My Lords, no one anywhere should underestimate the responsibility that falls on government in this exacting area. I for one do not underestimate the very direct and heavy responsibilities that fall on my noble friend who has spoken to the order this evening. It is essential that we emphasise that point in everything that we say.
Two things trouble me in our approach to policy in response to terrorism. The noble Baroness, Lady Miller of Chilthorne Domer, has referred to something that I said in the debate last year. I assure her and other noble Lords that I stand by every word that I said last year; I feel at least as strongly now as I did then. We must remember that those cornerstones of British justice which have been so admired throughout the world did not come lightly; they came from decades and centuries of struggle and rugged determination to make the law a civilised example.
Part of me recoils at the concept that, however frightening the terrorism with which we are confronted, we should by the presence of that danger begin to dismantle or erode what we have seen as fundamental to our system of justice. I feel that, and I am not afraid to say it. Some might accuse me of being a bit chauvinistic about it, but I feel, as a Briton who is proud to be a Briton, that we are giving the extremists a victory when we do that. I was a youngster in the Second World War, and I remember how, even as a very young boy, I was struck by how determined we were to try against all that adversity to stand by the principles of law as we then saw them. That part of me is real. The other part of my concern is that we do not inadvertently begin to act out the script that might have been written for us by bin Laden or other cold, calculating and manipulative extremists—doing the very things that they want us to do to discredit our declared commitment to justice and the principles on which our legal system works.
I miss being on the Joint Committee on Human Rights. I very much enjoyed my time on it, and I have been very impressed by the report that it has brought out again this time. The noble Earl, Lord Onslow, is absolutely right that we should all read it. If I might say so with great deference to my noble friend, it is incumbent on him and the Government to give a considered response to your Lordships to the points made in the report by the Joint Committee, which does such sterling work on our behalf.
In our approach to the response to terrorism, we must beware of counterproductivity. The Joint Committee makes that point. The Government have a human rights responsibility, as well as a political responsibility, to protect from terrorism the people within their jurisdiction. However, if by the things that they are doing they cross a line which means that they begin to provoke terrorism or drive impressionable people into the arms of extremists, they are not doing the job of protecting the British people. I have always felt that that argument is incredibly important. We must not play into the hands of the extremists.
Sometimes I catch myself saying in the evening, "But do I still believe in human rights? I am making all these points on the basis of a rather political analysis". I passionately believe in human rights; I just happen to believe that there is a correlation between what makes hard, tough political sense and the cause of human rights. In fact, I am prepared to put forward the thesis that if you do not have a human rights problem, you will minimise the chances of extremism: if you have human rights problems, you will always increase the chances of extremism.
The noble Baroness, Lady Miller, might have gone on to refer to some other things that I said last year, and I shall. I refer to that very important speech to the Criminal Bar Association made by the Director of Public Prosecutions in which he argued that we should hold it as an article of faith that crimes of terrorism are dealt with by criminal justice, and that in the wake of 9/11 some of the values enshrined in the European convention and in common law appear to be losing their status. Some people now seem to think that such fundamental rights as the right to a fair trial and the right to liberty can be compromised even when the life of a nation may not be entirely at stake. He argued that one of the worst manifestations of this approach has been the resort to parallel jurisdictions where standard protections, quite deliberately, are no longer available, and suspects are removed from the protections of criminal justice and are placed instead in quasi-judicial or even non-judicial fora deliberately hostile to due process.
I was a member of the Joint Committee on Human Rights when the special advocates gave evidence. I shared the anxiety which has been expressed today. They were explicit. When asked, they said that they could see very little in common between what they were expected to do and all that they had previously understood to be the British system of justice. It was a simply impossible job to be expected to defend someone without being able to discuss the case in any meaningful way with their client.
My noble friend has said tonight again that the Government's professed policy is the priority of prosecution. But the Joint Committee on Human Rights, in its report, has again underlined—to sum up its argument—that,
"the fact that no individual who has been made the subject of a control order has subsequently been prosecuted for a terrorism offence, other than for breach of a control order, seems to us to be significant. We therefore continue to question the extent to which in relation to certain individuals priority is really given to criminal prosecution rather than the indefinite and extensive control which is currently available through the use of control orders".
I believe that there are some very serious issues here.
It also seems that the noble Baroness was right to say that we must not allow ourselves to drift into a rubber-stamping process. This is a very significant evening in the life of Parliament. We are re-enacting measures which cannot be held to be consistent with the traditions of British justice, and we are doing it in a dinner break with an hour at our disposal. How can that be right? We are in a very serious predicament. I hope that my noble friend, whose responsibilities are immense and whom I greatly admire in the way in which he tackles them in so many respects—including his first, instinctive response rather than his tailored response, which may come subsequently—will deal with the gravity of the situation when he comes to reply, not in terms of the terrorist threat about which we all agree, but in terms of the gravity of the situation for the quality of British justice.