislation soon after the Queen's Speech. I very much hope that when that legislation is brought forward we shall be able to consider it in more detail and in a more relaxed manner than this legislation which is being hurried in its presentation before Parliament.
My Lords, a government with good intent but with bad or incompetent ideas is a dangerous combination. Can there be a better illustration than this Prevention of Terrorism Bill? The alarm bells are ringing. This Bill is all about law, but it is far too important to leave exclusively to lawyers. It is about the judiciary, but the judges must not write the script. It is about the process of policing, yet the authority granted the powers of the Act must itself be closely challenged, as must the advice of the intelligence organisations.
Neither must this Bill be allowed to be the exclusive prerogative of politicians. It must pass the citizens' test with its threats to remove and challenge their fundamental and historical rights. This Bill is about the inalienable rights of all citizens to decide how the threat of terrorism is determined. This is the moment each of us must consider in depth the options being presented.
The reasons behind the Bill are well stated, but the solutions are the prescription of the Government and they have strayed far into uncharted territory. This Bill, this reduction in human rights, this rejection of habeas corpus, this intrusion into the very basic values we all cherish is not the prerogative of a three-line Whip. Neither is it the prerogative of a new Home Secretary, clearly floundering in his new powers. But, above all, it is not to be the gift of a Prime Minister whose judgment system has already led us into other horrendously dangerous territory.
It is a sad and regretful comment. One wants to stand behind a Prime Minister, of whatever party, in a time of national anxiety, but today this is not possible. The issue of terrorism is undoubtedly haunting. It is a growing nightmare; one that will probably not go away for decades and one which will overwhelm the body politic antibodies that, up to now, seemed set to secure our safety.
This is not the time or occasion to look into the history of terrorism or the causes. We are focused today on attempting to deal with the realities, and the proposal by the Government to take upon themselves such unprecedented powers where the cure can be, in a philosophical sense, as bad, indeed worse, than the disease.
In the area of ethics one often faces complex dilemmas between choices, where the logic of either case can be strong and robust, and finding a way between two powerful competing arguments is intellectually stretching. Sometimes in a balanced argument where the pros and cons are equally unacceptable, the solution of the argument lies in deciding on a choice of the greater good versus the lesser evil. In other words, one is aware of the consequences of the selected decision not being perfect but perhaps being better than the alternative, and certainly better than being inactive.
That is the dilemma that we face. But it seems that by using the criterion of the greater good versus the lesser evil, we have inverted the argument. I argue and submit that the retention of the fundamental rights in the process of habeas corpus, the freedom of individuals not to be incarcerated without the full flow of justice, is the greater good versus the lesser evil of terrorism. If one starts from that premise one then has to tackle the lesser evil and give it an adequate description. Terrorism is pure evil. It is unadulterated evil. It is evil from every angle and perspective. Yet it is only in relation to the consequences of subverting habeas corpus that we can put an alternative argument on its feet.
Many of us in our careers have faced complex problems—not, of course, of this nature and magnitude but in their own way complex—and solutions had to be found. The process starts in identifying robust and philosophical markers and pinpointing the existing solid foundations within the complex argument: the issues that are inviolable and the lines that cannot be crossed. The scope can be wide but it is never unlimited.
It is in this area where I feel that the Government have not kept within any acceptable criteria. The Government have not restricted their thinking within the bounds of possibility and acceptability. The argument must be faced that to destroy terrorism or to contain it cannot equate to vitiating habeas corpus and the basic rights that exist in this country. Reading the Bill and listening intently to the debate in the other place, it was quite clear that the Government, their advisers and their legal drafters have merely followed a process of analysis, seemingly succumbed to professional pressures, and ignored the outcome and its dangerous precedents.
I am without the skills of a lawyer, a judge and a policeman, yet within my own skill range I firmly believe that a solution is totally within our grasp without for one moment ignoring the crisis that the Home Secretary and the Government tell us we have to face. Of course, the police must have full and fast powers. Equally, the Home Secretary must have powerful authority. Of course, the process of finding and restraining terrorists must be as broad as is needed. But within these criteria there must be a glass ceiling—a limitation—and it seems to me as an objective citizen that this can and must be achieved without draconian or unacceptable levels of constitutional change.
There have been many suggestions put forward which will solve this issue. Tonight the noble Lord, Lord Brennan, set a trend with some excellent thoughts and yet for political dogma they are being rejected. Obstinacy seems to be an inherent feature of the Prime Minister's political philosophy. It is said that the Home Secretary is a democrat and that the Bill is safe in his hands. Yet, listening to him propounding this Bill, it is impossible to identify or find evidence of his personal philosophy. The Bill attacks the very foundation of the liberal western civilisation that makes life worth living and provides the basic safeguards that can so easily be subsumed in a world of violence, dictatorship and political autocracy.
We can all remember the nightmare of dictatorships, the long suspension of human rights, which happens even now in many countries, yet here, in this very core country, where society has put law above all, human rights above all other rights, personal freedom exceeding all other restraints, we are introducing a Bill that challenges and indeed suspends those fundamental rights.
This is not a battle between this place and the other place. This is not a political argument. This is not an economic argument. This is not a social argument. This is only a defence of the most sacred values we have. Here we have a new man in office, who is instantly taking upon himself supreme powers. Who knows where that may lead?
Glancing back over the history of the previous Home Secretary: here was a man who when he took office we believed was gifted with an enlightened attitude. Yet he ended his appointment with an outlook far remote from what we envisaged. He was of course the progenitor of this Bill.
This Bill could be renamed "The Slippery Slope Bill". It is true that we have had on occasions legislation temporarily suspending habeas corpus for short and specific needs, but this Bill goes dramatically past anything ever previously conceived and opens the door to a nightmare of possibilities. It can only be argued with the safe knowledge that with single-minded focus we can find equally effective methods of dealing with terrorism without destroying all that we hold valuable.
The state has enormous powers, vast authority and full support of the citizens to defy the evil of terrorism, without digging down into our own very foundations and removing a cornerstone of our civilised edifice.
There is a price to pay for eternal vigilance, but where the law ends, tyranny begins.
My Lords, there can be little doubt that the Home Secretary has an unenviable task. Whatever he does he will be in the firing line. If he refuses to make any more concessions concerning the Bill he would be blamed for the failure of the Bill in this House. If he were to make too many concessions and the terrorists were to resort to the extremities which are envisaged he would be held culpable.
I have known Charles Clarke for a very long time. We have not always agreed with each other, but we have been friends. I believe that he is a man of integrity. At no time has he shirked the responsibilities that have fallen upon him. I refuse to believe some of the wilder calumnies that are circulating about him. But he is confronted by a hideous dilemma.
So what shall we do now? How best can we help the Home Secretary to arrive at the best possible conclusions? How should we attain a balance between the promotion of civil liberties and the protection of the public—an enormously difficult task?
Terrorism and terrorists have changed in recent times. Yet the possibility of doing away with major protections, which have been hard-won over centuries, should also give us pause for thought. I think it is quite reasonable to contend that there should be swifter recourse to the High Courts. But, on the other hand, judges are not infallible. They try their best but they do not always succeed. When I was an articled clerk—a long time ago—many judges, particularly those at London Sessions, were impossible. They have changed but they still make mistakes.
We know from recent history that people have been detained in prison when they should have been released, because their detention has been held as wrong or there were serious doubts about convictions. It is right to say that kind of thing because a great deal of trust has been placed in the judges. But do we have any alternatives? Subject to one caveat, which I shall raise, I believe that resort to the judicial process is on the whole to be preferred. I do not think that any distinction should be drawn between derogation and non-derogation orders. All should be the subject of judicial scrutiny, which should be done at a very early stage. That is my view.
As much of the process as possible should also be put before the judge. He should not be left in the dark about anything. He should be informed of the situation. The best way of doing that is to arrive at a position in open court as far as is possible. I would also say that a defendant is entitled to know what the case is against him or her. It is outrageous that it should be suggested that the defendant should in some way be left groping in the dark. That is not possible.
I agree with the Prevention of Terrorism Bill: Preliminary Report. Paragraph 11 states:
"The degree of judicial involvement provided for in the Bill . . . is unlikely . . . to be compatible with the Convention requirement that deprivations of liberty must be 'in accordance with a procedure prescribed by law' in Article 5 of the Convention. Other than in the exceptional circumstances enumerated in Article 5(1)(a)-(f), deprivations of an individual's liberty require prior"—
I stress the word "prior"—
"judicial authorisation if they are to be in accordance with a procedure prescribed by law. Such prior judicial authorisation is regarded by the Court of Human Rights as an inherent feature of the rule of law, which requires safeguards against arbitrary detention".
I referred earlier to a caveat. The caveat is this: we should aim at a consensus with the Conservatives, the Liberal Democrats and others, and it should be done now. It should not be regarded as a kind of political badminton game. It is much too important for that because it involves people's freedom. Equally, it should be agreed that if circumstances change, if the procedure of applying earlier to a judge is found on all available evidence to be wanting, we should resort to the more draconian measures. I hope that will not arise and it should be regarded as a doctrine of last resort. But if we have to do it, so be it.
However, we are entitled to assume that we can make progress as far as reforming this Bill is concerned. We are talking about a doctrine of last resort. I realise that this course is not favoured by some. The article written by Clare Dyer in the Guardian yesterday is a prime example of what I mean. I respectfully submit that she refuses to concede the dramatic change in terrorism to which several other speakers have alluded.
For that reason, and somewhat reluctantly, I prefer the civil standard of proof—the balance of probabilities—as sufficient to establish involvement in terrorism. That will also apply to bans on the use of computers or telephones, confiscation of passports and the other issues mentioned in the Bill.
Where I do think it is right to complain in this quagmire of problems is that information extracted by torture, albeit when the torture occurs outside the United Kingdom, should be admissible. That is appalling. It would be grossly unjust to admit such evidence. Indeed, it would be inimical to a fair trial. Moreover, as MPs and Peers on the Joint Committee on Human Rights have asserted, that procedure could well offend Article 6 of the European Convention on Human Rights and is likely to be challenged in the courts.
It is incumbent on us to come to a conclusion about the Bill, and we should do so swiftly. Surely, we cannot agree to the proposition that we should accept detention at Belmarsh for the time being when, demonstrably, in the eyes of the senior judges of this country, that offends the law. I submit that that is unacceptable and ought to be rejected.
Also, there should be a sunset clause. We should consider the situation again in a year's time, when we have seen the progress, or lack of it, of the Bill. We should have an opportunity to return to this important issue at our leisure.
Finally, if the Government invoke control orders, they should do so only at the very end of the process. To do otherwise would fatally flaw the procedure that we are now contemplating. Having said all that, if I could do so now I would vote against the Bill because I think that it is bad: bad in law; bad in political process; bad in so many areas. It should be rejected and the philosophy behind it should also be rejected.
However, I remain an optimist. I believe that it is possible to come to a conclusion that is satisfactory to the parties that I mentioned. But that means that we must all be prepared to make some concessions.
My Lords, many noble Lords have today spoken in defence of the rule of law, due process and the protection of individual liberties. They are much better qualified than me to talk about the legal aspects of the Bill, but I support them from the bottom of my heart as your Lordships try to put the lid back on these moves towards a more repressive and authoritarian state.
I want to focus on a different aspect, which is to question whether the proposals in the Bill represent a safe and sensible strategy to reduce the overall threat from terrorism. I have read with great interest the background briefing papers provided by the Government. Paper 1 of that background briefing explains why the current threat from international terrorism is different. Several noble Lords have made that case. I agree that the global reach, the techniques, the ambition and the lack of restraint, including the willingness to die, marks this as a particularly difficult form of terrorism to counter.
However, to complete the picture, we should also examine those aspects of the current threat that have parallels with previous challenges that we have had to meet. Terrorism as a technique was not invented by Osama bin Laden. The world has a long history of different threats from terrorism: some severe, some constrained, some state-sponsored, some from fanatical cults. Different governments at different times have tried various strategies to reduce the immediate threat—which is what we have been talking about today—to their citizens but at the same time to address the long-term elimination of the terrorist organisation, which we have not talked about very much. It is a two-pronged approach and one attack on the immediate threat can have an adverse effect on the long-term strategy.
All terrorist organisations need supporters and recruits. One might argue that that is particularly the case for those that expect their adherents to die during this single act of terror. They need to replenish and have new recruits.
Past terrorist leaders operating in regional terror campaigns have realised that to stimulate those recruits and get general support in the population, they must stimulate repressive measures by the authorities. All the terrorists textbooks tell you that. Che Guevara, who also hoped to destroy the United States and expected his people to die for the cause, understood that. He wrote of the need to engender,
"intransigent hatred for the enemy that takes one beyond the natural limitations of the human being".
Che Guevara saw it as impossible to recruit to the cause where a democratic government maintained the appearance of constitutional legality. He needed repression. Repression and the sense of injustice foster support both in proactive recruiting and also among the general section of the population that becomes repressed.
Closer to home, several noble Lords have talked with knowledge of the experience of internment in Northern Ireland in the early 1970s. We learnt a lesson there: we could go for the apparent short-term gain, the tactical advantage, that could lead us to long-term strategic failure. It is no good suggesting that we will not make the same mistakes again: those of arresting innocent people on inadequate intelligence. Support for the terrorist groups grows through every injustice. There is no lack of examples around the world of how arbitrary detention has made the terrorist problem more intractable.
The question is whether the Al'Qaeda network is so different that the lessons of the past no longer apply. Here, I look to the analysis of Jason Burke in his book on Al'Qaeda. He knows the movement well from looking at it throughout the world. He concludes:
"Modern Islamic terrorists are made, not born".
He describes the process by which they are made as having three stages. The first is the feeling that something is wrong and needs to be set right. It can be a perceived or real injustice. The second is a feeling that the problem cannot be solved by the society's political or legal framework. The third stage is the ideological change to accepting the use of violence. He argues that if we are to divert recruits from Al'Qaeda terrorism, we need to break into that three-stage process.
So the counter-terrorism techniques of the past are still relevant to the threat that we face today. If we remove the democratic safeguards of the legal process, we risk the growing perception of injustice. Do any of us doubt who will be the targets for the Home Secretary's control orders? It will be the Muslim community in Britain, whether they be foreigners or UK nationals. How will that play among our Muslim communities, their families and friends? Do we see the recruiting call for terrorists increasing or decreasing? How will the measures play further afield, around the world? If anyone doubts that the world is looking at us as we do this, I shall read to the House an e-mail that I received from a very unlikely source this week. A Right-wing American journalist, a former Republican senior official, wrote to me and said:
"This goes light years beyond what we did in the Patriot Act. Are you guys tearing up Magna Carta?".
If that is what the American Right thinks, it is easy to imagine how this plays in Osama bin Laden's recruiting campaign.
I therefore fear that the long-term strategic effect of suspension of due legal process will be to increase terrorist recruiting in the UK and abroad. However, I need also to address the question of whether the near-term threat is so great that such oppressive measures must be introduced despite their long-term disadvantages, that the need for immediate protection overrides the long-term disadvantage. In doing that, I note that we did not think that this kind of legislation was necessary throughout the four decades when we were threatened by the Soviet Union, with the real possibility that we would extinguish the life of this nation and that millions of people would be annihilated. We did not seem to need this kind of legislation then. Nor did we need it when the Prime Minister of the day might have been killed in the bombing in Brighton. We have managed without it until now.
We can all construct scenarios that terrify: the suicide bomber coupled with biological, chemical or nuclear capabilities. We have to ask whether the Bill would reduce that threat perceptibly. Can we construct appropriate judicial processes which are soundly based and address my long-term strategic concerns?
The experience of the past shows the imperfection of using untested intelligence as the basis for detention. Many noble Lords have referred to the intelligence about weapons of mass destruction in Iraq as an indicator that, even when we have a narrow target, we cannot be sure of getting the right intelligence. It appears likely that some of the intelligence that would be used in the new procedures would have been gained in other countries using procedures that, under any definition, amount to torture. Such information is notoriously unreliable. People who are being tortured will say anything and implicate anybody to stop the pain. We should add to that the desire of any terror organisation to increase repression, to make us more and more frightened, and to force us to take measures. We should imagine misinformation as the tool of the terrorist organisation; feeding it into intelligence and informing on innocent parties to get them detained would become the normal process. We will find an increasing number of people detained under the orders, all with an increasing sense of injustice. Their friends and families also will have that sense of injustice. We abandon due process at our peril.
It is the responsibility of any government to protect their citizens, but that is the protection of their way of life. We have been extraordinarily fortunate in these islands to have enjoyed liberty for so long, but in order for us to enjoy that liberty, our predecessors have had to be prepared to give their lives in the defence of liberty. We cannot be the generation that says that our lives are so important that we will trade liberty for survival.
In their background briefing, the Government state that the aim of Al'Qaeda is,
"to destroy religious toleration, the rule of law and democratic freedoms".
If we pass this legislation as written, we shall be doing the terrorists' work for them.
My Lords, I shall keep my speech relatively short—first, because I do not want to repeat earlier points and, secondly and more importantly, I have a terrible cold.
Your Lordships are right to be concerned with civil liberties and the rights of citizens vis-à-vis the executive. For years, I have closely studied the Soviet Union and its successor states, including the Russian Federation. The noble Lord, Lord Garden, mentioned the USSR. No one who has witnessed the abuse of power, human rights abuses and the erosion of liberty in the former Soviet Union can be indifferent to the importance of defending the rights and privileges of civil society. Yet, certainly in Russia, part of the problem has been the corruption of the judiciary and the judicial process, which has conspired to make the law and justice an arm of government policy.
In Britain, we have benefited from an independent judiciary, which, although it has made some spectacular mistakes in the past—for example, the Guildford Four and the Maguire Seven—has remained largely incorruptible. It seems to me that the role of the judiciary in a civil society is to interpret and uphold the law, not to make political judgments or even protect national security. The noble and learned Lord, Lord Donaldson of Lymington, clearly stated that view.
Governments and politicians must make their decisions on when national security and the safety of the country is threatened. Judges then have a role in ensuring that politicians' actions remain within the law. As has been said today, politicians are politically accountable for their decisions in a way that judges are not.
I do not agree with the noble Lord, Lord Garden, about the suspension of due judicial process in the Prevention of Terrorism Bill. The Bill before your Lordships' House strikes the right balance between civil liberties and protecting national security and the lives of our citizens. The role of the courts in both derogated and non-derogated orders is clear and represents a real check on unreasonable and unjust behaviour by the executive. In the case of non-derogated control orders, judicial review will ensure that the Home Secretary's actions remain reasonable and proportionate.
After the Law Lords' decision last December, the Government had to act to protect the population in those cases where there was insufficient evidence to prosecute cases up to the point of "beyond reasonable doubt". It seems inconceivable that the Government should fail to take action to prevent an atrocity on the scale of the Madrid bombing simply because they failed to muster enough evidence to achieve a successful prosecution.
I agreed with my noble friend Lord Clinton-Davis when he said that maintaining Part 4 powers, given the universal condemnation by the Law Lords, would be perverse. I am surprised that the Conservative Benches support what would be a wholly inadequate stop-gap measure. The British public certainly will not understand a failure to take preventive action against terrorists where the Home Secretary reasonably suspects involvement in terrorism.
As my noble friend Lord Young of Norwood Green pointed out, a recent poll showed that three-quarters of those asked believed that it may be necessary sometimes to take action against people who have not yet committed any offence. The Government have indicated that prosecution will always remain the preferred course, as shown by the arrest and prosecution of Saajid Badat, another of our home-grown terrorists. As my noble friends Lord Giddens and Lord Harris of Haringey said earlier, we are facing a formidable and unprecedented terrorist threat, a ruthless opponent who will stop at nothing to cause mass slaughter and mayhem.
Al'Qaeda is not another form of the IRA, and we blur the distinction at our peril. No other terrorist organisation has threatened the use of nuclear weapons, which Al'Qaeda would undoubtedly use in some form if it could get hold of them. There are no grounds for complacency.
In reply to the noble Lord, Lord Forsyth of Drumlean, who is not in his place, the country will not thank your Lordships if we acknowledge that we saw the threat coming but prevaricated and fumbled in response.
My Lords, I do not agree with the noble Lord, Lord Truscott. I am afraid that I believe that this Bill is an assault on ancient liberties and that one of the reasons I am privileged enough to be in your Lordships' House is to play a small part in protecting ancient British liberties. Those liberties have served us well and have allowed us to prosper and to go forth from a fairly primitive society into one of the most civilised societies on earth.
I will start with a quote or two.
"It must be accepted, as it was accepted when the power was introduced, that prima facie the power is offensive to the basic principle of the rule of law, which is that deprivation of liberty should be through the courts and not through politicians".—[Hansard, Commons, 10/3/93; col. 972.]
"It is not good enough to say that the Home Secretary"— coincidentally, another Mr Clarke—
"will exercise them in a proper way, because the very principle of the rule of law is that that decision should be made by a court, not a politician".
"The notion that one should be detained by executive power rather than order of the court is contrary to the provisions of the convention on human rights. If the right hon. . . . Gentleman cannot understand that, he cannot understand the basis of British law".
"It is important that the power is vested in a court because in this country we believe that the powers of detention should be exercised by courts, not by politicians, civil servants or parts of the Executive".—[Hansard, Commons, 10/3/93; cols. 974–975.]
You may not guess it, but those quotes were made by an up-and-coming young barrister who, at that time, led for the Home Office when Mr Clarke was renewing the Prevention of Terrorism Act in 1993. Noble Lords may just have guessed who that up-and-coming young barrister and Member of Parliament was. It was the right honourable Anthony Blair.
What has made him change his mind? Has he suddenly allowed it to go to his head? Yesterday, on "Woman's Hour" of all places, he suddenly announced that there were hundreds of terrorists out there. If there are hundreds of them out there, why have none of them been arrested and charged or is he making up the whole lot? It is either crass incompetence on behalf of the security services or it is wild imagination on the part of the First Lord of the Treasury.
Another amusing thing is coming out of Downing Street. Suddenly, they are saying that "Oh, Mr Howard has become part of the civil liberties lobby". I say, "Yippee". The great thing about Mr Howard is that some of us thought that he was not nearly near enough to it. Is it not extraordinary that a Prime Minister can accuse the Leader of the Opposition for liking civil liberties? That is what he is supposed to do. I could understand it if they said that he is a tyrant, a jackboot and wanted to lock everyone up, and that was wrong. That is what some of them did say about him when he was the Home Secretary. But now the sinner has repenteth.
Let us turn to Mr Hain, who is now behaving like a sort of Boer interior Minister, saying how necessary it is that we should have all of these restraining orders and that there has been no greater threat to English liberties for 300 years. Has he not heard of Queen Elizabeth's great speech at Tilbury when she was objecting to Parma and Alva murdering and slaughtering the Dutch Protestants? She said:
"I know I have the body of a weak and feeble woman but I have the heart and stomach of a King and a King of England too and think it foul scorn that Parma or Spain or any prince of Europe should dare to invade the borders of my realm".
We have had this before. I know that the noble Baroness will not be familiar with this quote, but it is too good to miss quoting to your Lordships. It is what Macaulay said when King James, who had just published a foul, dictatorial manifesto of what he was going to do—to hang everybody—had just been defeated at the Battle of La Hogue—or rather, the French had:
"The island was safe. The pleasant pastures, cornfields and commons of Hampshire and Surrey would not be the seat of war. The houses and gardens, the kitchens and dairies, the cellars and plate chests, the wives and daughters of our gentry and clergy would not be at the mercy of Irish Rapparees, who had sacked the dwellings and skinned the cattle of the Englishry of Leinster, or of French dragoons accustomed to live at free quarters on the Protestants of Auvergne".
We have seen all these threats before. There was even the great remark by Admiral Earl St Vincent, when the Government were panicking over a French invasion. He said:
"I don't say that the French can't come; I just say that they can't come by sea".
I could go on quoting from my favourite anthology to underline that these threats are not new. We have had 30 years of very unpleasant Irish terrorism. We managed to convict a very large number of them and lock them up legitimately: all right, we had to use Diplock courts. We managed to convict Fuchs, Blake and Vassall by having positively vetted juries. We cannot and we must not sacrifice our ancient liberties by panicking over something that could certainly be very unpleasant. But it is much more unpleasant that Ministers can lock people up without trial on the say-so of an intelligence service that might have got its information from an Uzbek torturer who has been wielding the electric prod, because that is where some of our information has been coming from.
This Government have a track record of rotten behaviour over civil rights. The Civil Contingency Bill is one example. The abolition of double jeopardy is another. The interference with jury trials is a third. I have almost run out of bits of paper to add even more of them.
My father did not romp up and down the North African desert in a clapped-out tank—because we could not build the right one—being shot at by the Germans so that he could come back to a country which locked up its citizens without trial on insufficient evidence with insufficient due process. I hope that my Front Bench and the Liberal Democrat Front Bench stay hard on their opposition to the Bill and make it infinitely better and, if they cannot do so, make sure that the Government do not get the Bill at all, because that would be the better course.
My Lords, I have been struggling to find the new factors that are driving us to require the Bill. The only new element that I can see is the arrival of the suicide bomber. He had not been on the screen before. I understand the dilemma the Government have in dealing with the problem of the suicide bomber, although whether this legislation is the most appropriate method to deal with it is another issue.
I am very unconvinced by the argument of the noble Lord, Lord Giddens, that the global and technical nature of so-called "new terrorism" justifies these massive changes in our laws on civil liberties. I was a bit shocked when he made an obscure analogy with global NGOs. I am not sure what he meant by that. These problems must be, and can be, dealt with by greater co-operation between security forces across Europe and internationally without new national legislation. That is the best way to deal with them. National legislation does not deal with that problem.
I am trying to reconcile the Prime Minister's observation on "Woman's Hour"—which everybody seems to have heard, except me—that there are hundreds of terrorists operating in Britain with the Government's assurance that these new powers will be used sparingly. Does that mean that most of these terrorists are old-style terrorists who can be dealt with under existing law and that only a handful are new-style terrorists?
I am also not very impressed by the support of the noble Lord, Lord Giddens, for scaring the public in order to get something to happen. History shows that politicians who use scare stories to make their point have been notoriously unconcerned about civil liberties, which are usually put at risk as a result. There are some very nasty historical experiences there. Fortunately, the British do not scare easily.
My concerns about the Bill are therefore that there is a danger of making martyrs out of villains, which is always the case when one takes an undemocratic approach to a problem; the consequences of another Birmingham Six mistake during the process, which blows the whole thing out of the water; a huge reliance on the somewhat inconsistent intelligence provided by our security forces that is not being subjected to adequate judicial scrutiny; and, above all, as an ex-chairman of the Better Regulation Task Force, I worry about complicated, significant, historic legislation being introduced on the hoof, at great speed.
We are clearly going to have a Bill. I make two suggestions: first, a judge should examine the process for both the non-derogating as well as the derogating orders to assure us at least that the process is being adhered to. Secondly, the provisions for the review of the Bill should be strengthened. Should not a Bill of this magnitude be subject to an annual review by Parliament rather than by the Secretary of State and be annually reviewed by Parliament, as was the case with Northern Ireland anti-terrorist laws—in other words, should it not have a sunset clause?
My Lords, I hesitate to speak without experience of the judiciary or another such profession. However, I have lived in Northern Ireland for a long time and we have had our own type of terrorism, so I shall be slightly more practical.
I recognise the seriousness of the threat, as everyone else does, but I fear that the Bill in its present form is a panic reaction and double jumping to an extreme. As we have heard from many noble Lords this afternoon, it has serious flaws. I cannot understand why the Government are not looking at a change in the law in the admissibility of evidence gained by intercept in certain cases.
Before considering that last issue, I would like to look at some of the limitations in the use of control orders. As a lay person it seems important to question whether there can be a satisfactory legal or moral conclusion to the detention that we are discussing. The noble Lord, Lord Dubs, mentioned that point. The current threat is medium or long-term; maybe even longer than the 30 years of Northern Ireland troubles. Unless that threat disappears, where are we going to go from here?
The likelihood is that there will be an increasing number of such orders. Perversely, if our security services and police have deterred or discovered every single planned incident, the general support for measures such as control orders will decrease and civil liberty groups and human rights authority will start to question more strongly the actions that we have taken. The climate is unlikely to improve in the long run.
In addition, those suspects will be interviewed and we know that many will have had training in counter-interrogation techniques. In practice, without our ability to charge, convict and lock them up in a secure place, those people will be able to communicate with their friends outside, as the IRA did during internment.
Interrogation in those conditions proves to be a battle of wits. The interrogator aims to find out what the suspect knows. The suspects will be trying as hard to find out what the security services do not know. They will find some way to communicate that to their network outside, which will have a large number of potential targets planned and will then know which ones are still safe to run with. That is a limitation of detention in what I perceive to be insecure surroundings, as detailed in the Bill.
I accept, as the noble Lord, Lord Dubs, said, that Northern Ireland is slightly special, but can your Lordships imagine putting a hardened IRA terrorist under house arrest in the middle of the Bogside or, for instance, a Loyalist one in the Shankill Road? There are problems with it.
An increasing problem with the duration of the threat, the inadmissibility of the intercept evidence and the inability to convict is the judgment of when to lift suspects. That is a big practical problem during what is obviously a planning phase for a terrorist operation. If they were not planning, we would not have the information and therefore we would not even want them, so we must presume that.
Let me give your Lordships an example of an incident. In Loughgall in March 1987, the security forces had information and evidence—perhaps inadmissible intercept evidence; I am not to know. I suspect that although they believed it to be accurate, they would not have been able to lift and hold the suspects prior to the event. Therefore in order to arrest and convict they needed to allow the terrorists to go further down the line and launch the attack. Because they would not surrender, it became a bloody shoot-out, in which eight terrorists and one innocent person died. At the time, there was a tremendous outcry from civil liberty groups and questions about how the lives of these terrorists—and an innocent life—could have been saved by earlier arrest. That may have been impossible due to the inadmissibility of the evidence.
It is possible that similar pressures to those will occur in today's circumstances in this country; there will definitely be pressure within organisations to let whatever is happening go on until the security services are quite sure that when they have something, they have it to hold, or something on which they can issue a control order. However, in the circumstances here, the penalty for possible misjudgments could be catastrophic, taking into account the current modus operandi of terrorists such as Al'Qaeda.
There is another problem at this stage: evidence gained by intercept is always in "terrorist code", for want of a better way of putting it. It will rarely be 100 per cent indicative of the target. What if the interpretation of the evidence is wrong, the defence forces are in Canary Wharf when the bomb is in the City and the incident takes place there? Luckily, with Loughgall, the right target was evacuated and all was well. Just remember—we need to be right every time and the terrorist has to be lucky only once.
Should the evidence gained by intercept be admissible in the circumstances in which we find ourselves? It would be immensely beneficial. The Government's response to such a suggestion is, "No, the police and security services do not wish that to happen". That is correct, but it is as a result of the Government's inability to produce the circumstances for which they, the police and security services, could agree with the admissibility of such evidence. But I have little more to say on that matter, as the noble Lord, Lord Dubs, covered the American side of things, and many other aspects.
The problem is always stated as being the admissibility of evidence, but we could look at it another way and say, "That is not the problem—it is much more a problem of how we control disclosure and, to be more accurate, the withholding of disclosure". That is the issue; if we get that issue right, the admissibility of evidence might come about.
If we have reservations—or if the judiciary especially have reservations—about using evidence and withholding disclosure, I find it interesting to note that we have obtained a conviction in our courts using such evidence obtained abroad in a jurisdiction where withholding disclosure is legal. The example that I cite is the Real IRA trial on the Woolwich case in 2002, when O'Farrell, Rafferty and McDonald were convicted of gun-running in Europe. They were extradited on evidence that would not have been admissible here and that evidence was used in the file for the case.
So it is entirely within the Government's power to solve the problems of enabling intercept evidence to be admissible. Perhaps the most important benefit would be that it would show in court the seriousness of what we are up against and add credibility to the understanding of the use of control orders when we lack such evidence in order to convict.
I have a few questions for the Minister. First, with reference to Clause 1, chief constables are required by legislation only to provide evidence to the DPP and the Crown Prosecution Service. They may give briefings to politicians, but there is nothing about compulsion to give them evidence. In Great Britain, the security services lead in the fight against terrorism; in Northern Ireland, the chief constable is in that position until 2007, as I believe we heard the other day. Currently, those two offices only brief politicians; they do not pass evidence to them. Where is the mechanism in the Bill to enable the Secretary of State to have reasonable grounds for suspecting?
Secondly, in Clause 1, I see that there is a reference to the Secretary of State. I should be interested to know exactly to whom that refers, in person or in office. In the case of Northern Ireland, is it the Secretary of State for Northern Ireland? If it is not, do that person's powers extend to Northern Ireland? If so, where does it say so in the Bill?
Thirdly, why are the penalties in Clause 6(4)(b) and (c) different in Scotland and Northern Ireland for the same offence, within what is in fact one jurisdiction for the United Kingdom? It would seem as if England is being discriminated against, because it is a lighter sentence elsewhere. Is this a breach of human rights legislation? As everything else has been said, I shall finish on that note—except to say that I look forward to the amendments on this Bill.
My Lords, I want to go back for a moment to the judgment of the Law Lords. Back in December, they said that detention without trial of non-citizens was contrary to human rights. I want to remind the House how that judgment presented an opportunity to a new Home Secretary to draw a line under the hasty legislation passed immediately after
The judgments of our most senior judges rehearsed, clearly and beautifully, the reasons why law matters; how law is there to provide an effective regime for the resolution of difficult issues—even in the heat of terrorism. The judges restated clearly the imperatives of due process and equality before the law. Unfortunately, David Blunkett had abandoned that high ground for the murkier shallows that are usually inhabited by the non- democrat. Then, instead of restoring our established standards and legal precepts, I fear that our new Home Secretary responded like a technocrat: "If the judges complain about our only detaining non-citizens, we shall include everybody in the new scheme. If they say we are using the same system for different kinds of threat—and that this creates unfairness—we will create a whole ladder of illiberality".
I am afraid I have noticed that Home Office practice is now to bring forth new legislation which is absolutely abhorrent and totally disgraceful in its abuse of civil liberties. Then, when there is uproar, they replace it with something which is only slightly less abhorrent and disgraceful—telling us that a major concession has been made, and that we should all sleep easy. The concession being made by the Government should provide this House with no comfort. Sugar-coating the unpalatable—by suggesting that all will be well if a judge makes the order—is to forget that it may not feel significantly different whether it is a High Court judge or the Home Secretary who issues the house arrest order, if you still do not know the nature of the allegation or the evidence on which it is based. What we are in fact going to see, in the new process that is being cobbled together, is a debasement of our High Court—whereby it will be turned into a secret commission, hearing evidence in camera.
One of the most serious mistakes a government can make is to turn the judiciary into a fig-leaf for unacceptable practices. Sometimes, judges can be unwittingly collusive in the erosion of the rule of law, by allowing themselves to be co-opted into processes where the genuine balancing of the security of the state and human rights considerations becomes impossible—often because they, too, do not have access to all the information. By taking on the role of a control-order dispenser in camera, the judges would provide a veneer of legitimacy to processes which fall short of international standards of human rights. Let me emphasise that, in saying that, it is not because the judges are not independent. Nor is it to suggest that they are not decent men. The debasement happens because they do not know the other side. They will not know what the suspect would say about the allegations, because the suspect will not know himself what is being said about him. This is why the words of the noble and learned lord, Lord Scott, in that wonderful judgment are so important—because he spoke of the "stuff of nightmares".
Let us remember that SIAC, the special tribunal, was sold to the British people as an administrative process. It was part of the administration of law concerning immigration and deportation, with deportation not being possible for certain people because they may be subject to torture, or the death penalty, if returned to their own homelands. It all seemed all right to many people because it concerned foreigners. When this House complained back then after September 11 when the new powers were sought, it was really as a result of debates here that SIAC was turned into a superior court of record to give its detention powers a veneer of legality. Until the House of Lords ruling we had a parallel system of justice but now—and it is one of the warnings that I increasingly give—the contagion is not kept vacuum packed. Now the contagion is spreading and the High Court is being turned into what inevitably has to be an unacceptable form of tribunal. It will be made to be in the eyes of many a kangaroo court.
We must not allow ourselves to take our eyes from the ball. An egregious erosion of civil liberties is taking place. We are seeing the standard of proof being lowered and the presumption of innocence being chipped away. We are seeing it seeping into other areas of law too. We are told in the first instance that it is about terrorism but we are seeing it creeping into other aspects of our legal system. It is a trend and I warn noble Lords of it.
Almost exactly a year ago David Blunkett gave a lecture in India that was reported here, to the shock of many. However, it also shocked many senior lawyers and judges in India too. He said that perhaps the standard of proof would have to be lowered in cases to do with terrorism. Two days later our Prime Minister had that posited to him by the press in his constituency when he was giving a press conference about creating an FBI-type police force. He was asked about the lowering of the standard of proof and he said that it would apply to terrorism but perhaps even to other forms of serious crime. Let us not pretend that this will be kept vacuum sealed and that it will apply only to the "bad guys".
The other trend is the creation of ASBOs. Those were celebrated by many but some of us warned that what we were seeing was again an erosion of standards. People can have an order made against them for anti-social behaviour, which all of us abhor, on very little evidence. But what you then get, because it is an injunctive order, is the power to imprison if someone breaches the order. Now we are seeing ASBOs evolve into these control orders. Let us not be deluded into thinking that somehow the orders constitute less than house arrest or are really rather gentle erosions of liberty because they are rather serious. What we are seeing is a blurring of the civil and criminal law. It is taking us towards a system that is not like the one which we hold dear. Being persuaded that the control order short of house arrest is of little consequence and does not even need judicial control is again a red herring for us. We must not be taken in because, of course, those orders too will invade every aspect of people's lives.
What we are seeing bit by bit is the erosion of civil liberties. It has been happening over a period of years. That is how civil liberties disappear. We are told that it is in our interests. It is the paternalism of government saying, "We are doing this for you". When we hear civil liberties being turned into a term of abuse, we know that we are in trouble. What all of us across this House should be saying is that no government will ever be blamed if there is a terrorist outrage. It is the terrorists who must be blamed. Let us make that clear. This should not be turned into an auction on law and order. There is a choice. Of course, there is the risk of terrorism or the risk of injustice but I for one would rather live with the risk of terrorism because I know so clearly what the serious risks to all of us are of injustice.
We heard the noble Lord, Lord Giddens, speak of the phenomenology of risk. That is the kind of phrase which gets sociologists a bad name. I hope that the phenomenology of risk, like the third way, goes into the dumping ground of history very quickly, as the third way did. I am concerned that, in his risk analysis stolen from management gurus, he did not give us the other side of risk: the risk to our society when you suspend habeas corpus and do away with civil liberties. I ask the noble Lord, Lord Giddens, what are the risks of that? He tells us nothing of the cost to all of us.
Yes, there is another choice. The choice is between living in a lawful society—where civil liberties provide the background hum to the decency of our lives in this country and where our values are the things that we know matter—and becoming a paranoid society, where justice is paralysed by fear and which is a breeding ground for distrust, hostility and many other forms of violence.
This is our opportunity to restate our values. I hope that in the days to come, we do just that.
My Lords, being the thirty-fourth speaker, I have listened to this debate throughout. I have noticed most of all that the balance of opinion is well against this Bill. I have also noticed that people believe that it is a rushed job, and that it should not be. They believe that it should be given proper consideration. One almost suspects that the Government have brought forward this Bill in haste simply out of a fit of pique at the Law Lords' ruling on Part 4 of the previous terrorism Bill. I hope that is not so.
Rushing the Bill through Parliament is a constitutional outrage. Forcing it through the House of Commons in only two days smacks of autocracy rather than democracy. How on earth can we presume to lecture other countries about democracy when our own Government—a so-called Labour Government—shows such contempt for the democratic process?
This afternoon, I heard the noble Lord, Lord Giddens, attack the liberal Left from the Labour Benches. The liberal Left! I joined the Labour Party because it was a liberal Left party. I understand, of course, that there are members of the Government who joined the illiberal left party. I was never tempted to go along that road.
This shows such contempt for the democratic process. The Home Secretary only added insult to injury yesterday by telling the House of Commons—which discussed only one amendment out of something like 177—that his concessions would not be made in the elected House, but in this House. How insulting can you get?
To get support for the Bill, the Government are generating an atmosphere of fear among the population by conjuring up dubious statistics. We have already heard that the Prime Minister said on "Women's Hour" that there were several hundred people in this country plotting to, or trying to, commit terrorist acts. This claim, incidentally, is denied by a senior security source, which said that the figure was much lower—only about 20 to 30. The same source said that the Prime Minister's remarks were inaccurate, irresponsible and likely to scare people unnecessarily.
It is in that context that this Bill is being brought forward to us. In the House of Commons, the Home Secretary said that control orders would affect only a handful of people. The Government cannot have it both ways. If hundreds of British people are suspected of terrorism, and we are going to deal with only a handful of them, what is happening to the rest? The Government must answer that question.
Why should anyone believe what the Prime Minister says? His action, in joining in the illegal war in Iraq on the basis of that country having weapons of mass destruction that could be used in 45 minutes, which was shown to be untrue, has enhanced the terrorist threat to this country. Now he wants to use the tools of dictatorship to deal with what he has in fact helped to create; the perceived threat which, according the security services, is much exaggerated—as we have already heard from other noble Lords. The Prime Minister trumpets that he will always put security before civil liberties; but without respect for civil liberties we have no real security and descend to the level of those petty dictatorships that we all abhor.
The Home Secretary claimed in the House of Commons yesterday, and the noble Lord, Lord Young, claimed in this House today, that an opinion poll in the Daily Telegraph showed majority support for this Bill. But they should be wary of such polls, especially before the contents of the Bill have been thoroughly scrutinised by this House and by others. Noble Lords will recall that during the passage of the draft Regional Assemblies Bill, the Government referred to opinion polls in the north east showing 71 per cent support for their proposals. In the event, at the referendum, the people of the north east on a pretty high turnout rejected the Government's proposals by a margin of three to one. The Government, and others, should be careful of relying on opinion polls to support this offensive and oppressive legislation.
As the Bill received so little scrutiny by the properly elected representatives of the people in the House of Commons, it is now left to this House to give it further and proper scrutiny in only two further days. This oppressive Bill needs far more time than we have been given to be properly assessed and scrutinised. The Committee stage is the day after tomorrow, hardly time to properly read this Second Reading debate, let alone to reflect on it. The list of state powers against the suspect in this Bill is formidable. The requirements demanded of him or her are unprecedented in peace time. They will be expected to give answers to questions without knowing exactly what they are charged with. That is completely against every tenet of decency and justice that we know in this country.
This morning, the Home Secretary declared that there will be no further concessions. In that case, this House will have to put the Bill into a shape which not only deals with any terrorist threat, but which preserves the civil liberties that this country has enjoyed for centuries, and without which we shall be at the mercy of state power. If we jettison those hard-fought-for civil liberties, the terrorists will have won, as the right reverend Prelate said earlier in the debate.
My Lords, our law rightly gives security and intelligence services powerful instruments with which to carry out their duties. Suspects can be arrested and questioned on the basis of intelligence information. Phone calls can be tapped, every detail of an individual's life can be examined and suspected terrorists can be detained for up to 14 days.
Your Lordships will be aware that many of the people stopped, searched and arrested under the current anti-terrorist legislation are mostly from the Muslim community. Since 9/11 more than 1,000 have been arrested under the anti-terrorism laws. Seventeen were found guilty and among those six were Irish, two were Sikhs, five Muslims and the remainder unknown. Yet the common perception is that these are all Muslims who want to destroy our democracy and our way of life. In the mean time, my community has been isolated, Islamophobia has increased, and there is a popular belief that allegations about Muslims must be true.
One of the toughest anti-terrorism measures implemented by the former Home Secretary allowed for foreign terrorist suspects to be held in Belmarsh without trial or any evidence against them. Today, under the new Bill, the Government wish to detain suspects under house arrest indefinitely simply on the basis of intelligence without the need of any evidence or scrutiny of a trial.
I understand from the interviews of former Ambassador Murray that we are now using evidence which may be extracted by torture in another country as in Uzbekistan for example. If this is the same intelligence that led us to the war in Iraq, or the legal advice on the issue, then how much legitimacy should we afford it? Even if the decision is validated by a judge in the early process, the accused will not be able to examine the evidence against him. There is no provision for balancing the evidence. I understand that judicial review will not allow examination of the evidence but will review only the procedures.
I believe that the rule of law is an indispensable component of a free society. The Bill will become a collective punishment for the families involved as deprivation of mobile phones, computers and other restrictions will become enforceable for the entire household rather than an individual.
For the Muslim community, the current anti-terrorism laws have turned into a witch hunt of sorts, and this new Bill will not only make their homes a place of punishment but, as the noble Baroness, Lady Kennedy, rightly pointed out in a recent article:
"The idea that a detainee's flat on the 16th floor of a tower block in the East End of London in a Muslim stronghold might become the focus of community demonstrations does not seem to have occurred to Mr. Clarke".
The fact that the Home Secretary claims he will use this power of detention in reserve does not do much to clear away my misgivings. Even worse is the comment by our Prime Minister that there can be no greater civil liberty than to live free from terrorist attacks. This in itself is a contradiction because no one can live "free" when our civil liberties are curtailed, as they will be under the Prevention of Terrorism Bill. Not only would the Bill undermine basic human rights and the law, it would also cause further damage to the Muslim community in this country.
In addition, the Bill does not allow for any separation between Executive and state. Under the new Bill the Executive has the right to make sweeping "control orders" or impose restrictions on fundamental freedoms guaranteed by domestic and international laws in the UK. The Executive is effectively allowed to circumvent the police, prosecuting authorities and the judiciary. The effective system of checks and balances would therefore cease to exist.
What we should be doing is ensuring that people are detained only pending a criminal charge. The right to detain for 14 days allows time thoroughly to investigate the individuals suspected of terrorism and if there is evidence, they should be put on trial. If the evidence is insufficient, they should be put under surveillance. It is a mistake to believe that judges authorizing house arrest will provide legitimacy to a Bill that falls short of international and European standards of human rights as it still provides for deprivation of liberty without charge or trial. Any concessions offered by the Government should not fall short of charging people with an offence, granting them the right to be tried by an impartial and independent court, with full access to the evidence against them.
Last week, my local newspaper, the Rotherham Advertiser, commented that,
"exceptional circumstances demanded exceptional responses. Terrorism must be countered and the government has every right to take the necessary steps. Lack of appropriate legislation would render this nation virtually defenseless against terrorist attacks, but threatening individual liberty and failing to protect citizens from imprisonment without trial, is an even greater danger to this country".
It is not a liberal-Left newspaper.
Like many of your Lordships, I will follow the Bill carefully and ensure that it does not undermine our basic human rights and erode our civil liberties.
My Lords, it is an extraordinary feature of what is happening here today that we are having a Second Reading of a government Bill that, tomorrow morning, will be radically altered by a series of government amendments. The terms of those are unknown to me; I have had some indication by listening to the noble and learned Lord the Lord Chancellor. We are having a Second Reading on something that is about to change. The change is highly material to the one point that I want to make at this late hour, being No. 35 in the batting order—if you can have that many batsmen.
My point concerns the role of the judges. I shall make one preliminary observation before I come to that. The judges have been carefully referred to by previous participants in the debate. I was first put on to this line of thought by the noble and learned Lord, Lord Mayhew of Twysden, who last week raised the flag on which were the words, "Beware! Take care of the role of the judges". My preliminary observation is about a fundamental flaw in the Bill, in the attempt to draw a sharp distinction between a derogating control order and a non-derogating control order. It is not an original point, obviously; it has been made by many.
To find out how the distinction is supposed to work, you begin at Clause 2(1), which states:
"The Secretary of State may make a control order imposing an obligation that is incompatible with the controlled person's right to liberty under Article 5 of the", convention. You are given an adjectival description of what is to be a derogating control order. You then look to get a bit of guidance from Clause 1(3), which lists the types of control orders that can be made. One of them—it was mentioned earlier—is in paragraph (c), which is a restriction in respect of work. Let us suppose that a suspect worked on the Internet or something like that, and the restriction is that he must cease all work that he currently carries out as an employee, and must not carry it out at home in another occupation linked with his place of work. He is also required to surrender his passport under paragraph (i) in the long list.
Would you say that that man's liberty has in some way been controlled so that those restrictions are incompatible with his unfettered right to liberty under Article 5? That is simply one illustration that you can give; many more arise out of the 15 examples in Clause 1(3). The whole of that definitional framework—the idea of creating two separate regimes—seems not to have been thought through and to be fatally flawed.
Perhaps we need to remind ourselves that judges are a very precious element in society. The integrity of the judiciary and their role must be preserved by all possible means. It sometimes occurs to me that we run great risks in the way we use our judiciary to conduct inquiries in politically sensitive areas. In Australia, for example, although it is not necessarily a universal truth, judges are usually not used at all for public inquiries because of the danger that the judge may be seen to be a creature of the executive, whitewashing what they have done and giving a bad impression of the judiciary.
I came across another extraordinary example the other day. It is a case I happen to have some connection with, and I had better be careful what I say because of the degree of secrecy attached to it. A judge was asked by an emanation of government to conduct an inquiry, and was referred by the party objecting to producing documents to a statute which, the judge was persuaded, made it impossible for him to make an order for them to be produced. The other party to the proceedings was not allowed to know the name of the statute under which the judge was making that order. I began to think that Kafka's The Trial was a pretty liberal description of transparency at a proceeding where everyone understood what was going on. We have to be careful.
There are three possible roles for judges. Under the Bill as drafted, there is a full appeal process for a derogating control order. As I understand it, that is the terminology in Clause 2. The judge is to look at that on appeal on an order from the Minister and decide whether, in the various respects set out in subsection (2)(1), the Minister got it right. That is pretty strong, because he is reviewing whether the Minister rightly considered that the imposition of the obligation was necessary for the purposes connected with protecting members of the public from risks arising out of a particular emergency. He has also got to be satisfied on that appeal that the person under suspicion is, or has been, involved in terrorism-related activities. What material will be placed in front of the judge so that, as a judicial function, he can decide whether the evidence stands up and he is being told everything relevant to the sources, and whether he is getting the full picture? It seems that under Clause 2, a full appeal process is involved.
Regarding a non-derogating control order, we are told by subsection (7)(7) that that is only a judicial review test. Attention has been drawn to an unfortunate provision in Schedule 4(3)(c) to the Act, which says that
"Rules of court made in exercise of the relevant powers must secure . . . that the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
So if it is adverse material, as was said earlier, it is completely contrary to conceal material that would point the other way, and might be in favour of the person who is the subject of the control order.
They are the two procedures under the Bill before us: a full appeal for derogating control orders, and judicial review for non-derogating orders. Coming around the corner—presumably we will see this tomorrow—is a third role, which is the judge as the maker of the original order. The noble and learned Lord, Lord Donaldson, touched upon that point. One feels at a disadvantage in having a Second Reading on a Bill that is going to change, because we do not know whether to write in "the judge" in subsection (1)(1), as the noble Lord suggested, so that the judge,
"may make an order (called a 'control order') against an individual if he—
"(a) has reasonable ground for suspecting the individual is or has been involved in terrorist-related activities", or if he considers it necessary to make the order to protect the public against acts of terrorism.
I am making the plea that we should move very carefully. More time is required—I am repeating what others have said—to consider the matter. The old Act should be renewed or kept alive to give us proper time. There should be discussions between the parties, and wise counsel should be given a chance. We should then look at the Bill and if it involves judges, they should be involved in a way in which we can feel sure that they are acting in a true judicial role, with full materials in front of them, with no concealment and no disadvantage for the person against whom the order is sought. Something will have to be done to try to ensure that the scales are not loaded against such a person.
Some of your Lordships may recall that Professor Simpson wrote a book with the unusual title In the Highest Degree Odious. Those words were in fact a quotation from Winston Churchill's description of Regulation 18B in what is known as World War II. Those are warning words and a route down which we should not go. For the moment I regard the current Bill as amply meeting the adjectival description by Mr Churchill. What he would have said about it, one can only imagine.
My Lords, as the last speaker I can say, like John the Baptist, I am not the end but the end is near. I have listened very carefully and many interesting points have been made. Not being a lawyer, but a statistician, I shall describe my dilemma. On the one hand, there are matters of civil liberties and, on the other, there is the risk of terrorism. A statistician would consider that we could make two kinds of errors: one is rejecting the true hypothesis and the other is accepting the false hypothesis. On the one hand, we could make the mistake of incarcerating an innocent person, but, on the other hand, we could make the mistake of letting go a terrorist. There is no way of eliminating both errors. The choice we have is to fix the level at which we have one error and minimise the other.
Some people would rather make no error as regards our civil liberties; they want complete certainty or as much as we have now. Then they will be willing to talk about what to do about terrorists. Others think differently. I do not believe that philosophically a single answer can be provided. This is part of a continuing process. Part 4 of the 2001 Act cannot be renewed. There are opinions on both sides, but the noble Lord, Lord Goodhart, has said that it is not possible to renew it. Even if it were renewed, what would one do about British citizens whom one believes are likely suspects?
As we cannot renew Part 4 of the 2001 Act, and because something has to be done by a particular day in March, we have this Bill before us. Unsatisfactory as it may be, I do not believe there is any other choice open to us except to do something with this Bill.
My noble friend Lady Hayman had the right idea about this matter. Think of it as an interim measure and do the best we can with it—it is a sticking-plaster job. I believe that we have to trust in the goodwill and the good faith of the Home Secretary. Clearly, he wants legislation passed very quickly and we have to give him the least bad Bill possible, but not with a formal sunset clause, which would lead to many amendments, going in and out of Division Lobbies and so on. We should say, either tonight or soon, either in this House or in another place, that a promise should be given that whoever is in power after the next election will set up a Joint Committee and consider the problem at leisure, so that we can have a Bill that is not only thoroughly scrutinised, but that we can discuss in good time. Maybe by the first anniversary of this Bill we shall have something ready in our hands which will satisfy most people and dissatisfy the least number of people. That would be one way to go.
Again as a non-lawyer, there seems to be one area of disagreement. That is, the non-derogating orders are not subject to the same procedure or the same criteria of proof as the derogating orders.
I ask an open question. How many of the restrictions under Clause 1(3) does it take to breach Article 5? Is it each one of them? Is it the idea? I have seen lawyers disagree. There will clearly be a difference of opinion. Are we saying that each provision in paragraphs (a) to (o) under Clause 1(3) breaches Article 5, and that therefore for each of them you would need a derogation-like procedure and get in a judge? Or may there be different combinations—two here and three there? That would be where you would hit the barrier? A non-lawyer's practical way of thinking about this would be that at one end each one is a derogation and, therefore, forget about non-derogation and make everything a derogation control order.
That is an open question. I hope it is one way we can think about the Bill to see whether a way out can be found so that we can get the Home Secretary roughly what he wants as soon as possible. Then we can get on with other trivial matters, such as the election and so on. When we come back after all that, as I said, whichever government are in power—we cannot pre-judge that; we cannot even pre-judge that there will be an election—
My Lords, do you not know me? Do I talk to my Front Bench? Does my Front Bench talk to me? You are joking. What happens when you have to sit here and listen to 35 speeches is that eventually ideas come. Literally, I did not have these ideas until I went out to have a sandwich. Maybe that is what did the trick. But this is not a package I am offering. There is no official sanction behind this. These are just my own thoughts, sitting on the Back Benches—and the further back you sit, the better it gets.
This is a possibility. Finally, I say two things. The first is a technical matter, which the noble Lord, Lord Goodhart, has already mentioned, regarding what the Delegated Powers Committee said about the schedule, and its recommendation. When the Lord Chancellor puts forward his idea of modification of court procedures an affirmative instrument should be used, not only the first time but perhaps subsequently. That is for the House.
Secondly, I finish by saying this. I agree with my noble friend Lord Ahmed and the noble Baroness, Lady Falkner, that, either by implication or by public statement, this should not be made into an anti-Muslim Bill. It is not about Muslims. I do not predict this, but Christian fundamentalists could be the next terrorists. We hear some fairly bad things about this matter. I think we should clean our minds of that. The problem also is that, given the diaspora, given globalisation, it is difficult to make a distinction between foreigners and British subjects, because people often have not only double loyalties but perfectly legitimately double lives. So let us think just of individuals. If we are going to restrict the civil liberties of any individuals, regardless of whether they are subjects or foreigners, we should apply symmetric tests. If we do not carefully think about how many non-derogatory control orders would breach Article 5, as any one of them would, this Bill, if enacted, would be in danger of again and again going before higher courts and being rejected as contrary to the ECHR. To save all that waste of time, let us sit together and make it as least bad as possible.
My Lords, after 36 speeches, we come to the concluding part of the debate. Perhaps I may take the opportunity to thank the noble and learned Lord, Lord Falconer, for his explanation of the Bill and say how much I look forward to the explanation of the noble Baroness, Lady Scotland. She gave very little away on "Newsnight" last night, but I hope that she has some better news for your Lordships' House.
With a majority of 161 reduced to 14, the Government did not do well in the other place, and I suspect that they are in for a tough time in your Lordships' House. I have spent just about seven years in the House. I am proud to belong to a party that does not compromise on civil liberty issues. I congratulate my noble friends Lord Thomas of Gresford and Lord Goodhart on their bold stand against the Bill. Equally, I subscribe to what my noble friend Lord Phillips of Sudbury and the noble Lord, Lord Dubs, said about the hearts-and-minds arguments that we need to take on board.
Civil liberties issues matter, and they matter most because they are central to our democratic system of government. Equality and civil liberties had to be fought for over centuries. It is therefore a shame that such a short time is being given to scrutinising and revising legislation that goes to the heart of our democratic process.
Rushed legislation produces bad laws, and bad laws are difficult to implement. We learnt at least that from the judgment of the Law Lords. This is not an argument about the old style of terrorism and the new style of terrorism. At the heart of the arguments that we have advanced so far is our belief that, in any situation, the supremacy of due process must prevail.
Yesterday's debate in the other place must have been uncomfortable for the Home Secretary. He simply has to look at the headlines in today's newspapers to see the shambles that we are in. We have to see the legislation on the prevention of terrorism in the light of a number of attacks on our civil liberties by the present Administration. In the past seven years, I have seen our values eroded time and again. The noble and learned Lord, Lord Mayhew of Twysden, identified some of them. Part 4 of the Anti-terrorism, Crime and Security Act 2001 introduced detention without due process of law for non-British citizens suspected of terrorist links. We have seen major attacks on trial by jury, which is an essential bedrock of the British system of justice.
At that point, the noble Earl, Lord Onslow, said that he had run out of paper; I have not. There are other issues: attacks on our judiciary became almost commonplace during David Blunkett's time as Home Secretary. My noble friend Lord Goodhart has in the past highlighted how the extradition process means that British citizens can be removed abroad without adequate protection. We will soon have legislation on identity cards, and we have already succeeded in removing judicial review in asylum cases. In addition, we have seen cuts in legal aid and the disclosure of antecedents before our courts. This paints a bleak picture of the Government's record on civil liberties.
I fear two things. The constant, unremitting attacks on human rights and civil liberties have damaged our democratic values. But attacks on our justice system also undermine the law internationally. Many countries trying to develop a system of justice based on our principles now have an alibi to do less because we have retreated from our centuries-old, tried and tested system of justice.
The first and fundamental issue, which is central to all the arguments advanced in this debate, is who should be responsible for the decision to make control orders. On these Benches, it is clear that the proposals made in the Bill are not acceptable.
Our judicial system is founded on the assumption that decisions about custody or deprivation of liberty should, as a matter of principle, be for judges and that any decision to vary the effect of the order should also be for a court. That has served us well and has been instrumental in ensuring that democratic nations across the world would follow this principle. One of the central tenets of our criminal justice system is that no one is guilty of a criminal offence unless proven guilty by a court of law. Again, those are the very principles enshrined in the European Convention on Human Rights. I do not believe that we have identified any circumstances which should deny an individual a fair trial.
During the passage of the Anti-terrorism, Crime and Security Act 2001, we warned that there was an undue haste in suspending human rights, which resulted in the indefinite detention without trial or charge of a number of foreign nationals. In such cases, I do not detect much difference from those detained in Guantanamo Bay or in Belmarsh prison.
We now have the Law Lords judgment and the Home Secretary has already indicated that he intends to free the remaining detainees shortly. That begs the question, as it does with the detainees in Guantanamo Bay, that if the evidence against those detainees was so serious that they could not even be told what it was, why are they now likely to be released? We have to draw some very hard conclusions.
The Government cannot continue to hide behind the statement that disclosure of evidence may compromise our security and intelligence service. The reason why the public are sceptical has something to do with the way in which we handled the Iraq crisis. Week after week we were told about weapons of mass destruction. We have to go back to the debate in the other place. That was the central theme of the Prime Minister's message to the British people.
That dossier on Iraq's alleged weapons of mass destruction does not sit easily with the present legislation. If the judgment was fundamentally flawed, how much trust can we place in the present pronouncement that the Bill needs to be seen in the context of the scale of the continuing and serious threat to the security of the United Kingdom from terrorism?
We are asked to balance between civil liberty issues and the security of our nation. We are all asked to do that on the basis that we should trust the Government. That is a very cruel dilemma which we all face. On the one hand, we are aware that there has been loss of trust. On the other hand, to do nothing is not an option.
It is for these reasons that the principle of civil liberty and justice should be sacrosanct, but that we can find acceptable answers to ensure that the security of our nation is not sacrificed. It is perfectly possible to do that without the draconian measures announced by the Government.
Central to our argument is the recognition that it has never been the basis of the rule of law in the United Kingdom where the Executive decide, and are accountable to Parliament, about locking up individuals on the grounds of criminality. The noble Lord, Lord Harris of Haringey, will have to look at past decisions of the Home Secretary which were found to be in breach of law by our judiciary.
I am sure that all of us in your Lordships' House are pleased to note that even at this late hour on the Bill, the Government have recognised the principle that it is not the Executive but the judiciary which will take the decision affecting the liberty of an individual.
There is no dispute about the need for control orders. A control order may impose any obligations necessary for purposes connected with preventing or restricting an individual's further involvement in terrorism-related activity. We now have the Home Secretary's assurance that control orders involving deprivation of liberty will be made by the judiciary.
We have already been told by the Home Secretary that he does not foresee using house detention, thus removing the need to derogate further from the ECHR, and that that is based on advice received from the police and security services. If that is the case, it is hardly a concession at all. In any case, why does he need such a power, given that he already enjoys a broad range of powers under existing law to control the residence, movement, employment and liberty of persons subject to immigration control?
We have a further concern. A person subject to a non-derogatory order may appeal against its initial imposition, any renewal or non-consensual modification of that order, or a refusal by the Secretary of State to modify it. But we need to be clear about what that appeal is. It is more a judicial review examining whether the decision of the Secretary of State is flawed. We have no doubt that orders, either derogatory or non-derogatory, should be dealt with with due process and with full judicial control. We cannot accept that the court acts merely to confirm the suspicions of the executive without the safeguards of criminal law. We shall examine this provision very carefully in Committee to ensure that it fully meets the concerns we have expressed but I say now that it is perfectly possible to set up special courts or security-cleared juries and to appoint special judges to deal with such matters.
But let us not blur other issues in the Bill. The Home Secretary is going beyond what the Law Lords had in mind. Detention is not at present confined to foreigners. The Government wish to extend the power to UK citizens as well. There is a need for clarification. I shall, of course, be guided by those well qualified to interpret legal terminology, but the noble and learned Lord, Lord Hoffmann, stated:
"In my opinion, such a power in any form is not compatible with our constitution".
In our response to the Statement to your Lordships' House, we advocated the need to admit intercepted evidence. I am glad that the Home Secretary has kept an open mind and we trust that the Intelligence and Security Committee will soon have a view. Suffice it to say that if such evidence is admissible in other parts of the world, we need to consider seriously its applicability in our courts.
My noble friend Lord Thomas of Gresford has explained our concern about the standard of proof required to impose a control order. On closer examination, the standard of proof is identical to that operating in proceedings before SIAC under Part 4 of the 2001 Act. Will the Minister confirm that in December 2001 the House of Lords found that incompatible with the Human Rights Act? If that is the case, should we not now be looking at higher standards of proof? If the appropriate standard of proof on anti-social behaviour orders is that of the criminal law—that is, beyond reasonable doubt—surely the same standard is required where the allegation is about involvement in terrorism.
I conclude by quoting a little note I received from Emma Chesterman, who wrote to me about the Bill. She is a student studying for a masters degree at King's College London. She wrote:
"No terrorist force however strong or terrifying can destroy our civilisation - we alone can do that by allowing ourselves to be bullied or scared into dismantling the structures which made it what it is. At the moment I am far more afraid of Parliament than I am of any terrorist".
I assure the Minister that we will work toward maintaining the balance between matters of equality and civil liberties and the rule of law to protect the country from terrorism. It is perfectly possible to achieve that balance.
We do not simply want to claim the moral high ground on matters of human rights and civil liberties. That belongs to all of us. Equally, we do not want any one political party to claim the moral high ground about tackling terrorism. That responsibility belongs to all of us. It is not an either/or situation. It is to strike the balance that has made our justice system the envy of the world. We shall examine the provision very carefully in Committee to ensure that it fully meets the concerns that we have expressed all along.
My Lords, this has been an outstanding debate with many fine speeches. The balance of opinion expressed has been perfectly obvious to me and I am in no doubt that it has been perfectly obvious to the government Benches as well. Moreover, the Government can be in no doubt that they will face many amendments to the Bill.
I want to emphasise, as my noble friend Lady Anelay did at the outset, that the Opposition accept that the threat posed by terrorism is very serious and that its nature is unprecedented. My noble and learned friend Lord Mayhew said that we should all give that factor great weight when considering the solution that we are seeking in the legislation. I agree.
We on these Benches are seeking to devise a legal response that is proportionate to the threat. We have concluded that it is possible to achieve a proportionate response that is consistent both with the preservation of the fundamental values in our society and the legal processes that protect them.
We utterly repudiate any suggestion that those who seek to amend the Bill in some way become an added component of the terrorist threat.
The pre-eminent value that we seek to protect is the right of someone incarcerated by the Government to have a fair trial. That is one of the great principles of our society. That principle must lie at the heart of any proportionate response, together with the preservation of the presumption of innocence and the right of the defendant to know the case against him and to be in a position to respond to it.
I entirely agree with the noble Lord, Lord Clinton-Davis, who said that the system of control orders should be at the end of any process, not at the beginning. The beginning of the process should be a thorough search to bring the alleged terrorist in front of a criminal court at a criminal trial.
The Government have two responses: first, that many alleged acts committed by alleged terrorists do not fall within the definition of any criminal act; and secondly, even if they do, the evidence will often be inadmissible or, if adduced, it will compromise the source of that evidence or the technique that was used to garner it.
I have seen no serious attempt by the Government to consider widening the nature of criminal offences to include many of the acts preparatory to terrorism that fall into the category that will be dealt with by control orders. One of the reasons is that the Government have given themselves so little time to deal with these matters. If they had given themselves more time, they would perhaps have come up with some offences that would have enabled us to prosecute rather than to issue control orders.
Like the noble and learned Lord, Lord Lloyd of Berwick, I do not accept that the Government have seriously considered the issue of intercept evidence. Even if, at the end of the day, we have to protect the sources of certain evidence or the techniques by which it was gathered, it is still possible to invite a judge to engage in a sifting process whereby those elements can be sifted out, and he can then look at what remains to see whether a prosecution would be possible. In any event, I believe that the role of the DPP should be on the face of the Bill and that the process should start in the usual way.
However, I accept that there will be some categories of behaviour that will pose a threat to the state and will simply not be susceptible to the criminal process. This is where we move on to the control order. I also accept that control orders cannot be the subject of the full protection of the criminal law; but I do not accept that individuals do not deserve the full protection of the due process of law. It is the absence of the due process of law in this Bill which concerns us deeply.
As your Lordships are well aware, there are two categories of control order in this Bill, one category which derogates from Article 5 of the convention and the other which—so the Government say—does not. I shall deal first with the one that derogates from the convention.
As your Lordships are aware, the procedure here is initiated by the Secretary of State; once the order is made, he is required to send it immediately to the court and, within seven days, the court must make up its mind whether the case has been made out by the Secretary of State. If it has, there is a further stage at which the High Court considers the matter on its merits.
What concerns us deeply about the process is what appears in the beginning of paragraph 4(1) of the Schedule, on page 17 of the Bill. I shall read out the excerpt to make it absolutely clear to the Minister that she will face amendments on this matter by tomorrow evening. The paragraph states:
"Rules of court made in exercise of the relevant powers may, in particular—
(a) make provision about the mode and burden of proof in control order proceedings and about evidence in such proceedings;
(b) enable or require such proceedings to be determined without a hearing; and
(c) make provision about legal representation in such proceedings".
It is unacceptable to us that the burden and standard of proof in these matters should not appear in the Bill. As written here, it would be possible to change these in relation to each individual case. That is wholly unacceptable. Nor is it tolerable that these proceedings should be determined without a normal hearing or that the rules will make it possible for the individual accused not to have legal representation.
I move on to paragraph 4(2)(a), which states:
"Rules of court made in exercise of the relevant powers may also, in particular—
(a) make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one)".
I find that quite unacceptable. It is unacceptable that the reasons for decisions cannot be given to the party who is to be subject to a control order. It is hard to see how any of your Lordships can be complacent about that.
Then paragraph 4(2)(b), which state that the rules of court may,
"make provision enabling the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative".
So it would be possible for the court to proceed in the absence both of the defendant and his legal representative. Again, I am bewildered as to how the Government could possibly imagine that that could conform with the principles of due process.
I finally come to the most glaringly offensive component of the paragraph—paragraph 4(3)(c), to which the noble Lord, Lord Neill of Bladen, has already referred and which was mentioned in the speech of my noble friend Lady Anelay earlier today. This paragraph states:
"Rules of court made in exercise of the relevant powers must secure . . . that the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it on those proceedings".
The situation is therefore exactly as stated by the noble Lord, Lord Neill of Bladen. Any evidence that might be favourable to the person threatened with the control order can be withheld, both from the court and from him.
The Government told us last night, in another place, that it will substitute a judge for the Secretary of State in this procedure. I derive no comfort from that at all—though I am glad that they have, at least, moved in that direction—because, as paragraph 4 stands, a judge is being asked to engage in a process which is not a judicial process. It is a political process. Simply substituting the judge for the Secretary of State does not advance the cause of due process at all. All it does is to contaminate the judiciary by involving it in a political process.
My Lords, I most certainly did not say that—high as the temptation is. I was saying that I understood the noble Lord to have said that he accepted the principle of a control order. He appears to be convincing everybody that neither the Secretary of State nor the judge should make it. I wonder, then, who could make it?
My Lords, I accept the principle of the control order—subject to the procedure for implementing it conforming with the principles of due process. Under the Bill, it manifestly does not do that, because of paragraph 4 of the schedule. I have spent the past seven or eight minutes trying to explain that. I know I am capable on many occasions of being inarticulate, but I did not think my inarticulacy had reached that degree of confusion.
My Lords, if there is an obligation to produce exculpatory material, the noble Lord will be satisfied.
My Lords, I shall move on. As regards the other situation for control orders, the protection for the individual is even weaker. Here, I understand that the Government remain firm that the Secretary of State will initiate the order. There will be no opportunity for automatic review by the court, which will review only if there is an appeal. That review by the court will not be on the merits. It will only be as to whether the procedure has been properly followed by the court.
That provides no due process protection at all. Non-derogating orders, like derogating orders, should be dealt with on their merits in a manner conforming with an amended schedule to the Bill.
In addition, we will propose two further safeguards. The first has already been heralded by the noble Lord, Lord Brennan. The control orders system should be regularly reviewed by a committee of Privy Counsellors; we believe that ought to be on the face of the Bill. Secondly, we believe that there should be a sunset clause in the Bill.
Of course, it will be difficult, in the time that we have in front of us, to consider all these matters as thoroughly as we ought; but at least I have the comfort of knowing that your Lordships will make a much better fist of it than those who inhabit another place.
Indeed, I see no reason why we should be rushed into these matters at all. I disagree with those of your Lordships who say that it would be illegal to renew the 2001 legislation on
The manner in which the Government have rushed this legislation has done them no credit. Those who observed the proceedings in another place are fully aware of that. The conduct of the Government was in fact worse than oppressive; it was ridiculous. There is no more damaging emotion for the electorate to experience about the Government than that of ridicule. Their conduct seemed to be orchestrated by a choreographer employed by the legendary Fred Karno. We by contrast will table our amendments tomorrow afternoon and fight very hard to win them all.
My Lords, I think I can say without fear of contradiction that we have had a wide-ranging comprehensive debate during the past almost seven hours. No one can say of this debate that it has not fully looked at a number of the issues. Let me immediately thank all my noble friends and other noble Lords who have agreed with the Government's position. However, I shall explain a little more fully those points where we have differed. If I may, I shall take up the points made by the noble Lord, Lord Kingsland, last of all. I shall try to indicate the areas where it seems to me that there is agreement.
The first is that wherever possible the first port of call in relation to any unlawful activity must be prosecution, if prosecution is possible. The second is that we should be slow therefore to reach for any alternative which does not include that possibility. I agree with my noble friend Lord Clinton-Davis and, indeed, with the noble Lord that the process about which we speak today should be one of last resort and should be the end of the process rather than the beginning. In so doing I know that I do not have to remind noble Lords that in relation to Part 4, which some may describe as slightly more draconian than those provisions which we now fall to consider, there were only 17 cases throughout the whole of that period where we resorted to its use. I hope the House will consider that that was a judicious and temperate use of the provisions.
I am sure too that I do not need to remind noble Lords that in relation to each of those cases the courts came to the view that a restriction or detention in relation to those individuals was in fact merited, and that there was and remains—I am pleased that there is an acknowledgement of this—a situation of security with which we all have to deal. It is right to remind your Lordships of what our independent reviewer, the noble Lord, Lord Carlile, said about the use of material. He said:
"Having seen extensive material, I am in no doubt that national security could be at risk if certain types of evidence were revealed to the detainees. At risk too would be some individuals' lives. The kind of evidence I have in mind includes that provided by (in this context precious) human resources including those who might be described as a term of art as informants, disclosure of locations used for observation, details of technical facilities available for listening to and/or reading communications, descriptions and identities of police officers and others, and methods of risk assessment used by the control authorities".
I join with all of those who say that that is not a comfortable place to be and, indeed, that we would prefer to live in a world where such threats were not present and where the balance between liberties and security did not have to be so finely tuned. That, I regret to say, is not the position in which we find ourselves. I am grateful to noble Lords who have acknowledged that reality.
My Lords, I wonder if the Minister could tell us how many of the original detainees in Belmarsh are still there. How many have already been released?
My Lords, I believe 11 are still there.
I understand entirely those who say we would rather not be in a position where the orders would expire on
The Government and my right honourable friend the Home Secretary have taken careful note of what has been said by the security services and the police about the nature and extent of control that would have to be put in place of substitution of full-time detention in order to give us the security that we seek. The current view is that the non-derogative provisions contained in this Bill, if implemented by Parliament and brought into force, would provide an ambit of security which would be sufficient for those currently detained.
I will not hide from the House that that is, of course, a very delicate risk assessment. I concur with those, particularly my noble friend Lord Desai, who say that there is no perfect solution. We will not have perfect security. We cannot perfectly respect and support liberty and have perfect security too. There is always a balance, a management of risk. The risk assessment at the moment is that the use of the derogative powers, which would currently entitle us to detain on a full-time basis, is not necessary.
So, I very much welcome the feeling in the House that there is a small cadre of people who fall outwith the criminal procedure and for whom the control orders may be necessary. I also understand entirely the comments made in relation to the due process of law. Of course, the noble and learned Lord the Lord Chancellor in opening, and I in replying to the Statement, made clear that we too see the necessity for careful scrutiny of that process.
We are now placed—as a result of the comments made by the noble Lord and others in relation to the position of the judiciary—in a rather interesting position. Noble Lords will know that the Government's preferred position was that the Home Secretary, being the person who on behalf of the Government shoulders the political responsibility in the main, should have the responsibility to make that initial political decision, which would then be speedily reviewed by the judges. To use the analogy proposed by the noble and learned Lord, Lord Donaldson, the judge remains the umpire and does not get on to the pitch and put on his boots. I was not sure whether the noble and learned Lord was referring to cricket boots or football boots, because otherwise we are talking about referees and boots.
However, we listened—
My Lords, if I may finish this sentence I would be grateful. We listened carefully to what was said by all of those who urged with great energy that it should not be the Home Secretary who made that decision in relation to derogating orders, it should be the judges. I hear too the concern echoed on behalf of the judiciary by the noble Lord, Lord Neill. In my response I foreshadowed that that might be an anxiety, and it was for that reason I explored it when I made the Statement.
My Lords, the noble Baroness said that the Home Secretary would be making a "political" decision. It should not be a political decision; it should be that the Home Secretary has evidence that so and so wants to do something nasty and that his nastiness justifies him being put away for a bit. Surely, he must show to the judge, or a similar person, that so and so has been sufficiently nasty that he needs to be locked up. That is not a political decision; that is essentially a policing or judicial decision.
My Lords, I was using the word "political" in the way in which it was used in the debate—therefore loosely—and I was seeking to indicate that it was a decision taken by the executive, as opposed to a decision by the judiciary. In making that decision, the Home Secretary would have to make sure that he had full cognisance of all those matters that might pertain, enabling him to make a reasonable decision on whether it would be proper to seek such an order or to make such an order himself.
That is the background to where we are. We have a choice to make. There is little point in our saying that we would rather not be here—we are here in terms of timing for a number of reasons. I remind the House that the decision that was made by the Judicial Committee of this House was by no means a foregone conclusion, to the extent that noble Lords will remember that the Court of Appeal had supported the Government's construct. I put that to the House by way of background. It may now, with hindsight, seem to be inevitable, but it was not always thus.
Of course, I take to heart very much the comments made by the noble Lord, Lord Newton, and by my noble friend Lady Hayman, who reminded us, and has reminded us in the past, that the Newton committee foreshadowed a number of those problems. I reassure the House that the Government did not rest on our laurels. We did consider those matters, and they remain extremely complex and difficult. Therefore, I reassert that the Government intend to bring forward legislation as soon as parliamentary time allows, to address the issues that noble Lords have raised about preparatory acts and other matters. If it is said, as a number of noble Lords have done, that this would be better done together, I could agree. However, it does not change the situation that we are where we are.
My Lords, I am grateful to the noble Baroness for giving way. I accept absolutely that it does not change the situation of where we are. It might make some of us feel considerably more comfortable about agreeing to take measures to protect where we are now if we had assurances that soon in the future when we consider making prosecutions more possible we could also review and, if necessary, change what is proposed at present.
My Lords, of course, I hear what my noble friend says about that matter. Contrary to what has been asserted by noble Lords in this debate, we have not closed our minds because the parliamentary process continues. So, for instance, if we look at the process, at what we shall have to do with reviews, we already have a situation where the Government have indicated that this Act will be reviewed at the end of 12 months. The Home Secretary will make his report on a quarterly basis. The House will have an opportunity, therefore, to be appraised of the development of these issues as they go on. Knowing this House as I have come to know it and love it, I am confident that your Lordships will not be slow in making sure that the Government do their duty in that regard.
My Lords, is the Minister aware that we would not be satisfied simply with a debate on a report of a review produced in some 12 months' time? What I think the noble Baroness, Lady Hayman, was suggesting, and what we would wish, is that there should be some procedures, such as putting a fairly short sunset clause into the Bill, so that the substance of the matter would have to be reconsidered by Parliament which could properly then debate the issues which we shall not have time to debate on this Bill.
My Lords, the noble Lord will not be surprised if from the Dispatch Box today I say that it is not currently our view that such a provision would be necessary, bearing in mind the opportunities we are already putting in place to review these issues. This is Second Reading. I have made it clear that we shall continue to look at the matter, but I give no such guarantee. But these are matters which will need to be considered continually.
My Lords, I am conscious that it is ten o'clock; I am conscious that I have been on my feet for 16 minutes; and I am conscious that I have not yet trespassed upon the many contributions made by noble Lords with which I think I should properly deal in order to make sure that there is some information for the House to have when we come to deal with it more fully. I give way, but perhaps I may indicate that I should be very grateful if it were for the last time.
My Lords, the Minister says that we are where we are; but where are we? Is the noble Baroness concerned that the 11 people detained in Belmarsh will have to be released on
My Lords, let me finish the question. The noble Baroness has told us that if they come out under this legislation it is not necessary, so the security services say, for them to be subject to house arrest and that non-derogating orders will be sufficient to control them. Why would she object to an application for bail in the next fortnight which would enable them to come out? We should be able to come back to all these matters following the election, whichever government were in power.
My Lords, the conditions have not yet been set. The basis on which those orders would be made is not clear. If we possibly can, we want to move seamlessly from the position that we are in now into a position which would be better controlled under a non-derogating order.
May I come to some of the process issues raised by a number of noble Lords? Will your Lordships forgive me if I do not refer to every person by name, not least because many noble Lords mentioned all the matters with which we are now dealing? I would have to recite 35 names in relation to them. Noble Lords should assume that I am referring to them if I am dealing with their point.
I should tell the noble Lord, Lord Kingsland, that I am grateful for paragraph 4(3)(c) of the schedule having been highlighted by his noble friend Lady Anelay and by him. We think that it has been cast to wide. We intend to address that when we come to deal with it. The other process matters will be looked at. In the first instance, the noble and learned Lord the Lord Chancellor will be responsible for making the rules. If the matters continue, we will expect the ordinary rules committee to look at it.
It is not proposed that the individuals be without legal assistance. It is proposed that the special advocates would continue, and that part of the proceedings should be closed and some open. It is also intended that, so far as possible, those made subject to the orders should have as much information as it is safe and satisfactory to give them, and that it is only where information could not properly be given—for the reasons already outlined and referred to by the noble Lord, Lord Carlile, in the quotation that I read out—that it should not be disclosed. I hope that we will be able to satisfy your Lordships on that issue in due course.
A number of noble Lords, not least the right reverend Prelate the Bishop of Worcester, said that we have to look to the spirit of this country and make sure that we do not trespass in a way that would damage that spirit and indirectly give the terrorists the prize that they seek; namely, some deterioration and reduction in our concept of civil liberties. That is something that we value. I say to all those who made that point that we wholeheartedly concur, but are left with a situation in which a small number of cases cannot be dealt with in a way that we would ideally desire, although that is a consummation devoutly to be wished for.
Therefore, we have to craft something that is fit for the purpose, which will keep our country and our citizens safe. We must intervene only as much as is absolutely necessary with their liberties to do it. Of course there is a debate—a vibrant debate, if tonight is anything to go by—on where that line should be. However, I assure the House that the Government share the aspiration warmly.
We then come on to why there is a difference between non-derogating and derogating orders. I shall deal with that part of the debate in short form. Derogating orders involve a deprivation of liberty. Non-derogating orders involve a restriction on liberty. Of course, the question is always how far the restriction is merited. There was a genuine and proper question about what combination or constellation of those matters and conditions currently set out in non-derogating orders could amount to an Article 5 derogating order.
I make it plain that it will always be capable of being argued before the High Court that the combination alighted on by the Home Secretary trespasses against that dividing line, and could turn a non-derogating order into a de facto derogating order. If that were so, the court would be entitled to say that that was outwith what the Home Secretary was entitled to do, on a case-by-case basis, not least because no two cases are likely to be exactly the same. There may be a combination of conditions that would have to be put together, which may or may not take one to that threshold, but that will be a question of fact.
I do not accept that judicial review does not have teeth. If one looks at the governments who have been subject to it, each administration has had bite marks all over it. We know judicial review is powerful and can be effective. We also take into consideration the whole issue of proportionality. The court will be entitled to look at proportionality and at how the ECHR is affected.
We will return to what is a proper role for the judges, as we still have to debate it in more detail. My right honourable friend the Home Secretary has indicated that he is willing to move in that regard, and that tomorrow we will table amendments that will permit the substitution of a judicial decision as opposed to that of the Home Secretary. However, in the main, it will be the Home Secretary who will make the decision. Your Lordships will know that the Secretary of State is referred to in a generic form. It could be the Secretary of State for Northern Ireland, or the Home Secretary on behalf of the UK. Those issues are interchangeable.
In relation to Scotland, while I am on my feet, in response to the question posed by the noble Duke, the Duke of Montrose, we have spoken to the president in that regard. Those matters will be dealt with in an appropriate manner.
One of the issues raised by the noble Baroness, Lady Falkner, and by my noble friends Lord Ahmed and Lord Desai, is the impact on the Muslim community. These orders are not targeted at that community. We will do, and have done, everything we can to ensure there is a proper understanding. We have taken to heart the strictures of the Newton committee, which have been referred to by the noble Lord, Lord Newton, the noble Baroness, Lady Hayman, and, in the case of Re A, where they say that the threat does not simply come from international terrorists, but also from our own nationals. People have asked, "Why the change?" That change is the result of a deepening of understanding of that threat. In 2001 it was thought that the major threat came from international terrorists; non-British nationals who may be passing through or resident here. That understanding has changed. An example of that is what we know of the "shoe bomber", a British national who has behaved in a reprehensible way.
The effect of the court's decision was also an indication that we had to think again. I remember the trenchant debate we had on this subject when we discussed the committee chaired by the noble Lord, Lord Newton. I will not put it colloquially, but our judgment was seriously being challenged. It was said that we were failing in our duty to address the threat coming from British nationals. I can only say to my noble friend Baroness Hayman that I hear you; mea culpa.
There are a number of difficult matters with which we must deal. I have already made clear that the difference between the non-derogating orders is a matter of degree. The judge has to make the derogating orders on application by the Secretary of State, and we are setting out clearly what that procedure is. We understand the need for the prosecutor clearly to make the decision whether prosecution is possible, and reassure noble Lords that we will do nothing to undermine or diminish in any way the role of the DPP. We will consider how that may need to be strengthened, and what we can say about those matters.
In probably little more than 24 hours we shall return to this issue. I hope that all the amendments will be completed and available to noble Lords first thing tomorrow morning and we shall look carefully at the amendments. I can assure noble Lords that if I have not responded to each and every matter, they will be looked at in the next 24 hours. I hope that I have dealt with the majority of the major concerns that have been raised in the debate. I thank your Lordships for your tolerance because I see that the clock is now at a quarter past the hour.
On Question, Bill read a second time, and committed to a Committee of the Whole House.