Prevention of Terrorism Bill

– in the House of Lords at 7:45 pm on 10th March 2005.

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A message was brought from the Commons, That they agree to certain Lords amendment to the Prevention of Terrorism Bill without amendment; they do not insist on a certain other amendment to which the Lords have disagreed; they insist on their disagreement to certain other Lords amendments but have made amendments to the words so restored to the Bill to which they desire the agreement of the Lords; they insist on their disagreement to certain other Lords amendments but have made amendments in lieu thereof to which they desire the agreement of the Lords; and they insist on certain other amendments to which the Lords have disagreed and disagree to the remaining Lords amendments for which they assign a reason.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 10:15 pm, 10th March 2005

My Lords, I beg to move that the Commons amendments and reasons be considered forthwith.

Moved, That the Commons amendments and reasons be considered forthwith.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

:TITLE3:MOTION A

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

rose to move, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do not insist on their insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords Amendments; and do agree with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, the provisions are back; we have to consider them again. The Government have taken the view that we should take the advice of the security services on what the right approach should be. We have considered the advice that we have received and we have accepted it.

The continuing disagreement between the Commons and the Lords is against the following background. Very significant changes have been made to the Bill as a result of the provisions of this House. I draw attention to the following changes that have been made: pre-judicial scrutiny before orders are made; much clearer rules provisions; explicit provisions for certification that prosecution is not possible; and a review clause. We have moved as a Government and we have moved significantly. But we as a Government believe that our prime job is to protect our people against terrorism.

We have put this to both Houses of Parliament. The Commons have take their decision. The safety of the nation has been at the forefront of all of our concerns about the Bill. We have listened and we have made concessions. But now we have arrived at a time when a decision has to be made.

Our approach, as I have said, has been guided by the advice we have received from the security services and from the police. We need the Bill to protect us now. We do so in the context of the Law Lords' judgment. The principle on which the majority of this House is agreed is the need for control orders.

Of course it is right that Parliament should have scrutiny of this legislation through annual review, but not through a clause that has the effect of destroying the Bill after a period of time in the face of an immediate threat. Of course the protection of civil liberties is the responsibility of any government, and we accept that responsibility.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, as the noble and learned Lord the Lord Chancellor has got on to the subject here of the sunset clause, can he explain why on earth it should not be possible for the Government, if they are re-elected, to come back in due time, before 30 March next year, with a new Bill that would be effective to impose control orders and would have been properly debated?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, it would not be impossible for the Government to do that. But the critical point is that we have made a whole range of very significant concessions on the basis of the detail of this. The idea that an artificial deadline imposed by this House is the right way to deal with the fight against terrorism is—with the greatest respect to every Member of the House, who I have absolutely no doubt has at heart the safety of the nation—wrong. The right way to deal with it is to put before both Houses of Parliament our proposal on fighting terrorism, to listen to what is said about how it may best be amended and then to amend it, which is what we have done. Ultimately, we do need to make decisions as a government about what is the best way to fight terrorism. Of course, each House must put before us its individual views about the best way to do it, but ultimately we must put a proposal, we must address the Commons about it, and it must make a decision on it.

A time has come when our approach to terrorism requires clear leadership. The Government are providing it; and the Commons have backed the approach that the Government are taking. We cannot go on in this state of indecision. This House may disagree, and it disagrees plainly, in good faith, and on the basis of its judgment. Ultimately, our system requires a decision. There is no issue more important on which a decision is required than the fight against terrorism. Our constitution requires that that decision is left to those in the Commons. They have listened to what we have said; we have made amendments on the basis of it, but ultimately, the decision is theirs; and if we do not accept that the decision is theirs, there is no leadership. As a constitution, we accept the primacy of those in the Commons. Yes, you can disagree with them, and yes, you can ask them to listen again, but you must ultimately accept that the Commons is the prime House in our Parliament. It is difficult, but that is what is required. I beg to move.

Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do not insist on their insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords Amendments; and do agree with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Falconer of Thoroton.)

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

rose to move, as an amendment to Motion A, leave out from "House" to end and insert "Do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do insist on their insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords Amendments; and do disagree with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.

Noble Lords:

Cheap!

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, was it cheap? It is not cheap in British lives. They led us into war in Iraq on information from the security services that turned out to be wrong.

A Noble Lord:

It turned out to be wrong, it was not wrong at the time.

Noble Lords:

Order!

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, I will say no more about that; we have had all the arguments that we need.

Listening to the noble and learned Lord the Lord Chancellor, I thought of a little trip that I took last week into the hills in Wales. Spring is coming; the hedges are quick and the daffodils are growing. The sheep are on the hillside producing life. It is as though this Government are bleating that the sheepdogs are telling them that there are wolves abroad. We have heard that before. I suppose the sheep are all supposed to huddle into a corner of the field and quiver there.

Noble Lords:

Order!

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, all I can say is that the people of this country are not sheep. The people of this country have stood their ground. They have stood their ground when there were bombs from the IRA, from terrorists, going on about us in Manchester, Birmingham and London. The people of this country have stood their ground during the war, when bombs were raining down on this city. I am old enough to remember that standing alongside us on the ground were people from Muslim communities and people from Hindu communities who came to our assistance. They stood with us and they did not flinch. This is not an occasion to flinch from terrorism, as the Government appear to do by building up a climate of fear to get their legislation through. I beg to move.

Moved, as an amendment to Motion A, leave out from "House" to end and insert "Do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do insist on their insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords Amendments; and do disagree with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Thomas of Gresford.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, the substance of the Motion concerns three matters, none of which was mentioned by the noble and learned Lord the Lord Chancellor in his opening remarks—these are the judicialisation of non-derogating orders, the balance of probabilities and the role of the DPP. On none of them have the Government given any ground at all, despite the plain fact that the judicial role is totally excluded from most of the manner in which non-derogating control orders are made.

Instead, the noble and learned Lord the Lord Chancellor chose to deliver to your Lordships' House an ultimatum about the relative power of another place. I recall earlier today the noble Baroness, Lady Scotland, saying that your Lordships would have to bow to the other place. But we have our constitutional duty in this House, which has been given to us by, among other institutions, another place. It would be wholly wrong for us to shirk it tonight.

There have been many suggestions from the Government Benches here and in another place that, in supporting amendments to the Bill, we on these Benches are in some way encouraging terrorism. We totally repudiate that. What could give greater succour to the terrorists than the permanent suspension of habeas corpus? That is what the Government seek. By refusing to grant us a sunset clause, they are giving themselves an open-ended right never to bring back trial by jury again in a certain class of case. That would be the first great victory of terrorism over our free society.

The position of the Government is incomprehensible. It is either breathtakingly naive or deeply duplicitous; and we must oppose it tonight.

Noble Lords:

Order!

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I hope that if I say something now it may at least serve to reduce the temperature a little. For my part, I hope that we shall stand firm on the sunset clause. The only argument that I have heard against it is that it would send out the so-called wrong message. That is an argument in which I have never believed. It has absolutely no strength in this context.

Listening to the noble and learned Lord the Lord Chancellor earlier and on previous occasions, to the noble Baroness, Lady Scotland, and earlier today to the extraordinarily eloquent and persuasive speech by the noble Baroness, Lady Hayman—I should have thought that it was enough to persuade us all, and would have persuaded the Commons could they have heard it—I was reminded of something that I have had the chance to look up in the interval. In his commentaries, Blackstone said,:

"Mankind will not be reasoned out of the feelings of humanity".

That is what I think underlay the speech of the noble Baroness, Lady Hayman, and it certainly underlies my attitude to the Bill. It is, for me, the crucial test. It is inhuman to detain people without trial because of something that the Security Service has told the Prime Minister.

Of course, there is a danger but I believe that it is not as bad as has been made out. I have no recent access to information but I have some experience of the way that the Security Service dealt with matters in the past. I particularly remember the time of the first Iraq war, when dozens or perhaps hundreds of Iraqis were rounded up and put in Pentonville Prison. It was my job then, as chairman of the three wise men, to advise the Home Secretary whether or not they could be let out. In most cases, I am happy to say that they were. There must be better ways of dealing with this problem than this Bill, and that is why, if I can, I shall vote for the sunset clause.

Photo of Lord Selsdon Lord Selsdon Conservative 10:30 pm, 10th March 2005

My Lords, I had intended to rise to thank the noble Baroness, Lady Hayman, and to remind her that sunset on 31 March next year will be at 18.32 Greenwich Mean Time. However, I realise that I, probably as much as many of your Lordships, have had experience of dealing with countries such as this, and I have no confidence at all in the statement made by the Government that they are moved solely by information from the security services. I lack that confidence and I have a fear that what the Government are doing now is for political reasons based on Chinese whispers and second-hand information. If they have another motive, that is fair by me, but my own knowledge and experience tells me that the Government are wrong.

Photo of Lord Desai Lord Desai Labour

My Lords, the problem concerning the risk of a future terrorist attack is that the past is no guide. The fact that we got the WMD issue or various other issues wrong cannot be used as a sure guide in saying that the security services are always wrong. Without trying to raise the temperature any further, since Second Reading I have been asking myself the following question. Many of us do not like the idea of incarcerating an innocent person, and that is right. There is that risk to the person and his family and so on. On the other hand, there is a risk that one terrorist could escape and cause multiple deaths. How many deaths would noble Lords balance against the incarceration of one or two innocent people before they changed their minds? I do not know. I am saying that I have struck my balance in such a way—

Photo of Lord Desai Lord Desai Labour

My Lords, perhaps I may finish this argument; it is important and the noble Lord has spoken quite a lot. I am not saying that I know the answer to that question but I am saying that the two things have to be balanced. Some of us think that the loss from death or injury is incalculable compared with the incarceration of an innocent person.

Of course, people talk about 1,000 years of civil liberties. I do not want to go into the history of that tonight but that is a load of hooey. A lot of peasants at the time of the enclosure movement and a lot of working-class people did not have civil liberties. Those liberties were a recent arrival following the franchise, and it was our movement that fought for the franchise.

So I do not think that there is a right answer to this matter, but the way in which we answer on this issue will decide which way our calculus goes. I respect those who say, "I would lose x amount of lives for the protection of one person's liberty". On our side, we doubt whether such certainty can be right.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, before the noble Lord sits down, does he not agree that the restriction or deprivation of liberty of innocent people is the fastest way to alienate the communities from which they come and that alienating those communities will increase the number of terrorists and the risk of terrorism?

Photo of Lord Desai Lord Desai Labour

My Lords, I do not. Since we are talking about Muslims, the noble Lord's argument suggests that all Muslims are a single, homogeneous whole and that they do not realise what the Government are doing. They can see, however, that some of their own people are going against the tenets of their own religion. They want to isolate them, not go with them. Obviously, it is a sensitive issue for them. I recognise that.

All of us, however, are citizens of this country. We have to think of our fellow citizens—Muslims, Hindus, Jews and Christians; white, black, yellow or whatever. We must all strike our own balance. I am not saying that I have the right balance. All I am saying is that we on this side take the view that a balance has to be struck on the side of caution in not letting a terrorist escape. Other noble Lords want to go the other way. Well, that is fine. I am not criticising, I am just laying the problem open. It is not going to go away.

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, when I spoke this morning in support of the sunset clause amendment that I moved, I did so in the belief that the best accommodation of the difficulties before us was to stop arguing about the detailed provisions of the Bill, to accept where we had got to in terms of judicial involvement and balance of probabilities or reasonable suspicion. It was to stop that argument, to recognise that we had to come to a decision and to say that we would leave the Bill as it was, but that it was crucially important to be able to revisit what we had done in a reasonable period of time. I did not believe, and do not believe now, that we have had sufficient time in both Houses to get the best legislation that we should have on this topic. Not that we should not have any legislation on it, because I do not believe that.

I heard what my noble friends said about how far they had moved in the Bill, and I recognise that they have—both on issues of substance about judicial involvement and on issues of review. I hoped that they would move further. That was the purpose of my amendment. I believed that the amendment that had been put forward before, and that we had asked another place to consider, was an unrealistic timeframe. I sought, if not consensus, some reconciliation between the views of the two Houses. I hoped that the Government would feel able to move on that. They have not. It is a matter of regret to me.

I said that I felt we were entitled to ask the Commons to think again because this was a constitutional issue. It was not about the detail of the Bill, but the process by which we had legislated, and how we could make amends for that. I still feel that.

However, I am now faced with another constitutional principle, to which I firmly adhere: the primacy of another place. I have been a Member of another place. I have been a Member of your Lordships' House for longer. It is right and proper, and our responsibility, to ask another place to think again. We did that once on a sunset clause. We have done it twice. I am afraid that I cannot bring myself to support my noble friends in the Lobby in their view that there is no way we can move forward. Neither, however, can I support the Benches opposite. The time has come, even if we believe a wrong decision has been made, to accept it. It is with a heavy heart that I do so.

I get the sense that those who thought I was wonderful this morning do not think I am so wonderful now. I have to live with that. In politics, we spend a lot of time justifying our inconsistencies. I am trying to justify my inconsistencies in the Lobby today. Things have changed—not because I think that the issues are different, but things have changed because we have fulfilled our constitutional duty of asking another place to think again. It has replied and, for me, that means that I must end my opposition.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, when people come to this place, they take different views. I cannot help but notice the noble Lord, Lord Baker, a former Home Secretary, who locked up 12 people without any judicial review of any sort during the first Iraq war, now standing out for civil liberties. There are disagreements between us and a lot of disagreements between the House of Commons and the House of Lords. It is splendid of the noble Lord, Lord Baker, suddenly to become the friend of civil liberties.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, perhaps I may say to the noble and learned Lord the Lord Chancellor that we were at that time in a state of war. We are not in a state of war tonight. Secondly, the powers that I used, as the noble learned Lord, Lord Lloyd of Berwick, said, were subject to review by his committee and some of the people that I recommended should be interned were released by his committee.

That is quite separate from the position today. We are not in a state of war and the action that the Government are taking is a suspension of habeas corpus. There is no getting away from that. In certain circumstances, the Government may be entitled to do that. I accept that entirely, but what we have seen during the debates of the past weeks is the erosion of basic liberties of our country. The Government have connived at that and have welcomed that. The Government, through the Prime Minister, are bullying the country and the noble and learned Lord the Lord Chancellor is saying that we have no alternative. There is an alternative, which we have set out very clearly, as has the noble Baroness.

Noble Lords:

Oh!

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

No, no, no, my Lords. At the time that the noble Lord, Lord Baker, locked up 12 people there was no process that could remotely be described as fair. Indeed, the process was then struck down by the European Court. So it is absolutely ridiculous to describe that process as being fair.

My point is this. There are disagreements between us—legitimate disagreements. I respect the noble Lord, Lord Baker, for changing his view but, ultimately, there are 650-odd people in the Commons who are accountable to their constituents and who must make the decision about it. They must listen to us, and they have. We have made very significant changes to the Bill as regards civil liberties and the way that it operates. You could not possibly say that the Commons has not listened. Ultimately, do we know best?

Noble Lords:

Yes!

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I hear "yeses". Is that not the issue with which we are confronted? Ultimately, a decision must be made and I respectfully suggest to the House that we must bow to the view of the Commons, because it is the prime House. Especially in an issue such as national security, it is impossible to take the view that we know best, especially remembering that the Government have had the benefit of advice from the security services and the police.

With diffidence, I raise this question. Would a Conservative or Liberal Democrat government have rejected the advice that they had received from the security services?

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, have the security services told the Government that the security of the country will be at risk if we have a sunset clause?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

No, my Lords, they have not. However, they have said that they believe the control orders we are proposing are necessary to protect national security. In the light of that, we take the view that the right course is to put the orders on the statute book, but not do so with a self-destruct mechanism after 12 months. There is the choice.

We have put our views. They have been listened to by the Commons. They have accepted some of them, but not all. Ultimately, there needs to be clarity about what is being done about national security. I earnestly ask Members of this House to accept what the Commons have said and to accept that they have listened. But ultimately a decision has to be made, and the decision is theirs, not ours. They have a clear view about what is required for national security.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, will the noble and learned Lord the Lord Chancellor help me a little? We all accept the primacy of another place, and the fact that your Lordships usually have to agree to its views. What worries me is that, if the Government could have moved and accepted the sunset clause, that would have enabled them to get their Bill. What also worries me is that the Bill the Commons have had to consider is totally different from what it was when it left another place, and they have only had about three hours to consider it. That is bad. If the noble and learned Lord were able to go thus far and say "All right, we will agree a sunset clause", another place would be able to consider the Bill in the fullness of time and with its proper jurisdiction, as opposed simply to agreeing to what has been passed down from your Lordships' House to the Commons.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, this House suggested pre-judicial scrutiny before a non-derogating order was made, and the House of Commons accepted that. This House suggested certification to ensure that prosecution was properly considered before an order was made, and the other House accepted it. This House suggested different provisions in relation to the rules. The Commons accepted that as well. The noble Earl, Lord Ferrers, is saying "There is one more thing we want, namely a sunset clause". The House of Commons has considered that on two separate occasions, and has said no.

We cannot say that the House of Commons has not listened to what has been said. We must accept that we cannot have everything we ask for. Although the House of Commons has given 80 per cent of what the noble Earl has asked for, it is neither realistic nor sensible to say that 100 per cent is required in every case. There must be a decision, and, until this moment, the noble Earl, Lord Ferrers, has always accepted that the decision is with the Commons.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, the noble Lord, Lord Desai, said that "history is hooey". What does that say for the people who have fought and died for freedom, liberty and the rule of law in this country?

We accept the need for control orders, as I said at length this morning. We say that those orders should be granted by a judge in a proper judicial process, with all the safeguards of a fair trial that the common law of this country has built into its proceedings? The Government are seeking to turn back history here—a proud history—and to introduce something that the country has not seen since the middle of the 18th century. That is not acceptable, and I beg to seek the opinion of the House.

On Question, Whether the said amendment (A1) shall be agreed to?

Their Lordships divided: Contents, 182; Not-Contents, 111.

Division number 6 Private Parking: Ports and Trading Estates — Prevention of Terrorism Bill

Aye: 180 Members of the House of Lords

No: 110 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Motion, as amended, agreed to.

:TITLE3:MOTION B