§ 3.12 p.m.
§ Lord Rooker
My Lords, I beg to move that this Bill be now read a second time.
The Bill is needed because of what happened in the United States on 11th September. Thousands of people were murdered in cold blood: office workers; 143 airline crews and passengers; fire and police officers; men, women and children; and people from many nationalities, ethnic backgrounds and creeds. It is generally accepted that as we consider the Bill through its stages we should remember the terrible events of that day which gave rise to it.
Since those atrocities, the Government have considered whether our legal framework and security against acts of terrorism are sufficient. We have concluded that wholesale revision of our laws is not necessary. That is also the view of the law enforcement agencies. But because of what happened on 11th September, we need to protect ourselves in new ways. As I have said previously in this House, on that day the terrorists rewrote their rule book. We therefore need to do the same.
That means enhancing our existing anti-terrorism legislation. It means ensuring that security—for example, at airports—reflects the new threats that we face. It means recognising that international terrorists are well financed and willing to use weapons of mass destruction. It also means tackling the effects of what has happened in our own communities; the attacks, the threats and the hatred that has been shown.
The Bill is a proportionate, measured and moderate response to the events of 11th September. Many people will offer criticisms of the Bill and as a team we will do our best to defend its contents. However, the fact remains that it is a moderate response to the events of 11th September. Noble Lords will offer many suggestions about what else could have been included in the Bill but we have not sought to go the whole way. What is more, we have not rushed it. I accept that its passage through this House and the other place is quick, but 11th September is now some time ago and we took care before we published the legislation.
The Bill contains specific and targeted measures and it strikes a balance between respecting our fundamental liberties and ensuring that they are not exploited. The problem is that in a tolerant liberal society, if we are not guarded we will find that those who do not seek to be part of that society will use our tolerance and liberalism to destroy that society. That is a reality.
I intend to describe in general terms each part of the Bill, not each of the clauses. That would take far too long and we can discuss the detail in Committee. I want to put on record the thanks of the Government and of both Houses to all the members of the Joint Committee on Human Rights, the members of the Home Affairs Select Committee and, finally but by no means least, your Lordships' Select Committee on Delegated Powers and Regulatory Reform. They have made considerable efforts to examine the Bill in a very short time and have produced extremely valuable reports. I am conscious of the efforts made by the Select Committee on Delegated Powers and Regulatory Reform. I have examined the report and its four recommendations. We will do our best to meet the spirit and, where we can, the letter of those recommendations. They are reasonable and where we 144 cannot meet them we must have a good reason for not doing so. It will be a matter for your Lordships as to the way in which we progress.
I shall now deal with the parts of the Bill in the order in which they are printed. I hope that that will not cause too much confusion. Parts 1 and 2 relate to terrorist property and freezing orders. They contain new measures to combat terrorist financing and aid law enforcement agencies in their investigations. They complement those measures in the Proceeds of Crime Bill, but they are specific to terrorism.
There will be new powers for the police to monitor the bank accounts of terrorist suspects for up to 90 days. The police will be able to freeze assets from the start of an investigation, rather than from the start of criminal proceedings. Police and Customs officers will be able to seize cash anywhere within the United Kingdom. It will be an offence for those working in a regulated financial sector not to report where there are "reasonable grounds" to suspect that accounts finance terrorism.
Part 2 deals with the power to freeze assets wherever there is an overseas threat to the UK economy or to the lives of UK citizens and residents. It modernises an existing power and allows us to counter the risk of assets being used to finance terrorism.
Part 3 deals with the disclosure of information. It widens the existing powers for the Inland Revenue and Customs and Excise to pass confidential information to law enforcement and intelligence agencies. At present, only information regarding murder or treason can be disclosed. That hampers the exchange of information in the fight against terrorism.
Therefore, the Bill, in Part 3, allows for information to be disclosed for the purposes of a criminal investigation; for criminal proceedings; and where it would help decide whether an investigation or proceedings should start or finish. I fully accept that that is a highly sensitive part of the Bill with various government agencies exchanging information. It has been done in other legislation, most recently in last year's Social Security Fraud Bill. There must be good and compelling reasons for such disclosure and we believe that there are good and compelling reasons for the extension in this case.
Part 4 deals with immigration and asylum matters and offers proposals to combat abuse of immigration and asylum processes by international terrorists. The Government will maintain the respect for human rights which characterises our society—our commitment through our domestic law plus our international undertakings such as the European Convention on Human Rights and the Geneva Convention on Refugees 1951.
The Bill allows indefinite detention of people whose suspected involvement in international terrorism makes them a threat to national security. It applies where removal from the United Kingdom is the desirable aim but is not currently possible. As I said in the debate last week, our first choice would be to 145 prosecute and remove if we could. If not, the choice would be to allow people to roam free or to detain them.
There are circumstances in which we cannot remove people for reasons that have been stated many times in your Lordships' House. We shall abide by our commitment to Article 3 of the European Convention on Human Rights as interpreted by the Court at Strasbourg. There can be no derogation from Article 3; either it applies or it does not. We are not prepared to dismiss that provision and, therefore, we are unable to remove people to certain countries.
There are full safeguards. In particular, the power must be renewed by both Houses of Parliament, initially after 15 months and thereafter every year. The Bill has been amended so that the power is reviewed independently by the reviewer of the Terrorism Act 2000, the noble Lord, Lord Carlile. Those amendments were inserted into the Bill in the other place in the past few days. The Bill has also been amended to provide a five-year sunset clause. Under Clause 29 the power ceases after five years. There will be no affirmative or negative order; it will cease. If any government want to reintroduce the measure they must do so by primary legislation. That part of the Bill is subject to an absolute sunset clause after five years.
The new power of detention will be available for use only after the Home Secretary has certified that the person is a threat to national security. The decision to issue that certificate will be subject to appeal to the Special Immigration Appeals Commission. That is a fairly new body. Its work is not widely known and it has not dealt with many cases. The commission was set up in 1997 by legislation which was approved by both Houses without dissent. The commission is chaired by a High Court judge. There will always be two judges and a lay person present. I understand that eight individuals—four judges and four lay people—can be called upon. This body is not an employment tribunal. The establishment of the Special Immigration Appeals Commission in the first place was a major constitutional step.
SIAC will be able to weigh all the evidence, including sensitive intelligence. The appellant's interests will be fully represented throughout the process and every six months SIAC will carry out a review of the certification. I do not want to mislead the House because I am using shorthand. The appellant will have his own lawyer or representative. However, before SIAC the appellant's lawyer who represents his case will be appointed from a list approved by the Attorney-General. For obvious reasons, there are restrictions on the information that the lawyer can share with his or her client.
§ Lord Clinton-Davis
My Lords, I am much obliged to my noble friend for giving way. Will the appellant have as much information before him and his representative as the person who represents the 146 Secretary of State and the court? I believe that that will not be so. However, I am prepared to consider what my noble friend has to say.
§ Lord Rooker
My Lords, no, the person will not. He will not have the intelligence evidence or the intercepts. He will not have the evidence that makes it necessary for the matter to be considered in a closed court. If we could prosecute on the basis of the available evidence in open court, we would do so. There are circumstances in which we simply cannot do that because we do not use intercept evidence in our courts. We believe that we have the best instrument that we can fashion. It was set up with the approval of this House—it was fully debated both here and in the other place—for this very purpose.
For many years the Home Secretary has had power to remove people under the Immigration Act 1971. The ability of the three wise men to look over his or her shoulder was not thought to be wholly satisfactory and SIAC was set up for that very purpose. This is an unusual set of circumstances but we live in unusual times. This is the best that we believe we can do to maintain a civilised approach to the arrangements without letting the country be taken to the bank, if you like, by international terrorists. We must have a weapon. SIAC will he a part of that.
The person detained will be free to leave the UK at any time he chooses, unless he is subject to other proceedings which require his presence in this country. If he can find a third country to accept him—there will be no secret deliveries to such states—he is free to leave at any time. It is probable that that will not occur many times, but to that extent we do not equate this measure with the former method of internment where there was no possibility of anyone leaving of his own choice. These powers would require derogation from Article 5 of the European Convention on Human Rights, which is allowed under Article 15. This House and the other place have debated the derogation order.
There are three important changes in Part 4 in relation to asylum and immigration. There is a restriction on judicial review of the actions and decisions by SIAC in respect of the new powers of certification and detention. In our view, which we believe is shared by some noble Lords, SIAC is a fully competent appeal mechanism. There is a route of appeal on a point of law from SIAC to the Court of Appeal and, if necessary, to the House of Lords.
§ Earl Russell
My Lords, I am most grateful to the Minister. I tabled a Question for Written Answer on 18th October. I asked what previous attempts had been made by Parliament to restrict judicial review and what the consequences had been. May I hope for an answer to that question before we reach Committee stage?
§ Lord Rooker
My Lords, I certainly hope so. I do not know whether the Question was directed to me. Perhaps the Question was directed to another 147 Minister. We are doing our best to answer these points as quickly as possible. I accept that outstanding matters of that kind should be answered by Committee stage; otherwise, noble Lords cannot have an informed debate.
I turn to the second change in the area of immigration and asylum which relates to the Geneva Convention of 1951. That convention recognises that terrorists are undeserving of protection under it. Not all of us read the whole convention; most people know the first few words. But we need to take account of the fact that terrorists cannot claim protection under the 1951 convention. Even if notorious terrorists apply for asylum we must weigh the risk of persecution against their exclusion from protection. Therefore, the Bill provides that where the Secretary of State certifies that a person is excluded from the protection of the convention and his removal would be conducive to the public good, an appeal on the substance of any asylum claim will not need to be examined. The person has taken himself outside the protection of the convention. There are proper safeguards. There is an appeal to SIAC against the certificate.
§ Lord Campbell-Savours
My Lords, perhaps I may press my noble friend on SIAC which has been the subject of debate among many colleagues. Are the current arrangements for the construction of SIAC absolutely set in stone or may there be some reform in that area in future?
§ Lord Rooker
My Lords, I know of no plans in that regard. The commission does not meet in open session and the names of those who sit are not on a published list. I believe that it has dealt with only three cases, so it does not have a massive amount of experience. We are asking SIAC to take on a slightly new role here. I have no doubt that the point which underlies my noble friend's question will be taken into account. If there are further cases of an unusual character which require changes to working practices and other arrangements, they will he considered. But the commission is set up under statute and that possibility always exists. I would never say "never" to anything in that regard because so far the commission has considered only a few cases.
The third change is that the Bill amends the Asylum and Immigration Act 1999 to allow for the retention for up to 10 years of certain fingerprints taken in immigration and asylum cases. This may appear stark, but fingerprints have been taken in asylum cases since 1993 and all asylum seekers have been fingerprinted. In more recent times, fingerprints have been digitalised and stored on computer, so there is now direct access into mobile fingerprint checkers around the country while people are going about their work. It is normal that where a person succeeds in making a claim for asylum—that is, where they are granted indefinite leave to remain—their fingerprints are destroyed. The only fingerprints retained are of those whose applications fail.
However, it is not unknown for people who have made successful claims for asylum and have been granted indefinite leave to remain, to leave this 148 country and to make another claim for asylum—or., as the case may be, to make another claim for asylum from within this country—using totally different identities in order to set up another character, another passport, another bank account, another set of benefit cards and so on. Their fingerprints are our defence against that.
I can assure noble Lords that we do not do this lightly. We want to stop those people who are seeking to establish multiple identities in case they are involved in perpetuating terrorism.
§ The Earl of Onslow
My Lords, I am sorry to interrupt the noble Lord, but can he tell the House how many people have been involved in this kind of activity? It sounds very much like an urban rumour.
§ Lord Rooker
My Lords, I can assure the noble Earl that it is not. When we debate the clause in question, I shall give whatever figures we have available. When I was first appointed a Home Office Minister, I visited our immigration and nationality department at Croydon. On the day or my visit there was an example of someone who had previously made a successful claim. I was gobsmacked. It had never crossed my mind that that would happen. But it has happened.
Not many people will be involved—I am not arguing that there will be hundreds of cases—but people do it. Last Friday. when I was at a passport office, I saw a photograph of someone who has made nine applications for British passports. All we have is his photograph, which covers nine different names and personalities. Those are the nine applications that we have stopped; we do not know whether there are any more. This kind of abuse does happen and the Bill is a modest addition to our armoury.
§ Lord Avebury
My Lords, have not the Government announced that it is their intention to issue all asylum seekers with cards containing biometric data as from January 2002, and to complete the process of issuing such cards to all existing asylum seekers by the end of the year? Would not that cope with the difficulty described by the noble Lord?
§ Lord Rooker
My Lords, the noble Lard has missed the point. It is not asylum seekers but refugees who have come into this country over the past few years whose fingerprints are still on file. They will not be issued with cards because they are not asylum seekers. They are citizens going about their business, getting a new career, getting a new life together. Their fingerprints are held on file and we will keep them for 10 years. They are not involved in our plans for the issue of biometric cards. The cards are for asylum seekers. If you are a refugee, you cease to be an asylum seeker.
149 Part 5 of the Bill deals with race and religion. People have used the current international situation to abuse, assault—
§ Lord Ackner
My Lords, before the Minister leaves Part 4, can he help me on what looks like a rather important point in regard to Clause 27, which is on page 14 of my copy of the statute? Subsection (9) states:Cancellation by the Commission of a certificate issued under section 21 shall not prevent the Secretary of State from issuing another certificate, whether on the grounds of a change of circumstance or otherwise".That sounds as though the Minister can cock an entire snook at the decisions made by this body because, when it cancels a certificate, the Secretary of State can then issue another one, not on the ground of change of circumstance but because he thinks the tribunal has acted wrongly. What is the point of the words "or otherwise"?
§ Lord Rooker
My Lords, I shall do my best to answer the noble and learned Lord. The Joint Committee on Human Rights stated that one of the reasons for the words "or otherwise" is to deal with a case where SIAC cancels a certificate on appeal, but the Secretary of State appeals that cancellation in a court of law and wins that appeal in a court of appeal. In that type of case he might wish to issue a fresh certificate. That is why subsection (9) is present in the Bill.
I have several parts of the Bill to deal with and I am conscious of the time.
§ Lord Ackner
My Lords, does the noble Lord agree that "or otherwise" should be properly defined and not left in this wholly unparticularised way?
§ Lord Rooker
My Lords, at this point, on Second Reading, no, I do not. I shall be happy to debate the matter with the noble and learned Lord during the Committee stage.
§ Lord Goodhart
My Lords, is it not the case that the Home Secretary gave an undertaking in the other place that the words "or otherwise" would be amended so as to narrow their application? Will that happen?
§ Lord Rooker
My Lords, I am trying to deal with the Second Reading at the moment. While there have been changes to the Bill, we are also committed to making other changes, one of them being to Clause 21(2)(c) which deals with the issue of links. We have made a firm commitment to that. We are still looking at other aspects of the Bill which have been raised by the Select Committee. It would not be right for me to muse about those at Second Reading when we will deal with them at the Committee stage. I do not think that I have any further changes to announce during the rest of my speech.
As to race and religion, the current international situation has been used to abuse people and we believe that it is right to extend the laws to protect our citizens 150 from hatred based on religious belief. We have therefore brought forward four proposals, which, I understand, will be debated at length.
The first proposal is to extend the racially aggravated offences contained in the Crime and Disorder Act 1998 to include religiously aggravated offences. There were nearly 4,000 prosecutions in the magistrates' courts for racially aggravated offences in 1999–2000. It also deals with the anomaly whereby some religious groups have been protected by the existing race laws because of a distinct racial identity when others have not. That issue has been raised many times, both in this House and the other place.
The second proposal is to replace the offence of incitement to racial hatred in the Public Order Act 1986 with a new combined offence of incitement to racial or religious hatred. It deals with threatening, abusive or insulting behaviour which is intended or likely to stir up racial or religious hatred. It will continue to have a high criminal threshold and the Attorney-General will continue to give consent to prosecutions. It is not about suppressing free speech, fair comment or even jokes. Our target is not behaviour which provokes mirth but behaviour which provokes hatred and violence.
The Bill defines religious hatred by reference to people's religious beliefs or, indeed, lack of religious beliefs. So such people are also protected. We shall not define in the Bill what is "religion"; it is the "hatred" on which we need to concentrate.
The third proposal is that the Bill should amend the restriction in the Public Order Act 1986 of racial hatred to a racial group in Great Britain. So the coverage of the new combined offence will extend to hatred against a racial or religious group outside Great Britain.
The fourth proposal is that the maximum penalty for incitement to racial and religious hatred should be raised from two years to seven years.
Part 6 deals with weapons of mass destruction. The events of 11th September prove that terrorists want to cause mass casualties and maximum destruction. If they could use chemical, nuclear and biological weapons, they would. We have seen evidence that some people may have been thinking about that and therefore we need to strengthen our existing legislation on offences by individuals involving weapons of mass destruction. The aim is to prevent both terrorism and proliferation that can assist terrorism.
Part 6 makes it an offence for anyone in the UK or a UK person abroad to assist in the overseas development of chemical, nuclear or biological weapons.
Part 7 deals with the security of pathogens and toxins. This might be termed the laboratories part of the Bill. There are many laboratories in the country where dangerous substances such as disease cultures are held. Terrorists capable of killing thousands of innocent people in one fell swoop are capable of stealing and misusing these substances. So security at laboratories and other places where such substances are held is paramount.
151 Part 7 provides a regime whereby laboratory managers would be under a duty to report their holdings of dangerous substances to the Health and Safety Executive or to the Department for Environment, Food and Rural Affairs. The police will have access to the laboratories. Laboratory managers will be required to implement any reasonable security instructions issued by the police. People with access to such laboratories must be subject to police checks, and unsuitable persons must be barred.
Part 8 deals with security in the nuclear industry. It reinforces the regulatory regime for security in the UK's civil nuclear industry. It provides vital protection against the risks that the nuclear industry faces from terrorists and proliferators. The proposals contain three elements.
First, the Bill proposes to extend the powers of the United Kingdom Atomic Energy Authority Constabulary. The constabulary will have full police powers on all civil licensed nuclear sites and up to five kilometres from their boundaries. I understand that at present it operates on only two sites. The new powers will enable the constabulary to protect nuclear sites and nuclear material even more effectively than at present—that is, during transit.
Secondly, there are powers to bring in new regulations to reinforce and modernise the security regulatory regime for the UK civil nuclear industry.
Thirdly, the Bill strengthens the sanctions against those who make damaging disclosures of sensitive information on the security of nuclear sites and nuclear material.
Part 9 deals with aviation security. In some ways it is one of the most surprising parts of the Bill, given the loopholes in our existing law. It will improve the ability of the Government and the police to enforce the aviation security regime in the UK. We already have a comprehensive national aviation security programme. The Government's proposals provide further support. They strengthen the power of the police to deal with potential terrorist attacks at our airports—for example, giving the authorities the power to remove unauthorised persons from airport restricted zones and aircraft. It is already an offence to be present in those zones, but for some unknown reason there is no power to remove unauthorised persons. Furthermore, the proposals strengthen the powers of the Government's Aviation Security Inspectorate in its work to enforce the security regime. We do not know what form another terrorist attack might take. So our aviation security programme needs to be robust and flexible and provide the best protection possible.
Part 10 deals with police powers. It will strengthen the identification powers available to the police; for example, in those instances where people detained by the police do not co-operate with reasonable requests to remove hand and face coverings or help with fingerprinting. The Bill gives the police powers to take fingerprints. It requires suspects to submit to physical examination for identifying marks. It gives the police the power to take photographs of those in police detention. It extends the powers to order the removal 152 of face coverings—for example, masks, gloves or even face paint used to hide a person's identity. The provisions will require amendments to the Police and Criminal Evidence Act 1984 and to the Criminal Justice and Public Order Act 1994.
Part 10 also allows for an expansion of the role and jurisdiction of the British Transport Police and the Ministry of Defence Police. It allows both forces to act beyond their present jurisdictional boundaries—that is, outside the fence or perimeter of the normal area that they will be guarding and policing. The provision will apply only when a constable of the local police force asks them to act, or when constables of other specialist forces request assistance. This will be done only when the police act in an emergency. They will not, as was suggested in the other place, have the power to stop motorists or fine people for parking offences or that kind of thing. We are not into that game. This is a specific extension of powers for a specific reason. It will allow police officers from those forces to act with full legal certainty when we and the general public would expect them to act.
Part 11 relates to the retention of communications data. Communications data have been central to the investigation into the terrorist attacks of 11th September. This data has been available because of the excellent co-operation shown by communications service providers. But currently, the data should normally be erased once it is no longer needed for business purposes—that is, once the bill has been sent out.
Effectively, all we are asking for is the retention of the billing detail that any noble Lord would see on a telephone bill; namely, the date a call was made, the number to which it was made, and the time and duration of the call. There is no conversational content in the billing details—indicating that we are not seeking that. We are seeking the billing information. It is possible to tell the locations of the mobile phones from which calls are made. That is extremely useful information. They may be mobile, but they are not so mobile as some of the terrorists might think. This is not an issue of eavesdropping on people's personal correspondence or phone calls, whether they be e-mails or telephone conversations. Effectively we seek only the retention of the billing data.
The plan is that this will work on a voluntary basis. We believe that we can work well with the industry; so far, co-operation has been good. All the powers used will be fully in line with the European Convention on Human Rights and the Regulation of Investigatory Powers Act. There will be no generalised expeditions; they will all be related to specific inquiries and will conform to the terms of the legislation. We shall work with the industry on a voluntary code of practice to support this work. There is a reserve power, in case the voluntary system does not work, to bring in a statutory power.
Part 12 relates to bribery and corruption. Corruption engenders the conditions that cause terrorism and allow it to flourish. The Government will bring forward proposals for a general reform of 153 the law on corruption later. But there are two important changes that we need to make to tackle international corruption, which can and should be made now.
First, the Bill will ensure that the law on corruption covers the bribery of foreign public officials, foreign Ministers, foreign MPs and foreign judges. Secondly, it will ensure that the UK has jurisdiction over acts committed by UK nationals and UK companies abroad. I believe that there will be a widespread welcome for that proposal.
Part 13, under the heading "Miscellaneous", relates to the third pillar of the European Union. I realise that this is highly contentious among many of your Lordships and it figures largely in the report of our Select Committee.
The events of 11th September have led to a new determination to co-operate at European and international level. Terrorists do not respect national boundaries. For all practical purposes, most international terrorists are virtually stateless in the technical sense. The country from which they come does not want them back—the government there are probably hunting for them—and they are living under aliases in other countries. So the old way of working, where you knew where the enemy was, does not quite work with today's international terrorism. We need to modify our rules to meet that.
Therefore, in line with the European-wide endeavour. Part 13 includes an enabling power to allow the implementation of measures from the Justice and Home Affairs Council of the European Union. Implementation will be by affirmative order, so Parliament will have an opportunity to debate every proposal put forward under this enabling power.
The measures will reinforce police and judicial cooperation against terrorism and serious crime. As I said in the brief debate that we had last week, we shall not be including the European arrest warrant proposals in this legislation or using the orders. They will he included in an extradition Bill that will come before the House early in the new year.
So how will the powers be used? If we are granted the authority, the Government will come back to the House and will implement primarily the 1995 and 1996 Conventions on Extradition, to which we signed up under the previous government as an international obligation but which have not yet been put in to UK law, and the 2000 Mutual Legal Assistance Convention. This follows closely the implementing provisions set out in the European Communities Act 1972—for example, excluding the powers to raise taxes, legislate retrospectively, or create further legislative powers. So there is a history of doing it this way. We believe that there is a precedent, and that it is important enough to take the powers in the Bill.
Part 13 also relates to the use of dangerous substances and to hoaxing. It contains the new offence of hoaxing, which will be effective from the time the Bill becomes law. There will be a higher prison sentence. Some people have already found out that 154 hoaxes can carry a severe penalty since the events of 11th September. We have had some idiotic and evil hoaxing which frightens people. It certainly wastes a great deal of police time and public money. It has demonstrated how important this power will be. There will be a couple of small but important changes relating to the Intelligence Services Act 1994 and the Terrorism Act 2000. It is not necessary now to go into the details. I have spoken for far too long.
We believe that the Bill is justified. Since the events of 11th September, the United States and Canada have reviewed their anti-terrorist legislation. I accept that those two countries are not subject to the ECHR. Our EU partners are. They are all reviewing their anti-terrorist legislation. Half of them do not have anti-terrorist legislation and are actively considering bringing in new laws. We have antiterrorist legislation for good reasons. As we have said, we are also a prime target on anyone's list given our support for the United States and our international efforts. Nevertheless, we start from a strong base in terms of a civilised legal framework. I genuinely believe that this is a moderate and precautionary response to which the public in general give wholehearted support. We cannot forecast when the next act of mass terrorism will be. No one claims that the Bill solves all the problems and will stop all terrorism. However, it is a measured response seeking to put hurdles in the way of those who seek to commit international terrorism. I therefore commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Rooker.)
§ 3.51 p.m.
§ Lord Dixon-Smith
My Lords, I thank the Minister, the Government, Members of another place, the Bill staff in the Home Office and civil servants who have been kind enough, on occasions even before the Bill was published in another place, to meet with us to explain what it was all about. I admit to the House that I have had to climb a learning curve which felt more akin to a cliff face.
The Minister spoke of the origin of the Bill. We should always—I repeat, always—remember the attack on 11th September with the dreadful loss of life. It is true to say that that is responsible for a new perception of the dangers from which modern society in all major urban communities—I do not refer only to the developed world—suffers. All major urban communities today could be susceptible to this kind of attack.
What we have not heard about after the World Trade Centre disaster is the long-term effect. A remarkable number of people were very fortunate and came out of those towers before they collapsed. The vast majority no longer have any employment. There is major disruption to electronic communications in particular in that part of New York. If one considers terrorists who are daring enough to carry out an attack of that nature, it is not difficult to conceive of a group which, without perhaps causing that scale of death, 155 could none the less cause those secondary effects and damage the economy of a major urban society such as that of London without difficulty and risk to themselves. That is the reality which the Government seek to prevent. To that extent, we support the Government.
However, the Bill has had a remarkably short gestation period. It must have been an enormously difficult job for those responsible for its drafting. It has achieved three days' discussion, pretty nearly on the trot, in another place. That is not sufficient time to consider a measure of this significance.
We have agreed that there should be emergency procedures in this House to facilitate the Bill. Eight out of 10 working days will be devoted exclusively to discussion on the Bill. But the Bill is in the position of a premature baby: dragged far too soon kicking and screaming into the world when it would have been better to have gone full term. Like such babies, I consider the Bill to be in need of some intensive care.
I begin with the Title of the Bill because it seems to me somewhat less than fortunate. It is the Antiterrorism, Crime and Security Bill. It is an emergency Bill. That is why we have agreed special procedures to facilitate and help the Government. But crime is always with us. It is certainly not an emergency matter. I believe that the inclusion of that one little word in the Title has led to a certain laxity of focus and intention in the drafting of the Bill. Throughout the Bill, perfectly proper powers in relation to anti-terrorism and security are extended to deal with the generality of crime. I suggest that a more appropriate and tighter focus would have been more suitable given the treatment that we are obliged to give the Bill.
Like the Minister, I intend to run through the Bill in the order in which it is printed. The House will be relieved to hear that, unlike the noble Lord, I do not intend to go into the detail of every part of the Bill. We support in general Parts 1 and 2 of the Bill. The issues of terrorist property and freezing orders seem essential if we are to get under control such organisations as A1'Qaeda. This is not a matter simply for this country. We can play only a part in the much wider international co-operative scheme to try to prevent that kind of organisation becoming a danger to society.
However, in Part 3, Schedule 2 increases enormously not only the powers of disclosure of information between government departments but also the requirement for disclosure by regulated enterprises. It largely refers to financial houses, and so on, in the City of London. Those commercial bodies are given significant responsibilities. The offence of non-disclosure is created. That needs careful consideration. In its business capacity the City of London represents an enormously important part of the economy of our country. In putting into law such regulations, we need to ensure that we do not make the City's situation so impossible that it starts to lose business to other parts of the world where the law is perhaps kinder——although I do not say more lax. That consideration is one of which we should not lose sight.
156 Part 4 presents different problems and I gravely doubt that it will do anything to improve the security of the British community at large. Part 4 gives the Government—in effect, the Home Secretary—power to intern without time limit. If the Government no longer had that power, presumably persons interned would be released. What might be the reaction of a terrorist group such as A1'Qaeda if the UK interned a reasonable number of its active members? Those individuals would be kept in considerable comfort at the taxpayers' expense but I have nasty suspicion that A1'Qaeda might think it perfectly reasonable to kidnap people and take them hostage, with a view to exchanging them for interned persons that A1'Qaeda wants released. If my nasty suspicion were ever proved correct, we will not have done this country a favour.
The Government have not gone as far as they might in relation to internment. The European Convention on Human Rights provides us with the opportunity to withdraw from it, then enter a reservation that would allow the UK the power to deport and re-enter six months later. That way, the UK would he able to deport rather than intern, which would be a better situation.
I wonder what the Home Secretary thinks about the ECHR. When this House was giving the Human Rights Bill its Second Reading on 3rd November 1997, the Lord Chancellor said:I am convinced that incorporation of the European Convention into our domestic law will deliver a modern reconciliation of the inevitable tension between the democratic right of the majority to exercise political power and the democratic need of individuals and minorities to have their human rights secured".—[Official Report, 3/11/97, col. 1234.]That may still be so. The noble Lord, Lord Lester of Herne Hill, speaking to the Motion that the Bill do now pass on 5th February 1998 said:The Bill is brilliantly conceived and exquisitely well executed".—[Official Report, 5/2/1998; cols. 834–835.]I suspect that the Home Secretary takes a different view. En passant, it is worth noting that parts of the media have made much of why other European countries have not had the difficulties experienced in the United Kingdom, requiring us to derogate from the ECHR. The answer is simple. Most other countries had the good sense to enter reservations before they signed up. It is a matter of regret that the UK did not.
Part 4 introduces a further complication. Clause 21 seeks to make a distinction between international terrorism and home terrorism, which conflicts with the words of the Prime Minister:The legislation that we propose will apply to terrorism wherever it occurs, whether inside the United Kingdom or outside, or whether it is international or domestic".—[Official Report, 4/10/2001; col 684.]I am not convinced that the Bill is in keeping with the right honourable Gentleman's statement. We shall deal with that issue, and with others that I have mentioned, by amendments.
157 Part 5 deals with the difficulties of religious incitement and its incorporation into the law of the land through the Public Order Act 1986. Last Wednesday, I spent 13 minutes speaking to the Unstarred Question on the subject tabled by my noble friend Lord Campbell of Alloway. The House will be immensely relieved to hear that I do not intend to repeat the arguments that I put on record on that occasion. Suffice it to say that Part 5 contains an enormous potential conflict between the right of freedom of speech and the potential for religious incitement.
Let there be no doubt, I am clear that there is a case for this legislation—but I return to my remarks about the Title. I have the greatest difficulty making any connection between the necessary argument and debate about religious prejudice and anti-terrorism or crime or security. It is wholly inappropriate to see a matter of this nature dealt with this way in this Bill. It does not give the House the proper opportunity to consider in full detail the implications of what we are supposed to be about.
Part 10 deals with the extension of police powers and suffers from the flaw that I have already mentioned. Those powers are applied generally across the whole field of criminality, not to the emergency terrorist aspects that should be the Bill's sole concern. I accept that that is a matter of judgment and we shall introduce amendments to remove that possible flaw.
Part 12 is interesting because legislating on bribery and corruption seems to have become completely non-controversial, with general agreement that it is a good thing. Of course it is in principle a good thing—like apple pie and cream—but this is the one part of the Bill that no one has suggested including in any sunset legislation. If Part 12 stands, how are we to deal with a situation that could parallel that of the United States Government, which feels it necessary to offer a $25 million reward for information about Osama bin Laden. Is that not a bribe?
How are our security services to work? There may be other powers and exclusions of which I am not aware. If so, I shall be happy to be informed that that is the case. However, if that is not the case, we are creating a rod to beat our own backs with.
Worse than that, are we talking about private or public corruption? It may seem invidious to make a distinction, but this country is, above all else, an international trading organisation. It may be a matter of regret that there are parts of the world where backhanders are the norm in business, but we have to trade in those countries just as we have to trade in countries that operate similar standards to those that we expect here. Do we wish to handicap our business enterprises internationally? I accept the general agreement on Part 10, but I do not absolutely support its contents. We need to be careful.
Part 13 deals with the third pillar of the EU. That is a fundamental issue, because it allows what is in effect primary legislation to be introduced, unsupervised by the democratic process, as secondary legislation in this 158 House. Such matters will not be considered by the European Parliament and we shall receive them only as orders that we can accept or refuse. I cannot do better than refer your Lordships to the seventh report of the Delegated Powers and Regulatory Reform Committee this year. After three pages of discussion and argument, beginning on page 4, it finishes with the following recommendation:For these reasons the Committee is of the view that the powers to implement by secondary legislation proposals under the Third Pillar should not be granted except to allow the implementation of a measure that the Government can demonstrate is a key element in its emergency proposals and yet not of such importance as to warrant primary legislation".There is nothing more to be said.
Our view is that the Bill consists of the good, the bad and the not relevant. The process that we are going through means that there has not been adequate consideration in another place. We have a clear duty to do better. There will be much detailed examination in Committee. Provided that we maintain the core purposes of the Bill without damaging it, the other place will have no right to complain if the Bill goes back to them, as I very much hope that it will, in a considerably modified form.
§ 4.14 p.m.
§ Lord McNally
My Lords, I echo the thanks of the noble Lord, Lord Dixon-Smith, for the courtesy of the Minister and his staff in providing back-up and briefing to the Opposition Front Benches as we have tried to prepare for the Bill. The Minister said at the conclusion of his 40-minute opening speech that he had spoken for too long. I disagree. The problem is that the Bill is too long, not the speech.
When I spoke in the debate on the Human Rights Act derogation order, I reminded the House of Gladstone's dictum that it is the Government's duty to govern, but it is also Parliament's responsibility,to call to account those who do govern".That responsibility is particularly onerous when the Government are seeking to fast-track normal parliamentary procedures on the grounds of emergency. I suspect that we shall be reminded many times during the debate that Parliament has a less than perfect record when we legislate in haste.
In addition, there is the worrisome habit of Whitehall to do a little shelf-clearing at the time of emergency powers Bills, slipping in measures that have failed before or that would fail if given thorough parliamentary scrutiny. I am afraid that we take an old-fashioned approach to an emergency powers Bill. It should address the emergency at hand and certainly should be of limited time and duration.
As the noble Lord, Lord Dixon-Smith, said, the title of the Bill gives a clue to the Government's approach. It is not a Terrorism (Emergency Powers) Bill—tight, narrowly focused and immediate. It is the Antiterrorism, Crime and Security Bill—the work of no fewer than six government departments. As a result, as well as proposals that are intended to respond to the 159 immediate and perceived emergency, there are also, as the Daily Telegraph pointed out in a good analysis on 23rd November,many new laws that might otherwise have required Bills of their own and months of parliamentary scrutiny are being steamrollered through Parliament without the levels of debate that they might otherwise have attracted".In such circumstances, Parliament has a special responsibility to heed the strictures of the Joint Committee on Human Rights, which said that Members of both Houses,should satisfy themselves that there are adequate safeguards to protect the rights of the individual citizen against abuse of those powers".In addition to shelf-sweeping and a willingness to put in non-emergency legislation, there is also a tendency among Ministers and their supporters to adopt the "man in Whitehall knows best" approach. One of the least endearing aspects of this Government is their firm belief that they invented politics in 1997. The result is a certain impatience in dealing with external advice. That is accompanied by the "If only you knew what I know" syndrome.
The great value of this House, particularly at such a time, is its collective wisdom and experience. We shall hear contributions today from some of the most distinguished lawyers in the land and from people who have held some of the highest offices of state. I look forward to the contribution of my noble friend Lord Jenkins of Hillhead. We also have contributors who know a thing or two about security briefings. Some of them may have written one or two.
Our basic approach should be fourfold. First, we should make use of the formidable array of experience and expertise in this House to examine, advise on and revise the Bill, paying particular attention to getting the balance right between an adequate but proportionate response to the immediate terrorist threat and retaining a due regard for the defence of civil liberties and human rights. The Government must make their case. This House in particular will not sign a blank cheque on these measures.
Secondly, where the Government clearly make their case for emergency powers, we should grant them with due dispatch. We should do likewise where there are loopholes in our law that are being exploited or are capable of exploitation by terrorists and their allies. Thirdly, where measures have merit but are not emergency measures, we should suggest deferment for normal parliamentary scrutiny. Finally, where the powers sought are unjustified or lack proportionality, particularly as they affect the judicial process, civil liberties or human rights, we will oppose them.
The Minister and the noble Lord, Lord Dixon-Smith, have filleted the Bill nicely for us. I shall not follow them by doing the same. In any event, I shall be followed by an array of talent from these Benches who will point out our specific concerns on the Bill.
In Committee, and in the light of this debate, we will probe and question the Government's intentions and justification for the powers they seek. We shall certainly take into account the report of the Delegated 160 Powers and Regulatory Reform Committee which we have only just received and which, as the noble Lord, Lord Dixon-Smith, said, has some very interesting things to say about European legislation. At Report and Third Reading we shall seek to test the opinion of the House on issues where we oppose granting the powers requested or where we want to suggest improvements to the Bill.
A great deal of debate has been generated by the powers sought in Part 4 of the Bill. As a non-lawyer, but a strong supporter, unlike the noble Lord, Lord Dixon-Smith, of the Human Rights Act, I would have preferred to widen offences and create new laws rather than grant Ministers arbitrary powers and derogate from the Act.
The Minister outlined a number of concessions including a five-year "sunset" clause. We shall wish to look at that. There remains concern about the powers requested and I shall listen carefully to the arguments deployed, not least by noble and learned Lords, about this aspect of the Bill.
As regards the funding of terrorism and corruption, we offer basic support. Many of the provisions, as the Minister indicated, are really fast-forwarding items that would have been in the Proceeds of Crime Bill. The corruption areas bring forward a much needed endorsement of the OECD convention in this area.
I take on board the reservations of the noble Lord, Lord Dixon-Smith, about the possible damage to the City and the possible hampering of business abroad, but I do not follow him along that road. What is clear—it was clear even before 11th September—is that we need a new approach, both nationally and internationally, to the way in which the financial services, businesses and their associated professions see their responsibilities in relation to both terrorism and crime. It is simply not good enough to say, "I am not a private detective" or "If we didn't do it somebody else would". There is both a corporate and an individual responsibility to help authorities. Democratic societies prosper in a world of social justice, stability and shared prosperity. We cannot impose those values on others but we can, at an individual level, at the level of the company and of the professions, and through our national and international laws, insist on zero tolerance of practices which give comfort to our enemies, fuel and fund their operations, and in so doing pose a threat to the security of us all.
A headline in the Guardian recently described the City of London as "the laundry of choice for criminals". There is no long term benefit for Britain having that reputation. In any event, at a personal level, the drug which destroys your daughter's or son's life, the terrorist bomb which kills your best friend and the world crisis which sends your pension fund into free fall might all have been aided and abetted, if unwittingly, by that respectable accountant you play golf with or the lawyer you see every morning on the 7.45 to Cannon Street. We have to overcome the idea that corruption and money laundering can be tolerated. As I say, I call for zero tolerance.
161 It would be unfair to the long list of speakers to follow if I were to try to cover in detail what the Daily Telegraph in its analysis has identified as 11 separate pieces of legislation. I have already indicated our basic attitude to Part 4 of the Bill and towards money laundering and related crime.
As regards the parts of the Bill relating to communications service providers, I believe that some of us will recognise old friends and old arguments from the debate on the Regulation of Investigatory Powers Act. In a brief provided by the CBI on this section of the Bill, a point was made which I believe is a common theme and criticism. It states:The CBI believes that a wholly greater set of demands is being made—and one of much greater cost to business freedom and practices—if the Bill introduces new powers for the investigation of minor crimes or crimes which do not relate to terrorist activity".That is a perfect example of sweeping up and shelf clearing to grab new powers. Elsewhere, in terms of so-called gateway provisions for Customs and Excise and Inland Revenue or the expanded role of transport, MoD and atomic energy police, there is a suspicion that new powers and new offences are being slipped through under the cover of emergency. If Ministers find such suspicions unworthy, I can only say that they are based on the fact that they and previous governments have done it before. I know that many of my colleagues, particularly the noble Lord, Lord Phillips of Sudbury, will have more to say on the RIP matters.
I have not gone into detail on this portmanteau Bill out of respect for speakers who are to follow and my desire to hear expert opinions, and in the knowledge that a number of my noble friends will be covering areas to which I have not referred. For example, my noble friend Lord Dholakia who will be covering immigration, asylum and religious incitement to hatred. And my noble friend Lord Maclennan, in his maiden speech, will be bringing his long experience of constitutional and human rights issues to bear.
No one on these Benches underestimates the threat to our society posed by international terrorism. Charles Kennedy and other spokesmen for our party have given full and constructive support to the Government during this period. The Minister rightly reminded us of the events of 11th September and of the new rule book which terrorists wrote on that day. We recognise the reality of that warning and of that by Richard Holbrook, the former State Department trouble shooter, now head of a Washington task force on terrorism, who, in two chilling predictions, said,The issue is nuclear. There is no question that the next generation of terrorists, rather than going for small, little dramas will go for the big one. They now understand that the way to get the world's attention is not strapping the bomb to themselves in a pizza parlour, but to do something so horrific it gets you into the Guinness Book of Records for terrorism. That takes years to plan—and it will be nuclear",adding that he believed that we in the West were "completely unprepared" for biological and chemical attack.
162 Given what the American security services call "a clear and present danger", it would be totally irresponsible for the Government not to tighten our defences. They have our full support in so doing. But they need proportionality. As Charter 88 has said,The Government has enjoyed wide and public support for its strategy post 11th September. It will be crucial to foster open democratic debate for the Government to retain that confidence and not to damage that which it seeks to protect".What this House lacks in democracy we make up for in experience and expertise. So I believe that there is no better place qualified for such an open debate than this Chamber. The Government would do well to listen to its collective wisdom in the hours and days to come.