§ Second Reading debate resumed.
§ 5.41 p.m.
§ The Lord Bishop of Manchester
My Lords, we turn from one major subject to another. However, before commenting on the Anti-terrorism, Crime and Security Bill, I want to make a couple of personal comments. First, I apologise to the House and seek its understanding that should the debate continue to run at its present rate of progress, I must leave before the end in order to keep engagements in Manchester early tomorrow. I regret that very much. Secondly, we look forward to the contribution of the noble Lord, Lord Maclennan of Rogart, who has waited a long time today to make his maiden speech.
We on these Benches support the Bill dealing with terrorism. Terrorism committed here or elsewhere can never be in the public interest and it needs to be discouraged and outlawed. We recognise the need to bring forward a Bill now. Some people in the country are fearful and are concerned about terrorists already living among us or coming to live among us in the future. We are grateful for the Government's concern about that.
However, we are concerned about the Bill as presently drafted and I want to refer to a few of our concerns. First, we must be clear about definitions. I refer in particular to Clause 21. What do we mean by "terrorism" and "terrorists"? Morally speaking, terrorism is terrorism, whoever commits it, wherever it is committed, whenever it is committed and however it is committed. But if we are to make distinctions between one terrorist and another—I have already heard reference made to foreign terrorists and national terrorists, international terrorists and today we are told by the Minister that some terrorists are stateless— 184 we must be clear that those distinctions are sustainable at law because we do not want to have endless legal disputes over identity.
Secondly, I want to deal in more detail with Part 4, which deals with immigration and asylum. I am concerned about the potential damage to existing constitutional protection for such people as genuine seekers of asylum. The Bill describes measures to deal with immigration and asylum and Clause 21 allows the detention without trial of foreign nationals who are "suspected" of being terrorists but who have not broken British law and cannot be deported or extradited to their own countries.
The provisions are before us in order to prevent terrorists from posing as bona fide immigrants. However, it seems that those suspected of being foreign terrorists will be interned indefinitely without knowing the evidence against them, that is, until the expiry of the five-year time limit on the use of the detention powers. Can we be sure that genuine asylum seekers will not have their claims rejected out of hand and that they will not be denied the protection of the 1951 refugee convention? And can we be confident that implementation of the proposals to identify and detain terrorists will not undermine the human rights of those who are genuinely seeking asylum in the United Kingdom?
I remain concerned, as do a number of my colleagues, that without sufficient consultation the Bill could lead to the introduction of laws which instigate racist or religious discrimination and offend civil liberties. Will the Bill lead to the imprisonment without trial of those who visibly appear to be terrorists, because of their colour, ethnicity or culture? While supporting government legislation to outlaw terrorists, I am concerned that the new measure will have a negative effect on community relations in the United Kingdom.
In the Christian tradition, the example of Jesus, who was crucified unjustly because he was thought by some to be a friend of the Zealots (religious terrorists), reminds us not to impose injustice on the innocent. If we are to speed forward legislation, failing adequately to consult and debate with organisations which represent minority, ethnic and religious groups, we run the risk of destroying the recent welcome advances made in community relations in the United Kingdom.
The whole topic of asylum seekers is controversial. Is it right that asylum seekers' fingerprints are to be kept for up to 10 years if they committed no offence? Above all, the denial of judicial review for a person detained under the Bill as an asylum seeker breaks centuries of tradition. I shall leave the lawyers to explain it all, but I want to point out that we recognise the point. Am I correct in concluding that a person could be detained for the whole five-year period, even if there is a six-month review by the Special Immigration Appeals Commission? Is that a proportionate response to the current situation?
After all those hesitations and questions about the Bill, I gladly note, first, that the Government have resolved not to allow asylum seekers to be deported to 185 countries where they will face torture, inhumane treatment or the death penalty. The fact that that has been spelt out is most welcome. Secondly, we are pleased that the Bill could speed up the present asylum process.
Part 5 of the Bill, concerning race and religion, is also of crucial importance to us, but my friend the right reverend Prelate the Bishop of Southwark will speak about that later in the debate. I want to turn to Part 10, which deals with police powers.
I am concerned about the potential damage done to fragile community relations if the Bill is implemented as drafted. As regards police powers, Clause 89 allows photographing, fingerprinting and searching for identification. Clause 94 seems to allow a police officer to order people to remove gloves, balaclavas, face paint, a burka or any other outer garment,at any place … for a specified period not exceeding twenty-four hours".Authorisation under Clause 89 is by a police inspector or higher rank, but Clause 93 applies to police constables on patrol.
What exactly will the police powers be? Will any police officer be able to stop a person wearing a scarf, balaclava, a turban, a veil or gloves in a public place and request their removal? Will a police officer be able to arrest men and women without charge, take them to a police station, require them to be searched, including perhaps through burkas, photographed (including photographs of their body) and fingerprinted when no offence has been committed?
I am pleased to note in the Bill that intimate searches and photographs of a person of the opposite sex are prohibited—that is clearly stated in the Bill—and that the only persons allowed to act in that way are police officers or designated lay staff. But the power to remove articles of clothing from people who have done nothing wrong seems severe. Will such power help the atmosphere on the streets? I speak as one who comes from the North of England.
Such powers are likely to impact hardest on ethnic minority and some religious groups who traditionally cover themselves and are not amused by some of our advertising for under-garments which we see on bill hoardings around the cities. Does this part of the Bill in effect bring back the old stop and search laws? The powers seem to be wider than the old law because there is no need to prove why the examination is necessary. It could prove very divisive in some areas where enormous attempts have been made, and continue to be made, by leaders of local ethnic and religious community groups—among them Members on these Benches and the police—to build and rebuild good community relations following not only September 11th and difficulties earlier in the summer but those which date back to the Stephen Lawrence inquiry and previously. A great deal of work has been done which we do not want to see called into question or undermined by the implementation of the Bill in a heavy-handed way.
186 I conclude on a positive note because we welcome the Bill, even if we have some questions on its drafting. I refer to nuclear, aviation and biological security. The proposals to increase restrictions on laboratories, civil nuclear plants, airports and aircraft are very welcome. It is also good that aircraft operators will be able to remove from aircraft and airports persons who are not there legally. If security at airports is to be similar to the restrictions at the Channel Tunnel, as I believe is the intention of the Bill, that is very good news.
§ 5.51 p.m.
§ Lord Maclennan of Rogart
My Lords, some noble Lords may have noticed that my introduction to your Lordships' House involved a reversal of roles since my honourable friend Viscount Thurso has succeeded me in another place as MP for Caithness, Sutherland and Easter Ross. Such a swap is, I think, a constitutional innovation which may commend itself to some noble Lords. Many noble Lords will remember Viscount Thurso and share my view that my former constituents have done rather well out of the exchange. I make only the rueful comment that, whereas he served an apprenticeship here of a mere six years, I had to spend 35 years in another place before I qualified to make the change.
The readiness is all. But it must be admitted that some are more ready than others. I have in mind my predecessor as Member of Parliament and now my noble friend Lord Mackie of Benshie. He has been kind enough to tell me that his electoral defeat at my hands had done him a favour. I never quite grasped what he meant. Now, however, having experienced for myself the kind consideration of your Lordships in this House, I have no doubt at all.
Throughout my life in Westminster I have been much concerned with the question underlying the measure before us this afternoon. How should a mature democracy properly seek to protect its citizens when they are threatened by dangerous lawlessness or external attack? The domestic overreaction of the younger Pitt and his Ministers to the threats of the French Revolution even moved me to write for the stage two years ago of the injustice done to the Scottish reformer Thomas Muir. But my own first legislative initiative was motivated by concern adequately to protect our citizenry against such a perceived danger.
As long ago as December 1966 as a private Member I piloted onto the statute book a Bill reflecting the provisions of the Tokyo Convention on crimes committed on board aircraft. It was the noble and learned Lord, Lord Wilberforce, who has been with us so much recently, who, with distinction, led the British delegation in Tokyo. That convention sought to ensure that prosecution of such criminals was not prevented by absence of jurisdiction. It also gave powers to the commanders of aircraft as well as to passengers to take action against threatened criminal activity on board.
There was at that time a remarkable lack of urgency shown by the international community about these issues. Three years after signature only three states had 187 bothered to ratify the convention. It is also true that the international and domestic legislative processes are fallible in attempting to foresee and forestall the actions which terrorists may take to further their aims. The horrific and unforeseen events and atrocities of September 11th have shown that some amendments to the law are indeed needed. It is, for example, only in the Bill before us that a clear gap in the provisions of the Tokyo Convention is finally being filled by Clause 84(2), to which the Minister drew attention. That clause empowers certain individuals to use force to remove unauthorised persons from aircraft. No matter how carefully legislation is drawn in this sphere, it tends to ride behind events.
But I believe that there is another pitfall for governments when disaster strikes. That is to believe that what has happened might not have occurred had the law been different. That error may be compounded by the pressure on Ministers responsible for security to do something, and to be seen to be doing something. I sympathised with the Home Secretary when he sought. in another place to justify this Bill on the grounds that,Circumstances and public opinion demanded urgent and appropriate action after the 11 September attacks".—[Official Report, Commons, 19/11/01; col. 22.]It is tempting but unwise to wave a piece of new legislation over one's head as if it is the last word and ultimate weapon in the arming of the citizenry against the threat of terrorism. The Government have done nothing like that with this measure. There was some suggestion of finality following the enactment of the Terrorism Act 2000, but the provision for its review and annual reports to Parliament by my noble friend Lord Carlile of Berriew and the Home Secretary are recognition that in this sphere of law there can be no last word.
We must also acknowledge that the law, however necessary, is unlikely of itself to counter the ingenuities of the terrorists and make good the deficiencies of intelligence, poor policing and security failures. The heroic passengers who on September 11th wrestled the suicidal hijackers down into the ground of Pennsylvania needed more protection than the legal defences of their action provided by the Tokyo Convention.
The Home Secretary has asked for urgent and appropriate action by Parliament. In this House we have been given twice as long as another place to consider carefully what is urgent, important and appropriate. I acknowledge at once that there is much in this Bill which is both urgent and appropriate, particularly those provisions which fill in the gaps in dealing with the funding of terrorism. But there are matters for which urgency cannot be claimed. I cite the ill-considered proposals on incitement to religious hatred. And there are matters which are of highly questionable appropriateness. For my part, the most questionable are the arrangements proposed in Part 4 of the Bill on the detention of terrorist suspects which require our derogation from Article 5(1) of the European Convention on Human Rights.
188 I do not overlook the Home Secretary's dilemma in respect of those whom he suspects are terrorists but who cannot he deported. Whatever the intentions, however, the consequence of Part 4 is repugnant. Detention without evidence in support being disclosed to the subject is repugnant. The SIAC review may be by a judicial tribunal and as such is preferable to an unchallengeable decision by the Home Secretary, but such a tribunal lacks the lineaments of natural justice. The evidence of the necessity of Part 4 is thin. The Joint Committee on Human Rights, on which I had the privilege to serve until the last election, has unanimously expressed its doubt,whether the measures (in Part 4) can be said to be strictly required by the exigencies of' the situation".The Home Secretary himself said on 15th October:There is no immediate intelligence pointing to a specific threat to the United Kingdom".—[Official Report, Commons, 15/10/01; col. 925.]Furthermore, it is a changing situation and the legal basis of there being a,public emergency threatening the life of the nation",as required by the European convention, may even now have disappeared. The Home Secretary has already given some valuable indications of his willingness to reconsider particular weaknesses in the Bill, two of which have been referred to this afternoon: the use of the words "or otherwise" and the question of links to terrorism. If, however, the Home Secretary continues to regard Part 4 as necessary in the national interest, I hope that he will accept that it should not remain on the statute book for more than one year.
In a changing situation, Parliament has a duty to keep such executive claims of necessity under more than formal review. If the Home Secretary thinks it necessary to continue to limit legal protection of fundamental rights and freedoms and to put them beyond the reach of the courts, then he must come back and persuade Parliament that the "exceptional situation of crisis or emergency" is indeed still continuing.
§ 6 p.m.
§ Lord Waddington
My Lords, I am very fortunate to rise immediately after the noble Lord, Lord Maclennan, and therefore to have the privilege of congratulating him on his maiden speech. I have always known him as a very self-effacing man, but no one should be fooled by that. He comes here after a most distinguished career in another place. He is a former president of the Liberal Democrats and has exercised considerable influence on his party's fortunes. He has been a Front Bench spokesman on home affairs and on constitutional affairs.
He established something of a record by standing for one and the same constituency under three different party banners. But, whatever the banner he has marched under, he has always been a man of moderation, who has spoken in measured terms. For that reason, he will probably be a lot happier here than he was in another place. But whether he is or is not, I can assure him that we shall always welcome him here. 189 We will be looking forward in anticipation for other excellent contributions such as the one he has made today.
I start from the standpoint that it would be absolutely wrong to deny the Government powers which they can show are urgently needed to meet the terrorist threat. The Home Secretary must be bearing a very heavy burden, and if he says that a power is urgently needed, we should take him at his word unless there is good reason to doubt it.
But we should surely not allow the present and immediate threat to be used to put on the statute book—by a timetable which does not allow the normal scrutiny—measures which have no bearing on the fight against terrorism or which bestow on the Government powers far wider than is necessary to meet that threat. Still less should we give the Government power to implement by secondary legislation measures which are not only wider than necessary to meet the threat but which create new offences, impose new penalties and affect to a very significant degree the individual rights and liberties of the subject.
The proposal to make incitement to religious hatred a criminal offence has been hanging around in the Home Office for a long time, at least since 1985 when it featured in a Law Commission report. So it has precious little to do with the events of September 11th, except in the sense that after September 11th it was offered to the Muslim community as a kind of sop to buy support for the war against terrorism. So I, for one, was very pleased when I read in the papers that it was going to be dropped from the Bill. I was correspondingly disappointed when I learnt that the reports were all wrong.
I am sure that the Minister knows that there are genuine worries that the measure could be used to punish no more than the intemperate voicing of sincerely held beliefs. Some fear that, in the event, it may be used more against Muslims, who are not always slow to attack others for their religion, than against those who vilify them. A fat lot of good that will do in ensuring that extremists do not get up to mischief in the Muslim community.
The proposal is not necessary to meet the present threat. It needs a lot more thought than can be given to it in emergency legislation. Having waited for 16 years for it to become law, we can face with equanimity the possibility of having to wait for a few more years.
Turning to Part 4, the cause of much anxiety, in order to derogate from Article 5 of the European Convention on Human Rights the Government have had to go through some truly extraordinary contortions—asserting that while there is no actual emergency within the country, there is an emergency within the meaning of the convention, a public emergency so serious that it threatens the life of the nation. There is something Alice in Wonderland about that.
It is sad and not at all funny that the Government should feel that, as a result of the convention, they cannot do the obvious thing—throw out of the 190 country terrorists who have got in here, and then prevent any more arriving. Because of what most would say is the strained and artificial interpretation that has been put on Article 3 of the convention, the Government feel that they cannot remove people who are a danger to the state even to countries such as the United States of America and India—countries which every right thinking person knows provide a reasonable standard of justice and do not torture people or put them to death arbitrarily.
The Government feel that, because of this, they must take the far more authoritarian step of suspending habeas corpus. It is laughable that the Government feel themselves forced to argue that it is perfectly proper to try to blow bin Laden to pieces on the soil of Afghanistan but, if he arrived in this country claiming asylum, we would have to admit him to examine his claim and would not then be able to extradite him to America to face trial unless America said that it would not subject him to the death penalty. That is an absurd position for us to have got ourselves into.
I do not know whether it is practicable to follow the suggestion that we should denounce the whole convention and then re-enter with a reservation as to Article 3 but, if the Government say that it is not practicable, I, for one, am prepared to accept detention as the only practical alternative, hoping that some at least will eventually learn the lesson that an obsession with rights can end up leaving the citizens of a country with fewer of them. That is what is happening here.
Turning, finally, to Clauses 110 and 111—formerly Clauses 109 and 110–I should mention that I am a member of the Select Committee on Delegated Powers, which has had some fairly strong words to say about these clauses. In seeking power to implement measures by delegated legislation, the Government are following the precedent of the European Communities Act 1972. But the measures which we are now considering are far more serious. Because they affect individual rights and liberties and cover the most sensitive areas of policing and criminal justice, they are far more serious than the largely economic and regulatory measures adopted by means of the 1972 Act after we joined the Community.
That original regulation-making power was granted to the Government in 1972 after a protracted debate. The Bill was in Committee for no less than 22 days after three days debate on Second Reading. These powers, which can be used to legislate on matters far removed from the terrorist threat, are sought in a Bill which is rushing through Parliament at breakneck speed.
Perhaps I may spell out what the clause gives the Minister powers to do. It does not only give him power to implement decisions made after 11th September by European Ministers as their response to the events of 11th September, it enables him to implement by delegated legislation every decision that has already been made at intergovernmental level and every decision that may be made in the future under Title VI of the Treaty on European Union, the third pillar.
191 It gives the Minister power to create criminal offences which have nothing whatever to do with terrorism: serious offences which have nothing to do with terrorism, and which attract imprisonment for a term of any length—we have only to look at Clause 110(7)—and quite minor offences which have nothing to do with terrorism, attracting sentences of two years or less on indictment or three months before the magistrates—I refer to Clause 110(5). Such measures are not passed on the likes of Mr bin Laden.
The power enables the Minister to implement by order measures such as the draft framework decision on the European arrest warrant. I know that the Government have said that they will introduce primary legislation in that case, but that does not alter the fact that the power is wide enough to implement, by secondary legislation, a measure such as the European arrest warrant, a measure that would allow extradition for offences—
§ Earl Russell
My Lords, does the noble Lord agree that if this House were to lose its power to reject statutory instruments, the power to introduce all this by statutory instrument will be an even more nugatory restriction than it is at present?
§ Lord Waddington
My Lords, indeed it would. I entirely agree with the noble Earl. I was concentrating so much on the Bill that I was not thinking of the possible implications of changes in our powers under second stage reform of this place.
I want to emphasise this point about the European arrest warrant. One must look at the scope of that warrant to get clearly in one's mind the potency of this regulation-making power. If the regulation-making power is so great that it could put into law the European arrest warrant, it means that the Minister could legislate by regulation in order to provide a power for someone to be removed from this country to face trial abroad for offences that are completely unknown in this country—xenophobia, for example.
The power is wide enough to enable the Minister to take steps with regard to offences against children—that has nothing to do with terrorism—offences concerned with drug trafficking, and offences in connection with corruption and fraud. All those are words in Article 29 of Title VI of the European treaty. It also gives the Minister power, as set out in Article 31e, to establish the constituent elements of criminal acts by delegated legislation—again, not in the field of terrorism but throughout the whole of our statute book dealing with criminal law. These are truly dramatic powers, which ought to make the hair of any noble Lord who has hair stand on end. They embrace not merely the agenda adopted at Tampere—although that is wide and sweeping enough, with its reference to new police powers and the harmonisation of criminal laws—but everything else in Title VI of the treaty.
I confess that I would object to such powers of delegated legislation in any Bill. Powers to legislate on matters affecting the liberty of the subject should be dealt with by primary legislation. Why were these matters included in Title VI, the third pillar, in the first 192 place? They were put there to ensure that they would, in view of their sensitive nature, be dealt with at an intergovernmental level and. in Britain's case, be implemented by primary legislation. I understand that that was the whole purpose of the third pillar. It is wrong that such powers to make delegated legislation should be sought at all. It is doubly wrong that they should be sought in emergency legislation with limited scope for debate.
§ 6.15 p.m.
§ Lord Ahmed
My Lords, the terrorist attacks in the United States on 11th September have changed our perception, our lives and indeed the whole world. None of us can condemn enough to comfort those who have lost their loved ones. However, we need to be cautious while legislating to protect individual citizens from those who create havoc in our society through international terrorism that we do not infringe civil liberties and discriminate against any sections of our community.
I remind your Lordships that legislation and military power alone do not prevent terrorism. The United States had "secret evidence" laws in place three years before the tragic events of 11th September. They gave the United States authorities powers of detention without trial, and have been seen as contrary to the principles of freedom of speech, freedom of expression and civil liberties. It may not surprise your Lordships to know that 95 per cent of those detained were Arab Muslims.
In order to reduce the threat of international terrorism, we need to strive for global social justice, eradicate poverty and corruption, promote democracy and safeguard freedom of speech. We need to promote the United Nations Universal Charter of Human Rights and to deal with illegal occupations and oppression. We must also reform the United Nations Security Council so that it mirrors the world of the 21st century instead of reflecting the past.
Nothing could ever justify the terrorist attacks on innocent civilians. However, history bears witness to the fact that this is how some individuals react against some nations. For example, in the 1960s, during the Algerian struggle, bombs exploded in Paris; and in the 1980s, when tension grew in Northern Ireland, bomb attacks took place in London. Now that tension is growing in the Middle East, such tragic events have taken place in New York and Washington.
The Home Secretary has emphasised his concern to find a balance between the security of this nation and the duty of our country to protect people under the regulations of the European Convention on Human Rights. While I acknowledge the necessity to ensure both elements, I am anxious to see that the appropriate provisions are made and that there is no abuse of power.
I congratulate the Government on introducing the incitement to racial or religious hatred clauses, which are essential. Until now British Muslims have been subject to the xenophobic assaults of the extremist far 193 right groups such as the BNP and the National Front who have taken an explicitly anti-Muslim stance to avoid prosecution under race legislation.
Events since 11th September have strengthened my opinion that, as we have religious discrimination laws in Northern Ireland and the Race Relations Act 1976 covering the Jewish and Sikh communities—and rightly so—other religious groups such as Hindus, Muslims and Christians should be similarly protected.
During the tensions that occurred in the north of England this summer, a certain right-wing figure was openly attacking the British Muslim community. This week, posters have gone up in London, and the Internet site of that person's organisation is full of lies and attacks on the Muslim community, inciting religious hatred and violence against Muslims.
Two weeks ago, a senior Member of this House claimed, "You cannot be a Muslim and be British". I said then, and I say now, that we take pride in being Muslims and we take pride in being British. No one should be misled by any "rent a quote" organisation claiming that five British Muslims had been killed in Mazar-i Sharif by the US bombing when two weeks later they turned up in Islamabad. British Muslims should not be made responsible for the actions of a few individuals, just as we do not hold all Catholics responsible for the actions of a few IRA or Real IRA members.
Perhaps I may take this opportunity to congratulate the Government again on taking such an active role in researching and implementing religious discrimination laws to protect all religious and non-religious groups. The Derby University and Cambridge University reports on the issue, and the support of the Home Secretary and the Prime Minister, have been much appreciated by many communities. Islam teaches us that while we may comment we must not mock and abuse other religions. This is in accordance with the long-standing tradition of freedom of speech but without stirring religious hatred in our nation. The British Muslim community is keen to see that implemented by law. Although I would have preferred a separate incitement to religious hatred Bill rather than the carrot and stick approach in this Bill, I am prepared to support any legislation that will protect individuals from racism and xenophobia.
Nevertheless, I am concerned at the speed with which this legislation is being considered. The Home Secretary calls for the making of proportionate provisions for the threat to national security. But are we also sufficiently prepared to anticipate the effects of those provisions on our nation?
I have three main concerns regarding the practical implications of the Bill. In his reply, will the Minister say how the religion clause will affect the British Muslim community? How accurately and appropriately will people suspected of terrorism be detained? How justly will the police use their additional powers?
194 The British Muslims are wary that they will be segregated from society because of their religious beliefs, especially in the light of recent world events. If we are to include religion under the same umbrella as terrorism, then it is inevitable that some people may consider certain religious beliefs to be a form of terrorism. We do not want to see that happen. While I strongly support religious discrimination laws, I propose that that should be a separate Bill. This is necessary to avoid any misunderstanding between the two issues and to emphasise that the Government are wholly supportive of the need to improve religious relations.
Secondly, the derogation of the detention clause poses an obvious risk of people being wrongly detained. Perhaps I may emphasise this point as there is clear evidence in our history of such past practices. There have been many cases where innocent people in their hundreds have been detained: for example, during the Second World War, in Northern Ireland and, more recently, at the time of the Gulf War. A further concern is whether, in keeping with the religion clause, there will be unjust detaining of suspects on the basis of religious prejudice.
Thirdly, I agree with the proposal to give the police and Customs services the authority to demand the removal of any item of clothing, and so on, which they believe is being worn wholly or mainly for the purpose of concealing identity. We must take all necessary action in the interest of public safety. But there is a feeling that that power may be abused. There have already been cases where Muslim women have been ordered to remove their head coverings, scarves and hi'jab without substantial reason when visiting relatives in prison. This has caused deep humiliation and distress. I thank the right reverend Prelate the Bishop of Manchester for mentioning the burka and similar concerns to which I have referred. The Qur'an outlines how important it is for Muslim women to be modest and the hi'jab is one of the means of achieving that. To date, no connection has been established between criminal activities and Muslim women wearing the hi'jab. That should be noted; it should he considered an expression of religious belief. In his reply, will the Minister please assure the House that the hi'jab will be recognised as a religious practice?
Finally, I support the Government in their actions and request that we proceed with caution. Our nation cannot sit in fear and all necessary actions must be taken to secure the safety of this country and its people. It will not be appropriate to cause internal struggles and discontent at a time when we must have a strong united front, closed to hate crimes and terrorism but open to offerings of compassion to those in need of our support. Let it be clear that this House will not tolerate prejudice; that a person's personal beliefs and faith will be respected under the custom of civil liberties, and that those who are religious should be free to practise the teachings of their faith.
§ 6.25 p.m.
§ Lord Mayhew of Twysden
My Lords, it is a great pleasure and a privilege to follow the important speech 195 of the noble Lord, Lord Ahmed. It was moving to hear him say that he and other Muslims took pride in being British. I do not think that I am alone in expressing my pride in sharing my nationality with him and with them. It is not through any lack of respectful interest that I do not explore the very important questions that he raised about Part 5 of the Bill. I intend to deal exclusively with Part 4.
It is often said that in every war freedom is an early casualty. We do well to remember that. Emergencies have a habit of outlasting those who declare them. In our own country the emergency in Northern Ireland is now in its 30th year and still going strong. We need to take care that our scrutiny of emergency legislation does not become blunted. We need a clear mind as to how to test any government's claim that once again emergency measures are needed if the country is to be defended. In particular, we have to test what the Government advance as necessary legislation and test whether it goes too far.
I agree with my noble friend Lord Waddington about the many parts of the Bill which I believe fail the test. There is only one sensible test: what hostile threat should the Government reasonably foresee; and what is the limit of reasonable measures which should be taken to meet it? There is a rather uncomfortable cliché that an ounce of practice is worth a pound of theory. It is only a cliché because it is true. The best, but not the only, guide to what one can reasonably foresee is what has happened in the past. The more recent the past the better the guide. But it is not the only guide because sometimes threats have also been made. Their credibility has to be assessed; as does what the recent past tells us about those who make them. In bringing forward the Bill, I believe that the Government are content to be judged by that measure. Whether or not they are content. that is how they should be judged; but they must be fairly judged.
It is extraordinary how quickly some people forget. We know that hindsight is a faculty which has 20:20 accuracy. But for all too many of us—none who has spoken in this Chamber today—retrospection soon becomes massively myopic. It has often been said recently that it is a good thing that we are not legislating in the immediate aftermath of the events of September 11th. But I am not so sure. That enables me to say at this point how glad I am to be able to salute the charming and thoughtful maiden speech of my old friend and colleague, the noble Lord, Lord Maclennan of Rogart. He took pleasure in the fact that we were legislating after some 10 weeks. I am not so sure that that is altogether a good thing. The reality of those bodies hurtling out of the windows of the blazing towers is even now fading—perhaps because subconsciously we want it to. Yet the Government tell us that they and we face the foreseeability of terrorist attacks within this country no less horrifying in their scale and evil. We must beware a psychological need to fade out the memory of that horror when we ask whether the severity of the Government's proposals is warranted.
196 Do we accept what the Government tell us and, if we do, are their proposals proportionate to the gravity of the risk of which they warn? It is not naïve to say, in matters of supreme gravity, that a democratically elected government are entitled to be trusted. What would people say if someone who could not have been lawfully deported but who was credibly suspected of being an international terrorist had been left at large to launch or assist such an attack on this country when power could have been taken from Parliament to detain him until he chose to leave? People would say, "You could see it coming, yet you did nothing".
I should not care to stand before this country and say that to seek such legislation would have been a grave departure from principle and one giving rise to a dangerous precedent. Would not the country answer, "You already had a dangerous precedent on 11th September, yet you chose to accept the risk to us that it would not be followed here—even though you were warned by your advisers and by the blatant threats of known terrorists"? I have faced some difficulties in my time and survived them but I should not care to face that situation because I should have failed in the most important duty of all. Allowing the nicety of my admirable principles to prevail over a threat of such magnitude would be seen as disproportionate, to put it mildly.
I am sorry to put the matter so starkly, but the Government are entitled to believe that they have a stark choice. Some people argue that the Government had more than one alternative. It is said that, by some fancy footwork, the Government could have denounced the whole human rights convention, then—in a twinkling of an eye—re-entered it with a reservation on Article 3, which guarantees the right to life. That way, they could lawfully deport a suspect in the sure and certain expectation that he would lose his life at the other end or at least be tortured.
Even if that approach had worked, I should find it disreputable and unworthy—and I believe that the country would have done so. Whether it will be lawful to kill bin Laden will itself be subject to well-established principles of law—as everybody in the relevant services recognises
Nor is it enough to suggest criminal prosecution as an alternative. As one might expect constitutionalists to know, it is for the independent Director of Public Prosecutions, not Ministers, to determine whether a prosecution of that type shall be brought. The DPP will require evidence that is not only admissible but available and likely to lead to a conviction. It comes as no surprise that the need to protect sources would generally stymie that requirement.
The only alternatives are true internment—and there is something to be said for it in some circumstances or cases—or to do nothing, for which there is no case. The Government are justified in taking the route of immigration control and curtailing a suspect's liberty to that extent. It is of great importance that the suspect should be able voluntarily to leave this country at any time. However, here I part 197 company with the Government. Much of the Bill has no connection with the emergency but I will deal only with Clause 29's attempt to exclude judicial review.
Where we must accept the need to curtail a suspect's liberties to a limited extent, there is no need to exclude the jurisdiction of the courts over the process of that curtailment—that is, the jurisdiction of all courts except the Special Immigration Appeals Commission, if that is a court. I say that without the slightest intention of causing offence to anybody who sits on that commission. It was invented four years ago, for a different purpose, and there is good reason not to seek to exclude judicial review.
In the bad old days before we had any administrative law in this country, judges slavishly used to accept that if a Minister thought fit to do something that an Act of Parliament allowed, that was the end of the matter. Judges thought that they had no power to review whether the Minister had gravely misdirected himself on the law or taken account of wholly irrelevant matters, to the grave disadvantage of a citizen who was left with no redress.
All that has changed, not so as to substitute the judge as the decision maker but to acknowledge the judge as a legitimate referee in cases where it is said that the relevant rules have been broken. If judges find that the rules have been broken, they say, "Go back and start again". That development has proved an effective curb on the improper exercise of executive power in public matters. Where a case has required this, it has been resolved in a few hours—with the Court of Appeal also standing by for an immediate hearing.
I was disappointed to hear the Home Secretary—whom I greatly admire—grumbling so soon after entering the Home Office about judges being unelected. No matter what government have been in office, senior judges have been a thorn in Ministers' occasionally errant flesh. Quite right too. Ministers used to say to me when I was the Attorney-General, "Look what your judges have done now". I would reply, "They aren't my judges. They aren't anybody's judges". That was the whole point. If judges were elected, they might seem to be.
Jurisdiction is so vitally important that no precedent at all should be set for excluding it—especially when there is no need. We can bet our boots that any such precedent would be relied upon to justify further attempts at excluding judicial review in future. I concede that the Government are entitled to argue that, under the Bill, the commission could do everything that a divisional court could do by way of judicial review and that an appeal lies with the Court of Appeal—but only on a point of law. We will no doubt examine that matter further in Committee but it is not sufficient reason to make an exclusion that was never made when the commission was established by statute four years ago. Neither the SIAC's own decisions nor those of the Minister were protected by judicial review then and that should remain the position with the new and enlarged jurisdiction conferred by the Bill. We 198 have it on the Home Secretary's authority that not one judicial review of a SIAC case has taken place, so there is no reason to fear factitious duplication now.
I must not stretch your Lordships' patience by further criticism, though one is spoiled for choice—not least, the unexplained exclusion of terrorists concerned only with the affairs of any part of the United Kingdom. I confidently expect that the noble Lord who is to follow me, Lord Jenkins of Hillhead, will deal with that aspect.
I conclude with the fervent hope that the Government will have second thoughts in any event on excluding judicial review—failing which, I hope that your Lordships will invite the other place to think again.
§ 6.39 p.m.
§ Lord Jenkins of Hillhead
My Lords, I begin by adding my congratulations to those that were so warmly expressed by the noble Lord, Lord Waddington, to my noble friend Lord Maclennan of Rogart on his distinguished maiden speech, which combined persuasiveness and elegance to a remarkable degree. He made some neat beginning remarks about how he and Viscount Thurso had changed Houses. Led by that, I am tempted to add a glancing reference to the fact that, had it not been for my noble friend Lord Maclennan, while I might still be standing here this evening and I might still be called Lord Jenkins, I would not be called Lord Jenkins of Hillhead. I owe that entirely to his perception, almost exactly 20 years ago.
I have not troubled your Lordships for many months past, believing that when one gives up a leadership it is best to allow one's successor—and now my successor but one—to get on with it untrammelled. However, as almost exactly 27 years ago, on 28th November to be precise, I introduced a Prevention of Terrorism (Temporary Provisions) Bill—with what turned out to be ironic parentheses—I thought that perhaps I ought to speak.
I confess that I got that Bill through on a still tighter timetable than has been the case here. I moved the Second Reading at 3.30 on a Thursday afternoon and completed all stages in the Commons 17 hours later, having made 14 speeches—short ones, happily—during the night. Sometimes I resisted amendments and sometimes I accepted them, when they seemed to have convincing arguments. The pressure was by no means wholly from a libertarian point of view. There were several who wanted me to turn the BBC into a government agency as far as Northern Ireland was concerned. I resisted that as firmly as I resisted the moves to weaken the provisions. Your Lordships sat especially early on the Friday morning and the Bill was ready for Royal Assent at 9.30 that morning.
The balancing factor is that we made it clear that, as the Bill had been introduced rather hurriedly, it could not continue except with primary legislation—not an executive order—six months later, when there had been time for reflection and consideration.
199 In view of all that, it would not be possible for me, without the most blatant hypocrisy—one tries to avoid it in its blatant form, at any rate—to denounce the principle of a legislative response to acts of terrorism or its accelerated passage through Parliament. However, I have a number of reflections from that experience, not all of which may be entirely welcome to the Home Secretary.
While the atrocity in the wake of which I was acting was of an immensely smaller scale than that of September 11th, it was much nearer to home. The two explosions in Birmingham pubs caused 24 deaths and nearly 200 serious injuries, almost entirely among young adults. They were part of a series of events, many of which were in Birmingham. The Guildford bombing had also happened only six weeks previously. Birmingham was not only the second city of England; it also happened to be the city of the constituency of the Home Secretary of the day—though I hope and believe that that did not influence my judgment.
None the less, I did not then contemplate any return to the 1971 policy of indefinite internment without trial, which had become heavily discredited and which, in retrospect, is undoubtedly thought to have exacerbated rather than contained the IRA terrorist threat. The new powers taken then were much more precise and limited.
First, the police were allowed to detain a suspected terrorist for up to 48 hours on their own authority and then for a further five days with the specific authority of a Minister of the Crown. Secondly, much tighter controls at the points of entry for Northern and southern Ireland were introduced. Thirdly, and most controversially, the Home Secretary was given powers to exclude from Great Britain—that is, just from this island and not from the United Kingdom as a whole—citizens of the Republic of Ireland or those originating in Northern Ireland had they not been domiciled here for 20 years if it appeared to him, on advice, that they were, or were likely to be, involved in acts of terrorism. However, two independent assessors were appointed to whom representations could be made.
Those were the practical measures. There was another that was largely for show: making the IRA an illegal organisation. It had not been illegal on this island before. Hitherto it had been able to engage in marches and funeral demonstrations.
Looking back, what do I think of that Act? I think that it helped to steady a febrile state of opinion at the time and to provide some limited additional protection. However, I doubt that it frustrated any determined terrorist. I think that it made it possible to defeat what looked at first as though it might be a strong mood to restore the death penalty for terrorist offences, which I believe would have greatly exacerbated the problem from a martyrdom point of view. The fact that we were able to win that vote only three weeks later with a crushing majority in the House of Commons owed a great deal to the courageous support of the late Viscount Whitelaw, who had become convinced during his time in Northern Ireland 200 of the disastrous effect of the death penalty for terrorist offences. I do not take the same view as the noble Lord, Lord Waddington, on that issue.
If I had been told at the time that the Act could still be on the statute book 20 years later, I would have been horrified. It is often the provisional that endures. We should be very careful about justifying something on the grounds that it is intended to last only for a short time.
There is a wider consideration. Not at all as a direct result of that Act, but associated with the mood of that time there occurred some of the worst miscarriages of justice in the recent history of British criminal law. Guildford and Birmingham became notorious names in that context. There was undoubtedly a certain atavistic desire to get any Irishman and convict him. That affected police, prosecuting counsel, judges and juries. As a result, several years in the 1980s had to be spent on a campaign under the inspired leadership of the late Cardinal Basil Hume, supported by the noble Lord, Lord Merlyn-Rees, and myself, as well as those two towering legal eminences, the noble and learned Lords, Lord Devlin and Lord Scarman, to right some of those appalling mis-convictions.
In reaching my conclusions, I owe your Lordships a great apology. I am afraid that I cannot stay for the end of the debate, as I have a compelling engagement. I hope that I shall be forgiven for that. I much dislike having to leave early.
At a time of threat, to be seen to be doing something rather than nothing is a natural human—and perhaps particularly ministerial—reaction. But something, anything, is by no means always better than nothing. You can do more harm than good. It should be very carefully directed at the threat and not splayed over a wide area of increase in executive powers. It should be done with a wary consciousness that what starts as a temporary measure is only too likely to last. Above all, something should be done within a framework of respect for the rule of law and an awareness of the need for those at the hinge point between the security of the state and the freedom of the individual—and no one is more at that hinge point than the Home Secretary of the day particularly when there is public clamour—to remain as calmly judicial as possible. I have sympathy for Mr Blunkett with the conflicting pressures upon him. But I cannot endorse this Bill as it comes unamended to your Lordships' House.
Looking back, I say this. I do not exactly regret having introduced the Prevention of Terrorism (Temporary Provisions) Act 1974. I believe that it was inevitable in the circumstances. But it is not one of the legislative measures of which I am most proud.
§ 6.51 p.m.
§ Lord Rogan
My Lords, as an Ulster Unionist, I am always keen to give my support to any measure which seeks to tackle terrorism within our borders. This occasion is no different. That said, I have to tell noble Lords that this Bill does not in my view go far enough.
201 Parliament was recalled at the beginning of September 1998 to debate the Criminal Justice (Terrorism and Conspiracy) Bill. This legislation, your Lordships will remember, was deemed necessary by the Government following the terrible atrocity just over two weeks earlier in Omagh. Twenty-nine people died as a result of that Real IRA bomb attack, and many hundreds were injured.
The mood across the country at that time was one of great sadness coupled with understandable outrage. There was also a desire to do something—anything, almost—to ensure that the perpetrators of the act were brought to justice and that the distressing scenes which we witnessed could never be repeated. However, more than three years on, I must report to your Lordships that not one person has been convicted under the Criminal Justice (Terrorism and Conspiracy) Act 1998. I therefore respectfully ask the Government, as we prepare for the Committee stage of the Antiterrorism, Crime and Security Bill, to listen carefully to the arguments that are set out in this Chamber and to study closely the amendments that are being tabled by noble Lords in all parts of this House in an attempt at improvement. As the Minister is no doubt aware, rushed legislation is very often not effective legislation no matter how sincere the Government's intentions may be.
My principal difficulty with this Bill is the failure to extend it to Northern Ireland. This was referred to by the noble Lord, Lord Dixon-Smith. The repercussions of this are potentially very great indeed. Last week my party leader, David Trimble, and the leader of Her Majesty's Opposition, wrote a joint article which appeared in the Daily Telegraph under the heading,There's no such thing as a 'good terrorist', Mr Blair".I am sure that every noble Lord in this Chamber will agree with that view. However, the Government, in excluding domestic terrorists from the provisions of this legislation, have unfortunately left themselves open to the charge of differentiating between terrorists.
Clause 21(4) of this Bill states that,'international terrorism' does not include terrorism concerned only with the affairs of a part of the United Kingdom".I find that phrase not only inaccurate but also rather offensive.
Despite the protestations of Gerry Adams that the actions of the IRA terrorists and the actions of A1'Qaeda terrorists are somehow different, I fail to see the distinction. The Government try to justify their decision to exclude so-called "domestic terrorists" from the Bill on the grounds that the IRA is on ceasefire. Yes, the IRA may well be on ceasefire—of a sort—but the Real IRA is most certainly not on ceasefire and neither for that matter are the UDA, the UFF or the LVF. And, yes, while IRA volunteers over recent years have not been as active in the United Kingdom as previously, we now know that they have been keeping themselves occupied in other parts of the world.
202 As Mr Trimble and Mr Duncan Smith pointed out in their article,The links between international terrorists and Irish republicans are well-established. In August, three senior republicans were apprehended in Colombia, suspected of collaborating with the narco-terrorist group FARC. Much of the IRA's arsenal results from its connections with the Arab world, specifically Libya. Prominent members of the Basque separatist movement, ETA, have been regular visitors to republican conferences over the years".I think the problem is obvious to see. I simply find it rather disturbing that our Government, particularly our Prime Minister, can spend so much time flying around the world seeking to bolster the international coalition against terrorism, yet are apparently comfortable in excluding from the provisions of the Bill terrorist groups which operate on our very own doorstep.
It has been well-publicised that my party leader has signed a letter to the Home Secretary, David Blunkett, seeking the extension of the Anti-terrorism, Crime and Security Bill to Northern Ireland. However, the media seem largely to have ignored the fact that the letter was also signed by the Deputy First Minister of Northern Ireland, the new SDLP Leader, Mark Durkan. That indicates, as we all know, that the desire to see the Bill extended to the Province is not just a Unionist demand. It is a wish shared on both sides of the political divide in Northern Ireland. I trust that the Minister will take that into account when we begin the Committee stage of the Bill.
Before resuming my seat, I want quickly to flag up one other issue which I hope we can discuss in some detail in Committee. I am referring to the admissibility of wire-tap evidence in bringing prosecutions against terrorists. Any noble Lord who has turned on the radio or television in recent weeks to be updated on the current situation in Afghanistan will no doubt have encountered a procession of individuals talking about the importance of intelligence in this so-called war against terror. Some of those individuals are well qualified to talk about such matters; some are perhaps not so well qualified. But all of them are right.
When the Prime Minister decided that it was right for the United Kingdom to stand shoulder to shoulder with the United States in the action against Osama bin Laden and his accomplices in both A1'Qaeda and the Taliban, he did so primarily on the basis of a dossier of information provided to him by the intelligence agencies. One can be certain that wire tap evidence formed a large proportion of the intelligence contained in that dossier. Surely if our Prime Minister and this Government can decide to send our troops into battle on the strength of such information, then it can only be sensible for it to be used to bring terrorists to justice in our own courts.
§ 7.1 p.m.
§ Baroness Whitaker
My Lords, the reports my noble friend the Minister listed in his opening speech, including that of the Joint Committee on Human Rights of which I am a member, induced undertakings which go some way to improve the safeguards in the 203 Bill. They should have the effect that when we work to defeat international terrorism, we do not disproportionately undermine from within the human rights framework of democracy which terrorism aims to destroy.
I wish briefly to refer to three parts of the Bill: those dealing with detention, religious hatred and corruption. The Joint Committee report makes other points and I look forward to seeing the government response to all of them.
On the difficult clauses which set up a system of detention for suspected international terrorists who do not choose to leave the UK, several distinguished and learned noble Lords have already spoken and more will speak later. I shall therefore simply refer to an illuminating context which I heard last week from the president of the European Court of Human Rights, Lazius Wildhaber, when he gave the Paul Sieghart lecture to the British Institute of Human Rights.
Judge Wildhaber described the European Convention on Human Rights—the foundation of our own Human Rights Act—as,protecting democracy by recognising the state's right to counter terrorism".Hence the facility to derogate from Article 5 of the convention—that dealing with the right to liberty—but not from Article 3 which absolutely prohibits despatching anyone to torture or to other inhuman or degrading treatment. The purpose of the article enabling derogation, he said, was to,balance the vital needs of the state with the strongest protection of human rights",in the circumstances prevailing. Again, he stressed that to counter terrorism under the convention, rights may be curtailed to the extent necessary. The point at issue in relation to the detention of suspected international terrorists, therefore, is not that their rights are curtailed, but what curtailment is necessary and what is the balance.
In that connection I particularly welcome the positive response made by my right honourable friend the Home Secretary to doubts raised in the Joint Committee about the objective justification for ordering a suspect to be detained. He confirmed that in another place by moving amendments to include the words, "reasonably" and "reasonable grounds for a belief", which allows the Special Immigration Appeals Commission to assess judicially the grounds for detention. As Judge Wildhaber also said,The enemy of rights is arbitrariness".My right honourable friend also promised to define more clearly "links with" terrorists as grounds for detention. That will be important.
The "sunset" clause, which follows representations from the Joint Committee and others, is also to be welcomed, underlining as it does the essentially temporary nature of any derogation from human rights' obligations because of circumstances which may and, we hope, will change.
I welcome Part 5 of the Bill extending the prohibition on inciting racial hatred to religious hatred, including inciting hatred against people 204 because they have no religious belief, and not only because it remedies the unfair anomaly which my noble friend described. When I was chair of Camden's Race Equality Council, I came across many examples of abusive hatred and discrimination, particularly but not only against Muslims resulting in intimidation, assault and terror against children as well as adults.
I welcome the statutory affirmation of equality for all religions and beliefs. As someone of Jewish background who is nevertheless a humanist, I am also glad to see my non-religious creed on a level with other beliefs, I think for the first time in English law. That provision implements in practice the right we all have to observe our religious belief in freedom, and now is the right time to do it because it follows the acts of terrorism that have increased violent prejudice and cause a present danger.
As for freedom of speech and the freedom to make jokes, surely one of the tests of the mature democracy referred to by the noble Lord, Lord Maclennan of Rogart, in a notable maiden speech, is that we can all understand what is different about "inflammatory" and "critical" or "satirical". It is the action of a civilised society to define that borderline when there are pressure points. Only a week or so ago the United Nations Human Rights Committee urged the UK to extend its criminal legislation to cover offences motivated by religious hatred. Even if such a provision were rarely enforced, the fact that it is on the statute book sends a signal that beliefs are equally respected in this country. That being so, I suggest it is anomalous to retain the common law offence of blasphemy against Church of England beliefs and, following my right honourable friend Frank Dobson in another place, I hope we can adopt the amendment drafted by the Law Commission which would repeal it.
Finally, I greatly welcome Part 12 of the Bill, which realises the much-heralded implementation of the OECD Convention against Bribery of Foreign Public Officials. I do so in conjunction with Transparency International (UK) on whose advisory council I sit. It has been argued that bribery has little to do with terrorism. But clandestine funds and money laundering have a very close connection with terrorism, as the noble Lord, Lord McNally, said. Corrupt governance is where terrorism flourishes and to undermine the systemic causes of terrorism we need to rely on system changes rather than fire-fighting and bombs. The measures which enable the tracking of bribe money are those which can identify and block the resources of international terrorists.
I said that the Bill aims to implement the Convention. It does so, as my honourable friend Beverley Hughes admitted in another place, minimally. I think we could, with very little adjustment, do even better. The Bill defines foreign public officials by applying the 1889 UK law definition of a public body to the foreign equivalents; that is, local authority and government officers. This leaves out anyone holding legislative office, or officials or agents of public enterprises or public international organisations. The OECD convention covers all such people, and for good reason. It would be easy to 205 amend the Bill to provide for what the OECD intended. It is very good news that foreign bribes will, in effect, no longer be tax deductible; but it would also be helpful to extend the jurisdiction of the Serious Fraud Office expressly to include serious corruption offences and to remove the requirement for the consent of the Attorney-General to institute proceedings, as the OECD advocated. None of those points detracts from the considerable achievement of bringing these provisions on to the statute book.
In conclusion, I am heartened by the willingness of my right honourable friend the Home Secretary and my noble friend the Minister to listen to the voices of human rights commitments as our legislation takes the fateful step of protecting democracy by means which include the temporary curtailment of rights. I hope the listening mode will continue through all the stages of the Bill. I return to Judge Wildhaber:Terrorism is anti-democratic. But democracy should neither be under-protected nor over-protected".
§ 7.12 p.m.
§ Lord Selsdon
My Lords, the noble Lord, Lord Maclennan, obliquely referred to one of the origins of terrorism being the revolution in France which led to the heads of large numbers of the aristocracy being removed at that time. Today, the government adopt legislation to remove Members of your Lordships' House, often at will. However, there is no similarity between that and terrorism because legislation cannot in itself remove terrorism.
Noble Lords will know the origins of terrorism. I believe that the strict definition of the word is "government by intimidation" and that a terrorist is someone who seeks to promote his views by intimidation. I find it difficult when I look at this piece of legislation not to experience a certain anxiety. I get what the Americans call "goose bumps". There is something wrong with it. Yet I pay tribute to all those who worked long hours and long nights to put together what I regard as an admirable White Paper. However, as a piece of legislation it has much missing.
I turn to what I regard as the most important commodities that are available to us in this country: freedom and privacy. But both suffer if they are confronted with fear. I believe it was Thomas Carlyle who said that the first duty of man is the subduing of fear. At this time I believe that the first duty of government is the subduing of fear. We have little knowledge of the impact of 11th September, but previous events caused anxiety. The English bombing of Libya led to many people refusing to come here because they thought that Libya could bomb England. The same applied to Baghdad.
I have no legal qualifications in this area and I am not learned. However, during my working life I have been lectured to by many third, second or even first world governments with firmly held views and vociferous criticisms. They used to ask, "Why, when you are our friends, do you harbour in your own country people who wish to overthrow us not democratically but by violence?" That has been the 206 case for many years. Some of those people pass through Croydon. I should declare an interest as Baron Selsdon of Croydon. I should have preferred a title drawn from one of my old family relationships in Scotland but that was not in my gift.
I refer to the phrase, "His presence in the United kingdom may be prejudicial to public order and good discipline". I understand that we have an awful lot of people whose presence in the United Kingdom could be prejudicial to public order and good discipline. I do not see how this piece of legislation as currently drafted will remove fear and take us much further forward. I recognise within it the hand of American legislation where bribery and corruption and other ingredients are included. I ask myself why it is all necessary.
Let us look at the financial world in which I have worked for years. There is plenty, probably too much, legislation which requires certain reports and returns to be made under the European convention of 1993 on money laundering and forfeiture and under recent legislation. That involves much bureaucracy and causes much concern and is an extraordinary invasion of the rights of the individual. If someone has not paid his telephone bill or filled in the appropriate forms, he is told by his bankers, who may have looked after him, his family, his ancestors and his children for years, that their hands are tied unless he fills in those forms.
Here I come to the basic principle of banking which is often forgotten; that is, the source and application of funds. I refer to the duty of care that a bank or anyone in the financial institutions has to his client. That includes confidentiality. It also includes that lovely phrase, "Know thy customer". Before we had "Big Bang" and a widening of the financial institutions, everyone had a hank manager whom he or she had usually met. Now one picks up the telephone, dials a number and is told to press one of a series of buttons. I remind your Lordships that should they wish to speak to someone they should never press a button. Ultimately, they will get a voice. However, there is no longer a manager whose duty is to make sure that he protects the bank and his customers. Many people used to say of someone, "He does not bank with a respectable bank and, therefore, he is not trustworthy". We need to say to those involved in the banking system, "It is up to you now to follow that philosophy of knowing your customers" rather than try to increase the legislation in that area.
These days you can move money around in a way you never could before. You can swap things. You do not actually have to have cash passing through accounts. You can barter. But, at the end of the day, is terrorism about money? What was the cost of taking a small penknife on a plane? What is the impact of that and how much funding is needed in this country? Anyone can be a terrorist and create fear.
Here I move on to another area. What is the fear? It is not necessarily the fear of being blown up. It begins with anxiety. Anxiety then becomes fear and fear becomes terror and terror becomes panic. Fear is often fear of the unknown. Here I come to the horrendous 207 schedule of viruses and bacteria that have scared the living daylights out of so many people. However, I could not even see smallpox among them.
I hope that I may make a suggestion to the Government. Most of those bacteria can be treated in one form or another, although viruses are not so easily treated. I hope that the Government will do me the favour of writing me a long letter which I could circulate widely and which perhaps could even be incorporated in an announcement in the newspapers. The letter should list the diseases in the schedule, the cures, the people who have them and should tell people not to worry so much. People are worried and I believe that the young are more worried than we are. Of course, taking into account their average age, I assume that at one time or another noble Lords have all been vaccinated against smallpox. Certainly we have a long life expectancy and are probably immune to many of the diseases. But it is disease that causes fear.
I move on to another concern which many of us cannot quite make out at the moment. I refer to nuclear and other types of attack that are mentioned. What is the fear and how can the Government alleviate it? The Government cannot remove fear by this Bill, but they can remove it by communication. I am sorry that no right reverend Prelate is with us at present because one debate in this House moved me greatly. It was initiated by the most reverend Primate the Archbishop of Canterbury and was, in effect, on the role of religion in the creation of war or the creation of peace.
As your Lordships know well, half the world is made up of people of the book: those of Jewish faith, who are the oldest; those of Christian faith; and those of Muslim faith. All have a community of interests and all recognise each other. The belief which is at large at present that it is all right to go out and kill someone, after which one will go to heaven, is not accurate. I suggest that the leaders of those three faiths take a leaf out of the book of His Royal Highness Prince Charles and start to provide a little more explanation. In my view, if a Muslim were to study the Koran correctly, he would see that what is being proposed at present is against the Koran. Therefore, I believe that some of the problems can be cured by providing information.
I do not understand many of the other elements of the Bill. They are complicated and cause me considerable anxiety. In the debates that are to follow in Committee, I hope that the Government will end up with something that is workable. I wish them well anti commend them on their action. However, at present it may not be necessary to move quite so quickly but: merely to indicate to people the direction in which we are moving.
§ 7.22 p.m.
§ Lord Dholakia
My Lords, all of us, irrespective of race, colour, religion or nationality, are affected by the events of 11th September in America. As my noble friend Lord McNally said, for that reason the objective of the Anti-terrorism, Crime and Security Bill is not in 208 dispute. All reasonable people will support measures that bring greater security to people living under United Kingdom jurisdiction. But it would carry more weight if the provisions were commensurable with justice and proper scrutiny.
No one disputes that the events that took place in New York and Washington were an attack not only on the civilised world but also on our democratic values. We need to look beyond the revulsion, hatred, fear and anger. We must respond, and this Bill is no exception because terrorism erodes our own liberties. The principles of equality and liberty are rightly cherished. They had to be fought for and, in many parts or the world, including Afghanistan, they have still to be won. For that reason, we must not allow terrorism to control our ideal of an open society which values freedom, justice, liberty and peace. That is why we are concerned about the wide and undefined discretion of the Home Secretary.
This country has a sound record on human rights, both nationally and internationally. We set standards which other countries follow. The measures described in the Bill should be explicit about judicial scrutiny by way of judicial review. The powers of the Secretary of State are wide and affect the rights and liberties of individuals. Therefore, it is important that decisions are reviewed both judicially and administratively so as to ensure that justice, which in some cases may not seem to be done, can be challenged by other means.
I shall concentrate on only two measures in the Bill. One relates to the denial of access to the asylum procedure for a suspected international terrorist. Is it not a cornerstone of our justice, and in this Bill is it not vital, that those who are suspects and who are detained indefinitely have a right to know the full nature of what is alleged against them? What safeguards are in place to ensure that a regular review takes place of those who are detained?
My second point relates to incitement to religious hatred. I shall deal with that matter later. Needless to say, I have the support of many Back-Benchers on the government side of the House. I am delighted also that the noble Lord, Lord Campbell of Alloway, broadly shares my view. I look forward with great interest to his contribution.
The Bill will be judged by a number of criteria. The main one which concerns us all is the balance between protecting our freedom and ensuring that our hard-won liberties are not sacrificed by the threat of terrorism. This is where I part company with the Minister. I am afraid that the Bill has lost that balance. In a way, it is a victory for those who are out to destroy our civilised values. For that reason, we should send a clear message to the terrorists, both here and on the international scene, that we shall deal with them but shall not sacrifice our freedom and liberties, which are the essence of our parliamentary democracy. To do anything less is to offer terrorists precisely what they set out to do.
The United Kingdom Government supported the 1951 Convention on Refugees. The Bill as drafted would lead to the denial of access to full and fair 209 procedures in accordance with that convention. I am told by the UNHCR that there is no need for such a provision because the international refugee instruments do not offer protection to persons who have committed acts of terror or extreme violence. Will the Minister confirm that that is so? If it is, why do the Government need that measure?
Perhaps I may refer to Clauses 34 and 35. I hope that I have referred to the correct clause numbers; they seem to change fairly frequently. They are contrary to the principles that are central to the 1951 convention. Clause 34 infringes the principle that a person who requests asylum should be given access to fair and effective procedures for determining their refugee claims. It is a matter of serious concern that such infringement will arise when asylum appellants before the Special Immigration Appeals Commission are denied consideration of their asylum claim on account of a certificate issued by the Home Secretary. For the SIAC appellants concerned, the application of the 1951 convention would be suspended.
I was deeply moved by the contribution made by the noble Lord, Lord Corbett of Castle Vale, to the Human Rights Act 1998 (Designated Derogation) Order 2001. The noble Lord reminded us that in Parliament we all have a duty to do what we can collectively to safeguard the safety and security of citizens. But we also have a parallel duty to safeguard the human rights of citizens as well. The noble Lord reminded us of the Gulf War, when 50 Palestinians living in the United Kingdom were detained because of an alleged link to terrorism. The same happened to many Iraqis and Arabs. All were released without charge and many claimed asylum in the United Kingdom. To rub salt into the wounds, they even had to pay a financial contribution towards wrongful detention.
I have never accepted that the Government know best. They got it wrong during the Gulf War and they will get it wrong again. If people living in the United Kingdom are suspected of being terrorists or are agents of terrorists, why have we allowed them to live in peace and security in this country for so long? Why did it take the events of 11th September to fish them out? Why did we not use the powers in Section 56 of the Terrorism Act to deal with those who are involved in terrorist activities or who incite others to do so?
The Bill contravenes the requirement that asylum applicants are entitled to have all aspects of their claims considered. In any event, it provides that, where Article 1(F) or Article 33(2) are at issue, no consideration should be given to whether the asylum seeker has a well founded fear of persecution. Any threat to the asylum seeker's life or freedom would he disregarded as Clause 34, which is limited to SIAC cases, and Clause 35 apply to all asylum procedures.
Perhaps I may explain why we on these Benches are concerned. The effect of the Bill would be to suspend the application of the 1951 convention and dispense with the long-established principle of due process, fairness and natural justice in asylum procedures. Those clauses undermine the letter and spirit of the 210 convention. The 1951 convention as it currently stands is adequate to award the grant of protection to a person involved in acts of terror or serious violence. Therefore, there is no justification whatever for proposing changes to asylum procedures in order to address questions of national security.
I turn to Part 5, which relates to racially aggravated offences—assault, public order offences, criminal damage, harassment and attacks that are aggravated by religious hostility. The provision concerning incitement to racial hatred will be extended to cover religious hatred. The provision goes much further than the domestic situation and includes cases in which hatred is directed against groups that are abroad.
The Home Office seems to have woken up rather late in the day. I fail to understand why that provision forms part of this emergency Bill. In a debate on the Criminal Justice and Public Order Bill as long ago as June 1994, my noble friend Lord Lester of Herne Hill said that with the resurgence of anti-Semitism and in the light of the settlement in this country of a large Muslim population and other religious minorities, it was particularly important that the law should signal Parliament's recognition of groups that define themselves by their religious beliefs and that the law should offer them some effective protection against words or conduct that deliberately stir up hatred against them because of their beliefs.
At that time the Runnymede Trust published the report of a distinguished commission, which was chaired by the right reverend Prelate the Bishop of Oxford. It called for the creation of a law on incitement to religious hatred in mainland Britain, as there is in Northern Ireland.
After all these years, the Government have seen fit to introduce a measure that we broadly support, but which should not be part of the anti-terrorism Bill. It requires detailed consideration and it should take into account not only incitement but also matters relating to religious discrimination. Matters relating to cases in which the hatred is directed against groups abroad will immediately bring the Government into the politics of the Subcontinent and the Middle East.
Has the Minister given any thought to incitement against, for example, the Ahmedian community in Pakistan, which was perpetrated by someone from this country? What impact would that have on the Muslim community in this country? The last thing that we want is for those battles to be fought on the streets of London.
Creating new offences will never on its own protect members of racial or religious groups from violence and abuse. We need seriously to examine whether the police, in investigating an offence involving the incitement of hatred or one that may be racially or religiously aggravated, look for and produce evidence, and whether the Crown Prosecution Service adequately presents that evidence.
When I served on the Home Office working party on racial attacks and harassment, we constantly received complaints involving the distrust of criminal justice agencies, particularly the CPS, and about the need for 211 such agencies to recognise racial aggravation. There was also a concern that the CPS is more willing to prosecute members of ethnic minorities than members of the white majority who commit racist crimes. In most cases. the CPS fails to recognise racial motivation as an aggravating factor.
The record so far relating to incitement to racial hatred has been very poor. The situation involving religious hatred is no different. In a debate on 21st November, the right reverend Prelate the Bishop of Oxford pointed to the difficulty that since 1988—more than 12 years ago—only 42 defendants have been successfully prosecuted and that in 1999 there were only four prosecutions, which resulted in only three convictions. Anyone who saw last Sunday's "Panorama" programme on BBC1 will vouch that extremists circumvent the laws so that they can carry out their vile propaganda against other minorities.
There is also concern about the security of all communities in Britain. The Government have rightly recognised that, but they have done so in the wrong context. Religious hatred, particularly when it is directed at minorities, has existed from the time when minorities set foot in this country. The events of llth September are not required to recognise that. We on these Benches find it difficult to accept that the Bill is the right place for such legislation. We are not alone in that—even the Commission for Racial Equality argues that a distinction can be made between anti-terrorism measures that can be justified as necessary in the current emergency situation and those that have wider implications and which should be given greater consideration in Parliament.
When will the Home Office and Downing Street learn that these measures are resented not because they are inappropriate but because they patronise ethnic minorities and the Muslim community in particular? My advice to the Minister is that religious hatred is not new. I could have told him about that when I first arrived in this country in 1956. The matter needs to be looked at not in a piecemeal fashion but as a comprehensive measure that will take into account the prohibition of direct and indirect discrimination on grounds of religion or belief. We need not worry about the statutory definition of religion or belief because practices that are contrary to human rights, as guaranteed by the Human Rights Act, will not be lawful.
The Minister would have our full support if legislation that was separate from the anti-terrorism Bill was involved. That would allow your Lordships' House seriously to consider what was appropriate and how we could command the respect of all citizens. To do otherwise smacks of the Jo Moore syndrome; that is, in this case, to clear the Home Office cupboard while the going is good.
It is not the Government's job to interpret other people's cultures. I refer to facial coverings and so on. In the 1960s, we received international condemnation when some women from the Subcontinent were subjected to virginity testing at Heathrow Airport. The single error of subjecting an individual to having to 212 remove facial covering—that is a deep cultural value—could damage relations between racial communities for years.
Finally, I am officiating at a major function tonight, which was planned about six months ago. I ask noble Lords to accept my apologies for not being in the House later—I shall not be able to hear subsequent speeches. However, I shall make up for that by reading Hansard tomorrow.
§ 7.36 p.m.
§ Lord Beaumont of Whitley
My Lords, this is a Bill in response to a crisis. There are golden rules about such legislation, which is usually passed very quickly through your Lordships' House and another place. If those golden rules are not observed, such legislation is usually regretted afterwards. That is probably particularly true with Bills affecting civil rights and especially true with Bills stemming from the Home Office. There is plenty of evidence for that from the Defence of the Realm Act onwards, and probably from before that.
One of the golden rules is that the Bill should be concise, clear and deal only with the crisis. It should not therefore be a vehicle for the Home Office to shove in various measures that it has up its sleeve for other purposes. The noble Lord, Lord Waddington, spoke informatively about that. This Bill, on the contrary. as many noble Lords have pointed out, is large. It has 165 clauses and several schedules. In parts it is not at all clear and it deals with many matters t hat are not just to do with terrorism.
The Green Party realises the need for the Bill and supports it, but we are concerned about certain threats to civil liberties. Although members of the Green Party are totally law-abiding people, we are given to protesting about some of the arrangements of those in power. As a result, we shall seek to probe and perhaps move amendments to certain clauses, which I shall now list.
The first is Clause 92, which deals with photography and involves the power to pass on photographs of people who are not guilty of any crime to practically anyone, including foreign governments. Consider the purposes for which photographs of Kurdish protests in this country might be used if they were passed on to the Turkish Government.
The second is Clause 94, which involves the power to require the removal of disguises. We do not challenge the principle of asking people to be recognised, but we wish to qualify the way in which that is done, because it is often misused and people are often arrested for not removing their face-gear when they have not been given proper time in which to do so.
The third is Part 8. We want to clarify whether "fissile material" includes nuclear waste of the kind that passes regularly through London by rail, and of which a great many of us disapprove and object to intensely.
213 The fourth is Clause 116. We believe that the need to report plans should be limited to serious cases and that one should not be arrested for not reporting the kind of light and possibly idiotic conversation which may take place at a dinner party.
We support the Bill but we want to make certain that it does not inadvertently remove important civil liberties. During the forthcoming days I look forward to working closely with my old colleagues in the Liberal Democrat Party on those issues and with other noble Lords in other parts of the House.
§ 7.41 p.m.
§ Lord Brennan
My Lords, this is probably the most wide-ranging Bill in peacetime in its curtailment of traditional principles and what we thought to be fundamental human rights. However, I do not reject it for that reason. I simply say that it should be investigated with particular care.
Its objective, according to ministerial statement, is to counter the threat of international terrorism. The executive wishes to act and to do so now. It is for Parliament to revise and to do so thoughtfully. It is humbling but reassuring for a comparative newcomer to your Lordships' House to have listened to the maiden speech of the noble Lord, Lord Maclennan, and in particular to the noble Lord, Lord Jenkins of Hillhead, and the noble and learned Lord, Lord Mayhew of Twysden, who introduced into the debate enormous experience and judgment. When the executive wants to act and Parliament needs to revise, they are the kind of voices which help to ease the inevitable tension.
It would take a particularly uninquiring mind totally to accept the Bill or totally reject it. There is much to be welcomed, much to be doubted and much, we hope, to be changed. I shall put to your Lordships for consideration at this stage and for ministerial consideration three aspects of the Bill which illustrate the range of its diversity. First—this may surprise many noble Lords—I ask whether the Bill has gone far enough. Secondly, can it be balanced in its essential Part 4, which deals with detention without trial? And, lastly, has it gone too far in Clauses 110 and 111?
I turn to the first question: has it gone far enough? Most reasonable observers would be of the opinion that one of the most effective weapons in suppressing terrorism is to suppress its means of being financed. That requires not only national legislation but international action. I particularly welcome Parts I and 2 of the Bill and their inter-relation with the relevant provisions of the Terrorism Act. However, I must point out to the Minister and to the House that in 1999 a draft international convention was put before the United Nations. Its objective was to suppress the financing of terrorism. Our ambassador is in charge of the implementation of the Security Council resolution of 28th September, a principal component of which is that countries should report back in December as to the action they have taken to suppress, among many things, the financing of terrorism.
214 I invite the Minister to tell us in detail—if not now, certainly in Committee—whether the Bill combined with the Terrorism Act fulfils Article 18 of that 1999 convention, the general purpose of which is to ensure internationally as well as nationally the tightest control of financing arrangements which terrorists can use through normal banking and financing procedures. Most people in the public arena would think that if we were to take action on that front we would have done something extremely important and significant. That is a general conclusion. Has the Bill gone far enough? I await explanation about my suggestion regarding the convention.
The second question is how we can best achieve a balance with regard to Part 4. It offends the sentiment of anybody who believes in human rights to have a concept in a Bill which involves detention without trial, but sometimes that is unavoidable. Here we have the situation where those suspected of serious international terrorist crimes cannot be deported back to the relevant country where they may be tried for such crimes because to do so would expose them to death or torture and thereby breach their human rights. To me as a citizen, not as a lawyer, it is an absurd proposition to suggest that such a terrorist can remain at large in this country because of that risk or because he can find no other country to go to. I agree with the noble and learned Lord, Lord Mayhew, that in the public mind that state of affairs would require the type of action the Government are undertaking because there is no alternative.
However, I further agree with the noble and learned Lord, Lord Mayhew, that in designing a system to counter that risk such a system must involve adequate legal protection and, at the least, the provision of judicial review. If that is introduced, the balance is preserved. I await with interest an explanation of why that legal protection is either inappropriate or unnecessary. It is not legal semantics; it is a protection. Even if Part 4 of the Bill passes and there is a derogation, the law of the European convention will prevail in the sense that the Government may have to answer for the provisions if they are not reasonably balanced.
The law will prevail for this potential reason. The Government invoke the derogation from the Act because of a public emergency that threatens the life of the nation. In taking any necessary steps because of that objective they must act only to the extent strictly required by the exigencies of that situation. Therefore, the Bill should go no further than is required by those exigencies. If it goes further—we shall examine that in Committee—the case of Aksoy v Turkey a year or two ago shows that even where there has been a derogation, an affected party can go to the European Court. That court will effectively determine whether the government in question have followed the requirements of the convention in the way I have described. As I said a few moments ago, there may come a time when the Government have to explain themselves to that court if a balance is not preserved.
215 My third concern goes to the opposite extreme. Has the Bill gone too far? I am a convinced European. But I value the criminal law of my own nation because it reflects the culture, the history and the standards of my own people. The right to trial by jury and the principle of habeas corpus are criminal law principles with which I am acquainted and which I value and understand.
Two years ago a Select Committee of this House rejected the European Commission's proposal for a corpus juris. For the very reason that we can be Europeans but still preserve our national criminal law system. I know of no senior lawyer in this country who advocates a corpus juris. That is not to say that proper provision should not be made to implement the third pillar provisions as and when they arise. The critical question is how to implement them. I find it constitutionally difficult to accept that a meeting of Ministers in Europe can decide what the criminal law of this country will be and that it should then be enacted by secondary legislation. I find that constitutionally difficult to accept.
How can that state of affairs be avoided? The third pillar includes, as one of its major objectives, dealing with terrorism. Can it be plausibly argued that such a serious criminal offence with such serious penalties can properly be dealt with in the process I have just described and by secondary legislation, as to the offence as to the standard required for conviction, and as to the sentence then to be imposed?
I had thought when I joined this House that Parliament's functions included a primary fundamental function to make the criminal law of this land by primary legislation. I remain a convinced European. I invite consideration of this question. I ask whether such a vitally important constitutional matter is properly to be included in the Bill in the terms in which it is presently included. The Bill, I fear, goes too far.
I launched these three points by complaining that an uninquiring mind would either be for or against the Bill. I hope that my inquiring mind is not proved overly fertile if I say it is a Bill that should progress in some parts, should be balanced in others and should be very much questioned in the third sector that I described.
I said that Parliament should exercise a revising function. It should do so with intellectual rigour because of the vital importance of the objective and the means being sought to reach that objective. But that intellectual rigour should not become intellectual rigidity either by those who will propose amendments or by those on the Front Bench who will seek to resist them. Determination can rapidly become obduracy and obduracy can rapidly sink to an obscurantist failure to appreciate the merits of the opposite side's argument.
It was very important (was it not?) for the noble Lord, Lord Jenkins of Hillhead, to remind us that in the 1970s, which I remember well from doing some of those terrorist trials, the atmosphere was so dangerous. But even then, as Home Secretary in the 216 17-hour passage of the Bill in 1974, he listened to and was ready to accept sensible amendment. Surely that will arise in the passage of this Bill.
In one of our debates about the state of affairs in Afghanistan in September and October, my noble and learned friend the Leader of the House reminded us that there would come a time when legislation such as this would fall to be considered and revised. He prudently reminded us of the terrible example of the Official Secrets Act. That Act, swept into force and eternally vilified thereafter, is still difficult to get off the statute book. It was a wise judgment which I am sure will be reflected by the Ministers on the Front Bench handling the Bill.
At the end of the day we all approve the objective, but we all, as parliamentarians, want to conclude our discussion on the Bill satisfied that we have engaged in reasonable and intellectually mature debate that balanced the objective against the means.
§ 7.56 p.m.
§ Lord Campbell of Alloway
My Lords, it is a sheer privilege to follow the noble Lord, Lord Brennan, and particularly the remarks that he has just made. I wish to associate myself with them unreservedly.
The noble Lord took three points: first, the emphasis on international action to suppress financing. I go along with him on that wholeheartedly. Secondly, with regard to balance and Part 4, I totally accept what he said. The type of action is accepted at least so long as it is protected by judicial review. That was a point taken by the noble and learned Lord, Lord Mayhew, and with which I wholly agree. Thirdly, he asked: does the Bill go too far? Again, I agree with the analysis of the noble Lord, Lord Brennan. I agree with all that he said on that, and in particular in the context of the constitutional position.
I shall deal with only two points and I shall try to keep my remarks reasonably short. The first relates to Part 5 of the Bill—the incitement to religious hatred—and the second to Clauses 21 to 33 of Part 4. First, as to incitement to religious hatred—Part 5—notice has been given that in Committee objection will be taken to that part; that is, to the Question that Clauses 37 to 43 stand part. Criminalisation of incitement to religious hatred has no sufficient connection with this anti-terrorism Bill. If it were hustled on to the statute book in a desire to protect our Islam community, it could work much unintended mischief and could well defeat such purpose.
There is much discussion, further discussion, thought, further thought, safeguards and assurances required before Part 5 could be accepted as drafted or indeed, in the time available, amended. I wholly take the way in which that was put by the noble Lord, Lord Dholakia, a moment ago. That is wholly apparent also from the short debate in your Lordships' House on 21st November (at col. 1223 of the Official Report), and in particular some observations or the right reverend Prelate the Bishop of Oxford: from the sense of the full debate of another place yesterday
217 (at col. 673 of Commons Hansard), and from paragraphs 56 to 60 of the Second Report of the Joint Committee on Human Rights.
If the Government want to criminalise incitement to religious hatred, so be it. But a new Bill should be presented. That point was dealt with by the noble Lord, Lord Ahmed, and the reverend Prelate the Bishop of Manchester; I think that it is about to be dealt with by the reverend Prelate the Bishop of Southwark who is shortly to speak. I ask the Government again to take that on board. The new Bill would be presented with safeguards for freedom of expression by those who speak or write in favour of or against religion—or against those who do not believe in a religion; we must have a wider spread than has yet been dealt with. "Religion" has to be a religion in some form accepted as such.
I turn to certification of suspected international terrorists under Clause 21. I cannot help but wish to congratulate the noble Lord, Lord Maclennan of Rogart, on his magnificent maiden speech, and to rely very much on his appreciation—and on that of my noble and learned friend Lord Mayhew of Twysden and my noble friend Lord Waddington—because it is wholly accepted that certification as an executive act by the Secretary of State and detention are wholly requisite and proportionate responses to the global threat in the wake of 11th September. But what is not accepted is the manner of implementation by the SIAC regime, which is open to the most serious objection, as other noble Lords have said, as affording no substitute for judicial review—habeas corpus—as administered by the High Court.
The regime fails to comply with the minimum tenets of natural justice when a person so certified by certification loses his liberty. The person is entitled to know the substance of the grounds on which the certificate is granted—a point made by the noble Lord, Lord Dholakia. The person is not entitled to have a free choice as to who should represent him before SIAC on appeal. Grounds are at the root of the essence of the process of judicial review. If you do not know the grounds, I do not know how you can cope with judicial review. The appeal from SIAC is limited to a point of law, dependent on the advice of an-house advocate who is not able to tell his client the grounds on which the certificate is issued. It sits behind closed doors and, save on a point of law, its decision is final. The jurisdiction of the High Court is excluded by Clauses 30 and 31.
The rigidity of the statutory framework under Clauses 21, 25 and 26—albeit as amended and somewhat improved in another place—lacks the flexibility of judicial review as administered by the High Court, which is accustomed to dealing with privilege from disclosure on grounds of national security, and in which loss of liberty takes immediate precedence, as in all courts, over all other business.
The exclusion of the jurisdiction of our courts under Clauses 30 and 31 usurps the function of the judiciary. It is in breach of the separation of powers which is the basis of our unwritten constitution. It is not a 218 proportionate response to the global threat. It does not meet the test as put by my noble and learned friend Lord Mayhew. It is much to be doubted whether the European Court of Human Rights would accept the derogation under Article 15 sought by the Motion. I explained why I thought so on 19th November and shall not repeat it.
In Committee, with the support of the noble Earl, Lord Russell, an amendment to Clause 21, which was foreshadowed on 19th November at cols. 888 and 889, will be tabled to ensure that the written grounds of suspicion and belief will be served on the person with the certificate when the certificate is served. They will show the substance of the case against him—not the details, but sufficient substance so that he knows what he has to meet. Notice will be given of objection to Clauses 30 and 31, which exclude the jurisdiction of the High Court, standing part of the Bill.
If it were to be implemented, the proposed regime would afford an abuse of executive power because, however we consider it, it is not strictly requisite in the circumstances. I am not now speaking about the convention; I am speaking about emergency legislation in time of war where some such provision could be strictly necessary. But we are not in a situation where this proposed regime is strictly necessary, and, because it is not, it is unconstitutional and an abuse of executive power.
It is the function of this House to contain and protest against an abuse of executive power. It is the duty of this House, as sole guardian of the constitution, to defend it.
§ 8.10 p.m.
§ Lord Thomas of Gresford
My Lords, all noble Lords in this House will be united in defeating terrorism. The debate on the Bill is to discover the most effective response to the terrorist acts of 11 th September. I therefore approach the Bill in the most constructive way possible and any criticisms I may make in no way diminish my determination to ensure the safety of the people of this country.
As regards Parts 1 and 2, I agree with the sentiments expressed by the noble Lord, Lord Brennan, that attacking the financial basis of terrorism is an effective way of scotching it. My criticism of Part 1 is that perhaps it does not go far enough. It suggests that a magistrates' court should deal with the financial implications when cash and property are seized from terrorists. The sums involved could be considerable and the powers of forfeiture, compensation for victims, decisions on the earmarking of property and the tracing of property could give rise to complicated issues of law and fact. The magistrates' court is not the appropriate place for those to be determined. I hope that the Minister will consider that at least the county court should have jurisdiction over such matters.
As regards the freezing orders, I note that the responsibility for making them rests with the Treasury, which is to act upon a "reasonable" belief. That word appeared in the Bill when it was first drafted and it suggests that the Government fully accept that judicial 219 review can apply to the provisions of Part 2, notwithstanding the fact that the freezing order is to be made by way of statutory instrument under the affirmative procedure. That does not prevent judicial review. I should be grateful if in reply the Minister could confirm that judicial review will apply to the provisions of Part 2.
Part 3, which relates to the disclosure of information, is different. My noble friend Lord Dholakia called it the "Jo Moore clause"; a good time to bury the bad news. The bad news is that it extends Clauses 47 to 49 of the Criminal Justice and Police Bill which the Government withdrew last May. Under Clause 17 no fewer than 53 public authorities, as set out in Schedule 4, are required to assist any criminal investigation or proceedings being carried out in the UK or abroad. Those are not just proceedings connected with terrorism but any criminal investigation. According to the Bill, the tribunal abroad may be a court of some standing or it may be any tribunal.
There appears to be no judicial control, no tests of reasonable grounds for believing that a crime has been committed, and no suggestion that conditions should be laid down by anyone concerning disclosure. Therefore, disclosure overseas could take place even though the conduct being investigated is not criminal conduct in this country and no charge has been brought.
To illustrate that, the BMA is concerned about the position relating to medical records. Confidentiality has previously been overridden only in cases of serious crime in this country. Now it appears to extend to any criminal proceedings. Will the Minister say whether there are any curbs to that general requirement for disclosure from those various public authorities?
Clause 19 permits the disclosure of all the 32 million tax files and all the VAT records kept in this country not just to the police but, for the first time, to the security services. That provision did not appear in the clauses of the Criminal Justice and Police Bill which were withdrawn in May. Again, the provisions are not limited to terrorism. Clause 19(2)(a) permits the disclosure to the security services,for the purposes of facilitating the carrying out by any of the intelligence services of any of that service's functions".Therefore, the provision is couched in the widest possible terms, is not limited to terrorism and again is not subject to judicial control.
Under Part 4, terrorists should be locked up. No one who has any experience of terrorist trials and who has seen the evidence and photographs which go with such trials can for one moment be enamoured of those who seek to use terrorist methods for political and ideological motives. The Americans propose to introduce military tribunals which can sit anywhere in the world. They have precedence for that going back to the days of the Civil War. Those military tribunals will reach a majority decision on conviction and on sentence, even though the sentence they may pass is that of death. They can convict simply on the basis of 220 reason to believe in guilt rather than sureness of guilt, which is the standard of proof we apply in this country. President Bush recently said that suspects will receive,a full and fair trial".At the same time he called for Osama bin Laden to he found dead or alive. I have every sympathy with the pain and anxiety which has gripped America, but those procedures remind me of Judge Roy Bean, who administered the law west of the Pecos: "We'll give you a fair trial and then we'll hang you".
In this country, under these provisions, for us, who have for centuries been the guardians of the common law, the Government's proposals are to dispose even of the fair trial in relation to Part 4 detainees. The Home Secretary does not have to be satisfied that a detainee is in fact a terrorist; suspicion and belief will be enough. Obviously, he will not be acting from anything he knows himself; he must rely on informers who pass information to the security services, which pass it to the Home Secretary. That wellspring of information may well be polluted. There can be no investigation of the quality of the information that is provided to the Minister. There is secret information to the secret services and then it is passed on through secret procedures for the locking up of the detainees. The detainee has no opportunity to challenge the information that has been laid against him. Habeas corpus and judicial review is denied to him, as was pointed out by the noble Lord, Lord Campbell.
I have detected a dangerous anti-lawyer culture on the Government Front Bench. I find it to be defensive because the Home Secretary and Ministers in this House who have that anti-lawyer attitude feel a little uncomfortable when dealing with people who have hands-on experience of the matters and the criminal justice system which come before the House. The defensive attitude is to make jokes about lawyers and to pooh-pooh their attitude. In fact, the freedoms of this country were won by lawyers such as the advocate Erskine, by juries and by famous judges such as Lord Atkin and others who saved the freedoms for individual people against executive interference.
It is suggested that the Special Immigration Appeals Commission is a wonderful appeal system against the Minister's certificate. When the Minister introduced the Bill today, he said that it was a major part of our constitutional framework. It is a new and untried part of our constitutional framework, and I believe that it is a busted flush. It was set up to deal with decisions to deport people, not imprison them indefinitely, but it has dealt with only three cases. In one case, that of Mr Rehman, the commission was hold enough to disagree with all the findings of fact of the Minister, in particular that the individual had engaged in military training and fund-raising on behalf of a terrorist organisation. The commission found precisely the opposite. However, the noble and learned Lord. Lord Hoffmann, said in the Judicial Committee of this House:Even if the appellate body [the commission] prefers a different view, it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained".221 Therefore, the commission was instructed by the Judicial Committee of this House to defer to the decision of the Minister.
The procedures are so important. The noble Lord, Lord Campbell of Alloway, described the procedures before the commission and I do not repeat them. But I have been involved in habeas corpus and judicial review proceedings. I was involved in the first case in which public interest immunity in a criminal case was claimed by the Government. I am aware of the protections that can exist in those proceedings. It is possible for the Government to claim public interest immunity to prevent the disclosure of informers or information in the possession of the Government which they do not wish the public to know. It is also possible for the issues which arise to be dealt with fairly and properly. It is very important that there should be full disclosure in those proceedings. It has all the safeguards of the legal system and, as far as concerns habeas corpus, centuries of tradition behind it. It is one of the foundation stones not merely of the law of this country but that of the United States and many Commonwealth countries which have inherited the common law. For the Government to attempt—I do not believe that they would succeed—to set aside habeas corpus and judicial review is entirely wrong.
There is really no substitute for charge and trial. The Government must have thought that that was the right way to go only 18 months ago when they introduced the Terrorism Act 2000. Under that legislation weapons training, directing terrorism, collecting information that is useful to terrorism and even inciting terrorist acts abroad entirely outside the jurisdiction of this country are all offences punishable with terms of imprisonment from 10 years to life. That is a fair armoury to deal with the threat of terrorism.
Even if a detainee cannot be deported because of Article 3 this country still has jurisdiction to try him here for terrorist offences that he has committed abroad involving explosions or chemical or biological weapons. One way to deal with the difficulties of obtaining proof is to invite foreign governments to provide this country with evidence so that a person whom we cannot deport to another country under Article 3 can be tried here. At trial procedures can be adopted which will protect witnesses and members of the security services. Public interest immunity for sensitive material is placed under judicial control. Such material is not disclosed to the defendant if it is contrary to the public interest.
The truth is that detention without trial does not stop terrorism but breeds it because it is full of potential injustice. We have heard that it was introduced in Northern Ireland in 1971 and abandoned four years later, as my noble friend Lord Jenkins said. It is ironic that on 12th January 1998, which is less than three years ago, the noble Lord, Lord
222 Dubs, then a government Minister, said during Second Reading of the Northern Ireland (Emergency Provisions) Bill:In this Bill, the decision has been taken to get rid of the power of internment. Frankly, it has not worked. The Government cannot see any circumstances in which they would wish to use the power of internment. It is fundamentally a process that is against the rule of law and undermines democratic principles. The Government believe that to get rid of the power is sensible and signals their adherence to the rule of law and democracy. We do not believe that it in any way weakens the power of the Government to deal with terrorism. The use last time of internment to deal with terrorism was a failure. We believe that the use of internment would strengthen the terrorists because it would give them a further argument in their communities against the Government and we want to deny them that".—[Official Report. I2/1/98; col. 909.]I do not believe that the events of September 11th have so fundamentally changed the threats to our society that it is necessary to introduce in this Bill the equivalent of internment. The reaction to those events must be steady and proportionate. We did not introduce detention without trial following the Brighton and Canary Wharf bombs. What greater attack upon the government of this country could there have been than the terrorist attack in Brighton during the Conservative Party conference? We must not panic now. Those parts of the Bill which introduce that sense of panic must be defeated.
§ 8.26 p.m.
§ The Lord Bishop of Southwark
My Lords, I am glad to be able to make a contribution from these Benches to this important debate which raises so many fundamental issues. My noble friend, the right reverend Prelate the Bishop of Manchester, has already spoken on the subject of civil liberties. I now focus on the proposals to deal with incitement to religious hatred. I must declare an interest as co-chair of the National Interfaith Network. I have represented the Church of England for many years on the Inner City Religious Council located in what is now called the Department for Transport, Local Government and the Regions. During that time the council has made several efforts to put the questions of religious discrimination and hatred onto the statute book. So I appreciate this attempt by the Home Secretary to respond to the anomaly that members of some religions have some protection in law either through the common law concerning blasphemy or because they are regarded as a definable ethnic grouping, while other faiths have no such protection. The clauses in this Bill redress the balance to a certain extent.
As noble Lords have heard, some people feel that while there is a case for legislation in this area it is unfortunate that the proposals reside in a Bill whose overall concern is that of anti-terrorism. But, knowing how difficult it has been over the years to persuade the Home Office, under governments of several political colours, to bring forward legislation on this subject, I for one am grateful for this attempt in whatever Bill it resides.
The noble Lord, Lord Waddington, reminded us that the subject had been on the agenda of the Home Office since the 1980s. I suspect that that is where it 223 would have remained—on the agenda. It appears that the Muslim Council of Britain shares that view, according to the statement that it issued in support of this legislation following a meeting with Home Office Ministers yesterday. There is some merit in having the legislation in this Bill. September 11th and its aftermath placed stresses and strains on the religious fabric of society. Some extremist groups were not slow to stoke the fires of anti-religious phobia smouldering below the surface of civilised life.
But what of the proposed legislation itself? I am not an expert on the diet of clergy, but I think I can say that the proposed legislation before us to combat religious hatred is something of a curate's egg. It sets out to offer protection to members of religious groups when others would stir up hatred against them by reason of their adherence to those religious groups. By "religious groups", the provisions mean groups whose members are defined by reference to religious belief, or, indeed, lack of religious belief.
I welcome the Bill's implicit acknowledgement of the importance of religion in human life and society. Belief, difference of belief and lack of belief stir up some of the deepest passions known to humanity. In this secular age, I am glad that religion's power is not discounted here.
I welcome. too, the Janus nature of the legislation before us, which, in the words of Hamlet, looks both before and after. Looking fore, the legislation protects members of a religious group from the incitement of hatred directed against its followers from those outside. Looking aft, it aims to curb expressions of hatred from extremist religious groups within a religion.
Every religion has its extremists. I cannot speak for other faith communities but, for myself, I know that I would not wish to have my Christianity defined by some of the wilder actions and statements of its more extreme members. It may well be that members of other world faiths feel that the extremist positions within their faiths actually betray the ideals of their faith. Although it may be hard for them to say so publicly, they might be quite glad if the law of the land offered restraint to such groups.
There is a further reason for welcoming the provisions in the Bill. This lies in the fact that the clause concerning the incitement to religious hatred is careful to deal with persons and not with theology. Your Lordships are dealing with a Bill concerned with religious belief and religious affiliation as a fact and not as an issue.
I welcome the fact that the Bill is not, therefore, encroaching on the questions of the relative merits of the faiths espoused by Her Majesty's subjects, nor quashing the legitimate criticism, or even ridicule, of any one of those faiths. Perhaps it is all the more important in this secular age to remind your Lordships that the Bill indeed requires not only religious groups but also what we might call "areligious" groups to accept such criticism and ridicule. They do not always accept it gracefully.
224 For all these reasons I welcome the Bill. However, there are reasons for caution to which I wish to draw your Lordships' attention. The wide provision made for religious groups is wide indeed, extending to those of all faiths and none. Indeed, there even seems to be no apparent requirement that the faith in question is a faith, or a non-faith, recognised by anyone else.
There are, however, as your Lordships know, groups which purport to be religious, and which are certainly espoused with all the zeal of a true believer, in which little is apparent beyond oppression and abuse. I would not wish to encourage your Lordships to think that the sin of hatred was acceptable towards such groups, but neither would I wish your Lordships' House to condone some destructive sects which might call themselves religious.
I believe that if the legislation is applied with focus and with integrity, there should be no difficulty in preventing it from being inappropriately used, but your Lordships may wish to note that the proof of the pudding will be in the eating. I am always a little nervous when the answer to such hard questions is, "We must let the courts decide".
Another reason for caution is the effect that the proposals might have on the witness which adherents of all faiths might wish to make. Of course, there can be no room for the stirring up of religious hatred in this witness, but legitimate evangelism must not be curtailed by this legislation. I wish to seek assurances from the Minister that it will not be.
There is another aspect of the legislation which is a potential cause for concern. It is that the legislation does not attempt to deal with religious discrimination as such. There are good reasons for this. Religious discrimination and terrorism are two different things. This legislation deals with terrorism and, as I have indicated, I would not wish to suggest that it would even be appropriate to wrap up all religious hatred issues with the question of terrorism. Religious hatred is alive and kicking well outside the borders of what might be described as terrorism.
However, the United Nations Human Rights Committee urged the United Kingdom not only to extend its criminal legislation to cover offences motivated by religious hatred, but also to take other steps to ensure that all persons are protected from religious discrimination. Your Lordships may therefore wish to remember for a future time that, although the legislation before us deals with the matter of religious hatred, discrimination is still a matter about which much thinking needs to be done, and it needs to be done both in your Lordships' House and. in another place.
In another place, there was an attempt to use this legislation to remove the common law offence of blasphemy. Since that amendment was rejected. there is little need for me to take up your Lordships' time on the subject. However, it is perhaps worth reiterating the views of the Church of England on the law of blasphemy. In a nutshell, we would not be opposed to a revision of the blasphemy laws if something better could be put in their place. "Something better" would 225 be something which covered more religions than the Christian, or, indeed, more Churches than the Church of England—if it is, indeed, only the Church of England which enjoys protection under current laws.
However, "something better" may not be easy to produce. It can be argued that any attempt to extend the blasphemy law to cover all faiths is bound to fail because the beliefs of some faiths could well be described as blasphemous in terms of the beliefs of others. No legislation will remove this fact of life—or, more accurately, this fact of faith. This probably means that no simple extension of the law of blasphemy will quite do. We can, however, try to find other ways to ensure that the deeply held beliefs of one group are not offensively ridiculed or disturbed by others. It would be good to do so.
But that is for another time and another day. We must not let the best be the enemy of the good. Today we are dealing with the good of tackling the evil of incitement to religious hatred. The proposed legislation does not do everything, nor are its consequences totally predictable, but I believe that it is an honest attempt to tackle a real problem and I would wish to give it my support.
§ 8.38 p.m.
§ Lord Clinton-Davis
My Lords, it is a privilege to follow the right reverend Prelate. The underlying theme that he suggested to the House was that we should view the situation that this Bill represents with appropriate caution. I share that view. It is for the Minister to convince me, and people who think like me, that the invasions of civil liberties enshrined in the Bill are justified.
Before I come to that, may I commit an unpardonable act and refer to my friend, my noble friend Lord Maclennan of Rogart. I knew him when he was simply Bob Maclennan, but I know that it is different in this place.
I remember very well the dying days of 1978 when he was at the Department of Consumer Affairs and was drafted in with my right honourable friend Michael Meacher who dealt with the Companies Bill while I dealt with the Merchant Shipping Bill. Every Monday and Wednesday, all three of us gathered round a table and spoke about the Companies Bill, for which I happened to be responsible. This is virtually the first occasion in 23 years that I have had the opportunity to say thank you. They were a terrible team! I think it will be generally agreed that our fellow Minister is doing very well at the Department for Environment, Food and Rural Affairs.
My plea, like that of the right reverend Prelate, is for caution. We need to be ever more vigilant when a Bill reduces freedoms—especially those that we rightly take for granted. My commitment in this debate is to listen carefully to what my noble friends have to say. Their task is a most difficult one. They must face up to the terrorist while at the same time convincing people like us that the derogations of civil liberties that are proposed are wholly justified.
226 I do not say this lightly. In facing up to the problems posed by the Bill, if amendments are suggested from the Conservative or Liberal Democrat Benches I shall have no difficulty in entering a different Lobby if I am convinced that that will strengthen the Bill and at the same time strengthen civil liberties.
I am profoundly concerned that under the terms of the Bill the Home Secretary is given wide discretionary powers in a way that is unprecedented. As I understand it, he is able to detain any individual that he, the Home Secretary, and those advising him suspect is "an international terrorist" or "a domestic terrorist". There is no proper judicial oversight of those powers. We could be left with a situation where the Home Secretary was behaving quite differently in cases that came before him. That is to say that, so far as concerns his judgment, precedent can be of very little value. Frankly, I need to be persuaded that that is right. At the present time I do not believe that it is.
The question is whether, to use the Home Secretary's own words, the Bill strikes a perfect balance between protecting freedom and ensuring that hard won human liberties are not trampled under foot. That is indeed the test. Does the Bill follow that course? The onus is on the Minister. Many of us are not wholly convinced that that is the situation.
The burden is heavy. It is not made easier by the absence of scrutiny of large sections of the Bill by the House of Commons. It could have been done; it should have been done. But the House of Commons had to accept, literally, everything that was placed before it. There was no time for debate. That is wrong. Too much is left to the subjective view of the Home Secretary. Why should he be exempt from providing objective justification for what he decides? Is not that objectivity in accord with the legal standards that we have learnt to take for granted?
Let us remember that the usual procedures of examination by judicial review are to be replaced by the Special Immigration Appeals Commission. Is that right? It is fundamentally different from the court's approach to this subject when it is sitting in judicial review. No longer will the appellant and those representing him have all the intelligence that is available to the Minister. That was the gravamen of my interjection when the Minister broached this matter. I am not wholly convinced by his argument.
Certainly, the commission will know all the intelligence that is available to the Minister. Those representing the Home Secretary will obviously know. But that information is not to be made available to the appellant. Why not? Would it so undermine the purpose of what is proposed?
It is true that the appellant will have recourse to the Court of Appeal, but only on a point of law. The issue will be decided by the Court of Appeal, provided that the appellant faces removal. If I am wrong about any of this, I stand to be corrected, and I shall be happy to be corrected. I note that the Attorney-General nods with approval.
§ The Attorney-General (Lord Goldsmith)
My Lords, I am nodding with approval at my noble friend's suggestion that he is happy to be corrected. That is what I hope to do when I reply to the debate.
§ Lord Clinton-Davis
My Lords, that is what I meant. I know that the Attorney-General, who is a friend of mine, is capable of doing that.
I ask whether internment without trial is the most appropriate remedy, especially where there is no proper judicial scrutiny. I hope that the noble and learned Lord, Lord Goldsmith, will deal with that matter.
Are we going to confront a situation where only Muslims will be detained? Or are we going to face a situation where others will be detained as sacrificial lambs? By doing this, do we not risk the law being brought into disrepute?
I turn to the police powers. They are to be enhanced by Clauses 93 and 94. The police can demand the removal of facial covering and gloves where they consider that identification can be brought into question. The Joint Committee on Human Rights considered that that could be extended to non-terrorism cases. Is there anything in that? If so, we have to consider seriously where the situation is being taken. What the Joint Committee had to say is of utmost importance. The Library has done the House a service. It has produced a full note on the Bill. The committee said:We regard the provisions relating to police powers contained in clauses 88 to 92 of the Bill as being in need of additional safeguards and mature consideration, and accordingly draw them to the attention of each House".Is the Minister proposing that there should be such additional safeguards so far as concerns those provisions?
Page 11 of the Library Note states:This country has more anti-terrorist legislation on its statute books than almost any other developed democracy. Much of it, rushed through in the wake of previous atrocities, proved ineffective and in some cases counter-productive and needed to be amended. Often it was supposed to be temporary and turned out to be permanent. It therefore behoves us to examine carefully the latest proposals in the wake of the atrocity on September 11".The Government need to deal seriously with those words. I am sure they will. I do not envy them the difficult situation in which they find themselves. But it is for the Government and the Ministers here to persuade me and people like me—and I think there are many—that the hesitations which we have expressed about the measure are utterly misconceived. They have not done that so far; but we have several opportunities before us and I hope that they will succeed.
§ 8.53 p.m.
§ Baroness Carnegy of Lour
My Lords, I want to say a brief word about how the Bill is being treated under the Scotland Act. It is worth mentioning because it seems to introduce an interesting new dimension in how to get devolution to work.
228 Much of the most important content of the Bill relates to matters devolved to the Scottish Parliament. However, on 15th November the Scottish Parliament decided to ask Westminster to extend the Bill to Scotland except for Parts 5 and 12 and the measures relating to the removal of disguises. Your Lordships may be interested to note in passing that when the Scottish Parliament decision to opt out from Parts 5 and 12 was made, that had already been included in the Bill which had been introduced in the House of Commons and ordered to be printed three days before on 12th November. It seems that the Government take the Scottish Parliament a little for granted as sometimes they do Westminster. Be that as it may, the outcome is that in most of the Bill, despite devolution, your Lordships will be legislating for Scotland as well as for the rest of the United Kingdom.
I understand that this is the 25th time that the Scottish Parliament has asked Westminster to legislate for it on devolved matters. Some have been small matters, some of considerable importance. On this occasion, I hasten to say that it seems extremely sensible, at least for the urgently needed measures., to legislate in that way. The United Kingdom as a whole must protect itself against terrorism and to legislate separately, north and south of the Border in different ways and at different speeds, would he unwise.
In any case, what would have happened if on these devolved matters Scotland had proceeded separately? During the Committee stage of the Bill in the House of Commons, I note that on most of the contested issues which relate to Scotland the Liberal Democrats and the Scottish Nationalists joined with the Conservatives to vote against the Government. Indeed, on several occasions the Liberal Democrats led the way. Had this been replicated in the Scottish Parliament the current measures could probably not have been proposed, let alone have become law. It is possible that the ruling Labour/Liberal Democrat coalition would have fallen apart in the process. After all, the Justice Minister and Deputy Chief Minister is a Liberal Democrat Member of the Scottish Parliament. It is even more interesting to speculate on how this sort of thing would be handled if there were different parties in office at Westminster and Holyrood, but that, fortunately, is for the future.
Turning briefly to the contents of the Bill, like other noble Lords I welcome some clauses and am anxious about others. I believe that what is now Part 5 relating to incitement to religious hatred may have the opposite effect of that intended. I have thought a lot about this, and have talked to a lot of people. I shall say no more about that now. However, I hope that the Government listened carefully to the extremely interesting remarks today of the right reverend Prelate the Bishop of Southwark, the comments over a period of time of the noble Lord, Lord Campbell of Alloway, and in particular to those of the noble Lords, Lord Ahmed and Lord Dholakia. I know what the Government seek to do; we all want it to happen. But there are problems. I believe that they are linked to some confusion between religion and culture. I may be wrong but I think that that is at the heart of the problem.
229 The Law Society of Scotland suggests that, given the close interrelationship between the Bill and how the Scottish law will operate subsequent to the Bill, the Government should continue to consult with the Scottish Executive as the Bill develops. For example, the Law Society of Scotland considers that the provision on noxious substances in Clause 112 can be dealt with under Scottish law as a breach of the peace and hoaxes involving noxious substances, referred to in Clause 113, can also be dealt with under existing Scottish law. It would be helpful if the Minister could assure us that there will be continuing discussion with Scottish Ministers as this develops. I realise that speed is of the essence. It is very difficult. But it is important not to create problems in that area.
My last point relates to Clauses 110 and 111 on the third pillar. I hope that all noble Lords will read carefully the report of the Delegated Powers and Regulatory Reform Committee of this House and the remarks in this debate of my noble friend Lord Waddington. I am a member of that committee and will read with great interest the Minister's remarks about the report in his opening speech. I thought that I was greatly encouraged but one can never quite believe one's ears. I shall wait until Hansard appears tomorrow, to know how encouraged I am. I want to say more but will keep my remarks for Committee.
Decisions made by the Council of Ministers that come to Westminster having had no scrutiny in Europe, often after being negotiated to a swift timetable, are difficult for our Select Committees to trace. Decisions are often made before a Select Committee can have a go. It is important that proposals from the Council of Ministers are made subject, if necessary, to primary legislation. The Government's attempt to arrive at hasty decisions on some subjects will not work in the case of matters dealt with under the third pillar. I hope that we will all read what has been said about that aspect in reports and by your Lordships. I look forward to the Committee stage of the Bill.
§ 9.1 p.m.
§ Earl Russell
My Lords, there are times in this House when I doubt whether I am engaged in political activities or research. At the moment, I am engaged in reading the parliamentary debates in 1628 on whether the king should be allowed to imprison without cause shown. The resemblance to present issues is remarkable. The arguments have changed remarkably little over four centuries.
Wearing an historian's hat, one has to give full weight to all sides of the argument. Points made by the executive have always caused some difficulty to the civil liberties side of the argument. I refer, for example, to the difficulty of betraying confidential or intelligence sources; or the need for urgent action in the face of potential serious crime, such as the Gunpowder Plot, which, had it succeeded, would have been on the scale of September 11th. Considering the 230 amount of legitimate authority that would have been destroyed, perhaps its effects would have been on a greater scale.
The points made on the other side of the argument also have great force—not least that the executive, in deciding to use such powers, is in danger of being judge and party in its own court and, having got such powers, is also tempted to put them to further use. The point at issue in 1628 was whether the king could imprison Members of Parliament for refusing to lend him the sums they had refused to vote him in taxation in their parliamentary capacity. Give an executive a power and it may use it impeccably—but we do not know what its successors will do.
I thank the Government for the care that they have taken not to present this as a debate for and against terrorism. We are all equally against terrorism. My desire to stay alive is as great as the Minister's desire. We are arguing about the effectiveness of measures. The noble Lord, Lord Brennan, in an extremely interesting speech, just about got it right. The noble Lord said that nobody is suggesting that dangerous terrorists should remain at large because we cannot return them to the country from which they came. He said that any power must be placed under proper legal protection. I agree with that also and equally.
One must subject any measure for restricting civil liberty to certain tests. First, is the measure more likely to bite on the guilty than on the innocent? Secondly, is the measure likely to reduce the crime at which it is aimed? Thirdly, one must remember that there is no such thing as a crime so terrible that an innocent person should be imprisoned for it.
Where I oppose parts of the Bill—only parts—it is because I am not convinced that they pass those tests. My concern is making powers effective. My noble friend Lord Thomas of Gresford touched powerfully on the point that nothing does so much to increase terrorism as injustice—especially injustice that cannot be remedied in any court of law. I agree also with my noble friend Lord Dholakia about the UN convention and about Clauses 34 and 45 of the Bill. The reputation of asylum seekers in this country is not as high in justice as it should be. Anything that risks, perhaps entirely inadvertently, giving the impression that there is an association between asylum seeking and terrorism or that anything in the UN Convention on Refugees provides protection for terrorism is to be resisted—especially in light of Section 33(2) of the 1951 convention. I say nothing with which Ministers disagree but I would be extremely grateful if they will confirm that that is the case.
Because of the impression that asylum seekers create, Clauses 34 and 35 should not remain in the Bill in anything like their present form. Certain people, because of the merits of their asylum claims, will not be examined and will not be subject to any review of the facts. Appeal is allowed only on a point of law, which is designed to protect the most inaccurate part of the decision-making machinery of the whole British Government—and that is saying something. The Home Office has a knack of wandering into minefields 231 when it makes decisions. Your Lordships may remember an application that had a note attached saying, "This is a pile of pants". It was an application by a refugee from Afghanistan. Look at what we are being told now about the situation of the population of Afghanistan.
Some years back, the Home Office was extremely suspicious of the notion that any persecution was happening to Czech or Slovak Roma. My noble friend Lady Williams of Crosby tabled a Question on the subject to the Foreign Office and got an extremely different Answer from anything that she was hearing from the Home Office. I found that discrepancy interesting. The lack of any investigation into any question of fact on appeal is a matter likely to be of some concern.
I am also a little concerned about the lack of examination of the asylum claim, because it strengthens the tendency that we see all too often for the condemnation of terrorism—in which I fully join—to develop into a full-blown 17th century doctrine of non-resistance. In 1938, my mother was attempting to enter the United States and was asked to sign a declaration that she believed that resistance to authorised government was not justified under any circumstances whatsoever. She looked at this and thought, and then wrote, "I agree with this. I think the United States should be still subject to the British Crown". It took my father considerable diplomatic effort to get her in after that.
That shows the force of what, in discussion on this Bill, I have come to think of as the Nelson Mandela point. I remain completely unrepentant concerning—indeed, I am proud of—the hospitality that this country has in the past given to members of the African National Congress. I hesitate to say that people who have no recourse to the ballot box have a right to resort to terrorism—in fact, I do not say that. However, as UNHCR says, the lack of consideration of merit of the asylum claim means that there is no way of testing the proportionality of the exclusion by the Home Secretary's certificate. In an appeal that goes beyond the borders of this country, that could be a very material point. It certainly does not become us to forget it.
I have a number of particular points to raise. I am grateful to the Minister for the inclusion of the word "reasonable" in Clause 21. Whether that goes far enough is another question. It is necessary that there should be some disclosure of grounds in order that any proper hearing could take place. Getting that right will be a matter of intense difficulty, although I do not. believe that it is insuperable.
The reference to "links" with international terrorism has not been thought through. I understand what is meant, but we should consider the case of Mr bin Laden's son. I do not mean one of the sons in Afghanistan in training under Al'Qaeda, but his entirely innocent son who was, until recently, an undergraduate at Harvard. The American authorities have told that young man that they have no ground of suspicion against him but that at the moment they 232 advise him to discontinue his studies at Harvard for his own safety. I declare an interest in the view that one does not have to take responsibility for everything that one's father does. Were my father present, I am sure that he would join me in making that declaration mutual. The word "links" does not quite say what the Government intend.
§ Lord Rooker
My Lords, I am sorry to interrupt the noble Earl, but for the avoidance of any doubt, the Home Secretary and I have both made it clear that we are working on rewording that paragraph. We will bring forward another form of words. The current wording is unsatisfactory and we are going to deal with it.
§ Earl Russell
My Lords, I thank the Minister warmly for that. It is exactly what I had hoped I might hear him say.
On certification, appeal is to be made within a fixed time. I would be grateful if it were possible to insert the words "can only be made in the fixed time without leave". There are cases, particularly former torture victims and former rape victims, who have great difficulty in telling their story or in making any serious communication until a long time afterwards. The Home Office would do itself nothing but good by allowing a safety valve for such cases.
My greatest concern is about the restriction of judicial review. I heard what the Minister said on 19th November about judicial review. But the SIAC review does not deal with the basic facts. That is a very big gap. The sheer fact of Parliament attempting to restrict the power of judicial review I believe has implications which stretch far wider than the whole contents of this Bill, important though it is.
It is important that Parliament is not the only source of legal authority. The authority of the common law predates Parliament by a pretty long time. Legal positivists from James VI and I to Michael Howard have always found that fact irritating to them, but fact it remains and there is no way it can be denied. The principle of natural justice, which is the foundation of judicial review, as far as we know predates even the common law itself.
The noble and learned Lord, Lord Mayhew of Twysden, who always interests me and with whom I usually agree, seems to make a habit of saying one thing in each speech with which I can disagree, just to keep us going. He referred to the dark days before administrative law when he said that there was no judicial review. But may I draw his attention to the case of Ridge v. Baldwin 1964, which is one of the earliest successful cases of the noble and learned Lord, Lord Ackner, as he now is. If you look at the list of citations it begins with one from Coke's Reports of 1618. I have looked up that citation, which is right in the middle of the area of my own research. It is correct in the spirit and the letter and one of a very large sequence of cases of the same type. In fact, the power of judicial review goes back a very long way indeed.
233 It is also important because, as the noble and learned Lord, Lord Mayhew, said—and on this I do agree with him—there is a very real risk that attempts to restrict it may, in his words, "prove futile". That is because judges from the beginning set out to construe not just the letter, but the intention, of Parliament. They were doing that not only before Pepper v. Hart but before there were any parliamentary records whatsoever. So the only way they could do it was to assume the intentions of Parliament were in line with the principles of natural justice, as they still do, which is why the noble and learned Lord, Lord Millett, in the case of Bate v. The Chief Adjudication Officer, which I believe was in 1993, said,The Secretary of State's explanation of this clause is so unreasonable that Parliament cannot possibly have intended it".Having had this House counted out by dividing against that clause, I must declare an interest in agreeing with him. So it is the duty of the judges to find Parliament's intention to be in line with the principles of natural justice, if they can.
The noble and learned Lord, Lord Reid, in the case of Anisminit v. Foreign Compensation Commission (1969), said,It is a well-established principle that the provision ousting the ordinary jurisdiction of the court must be construed strictly, meaning, I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court".Lord Reid is a judge much honoured in many quarters. Indeed, reading The Times Law Reports of his cases first began my serious interest in the law when I was a schoolboy. I believe that that is something which the courts might continue.
The alternative scenario says that it could lead to disaster and since Murphy is the only person whose legislation is unrepealable at Westminster, I have a distinct fear that both might prove to be the case. In the short term I believe that attempts to restrict judicial review will prove futile and when the Home Secretary comes to terms with the fact that that is the case, I believe that a balance of power within our constitution, which is a vital part of why we have a claim to resist terrorism, could be in a danger greater even than that of 11th September.
§ 9.20 p.m.
§ Lord Marlesford
My Lords, the Government have no greater obligation than to defend the nation state against armed aggression. I defer to no one in my support for such defence. The challenge we face and against which this Bill must be measured are the events of September llth.
The terrorist plan was to send five deadly missiles against four targets. Those targets were what the terrorists saw as the Great Satan, but what many of us believe represent the source of prosperity and peace for the world: the World Trade Centre, the success of global capitalism; the Pentagon, from which the freedom of the world was protected throughout 50 years of Cold War until economic competition won the 234 struggle peacefully; the White House, the seat of government of the world's superpower; and the Capitol building in Washington, a beacon of democracy for two centuries. Three of the weapons hit their targets. A 60 per cent success rate would be a remarkable tribute to planning and logistics in any military strike. So we are up against a truly formidable enemy.
I propose to use my time this evening to examine the credentials of the guardians of our security who have devised measures in this Bill; that is, the Home Office. After all, we are being asked, as another place was asked, to take most of their proposals on trust. Although there have been a number of distinguished Home Secretaries—and I have admiration and respect for both Mr Straw whom I regard as a personal friend and Mr Blunkett—they have had to preside over the most constipated department in Whitehall.
After observing its performance over many years, first in Whitehall myself, then as a journalist and more recently from this House, I do not believe that we can trust either the judgment or the effectiveness of the Home Office. However, the new Permanent Under-Secretary of the Home Office, John Gieve—recently appointed from the Treasury where he was Director of Public Services—has a high reputation. He was responsible for seeing that the Home Office was restructured as a potentially effective Ministry of Criminal Justice, which means that it has been shorn of some of its peripheral responsibilities. He has the challenge to make the Home Office into an effective instrument in the battle against terrorism.
I shall seek to illustrate what I mean by some examples that are directly relevant to the objectives of this Bill—the battle against terrorism. After the Dunblane massacre the Conservative Government introduced the Firearms (Amendment) Bill 1997. I had noted that there was no way in which the police forces of this country could rapidly discover who was licensed to hold a firearm and who had been refused such a licence. With all-party support I introduced an amendment to the Bill to require the establishment of a central register of persons who have applied for a licence or to whom a licence has been granted. Despite opposition in this House from the Home Office, the amendment was passed and became the law of the land as Section 39 of the 1997 Act. It came into force on 1st October 1997. Four years later it has still not been implemented. The Home Office has offered one excuse after another. In April last year the House of Commons Home Affairs Select Committee, of which the noble Lord, Lord Corbett, was then chairman, stated,We are appalled that the national database . . . is not yet in immediate prospect, over two years after the implementation of the ... Act".The noble Lord, Lord Rooker, told me in a Written Answer dated 25th July that the firearms certificate holders' register should go live shortly after March 2002. I shall be pleasantly surprised if he can tell me that that date is still valid.
235 The fact is that the Home Office feels that it can decide which of the laws of the land it will comply with. It is quite happy to defy Parliament, in this case because it never wanted the amendment. What would happen to a private citizen who behaved in that way? That is one reason why I have no confidence in the competence of the Home Office.
I now turn to the weaknesses of the various official record-keeping systems, which already militate against the measures in Part 4 of the Bill to strengthen the UK's security. I take passports as an example. I have discovered that there is virtually no effective control over passports. Some 73 per cent of the UK population hold passports; that is, 43.8 million valid passports. On the death of a passport holder the passport is supposed to be handed back for cancellation. Unexpired passports of dead holders have a street value, just as stolen passports do, but it is a higher value because the death is not notified to the passport office.
Let me quote the following figures as an illustration. In the year 2000 there were 611,000 deaths in the UK—that means deaths of some 448,000 passport holders. Yet only 34,000 passports were handed in—less than 10 per cent. So I asked the Government what they proposed to do about that. The noble Lord, Lord Rooker, replied on 31st October:The Passport Service is seeking to establish arrangements to receive routine notifications of death as part of its work on improving fraud countermeasures".—[Official Report, 31/10/01; col. WA161.]I thought that I would probe a little more deeply arid therefore I tabled another Question using the actual words from the reply given by the noble Lord, Lord Rooker, to find out when that very overdue exercise was started and when it would be completed. Two weeks later on 14th November back came the Answer from the noble Lord, Lord Rooker:We have not started to establish arrangements requiring the Government to be routinely notified of the death of United Kingdom passport holders and we have no plans to do so".— [Official Report, 14/11/01; col. WA81.]I accept that the noble Lord may not have the time to read the answers to PQs before he signs them, but it is another illustration of why I have no confidence in the Home Office.
Furthermore, I discovered that 80,000 British passports are lost or stolen each year, of which 20,000 disappear in foreign countries and again have a street value to a whole range of criminals of whom terrorists are but one example. Since the end of 1991 all British passports have been issued in machine readable form. Incidentally, even here the Home Office appears slipshod in its information. On 14th November the noble Lord, Lord Rooker, informed me in a further Written Answer,The United Kingdom Passport Service issued the last old blue 10-year passport in November 1991".—[Official Report, 14/11/01; col. WA82.]How come that when I looked at my own old blue passport I saw that it was issued in December 1991?
There is at present no passport or other routine immigration control on departure from the United Kingdom, but, much worse, there is no routine 236 recording of machine readable passports on entry into the UK. Investigations into 11th September would undoubtedly have been helped if these had been in place.
The noble Lord, Lord Rooker, tells me that the Immigration Service is urgently exploring the use of technology to require airlines to retain passport details of passengers before they hoard a flight to or from the UK. First of all, there is no way in which that can be enforced for passengers travelling to the UK by foreign airlines. Secondly, what about Eurotunnel? Thirdly, it is the job of the government immigration services, not the airlines, to protect our borders.
My example of passports is, of course, merely an example of the wider problem of the increasing need for state monitoring of individuals through the proper establishment of their identities. In my own mind there is no doubt that the time has come for the establishment of a proper unique identity number which the use of modern science could link in a foolproof way to the individual concerned. It would probably be useful and sensible to use the national health number which is issued to every UK citizen at birth and which is itself based on the old wartime identity card number. There is, in fact, no need for—
§ Lord Rooker
My Lords, I am reluctant to intervene as much of what the noble Lord says is inaccurate, but his final comment is, frankly, not true. The National Health Service number issued to millions of people in this country has for several years had nothing whatsoever to do with the wartime identity number. Several years ago everyone was issued with a brand new number; it has nothing to do with the wartime identification system. That went out years ago.
§ Lord Marlesford
With great respect, I have known my national identity number since I was a child in the war. It was TXAP774, and it is still my national health number. I have put that number on every form and those forms have never been sent back. I reject any suggestion that that type of monitoring infringes to a disproportionate extent civil liberties or human rights.
I turn briefly to the handling of asylum seekers and the recently announced asylum application registration card, which is intended to replace the, standard acknowledgement letter. I want to raise a question about the right of asylum seekers to travel outside the UK. On 7th November the noble Lord told me that asylum seekers who travel abroad while their claims are being considered are deemed to have withdrawn their applications for asylum. He said that the ARC is not a travel document and will not confer the right of entry.
Yet on 10th August this year the Home Office Immigration and Nationality Directorate issued a specification for the updating of a personalised document issuance system that includes a travel document, known as "passport-style", for non-British citizens. It would allow them the same travel facilities as does a passport. I have obtained a copy of the Home Office specification. The figures in it show an explosion in the number of passport-style documents
237 issued by the British Government to non-British citizens. In 1997 there were 16,000. Last year the figure was over 50,000. The contract for that travel document has just been awarded to the Stationery Office. Can the Minister assure us that those documents have not been, and will not be, issued to asylum seekers?
Of course, one object of many asylum seekers—especially those who believe that they are unlikely to be given asylum—is to play it long. Having to start their applications afresh as, under the Government's rules about foreign travel, they must, would be the ideal way of playing for time. I believe that that is yet another example of the Home Office not knowing what its hands and feet are up to.
The Government are asking us to take the soundness of this legislation on trust. I hope that I have provided examples of why I personally do not have sufficient confidence in the Home Office machine to do so. Why, therefore, should we subject the Bill to the full and detailed scrutiny to which it has not been subjected in another place, and why should we limit the rapid passage being demanded by the Government to clauses which are genuinely required with real rapidity?
My sad conclusion is that I am more impressed by the effectiveness demonstrated by the forces of terrorism than I have been by those of the government department sponsoring this Bill. The Bill should be divided between the essential and the inessential; between the real priority and the Home Office convenience priority. Before Christmas we should scrutinise and pass the essential, and there are additions to be made in that respect. Let the Government bring back other proposals at a later date. This House has the power to insist on a better Bill. It is our duty to do so.
§ 9.33 p.m.
§ Baroness Kennedy of The Shaws
My Lords, it is always said that one of the great strengths of this House is the specialist experience that individual Peers bring to debates. I always believe that to be the case, especially when I listen to the historical analysis of my noble friend Lord Russell. Clearly the noble Lord, Lord Marlesford, has cornered for himself a specialist understanding of passports.
One of my own areas of direct and long experience as a lawyer has been in the conduct of terrorist trials. In over 25 years of practice, I have acted in—I worked it out last night—either 14 or 16 major Irish cases arising out of the Troubles: the Brighton bombing trial, the Balcombe Street siege, the bombings at Harrods, Oxford Street, Warrington and the Ebury Bridge Road Barracks, and the appeal of the Guildford Four. The list is long. I have also acted in cases stemming from the conflict in the Middle East, from that in the Indian Subcontinent, and I have acted in cases involving the politics of animal liberation and anarchism. I have acted in a whole range of other trials that involved allegations of violence for political ends. When one gains a degree of expertise as a criminal lawyer, one is repeatedly instructed in such cases.
238 In that process, I suspect that I have become one of the few Members of this House who, if placed alone in a room with a lump of plastic explosive, a detonator, an alarm clock and a length of fuse wire, could probably make a home-made bomb without too much difficulty. I hope that that does not mean that I will end up on the special files of the security services!
§ Baroness Kennedy of The Shaws
My Lords, I am told that I probably already am!
I mention my experience because being involved in those cases has given me, to some extent, a long view of the criminal justice system and its relationship with terrorism. I am afraid that most of our failures derive from over-reaction. When the Prevention of Terrorism Act was introduced in the 1970s—I was still a young lawyer—we made the first huge departure from the normal rules of arrest and detention. We made it possible to detain people for up to six days without access to lawyers or any other outsider, and it meant that the police could question those people repeatedly. The result, as we all know, was that in a number of notorious cases, vulnerable people admitted offences that they did not commit. I refer to the cases of the Birmingham Six, the Guildford Four, and Judith Ward, and there are others. On spurious intelligence and inadequate evidence, the Maguire family and a man called Guiseppe Conlon were all convicted.
We learnt that changing the rules and abandoning principle does not work. Getting the cases so badly wrong introduced a poison into the legal system that affected policing generally, not just in relation to terrorist trials. Bad practice took hold and the price, in terms of distrust and cynicism, has affected the confidence of the general public in our criminal justice system. It certainly meant widespread alienation of the Irish community living in Britain. Of course, we know what happened in Northern Ireland in the wake of internment—that was one of the most powerful recruiting agents that the IRA ever had.
Bad laws have a price tag attached to them. Rushing to legislation is rarely successful. There is no such thing as temporary legislation; it is never temporary. In 1995, after the bombing of the Israeli Embassy, I acted for a Palestinian woman who was charged with placing the bombs. She was in fact—I stress this—an innocent woman. The current Director of Public Prosecutions, who was the prosecuting counsel in that case, would agree with that, as would the lead officer in the antiterrorist squad who was also involved in the case. That woman ended up in the dock because of mistaken identity and poor work by the security services. The effect on her and her family was devastating, and the toll is still being paid. The effect on the Arab community was also devastating: the case engendered fear. A woman from a middle-class background, with a professional husband and two children at British public schools suddenly ended up in Holloway prison. The feeling in the community was, "If it could happen to her, it could happen to any of us". She ended up in prison because of a tenuous association, and everyone became fearful.
239 I am afraid that I do not have complete confidence in the intelligence sources that will be relied on in the cases that we are discussing. Intelligence sources are often wrong. More importantly, I should be worried about accepting too readily intelligence from other security services, which may be highly questionable.
Many aspects of the Bill are unacceptable to me. However, at the heart of it is my sense of outrage at the idea of incarcerating people without charge or trial. There are a number of questions we should ask ourselves. Are these extraordinary powers necessary? The answer is that we already have the legal tools to combat terrorism. Our own terrorist legislation is some of the strongest in the world. If people are living here in Britain and have trained, counselled or procured the recent horrifying events in New York and if we have evidence of that, there is no difficulty in prosecuting them. If people are inciting terrorist crimes, we can put them on trial and imprison them.
However, the Home Secretary wants to detain people where the evidence is not strong enough to put them on trial or is not admissible. He wants to be able to incarcerate people without their knowing the reasons and the evidence upon which that incarceration will be based. To any person concerned with human rights, that cannot be acceptable. That is why the lawyers will tell the Minister that they are getting it wrong. Our experience must count for something.
There is nothing new in dealing with intelligence material. There have been suggestions that the evidence coming from intelligence sources cannot be used in court in the normal way because to do so exposes sources and informers. On many different. occasions I have cross-examined witnesses in terrorist cases where their names are never disclosed; where they are referred to as "Mr X" or "Miss Y" and where screens have been used. Now, with new technology, it would not be impossible for someone to give evidence in an adjacent room and for their whole face to be obliterated by shaking up the pixels on the screen. We could even use sound techniques to distort the voice. There are many ways in which evidence can be given without putting security at risk.
However, the main issue is that what is being suggested in the Bill flies in the face of natural justice. Another point of real concern is that the body which will be hijacked to fulfil the function of reviewing decisions taken by the Secretary of State—the body already referred to, SIAC—is a tribunal established to consider deportation issues, and is not fitted for the purpose to which it will now be put. To suddenly row it in to take on the hugely important decision of indefinite incarceration of people without charge or trial is totally wrong.
Clause 29 deliberately and expressly excludes the courts, habeus corpus and judicial review from the whole procedure. It is an outrage against our liberties. It is a bridge I will not cross. I suspect that many in this House will feel the same. It is an affront to the values that we are protecting in the war that is being waged against terrorism. In the face of terrorism, 240 governments have to strike delicate balances between collective security and individual freedom. We in Britain have more experience than most in dealing with terrorism. Other Western democracies look to us. We are ahead of the game.
The guiding principle should always be that limitations on rights and freedom must be kept to an absolute minimum. Like others, I strongly support the proposals included in the Bill which deal with money laundering. I am also glad that the Home Office in its trawl for loopholes and other things that can be thrown into the Bill have discovered that there was no law to deal with possession of a nuclear weapon. What have we been paying the Home Office for for all these years?
In declaring war on terrorism I understand that we were doing so to preserve freedom and basic rights. But passing this kind of legislation undermines the values we want to protect. The Bill is an attack upon our freedom. When it comes to voting. I urge this House to stand firm in resisting the core of this legislation.
§ 9.45 p.m.
§ Lord Hylton
My Lords, it is a real pleasure to follow the noble Baroness, Lady Kennedy of The Shaws. Perhaps I may say to her that I as a layman have had the very strange experience of visiting in prison a number of victims of serious miscarriages of justice in terrorist cases. I was therefore delighted when the noble Lord, Lord Jenkins of Hillhead, mentioned in some detail the Birmingham Six and the Guildford Four and the long campaign that was required to establish the innocence of those people.
So I speak tonight as a rather sceptical layman. I believe that the burden is on the Government to justify the Bill's very miscellaneous contents. The first question that comes to my mind is whether a genuine public emergency, threatening the life of the nation, actually exists here now. I simply say that qualified opinions differ very much on that subject. I do not believe that acts of international terrorism have been conducted here since September llth.
Before the ceasefires in Northern Ireland, conflict stemming from there caused well over 3,000 deaths, 45,000 injuries and the displacement within the United Kingdom of thousands of innocent civilians. It involved two attempts, as has been mentioned. to murder the whole Cabinet. Yet no one proposed such far-reaching measures as those before us today. How do the Government justify the existence now of a greater state of public emergency?
In the Bill we find clauses dealing with religious hatred in this country, or with the bribery of foreign officials overseas. I am sure that these are very desirable, but they are nothing to do with an emergency. I therefore strongly support those who have demanded that the measure be split into separate Bills. That would make it possible for long-term changes to be subject to normal parliamentary procedures, even if the emergency provisions may need to be enacted more rapidly. Here I agree very much with the noble Lord, Lord Marlesford.
241 The onus surely is on the Government to justify every extension of powers beyond those in the Terrorism Act 2000. Here I follow the noble Lord, Lord Thomas of Gresford. It would indeed be helpful to know what have been the results of recent arrests and detentions under that Act.
The Bill provides many serious grounds for concern. What, for example, will be its effect on community harmony and race relations in this country? Already there is anxiety among ethnic groups, some of whose members have belonged to, or who now support, the legitimate aims of overseas organisations that are banned in this country. I am thinking particularly of the Kurds and the Palestinians, but Chechens in this country might also be subjected to guilt by association and so might Afghans. Great care will be needed. We shall have to uphold the ancient principle of "innocent until proved guilty". Massive increases in penalties, with some potential prison sentences trebled, will also need thorough examination.
The London office of the United Nations Commissioner for Human Rights and others have expressed great concern over Clauses 34 and 35 of the Bill. Clause 34 will apply only to very small numbers of people, perhaps 10 or so a year. That is a strong reason why those people should be allowed to state their case as refugees, all the more so since, if they cannot be deported, they are likely to be detained unless they voluntarily leave the country.
Clause 35 is far more wide ranging. On that point I agree with the noble Lord, Lord Dholakia. It is likely to exclude significant numbers of people from the protections of due process and natural justice. At present, all factors are taken into account and there is a balancing of the fears of death and persecution against possible crimes committed elsewhere. What weight should be given, for example, to acts that are technically crimes in Iraq or Iran?
The proposed new dispensation may make the difference between the granting of full refugee status and exceptional leave to remain. That in turn may affect the prospect of a family being able to reunite in this country. It also seems that the Bill gives power to return people to other countries from the ports, thus denying them access to legal advice. I therefore strongly support those who ask for all the asylum and refugee clauses to be removed from the Bill and considered in a far more deliberate and careful way in the asylum and immigration Bill which we have been promised quite soon.
Up to now, this country has had an honourable record in applying the international convention on refugees. It would be sad if the alleged emergency drove us into arbitrary interpretations of the convention.
I turn to Part 5 and the concept of religious hatred. The conclusive test must surely be whether the hatred, or the words inciting it, lead on to violence against persons or damage to property. That extremely 242 complex and difficult subject would be far better left for more mature consideration outside of any emergency context.
I trust that the freezing orders in Part 2 will be wide enough to catch money suspected of being laundered here by dictators and members of governments. There has been far too much of that in cases ranging from Nigeria to the former Yugoslavia. Will the Bill also catch the proceeds of illegal blood diamonds coming from various countries in Africa?
My final concern, which has already been raised, concerns Clauses 110 and 111, which cover the implementation of the European Union third pillar—secret inter-governmental decisions. A massive Henry VIII clause allows such decisions to be given effect by secondary legislation—albeit by affirmative resolution. The Government may say that there are precedents for that. I reply that the major changes required for co-operation in criminal matters should, because of their sensitivity, remain subject to primary legislation. In that respect I agree entirely with the noble Lord, Lord Waddington.
The difficulty, of course, is to distinguish between major and minor change. If we were given adequate time, perhaps criteria could be found to make such a distinction. The noble Lord, Lord Brennan, asked for—and I am sure will provide—intellectual rigour in the Bill's forthcoming stages. That is one area where it is much needed.
I object to the haste with which the Bill is being driven forward. I object to the inclusion of items only tenuously connected to the alleged emergency—especially those that I have cited: immigration and refugees; religious hatred; bribery overseas; and the third pillar. The Bill should be split up, and if the Government do not accept that, they are likely to do lasting harm that they will come to regret. Anything that decreases time-honoured freedoms and protections for the individual is in itself a victory for terrorism. The Government must therefore justify each and every encroachment, given the serious criticisms made from all sides of your Lordships' House today.
§ 9.55 p.m.
§ The Earl of Onslow
My Lords, when I saw the Bill I asked myself the following question: would its existence on the statute book have had any effect on those who drove hijacked aeroplanes into the side of two splendid skyscrapers on the waterfront of New York? I am afraid that the answer must he no, it would not. The incident happened as a result of the failure of intelligence. In the story, The Day of the Jackal, the intelligence service did not get the breaks it needed, the police did not pick up the hints and no one knew what was going to happen. I suggest that the Bill would not have made a blind bit of difference whatever.
That is not to say that I in any way believe that government should not keep legislation under very close review. It is government's prime duty to ensure that the Queen's subjects can go about their business in peace without let or hindrance and, above all, without interference from the outside ungodly.
243 I have been a Member of this House for many years and I have lost count of the number of terrorism Bills which have come before us. I remember that in 1998 or 1997 we debated the legislation which came before us as a result of the Omagh bombing. We were brought back here in the middle of September to rush through the legislation.
There is the terrible feeling that governments believe that they must do something and be seen to be doing something. That is not wise government; it is bad government and it is "dangerous dogs" government. I slightly criticise my own party for not saying to the Government, "Look, you have got your Bill, but we shall not allow it through in this rushed process". Let us suppose, for instance, that the government review had taken place three weeks earlier and that the Bill had been introduced three weeks earlier. We should still have received it next week, but after a much slower and more deliberative process. Let us assume that the Government had not completed their review until January. Would it matter if the Bill had taken three weeks longer to produce? It is completely and utterly insufferable that the Bill described in today's Times as the "Christmas tree bauble Bill" should be rushed through so that we have Second Reading today and the Committee stage tomorrow. It is a 125-clause Bill.
It is not as though during previous periods of internment the forces of law and order have been anything other than incompetent. During the war they locked up hoards of people who had fled Nazi Germany through fear of persecution. The least said about internment in 1969 or whenever in Northern Ireland, the better. As regards Iraq, the Iraqi ambassador as he left the country said to those in the Foreign Office., "Here is a list of young men who are finishing their studies at British universities. You have seized the money, so will you please ensure that their university fees can continue to be paid out of the blocked account?". "Yes", say those in the Foreign Office. Two days later, Plod goes round and locks the whole lot up as internment. I believe that every single one of those people decided to apply for political asylum and received it. It is not as though our efforts in interning the right people have been anything other than catastrophic.
It was said earlier that the number of people to whom the Government thought internment should apply would be 10 or 12. Do we really need to overturn centuries of British liberty for 10 or 12 people on whom a decent eye cannot be kept by the forces of law and order, or are those forces of law and order as incompetent as my noble friend Lord Marlesford says the Passport Office is?
Judicial review is not new. It is a sadness that the noble Earl, Lord Russell, is not in his place. At Eton I remember him as "Russell, CS", an incredibly clever little boy who seems to have grown up to be an incredibly clever old man! When James I, who was, according to the noble Earl, an early forerunner of Michael Howard—that fills me with complete joy!—tried to pass into law a measure which had not come before Parliament, Lord Justice Coke said that 244 nothing could come into law without the advice and consent of a triune Parliament; in other words, what is written at the beginning of the Bill:Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament".That was the view of Lord Justice Coke and it was an early example of judicial review. To throw out judicial review for the possibility of locking up 10 people strikes me as quite unpleasant and dangerous.
I thought that I might skate lightly over religious hatred. I believe that it is odious and hateful that Hindus should have a caste system that condemns individuals to be hewers of wood and drawers of water; in others words, "You're a better man than I am, Gunga Din!", people. They may not rise in the social order or do anything other than clean lavatories throughout their lives. I believe that that is a very unpleasant attitude. The noble Lord, Lord Desai, told me earlier that it was a social custom, but I suspect that it is given authority by religious practice.
When I open the Koran, I read:They have taken their oaths for a cloak, and they have turned men aside from the way of God: wherefore a shameful punishment awaiteth them; neither their wealth nor their children shall avail them at all against God. These shall be the inhabitants of hell fire; they shall abide therein for ever. On a certain day God shall raise them all: then will they swear unto him, as they swear now unto you, imagining that it will be of service to them. Are they not liars? Satan hath prevailed against them, and hath caused them to forget the remembrances of God. These are the party of the Devil",et cetera, et cetera. That is not very nice. That is what the Koran says about the Jews. Is that religious hatred? Are we to lock up everybody who says that?
This Bill is full of horrors. If the House does not insist that the legislation is repaired and the nastiness removed, even to the point of seriously falling out with the House of Commons, there is no point whatever in this Chamber. It will be reformed into a collection not simply of "Tony's cronies" but of "Tony's clones". I would never want to sit in a House like that.
§ 10.8 p.m.
§ Lord Desai
My Lords, for the past 10 years in this place I have not liked very much anything that has come from the Home Office, and I do not believe that I am about to change my view about that. As the noble Earl, Lord Onslow, reminded us, this is the third terrorism Bill in the past four years. We were brought back from our holidays after the tragedy of Omagh because urgent action was needed and in one day we passed a Bill. I remind noble Lords that that Bill had an extra piece added on to deal not simply with Omagh but with terrorists who were doing things in this country against foreign governments. The noble and learned Lord, Lord Lloyd, told us in words of one syllable that that legislation would not work because it was flawed. Not a single person has been convicted under that legislation for what happened in Omagh. Therefore, what we did was a total waste of time.
Not being satisfied with the second half of that Bill, the Terrorism Act 2000 was enacted, under which all kinds of powers were given to the Home Office. It 245 allowed us to do all kinds of things to people. We were told at the time that it was absolutely essential that we did those things.
Now we have another terrorism Bill. This one, like the post-Omagh Bill of 1998, has all kinds of added frills which are utterly irrelevant to the urgent purpose for which the Government want legislation. If the Government want legislation for urgent purposes, I surmise that Parts 1 to 4 are essential. We should stick to Parts 1 to 4, debate them and forget about the rest of the Bill. As has been pointed out about the part of the Bill dealing with nuclear weapons and so on, if the private ownership of nuclear weapons has not been banned until now, why attack private property at such a delicate time?
Many noble Lords have spoken to Parts 1 to 4, and to other parts of the Bill, and I broadly agree with them. All I have to say about Part 4 is that I would like the review under Clause 26 to be carried out every three months rather than every six months. I should like the executive to be on a shorter leash.
I am conscious of the fact—it has been said by many noble Lords, but especially by my noble friend Lady Kennedy of The Shaws, who knows something about it—that we have got things wrong a number of times because of mistakes by security services, the police or the prosecution services. The mistakes are legion. If you go to the United States, you will find that the reputation of British justice is extremely low. It is not high because we have done things which are outrageous.
I shall tell the House why we have done those outrageous things. I do not like saying this, but even in matters as trivial as the recording of names, racism makes us get it wrong. People do not know how to spell Irish names, let alone Arab or Indian names. So there are false identities. People are arrested because their name may look like someone else's name but they are not those people. That happens because the people recording names have no knowledge of Arabic, Hindi, Urdu, Afghan or any other language. All of them, I am sorry to say, look alike and therefore mistakes are made. I am very fearful that this Bill—especially as there will be no judicial review, no trial and no open display of evidence—will make those matters much worse.
I am willing, more or less, to swallow some of these faults, but I do not like Part 5 at all. Many noble Lords have said that adding religious hatred to racial hatred will not work, but there is another reason. The whole idea that we need to add religious incitement is based on a fallacy. When certain kinds of people say, "Kill the Muslims" or "Get rid of them", they are not concerned with the Muslim religion. As far as they are concerned, there is no distinction between race and religion. They are not talking about Bosnian Muslims, Turks or American Muslims; they do not know what Muslims they are talking about.
People say that, for Jews, race and religion are identical, for Sikhs they are identical and for Muslims they are not. I do not believe that they are identical for 246 the Jews. If a Jew converted, those who hate the Jews would not take any notice of the fact that he had converted to Protestantism or Hinduism or any other religion; they would know that he is a Jew and they would persecute him. That is what happened in Germany. There, people were persecuted for being Jewish regardless of what religion they subscribed to. Indeed, Karl Marx is always referred to in his biography as a Jew, despite the fact that his father had converted to a part of the Christian Church. Karl Marx was an atheist, but he was always referred to as a Jew. Why? Because that is the way people identified him. We must rid ourselves of the notion that for Jews race and religion are identical.
When people attack Muslims, Hindus or Sikhs, it is a straight racist attack. They are attacking Muslims of a certain colour, of a certain national origin, of a certain ethnicity. Therefore, in introducing this legislation, we shall not solve the problem; we shall simply be adding one more false category to all the others.
I have another worry. Much of the impression that has been given as to why this provision is necessary has concentrated far too much on Muslims. That will do nothing but harm to the Muslim community. It will be seen as a special concession to a particular community. That is not what the words say, but all the justification has been given. It will do those in the Muslim community no good to know that they have been singled out as an exception. To that extent, we should be careful as to whether we really do mean religion, or whether we mean something else. I think that we mean something else.
An additional consideration, as the noble Lord, Lord Dholakia, said, is that quarrels on the Sub-Continent will now be visited here with a double force. There is resentment among some Hindus that Muslims have been singled out for favour in the Bill. That may not be true, but that is how it is perceived both over there and over here. The last thing that we want is for communal riots in India to be re-enacted in this country because religious communities are encouraged to have separate identities. As soon as people have separate identities, they quarrel with each other. That is what identities are all about. We want to avoid that.
The Home Affairs Select Committee in another place concluded in its First Report:We have not seen sufficient evidence to justify the proposition that extending the law of incitement to include religious as well as racial hatred will work in practice. The proposals in the Bill would be difficult to enforce. We note in particular the evidence from a group of distinguished Muslim organisations and individuals: 'we have grave reservations about the extension of this criminal power to cover religious groups at this particular time'. We therefore see no reason for this measure to be included in this emergency terrorism Bill".It would be a good idea if the Government were to break up the Bill and come back with Parts 1 to 4. We could battle day and night over Part 4 and improve it. They could leave the rest of the Bill aside, think about it and bring it back later, especially Parts 5 and 13. Part 13 raises grave problems, as the noble Lord, Lord Waddington, pointed out. If urgency is the problem, it 247 applies only to Parts 1 to 4. I hope that we can give better consideration to these matters. Yet another attack on civil liberties by the Home Office is more than one can contemplate.
§ 10.14 p.m.
§ Lord Phillips of Sudbury
My Lords, I want to refer particularly to the disclosure provisions and then to make some more general remarks about the content of the Bill.
The disclosure provisions are mainly to be found in Part 3, in Clauses 17 to 20, and in Part 11, in Clauses 101 to 104. Many organisations are now beginning to realise that the purport of those sections could scarcely be more serious for the whole issue of public information, or private information drawn into the public sphere.
An important section dealing with these disclosure arrangements is to be found on pages 15 and 16 of the second report of the Joint Committee on Human Rights. The committee points out, correctly, that the Bill attempts to rehash those provisions which were rejected by this place when the Criminal Justice and Police Bill was before it in January and to extend the disclosure provisions. Public authorities will be required to disclose information to each other in relation to any criminal investigation. As many noble Lords have said, one of the many bones of contention across the House is that a Bill which is rushed through this House in order to deal with an emergency terrorist situation is being used for much wider purposes.
Under Part 3 of the Bill the authorities will be required to provide information in an extraordinarily wide range of circumstances: any criminal investigation; any criminal proceedings; and indeed any decision as to whether or not to investigate or pursue criminal proceedings. Public authorities include banks, health authorities, education establishments, all government departments and all quangos. The provisions will entitle Inland Revenue and Customs and Excise to reveal information about any individual in respect of any criminal matter whereas, as we sit here today, the only situations in which they can do that are those involving treason or murder.
Part 11 of the Bill will allow the Government to require "communications providers" to store information for such period as the Minister may require. Initially, there is to be a voluntary code on retention of information but, if the Secretary of State believes that it is necessary so to do, he or she can then make a mandatory order requiring information to be stored for such period as the Minister may require. In this House we struggled to have reference to the Technical Advisory Board inserted in the Regulation of Investigatory Powers Act. That board is not referred to. I think that the Minister will agree that such a provision is a protection against misuse of some of the powers which are provided under the Bill.
§ Lord Rooker
My Lords, the noble Lord makes a fair point because every provision is not duplicated. In opening the debate, I made it clear that the powers which will be used for disclosure will conform fully to the Regulation of Investigatory Powers Act and the European Convention on Human Rights. That is how the powers are monitored. Therefore, the Technical Advisory Board—the noble Lord is right: it was set up recently—will play its role. The procedures on disclosure of information will follow the RIPA rules, and will be ECHR compliant.
§ Lord Phillips of Sudbury
My Lords, I am grateful to the Minister. When he refers to the RIPA rules, many will think of "Jack the Ripper rules", so vicious are these provisions. However, I am sure that we can insert a reference to the Technical Advisory Board as we proceed.
Some will say that the innocent have nothing to fear by disclosure. It is only the wicked and villains who should worry. But that is not true. The right to privacy long predates any human rights legislation. It is not a right in the formal sense but one that citizens of these lands have enjoyed since time immemorial. The Government would misjudge public opinion and anxiety if they were to proceed on an extraordinarily broad front with extraordinarily broad powers.
It is common sense and reality that there are rotten apples even in a well-run police force or security organisation—and rotten applies will use powers given by the Bill perniciously. The more intrusive and secretive the powers, the more pernicious the abuse. It is not paranoid to worry about such matters. Only last summer we discovered that the national databank that is supposed to destroy fingerprints and genetic materials taken from suspects had failed to discharge no fewer than 50,000 sets, which were languishing on the databank long after they were legally there. We should not tempt persons who are corruptible or who are likely to take short cuts by littering the statute book. Even if one only subscribes to the cock-up theory of life, the proposed powers are far too wide. I hope that the Government will listen to all parts of the House as the Bill progresses.
We live in an acquisitive state. There have been 11 criminal statutes since 1997 and those powers are too great for the liking of many in this Chamber. We will need a great deal of reassurance that the Bill is fair and proper.
The noble and learned Lord, Lord Mayhew, and my noble friend Lord Jenkins contributed remarkable speeches by men who have deep and long experience of the issues that we are grappling with tonight. I was struck too by the difference of emphasis between them, although both were sympathetic to the notion that the Bill is too broad and piggybacks clauses on to the terrorist emergency in an unacceptable way.
Both speakers felt that the need for judicial review in respect of SIAC was imperative. The noble and learned Lord, Lord Mayhew, spoke about not being 249 caught up in the nicety of his admirable principles—not to be too refined in protection for suspected terrorists. He asked what would the public think if a further terrorist atrocity occurred in this country and all necessary steps had not been taken to prevent it. That is a fair question and the Minister dealt with it fairly when opening the debate.
My noble friend Lord Jenkins referred to the Prevention of Terrorism Act 1974, which came in the wake of the Guildford and Birmingham atrocities—when far greater alarm was caused to the British public than now prevails. My noble friend doubted whether that legislation had frustrated any determined terrorist but made the reasonable point that perhaps the 1974 Act steadied the febrile state of public opinion. He went on to point out that some of the grossest miscarriages of justice in modern history were subsequently perpetrated. The noble Baroness, Lady Kennedy, and others also referred to those miscarriages.
In urging the greatest care in passing the Bill, my noble friend concluded that we cannot defend our values by suspending them. I draw the further conclusion that fair-weather values are like fair-weather principles—nigh-on worthless, hypocritical and counterproductive.
We are dealing not with a war in the normal sense of the word, but with a crisis that we are all greatly concerned about and intend to try to address properly in the legislation. In responding judiciously to natural public outrage and anxiety, we must not feed public passions and fears by the measures that we adopt. Above all, in our debates and in discourse with the public, we must emphasise that we are not necessarily dealing with terrorists—only with suspected terrorists. It is easy to slip into the language of certainty when we are dealing with suspicion and the means of properly contending with it.
The trial process is fragile enough, even when carried out in the full public gaze and with the protection of jury trial. As we know well enough, in the aftermath of atrocities, wrongful convictions can occur. I note in passing that we have no definition of terrorism in the Bill. I was struck by the remarks of my noble friend Lord Russell on the ANC and freedom fighters.
I shall say no more about the inadequacies of SIAC, except to endorse the need for judicial review and for much greater protection by the means of trial. False "convictions" will sow dragon's teeth among the terrorist community. It is an unfair paradox that nothing so inflames and exacerbates the violent passions of the terrorist-with-a-cause than to suffer injustice at the hands of the state that harbours him and to which he may or may not be actively opposed. It becomes an extra casus belli and immediate provocation that can, and often does, lead to a commencement or intensification of terrorism by his fellow travellers against that state.
250 I draw your Lordships' attention to the remarks of the Bar Council, which referred to the nature of the SIAC process being inflammatory to segments of public opinion here and elsewhere.
Criminal laws have to strike a difficult balance between the rights of the accused, who may be a repeat murderer or repeat rapist, and the rights of society and of victims. The same dilemmas afflict us here, with the added complication that terrorism always involves group hatreds, which can be more activated to violence by oppressive laws and arbitrary trials than by an apparently liberal regime.
In closing, it is worth reflecting on our experience in the Second World War in respect of the Defence of the Realm Act and the infamous Regulation 18B, which allowed detention without due process. Some of your Lordships may know of the very important and interesting book on the subject published by Professor Simpson, in which he quotes the statement by Herbert Morrison, as Home Secretary, in a debate in 1942. Morrison said:What the House must do is to keep watch on the Home Secretary … to look out for cases where in their judgement he has gone wrong and they can get evidence that he has … I agree it is not cricket, but I cannot help it".As we have seen in Ireland, the whole system was so unfair and counter-productive that in due course it collapsed.
I close my remarks with a quotation from Winston Churchill—that extraordinary man who, in the midst of his war negotiations in Cairo in November 1943, had time to telegraph back to Herbert Morrison on the debate that he was about to lead in the House of Commons on whether the Mosleys should be released from Regulation I 8B detention. It is interesting to note that Clementine had put pressure on him in Cairo to intervene. I remind the House that this was in the middle of a war which we were not certain of winning. In writing to Herbert Morrison, Winston Churchill said,You might however consider whether you should not unfold as a background the great privilege of habeas corpus and trial by jury, which are the supreme protection invented by the English people for ordinary individuals against the state. The power of the Executive to cast a man into prison without formulating any charge known to law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist … Extraordinary power assumed by the Executive should be yielded up when the emergency declines. Nothing is more abhorrent than to imprison a person or keep him in prison because he is unpopular. This is really the test of civilisation".I do not want to be melodramatic, but I believe, as many others have said more eloquently than I, that there are the greatest issues of the quality of our civilisation in this Bill.
§ 10.31 p.m.
§ The Earl of Northesk
My Lords, given that I follow the noble Lord, Lord Phillips of Sudbury, it is perhaps fortuitous that my especial interest is in the Bill's elements that have an IT flavour, particularly Part 11. Noble Lords will be aware that these are matters which have exercised the attention of some of us in 251 Parliament a great deal in recent years, specifically the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000.
What matters here is that Parliament had arrived at a settled view as to how the issue of data retention should be dealt with. The Government's case, presumably, is that the events of September 11th demand that we revisit the matter. So be it. However, to my untutored eye, Part 11, drafted as broadly as it is, betrays a certain indecision on the part of the Government. Equally, with no hint of criticism, there may perhaps even be a certain lack of full understanding of what can be realistically achieved. With that in mind, and in the time I have available., I propose to subject the provisions of Part 11 to the four tests of effectiveness, of necessity, of proportionality and of consequence.
I start with effectiveness. The attractions of facilitating intelligence gathering and law enforcement by reference to communications data seem self-evident. Indeed, the Minister stated in his introduction that this had been "central to investigation" of the atrocities of September 1lth. I do not dispute that, but there are complications.
The retention of data is the stockpiling of Internet and telephone traffic which has already taken place. It is not a predictive tool. Its purpose has much more to do with the investigation and prosecution of crimes already committed. As I say, I do not question or dispute the importance of that. But the purpose of this Bill is to address a current and ongoing emergency. It is that which justifies its tag of emergency legislation.
Moreover, the fight against terrorism demands rapid access to focused intelligence. But, as they stand, the Bill's proposals will produce such vast amounts of data that law enforcement and intelligence services could well be stymied by "information overload", the reverse of the Government's intentions.
A point constantly alluded to in our debates on the Regulation of Investigatory Powers Bill—it has just as much, if not more, resonance now—was that the technological skill and sophistication of terrorist and criminal organisations is such that they can readily avoid our attempts to legislate against them in this area. I do not say that that should stop us trying. Nonetheless, it is a fact that even those with limited understanding of the way in which the technology works can evade traceability and investigation by, for example, using pre-paid mobile telephones or web-based e-mail from public terminals.
Additionally, all of this presupposes that terrorist and criminal organisations communicate habitually and exclusively by means of modern technology. We know this not to be the case. For example, it is well known that a favoured method of transfer of funds for Al'Qaeda has been, and is, the brokerage system of hawala.
252 Moving on, I turn to the test of necessity and draw your Lordships' attention to paragraph 259 of the Bill's Explanatory Notes. This states:Communications data can be a useful tool for law enforcement agencies"—no dispute about that—and if held by a communications service provider will be accessible by a public authority under Chapter II of Part I of the Regulation of Investigatory Powers Act 2000 which is shortly to come into force".In other words, law enforcement agencies already have the statutory power, appropriately constrained, to obtain data for those purposes set out on the face of RIP. I accept that the Explanatory Notes go on to say that,whilst the Regulations permit the retention of communications data on national security and crime prevention grounds there is currently no general guidance given as to when these might apply".To my mind, that is an inadequate fig leaf to justify the broad and imprecise scope of the data retention measures before us today. What cannot be disputed is that the power already exists. Proof of that is to be adduced from the fact that the United Kingdom National Hi-Tech Crime Unit submitted a request to ISPs and telcos that logs of communications for September 11th should be retained. On advice from the Information Commissioner that,the request from the NHTCU is lawful and proportionate in the circumstances",ISPs complied with the request.
As I say, the Minister confirmed that in his introduction. But perhaps I can have clarification as to how long authority has been given for the retention of that data? Does it in fact relate only to the single date. of September 11th or stretch over a wider period? That is an important point. Moreover, perhaps the Attorney-General can confirm that, once RIP comes into full force, senior police officers will be empowered to authorise their own orders requiring the retention of data for the purposes specified on the face of that Act.
That lends credibility to the view expressed by Jonathan Bamford, Assistant Commissioner to the Information Commissioner, in his observation that,Part 11 isn't necessary, and if it is necessary it should be made clear why".I shall be grateful if the Attorney-General can address that matter in his reply.
I move on to proportionality. Despite apparent assurances from the Home Secretary to the contrary, Part 11 of the Bill is not limited to providing data retention in respect of the current terrorist threat. Your Lordships will be aware that in an article published in Tribune on 26th October, the Home Secretary indicated that the voluntary regime would apply,strictly in the case of a criminal investigation against suspected terrorists".None of us would argue with that. But the Bill as drafted makes retained communications data available to law enforcement agencies in respect of what my noble friend Lord Dixon-Smith called the 253 "generality of crime", and indeed beyond. In terms, therefore, each and every one of us who uses a telephone or a modem as a means of communication will have our traffic data retained.
I may have misheard the Minister—I know now that I did not because of the intervention of the noble Lord, Lord Phillips—but I seem to recall that he said Part 11 powers are in line with the ECHR. In fact, both the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee expressed doubts about that. The Information Commissioner is just as unconvinced, as shown by the text of her recent memorandum on the Bill. Referring to Article 8 she states:There must be a concern that the proposed legislation would be incompatible with Convention rights as it fails to satisfy this basic requirement for precision and foreseeability in the delineation of the Secretary of State's powers".And for good measure, in respect of the Data Protection Act, she adds,Continued retention of communications data by a communications provider beyond the completion of its own processing, in order to satisfy the needs of others, is likely to contravene the 1998 Act's requirements".To the extent that the data retention provisions are inconsistent with both the Human Rights and Data Protection Acts, can they really be termed "proportionate"?
I come to my fourth test; that of consequence. Here I follow the argument of the noble Lord, Lord Phillips of Sudbury. The Performance and Innovation Unit report, Privacy and Data, states:Privacy is a fundamental right. It is hard to quantify, which may have the effect that it is accorded less weight than other factors … but it is no less real. Furthermore, it is not simply relevant at the level of the individual … but it is also a common good for society as a whole".The data retention regime promoted in the Bill will effectively transform our communications infrastructure—or may do—into a form of mass domestic surveillance. That represents an unwarranted invasion of privacy because it creates a regime where details of the personal life of all citizens will be available to public authorities with inadequate checks and balances. I should say here that I agree with the Minister that content is not an issue. Rather, as the Foundation for Information Policy Research has explained:'Traffic data' constitutes a near complete map of private life: who everyone talks to (by e-mail and phone), where everyone goes (mobile phone location co-ordinates), and what everyone reads online (websites browsed).Caspar Bowden, FIPR's director, goes further:Collecting the streams of thought of the population and processing them by computer is a good definition of a police state".In so far as the measure provokes that degree of concern, it is all the more important that we scrutinise it as carefully as we can.
Inevitably, the provisions will also have consequences for industry, not only telcos and ISPs but also more generally. In passing, will the noble and learned Lord the Attorney-General undertake to 254 publish the Horrocks report? There will be a not inconsiderable financial cost to ISPs and telcos, albeit that the Bill makes allowance for appropriate moneys to be paid out of public funds. None the less there is a real risk that,Extra costs arising from retention could increase overheads to the point where cheap transatlantic bandwidth makes it attractive to locate servers in offshore subsidiaries where requirements are less onerous".The Government may seek to defuse this by highlighting the voluntary nature of the scheme—ISPs will not be obliged to retain data. But, in so far as it is argued that this is a key component of the efforts to counter terrorism, it suggests that the scheme is redundant even before its implementation. The consequence is that, in very short order, the Home Secretary is likely to use the reserve powers granted to him under the Bill to introduce a mandatory scheme that will be subject to a dearth of parliamentary scrutiny or accountability.
That said, my impression is that the industry is less concerned about financial aspects than technical ones. As I said, the volumes of data that will be subject to retention are vast. The consequence for most telcos and ISPs will be that management of compliance with the data retention regime will become so time consuming and routine that it impacts seriously on the successful running of their businesses. Inevitably, those various factors will compromise the competitiveness of the IT industry. As recognised by the CBI, the proposed data retention regime could damage consumer confidence in e-commerce and commercial exploitation of IT in the UK. I merely speculate how those consequences can reasonably be squared with the Government's stated policy of making the UK the best place in the world for e-commerce.
I hope that your Lordships will forgive me if I also say a few words about Part 3. As the noble Lord, Lord Phillips, pointed out, the genesis of this was Part 2 of the Criminal Justice and Police Bill of the previous parliamentary Session. The clauses before us are almost a carbon copy. Those proposals fell at the time of the general election for lack of scrutiny.
I have a particular concern here; namely, the technique of data matching or data sharing, whichever term you prefer. In that context I draw your Lordships' attention to an observation from the noble and learned Lord, Lord Falconer, during the passage of the Data Protection Bill:I emphasise that the first data protection principle provided in the Bill is that data should be used fairly and lawfully. We believe that that will deal with data matching to a large extent. Moreover, whenever data matching has been permitted it has been explicitly by statute".Yet the Privacy and Data report I referred to earlier from the PIU seems to cut across that. It appears to recommend that the practice of data matching should not be subject to specific statutory authority on a case-by-case basis, as has been the custom previously, but that authority for its application should be obtained by secondary legislation as of need. As early as June of 255 this year—that is, prior to the current emergency—Rachel Sylvester, writing in the Daily Telegraph, observed:The Data Sharing and Privacy Bill will be introduced as early as possible. Ministers are aware of the importance of winning over public opinion".My concern here is that, taken together, Parts 3 and 11 pre-empt the need for the data-sharing elements of such a Bill. They give public authorities carte blanche to data-match to their hearts' content.
I have detained your Lordships for longer than I might have wished, albeit that I have barely scratched the surface of the complexities of these parts of the Bill. I apologise on both counts. In my defence, these are very serious issues that merit proper examination and explanation. Because public opinion and the attention of parliamentarians are so unsighted on the substance of these issues, it could be argued that Part 11 is one of the more insidious elements of the Bill.
That said, I stand four-square behind the Government's determination to produce—I quote the Minister's words back at him—a "measured and proportionate" response to the events of September 1lth. The crucial words in that task are "measured and proportionate". To that end, and to assist the Government, I shall be tabling a number of amendments on Part 11 for debate in Committee.
§ 10.46 p.m.
§ Lord Harris of Haringey
My Lords, I have always been told that brevity is a prized virtue in this House. At this time of night, it is certainly a virtue that I shall hope to achieve, although I have a tendency to stray. Having listened to so many interesting points made by your Lordships. there is a temptation to respond and to expand on each one.
I declare two interests. First, I am the chair of the Metropolitan Police Authority. The Metropolitan Police service will clearly be much affected by many of the provisions of the Bill and by the consequences that may arise from it. My second interest is that I was in New York on September llth. Therefore, I was much closer than I found comfortable to the events of that day. Indeed, on the previous night I had visited the all-night court, located at the base of the World Trade Centre. When I came out, I looked up at those magnificent buildings. On the morning when the atrocities took place, I was about to go back into the same area for various meetings.
It may well be that that experience and proximity have done something to colour my judgment in terms of this Bill. Certainly, I believe that being too close for comfort makes it very apparent to one how the nature and experience of terrorism has changed in scale as a result of what happened that day.
The terrorism of September 11th was of a magnitude very different from what we have experienced in the past—certainly in this country. It was not about persuading people of a particular political point of view; it was not about persuasion at all. It was not concerned about the consequences or the number of people who might be affected; and it made 256 it clear that in the future there will perhaps be no limits to what may or may not happen in a terrorist attack. A number of your Lordships have referred to the possibility of terrorism involving nuclear, biological and chemical weapons, and so on. Having seen what happened on September 11th, such matters which, in the past, we dismissed as being unlikely have now become much more likely.
Therefore, it is appropriate that we have before us today a Bill which looks at the new measures that may be required by that new situation and by the new magnitude of what we may face in terms of terrorism. It is appropriate that we review the balance that must be struck in terms of measures which perhaps infringe our freedoms and those which are necessary to protect us, or necessary to assist in protecting us, from terrorism. It is entirely proper that we review what is or is not a proportional response to a terrorist threat. That means accepting that there has to be a different balance in our individual relations with the state. It also means accepting that, as citizens, our rights will be affected by what has happened and by what now needs to be done. We must also recognise that the rights of people who are not citizens of this country will also be affected.
I was much struck by the opening remark of one noble Lord who, although his argument then went off in a different direction, said that no right-thinking person will accept that it is right that because a suspected terrorist cannot be deported to his or her country of origin, we should allow him or her to roam free in this country, particularly if there is some suspicion that he or she may be planning a terrorist act here.
I believe that the Bill provides due process. There has been much discussion of the alleged shortcomings of the SIAC process. However, these provisions avoid unnecessary abuse of the system. I sometimes feel that our many expressions in the House of the desirability and importance of judicial review are more about a job-creation programme for QCs or about creating a playground for lawyers. I make those comments knowing that my noble and learned friend the Attorney-General will be deeply affronted. However, I am trying to help with the arguments that he will have to deploy in a few minutes. I sometimes wonder whether the belief that judicial review is the solution to all ills reflects any sort of reality or the way in which life is lived.
I come back to what any right-thinking person might feel when there is a real belief that people are suspected terrorists and that they may be trying to commit a terrorist atrocity in this country. Would we allow them to roam free because of the belief that a judicial review process is necessary?
I want to spent a few minutes discussing Part 5, which is about incitement to religious hatred. Such provisions are long overdue. I have already spoken in your Lordships' House on that subject. I recall debates about Islamophobia, involving my noble friend Lord Ahmed, in which that issue was discussed at length.
257 There are tremendous anomalies in our current legislation. Sikhs and Jews are recognised not because of their religion but because they are treated as an ethnic group; and because their ethnic identity is so inextricably linked with their religion, the courts accept that incitement to hatred of Jews or Sikhs is covered by existing legislation. Such provisions do not extend to Muslims, because they may be from different ethnic groups.
Noble Lords have deployed against those provisions the argument that somehow they do not fit into the Bill. It may be that the Bill has so many different parts that it is difficult to say that anything falls outside its terms of reference. However, that is not the argument that I want to advance. It is undeniable that since September 11th there have been a substantial number of incidents in which religious hatred seems to have been the motive or when religious abuse has been hurled. For that reason, it is timely and appropriate to include this measure in the Bill. If there were further major terrorist incidents of the nature of those that we saw on September 11th, the tensions that could be created in our communities—perhaps because of events overseas—could be much more critical and the Bill's provisions would become that much more important.
Of course, there are several problems with the existing laws on racial hatred. Those points were elucidated by several noble Lords, including the noble Lord, Lord Dholakia. It can be said that the existing law on the incitement to racial hatred had not significantly affected the production and circulation of racist material. There is rarely more than a handful of prosecutions each year under the Public Order Act 1986, which created a range of offences involving incitement to racial hatred. I am told that since 1988, there have been only 61 prosecutions.
Clearly, there is a major evidential test to be passed. Words or other material must be shown to be threatening, abusive or insulting and it must be shown that the perpetrator intended by such material to stir up racial hatred, or that in all the circumstances racial hatred is likely to be stirred up. It is not as though the new provision will be something which all sorts of people will rush to use or which will be applied in all sorts of circumstances where one would not expect it to be so applied.
There is an anomaly and a gap in our legislation. Since September 11th we have clearly seen religious abuse build up and being used in some of the incidents that have taken place. It seems to me that there is a serious gap. It is appropriate for that to be filled at this time. However, given that there are clear concerns about how all these laws operate at present, it would be appropriate at the same time for the Government to give a commitment that they intend to review such laws in respect of racial hatred—and now, I hope, religious hatred—and how they can be made more effective in future.
A few moments ago I mentioned the fact that the courts have acknowledged the existence of Sikhs and Jews but do not do so in respect of Muslims. The idea 258 of extending the principle of racially aggravated offences to ones which cover crimes of violence involving religion is therefore important. Racially aggravated offences apply to crimes against Sikhs and Jews but not to those against Muslims. Let us imagine a violent confrontation in one of our towns between groups of Sikhs and Muslims. If, as he was assaulting someone, a Muslim made clear his hostility towards his victim on the grounds of his being a Sikh, that might constitute a racially aggravated assault and he would face a heavier sentence than would a Sikh committing the same type of assault against a Muslim and using identical words of hostility. That is not logical and should be addressed.
Finally, I want to talk briefly about the police powers under Part 10 of the Bill on the identification and removal of facial covering and gloves. These provisions are to assist the police in the process of identification, including the powers to search people being detained and so forth. The proposal is linked to amendment of Section 60 of the Criminal Justice and Public Order Act, which gives power to the police to stop, search and demand the removal of any clothing that conceals identification in situations where a senior officer reasonably believes incidents involving serious violence may take place.
Identifying international terrorists—the principal purpose of the new powers—means that police and customs officers will inevitably target people from visible minorities. I accept that many people in such communities already feel especially vulnerable after September 11th, and certainly after the disturbances we have seen in northern towns and some of the problems that have existed in the past in terms of the fragile nature of police community relations. Given that the new powers, which I believe are necessary, could impact directly on police relations with ethnic minority communities, they need to be properly explained.
Police officers need to be properly trained in the use of the powers in line with an agreed protocol. The use of that protocol should be rigorously monitored and recorded. I believe this matter to be important. Therefore, I welcome the statement made by one of my colleagues in another place to the Home Affairs Committee that the Association of Chief Police Officers is drawing up a protocol to ensure cultural sensitivity and decent and respectful treatment of people under these circumstances. That work is important. I hope that ACPO will consult widely in drawing up guidelines.
I believe that the Bill is important, timely and, by and large, a proportionate response to the events of September 11th. In this House we shall subject it to considerable scrutiny—to scrutiny which perhaps it did not receive in another place. We have set aside many days and hours to debate the points before us. I hope that, as a result, we shall have a good piece of legislation and one which will help us in dealing with the situation we all face following September 11th.
§ 10.59 p.m.
§ The Earl of Listowel
My Lords, what adverse consequences does the Minister foresee for the dependants of those detained under the proposed legislation? What plans does he have to address such consequences? In his role as Minister for asylum seekers, he will know, far better than that asylum seekers are obliged to live in temporary accommodation. Often that can be unsatisfactory. There is overcrowding. Occasionally the accommodation is unsanitary. The areas in which they are accommodated are often the most deprived areas of our country. They may also be isolated from their friends, from their extended families and from the community of their ethnic group. The families live on 70 per cent of the income support that is provided to other families in such situations who are not asylum seekers. Because they live in temporary accommodation, they often do not have facilities for preparing food and therefore are obliged to have takeaway food. That is far more expensive than food prepared at home.
The OECD report published the day before yesterday stated that our country is one of the most expensive countries, if not the most expensive country, in the developed world in terms of public transport. Families often suffer intimidation. They are sometimes harassed. Occasionally violence is used towards them.
The Government have a target of six months for processing asylum applications. Often that processing extends over years. Therefore, in that context, can the Minister assure me that the dependants of detainees will be able to have regular access and perhaps weekly visits to their detained family member? Will the Government, if necessary, pay towards the travel expenses of the family or provide them with a travel pass? Will the detainee be kept near his family, or, if that is not possible, will accommodation be offered to the family near to where the detainee is held? Will families occasionally be held in detention as a group under the new legislation? If so, how will the Government ensure that the needs of the child, in terms of development and education, are met? If as a result of detention—
§ Lord Rooker
My Lords, I am sorry to interrupt the noble Earl. I may have misunderstood his first couple of sentences, but he is talking only about asylum seekers. No one has said that those who may be detained under Clause 21 will be asylum seekers. We are not targeting asylum seekers but international terrorists. We seek those who try to misuse the system by later claiming asylum. They may not claim asylum. They may already be refugees. They will be held—if they are held—in the same conditions as other people, such as remand prisoners. Their families will be treated the same. The noble Earl referred to the prospect of children being detained. I am not clear why the noble Earl raised that matter. We are talking about people designated as international terrorists. We are not talking about family groupings or children and their education.
§ The Earl of Listowel
My Lords, I thank the Minister for his intervention. That helps me to put my case more clearly. I believe that there are two new detention centres which will take families for short periods of time—under 10 days. Is that correct?
§ Lord Rooker
My Lords, I am sorry to labour the point. The immigration detention estate and its processes have got nothing to do with the Bill. Anyone held under the Bill as a suspected international terrorist will not be held in the immigration detention estate. They will be in prison, probably a high security prison. The Bill has nothing to do with the immigration detention estate—the new places coming onstream or the existing ones. There are only five places onstream. They are not fully occupied at the moment because they are brand new buildings. But we are not talking about that. That has nothing to do with this legislation. The prospect of induction centres and accommodation centres is completely outwith the Bill. That has got nothing whatever to do with it.
§ The Earl of Listowel
My Lords, I thank the Minister. Perhaps he will forgive my ignorance. He will understand that I am especially interested in families in vulnerable situations. I do not know much about this area, but I am raising a concern that appears to be being answered by the Minister. My picture is that a family has sought asylum here and then, through the efforts of our secret services, information is gained that strongly suggests that it is involved in international terrorism and it is detained for that reason. So the family members may have been asylum seekers at some point and then they are detained under the new arrangement.
Simply put, my concern is that some dependants of those detained may be vulnerable people. They may have difficulty accessing the detainee. It is important to emphasise that such detainees will be held only under suspicion of terrorism; no case under the normal process of law will have been proved against them. In similar situations, people have been held whom, on their release, have been clearly innocent. I am worried that in such circumstances families should have regular access to the detainee.
We may need to treat such families slightly differently from the rest of the families of people within the prison estate, because the Government are exercising an extraordinary power on a few people each year. The Government are saying, "We will imprison you because we fear what you may do. We do not want to risk our society suffering an attack like that of 11th September. We do not want to risk you inflicting that on other societies. But we will not take you through the full process of law." In such circumstances, the families of the individuals concerned should be given special attention. I look forward to hearing from the Minister—perhaps in a later conversation—greater elucidation of the full situation. I shall not detain the House further at this late hour.
§ 11.8 p.m.
§ Baroness Harris of Richmond
My Lords, I should like briefly to concentrate on the policing aspects of the Bill covered in Part 10, and I begin with a declaration of interest. Until recently, I was a member of a police authority for 20 years. I chaired North Yorkshire's police authority for the last seven of those years. I was also a deputy chair of the Association of Police Authorities and a member of the National Crime Squad Service Authority.
Your Lordships may wonder what all that has to do with extending the powers of the British Transport Police, the UK Atomic Energy Authority special constables and the Ministry of Defence Police. I hope to be able to demonstrate that my concerns are not simply those of a narrow interest but begin to unpick some of the fundamental principles on which policing in this country is based.
My concerns about the Bill are demarcation and, more importantly, accountability. It has been a long-held belief that the powers of the police are well-documented and open to scrutiny under various Acts of Parliament. The police have wide-ranging powers, and the law is to be used to support those powers. I am therefore troubled that the extension of those powers will be to officers who, in the main, have had neither the wide-ranging training in law of regular police officers nor the experience gained by dealing with members of the public.
Professional and dedicated though I know those officers to be, they are not under the same scrutiny as regular police officers, nor will they be so when the Bill becomes law. Will the Home Office regulations apply to them? What further training will they need to bring them up to the same and publicly accepted standards of regular officers? Who is to pay for that? How long will it take?
We are expecting them to undertake a range of duties, albeit in support of their regular colleagues, but it is unclear to me just who will be in control of any given situation should one arise. Perhaps I may give an example of what I mean. An incident occurs and a constable begins to deal with it. It becomes apparent that he needs help and through his chief constable he calls on the British Transport Police or the Ministry of Defence Police or a special constable from the Atomic Energy Authority. One of those officers arrives and turns out to have a higher rank than the regular police officer. Who will have precedence in dealing with the incident? Might there not be legitimate grounds for believing that at least there is a possibility for confusion to reign? Who will take control of the incident? Who will write it up and report back on it? To whom will he or she report?
That leads me to another point. At present, there is no statutory British Transport Police authority, nor is there one for the Ministry of Defence Police. I am afraid that I do not know about the Atomic Energy Authority's special constables. However, I understand that authorities are to be created certainly for the BTP and MoD Police and I welcome that.
262 It is essential that when we are proposing extended powers to other law enforcement agencies we make them accountable. That is the convention when we talk about how the powers of our regular police officers are scrutinised. It is done through published local policing plans and rigorous consultation with members of the public. This legislation will be in place long before the creation of such bodies and in the mean time the Government are proposing to give wide-ranging powers to officers from those three services before proper scrutiny of their working can be put into place. That worries me. I believe that there are existing and adequate powers for the police to carry out searches, examinations and fingerprinting of those in detention. The powers extend PACE to include "for identification purposes". If someone does not voluntarily admit to having an identifying mark, the police will be able to order him to submit to a search in order to ascertain whether or not he has a mark. How will they do that? May reasonable force be used? Will the person, perforce, have to submit to a strip search? If not, how can the police conclusively say whether or not there are identifying marks?
Similarly, in seeking the removal of face coverings the Government must explain why it is felt necessary to seek a new power to remove coverings even when the person requested to do so has not been arrested. Powers already exist for the police to remove anything worn to disguise identity.
Living as I do in the North of England, and coming into the winter months, I regularly see young people going about their business wearing balaclavas or hoods. It seems to be a fashion fad at the moment. They may be intent on mischief but I do not believe that they are intent on terrorism. The same applies to people attending football matches or lawful demonstrations. The point is that this part of the Bill would give wide-ranging powers to police officers before an offence has been committed and 1 believe it to be unnecessary, as does the Association of Chief Police Officers in Scotland and Scottish Ministers, who do not intend to use those particular powers. If the Government believe that it is necessary, why do we need these particular powers now? There will be ample time to debate them at leisure during the passage of the police Bill which is proposed in the next Session. It seems to me that they have little to do with stopping terrorism.
The Bill constantly puts the onus on the police officer with language such as "reasonably believes that", "that it is expedient to", or "reasonably expected to" and so forth. Again, our regular officers in the front line will have to balance their powers finely. That is a recipe for bitter confrontation, especially when dealing with young people and ethnic minorities at a time when we desperately need their support. An extension of PACE and stop and search powers is not necessary, could create conflict and will hamper good community relations. I urge the Government to look carefully at these proposals as we move through the various stages of the Bill.
§ 11.16 p.m.
§ Earl Attlee
My Lords, the hour is late and I shall not weary noble Lords by repeating points already made. Much has been said with which I agree; there are some matters with which I disagree. But all speakers have been interesting and thought-provoking. Much has been said about Part 4. I have found the debate useful but worrying. I support the principles but suspect that there will be difficulties with the detail. Clauses 98 to 101 deal with the jurisdiction of the MoD and the British Transport police. I know that noble Lords will consider the position carefully in Committee.
The noble Baroness, Lady Harris, raised some concerns, particularly the matter of precedence. I do not believe that there will be difficulty in that regard. When we debated the British Transport Police recently it became apparent that when that force helped the Home Office police the latter would have primacy in the incident. When the Territorial Army works with the Regular Army sometimes there are similar difficulties over rank. As a major I have found myself deferring to a regular captain because he has the expertise. I believe that in the situations to which the noble Baroness alluded the same will happen.
I fear that there may be a gap in the Bill because it does not cover service policemen: the Royal Military Police and the RAF Police. Obviously, that may not be necessary at present, but it may be desirable to have a reserve power under the affirmative resolution procedure. It would be unfortunate if it was found necessary to return to Parliament for further primary legislation at a later date. However, it may be difficult to draft suitable amendments to the Bill.
I share the concerns of the noble Baroness about the lack of a police authority for the British Transport Police and the MoD Police. I worry that this Bill will make a BTP and MoD Police Bill less likely. We are aware of a number of anomalies relating to the British Transport Police and ironically this Bill may create a delay in dealing with them. Obviously, the priority is this measure.
The purpose of the Bill is to give the authorities the necessary legislative tools to do their job, but they also need the necessary equipment. Undoubtedly, the UK will face threats that it has not encountered before. However, that does not mean that there are no government organisations with the relevant expertise. Therefore, when a police force or security organisation asks the Home Office to approve a new piece of equipment it will have a government organisation to whom it can turn. Difficulty may arise if the equipment for which the organisation desires approval is already in use in another sophisticated friendly country, particularly the United States, but is not approved in the UK. The noble and learned Lord and the Home Office Minister know exactly what I am talking about. What assurance can the Government give that our police forces and other security organisations will not be denied access to equipment simply because the time or resources are not available to evaluate it in the UK? The Ministers appear to be slightly confused. I wrote to the noble Lord. Lord Rooker, this morning and left 264 the envelope in the Prince's Chamber Judging by the expression on the noble Lord's face perhaps he has not yet received it.
My noble friend Lord Marlesford raised some interesting points about passports and identity cards. Many of the difficulties that he described also relate to equipment capabilities. I, too, am very disappointed with the lack of progress on a firearms data base, which has some peripheral relevance to the matters we are discussing.
There may also be a problem of excessive demand for security equipment which cannot be met by the original manufacturer's production resources. There is nothing unusual about licensing agreements or manufacturing at several sites and in different countries in order to meet an emergency demand. Can the noble and learned Lord assure the House that a lack of production capacity would never be a reason for non-availability of the anti-terrorist equipment desired by our police forces? The Minister may of course prefer to write to me.
§ 11.20 p.m.
§ Lord Warner
My Lords, it is with some trepidation that I rise to speak very briefly to Part 5 of the Bill. which is concerned with incitement to religious hatred. A number of noble Lords have touched on this part of the Bill and I share their concern about getting into the complex area covered by Part 5. I am more cautious in my approach to Part 5 than my noble friend Lord Harris.
I have the highest regard for my right honourable friend the Home Secretary and I understand why he included the provisions in Part 5. They are there from the best of motives. They show the Government responding with sensitivity to concerns in the Muslim communities that they might become the victims of incitement to religious hatred in the wake of the terrible events of 11th September. That was fully acknowledged by my noble friend Lord Ahmed in his thoughtful speech.
I am the last person to want to give any encouragement to the whipping up of religious hatred. Indeed, I speak as a long-standing member of the easygoing wing of the religiously indifferent and uninvolved. My concern about Part 5 is that it might turn out to be a case study of the law of unintended consequences, with the legislation being used against some of those whom it is intended to protect.
The word "hatred" has a range of dictionary definitions, including "active dislike" and "ill will". A large number of things could be said by a person of a particular set of beliefs that could be adjudged to be inciting people to active dislike or ill will towards another group with different beliefs. My understanding of the beliefs and textual interpretations of some adherents of different religions is that they can produce some fairly blood-curdling utterances about those who do not share their religious beliefs.
Given that Part 5 seems to apply to utterances that could relate to overseas groups, there seems to be plenty of scope in these provisions for unintended, 265] unpleasant and messy consequences. All religions have their proportion of zealots, and I have an uneasy feeling that Part 5 will bring them out into the open, with consequences that we may well regret, as the noble Lord, Lord Dholakia, indicated.
Looking at the wording of the Bill, if I were inclined to pick a legal fight with a group I disliked, it would not be that difficult to produce evidence of the intention and likelihood of stirring up religious hatred that would require the police to investigate my claim. It would only be after the police had investigated that the safeguards of the DPP and my noble and learned friend the Attorney-General having to decide whether to bring charges would kick-in. Although I have every confidence in the judgment of my noble and learned friend, we would be unleashing a number of fruitless police inquiries and unpredictable inter-religious disputes that would be meat and drink to the media.
If I thought Part 5 of the Bill would protect us against terrorism I would have more sympathy with it. But I cannot see that it will. It seems to me more likely to bring Parliament, the courts and the police inappropriately into the territory of religious belief, requiring them to arbitrate on acceptable and unacceptable expressions of those beliefs.
I have considerable concerns about the likelihood of the unintended adverse consequences that would flow from Part 5 of the Bill. I ask my noble friend the Minister and my noble and learned friend the Attorney-General to think again about the value of including these provisions in the Bill. If we are thought to need further legislation aimed at protecting religious beliefs and their expression, I would hope that this could be a free-standing Bill following a proper public debate and a careful weighing of the options. I do not necessarily agree with my noble friend Lord Ahmed about legislation on religious discrimination, but I do agree with him that if there is to be such legislation, that would be a better vehicle for the territory that is covered in Part 5.
§ 11.25 p.m.
§ Lord Neill of Bladen
My Lords, perhaps I may take advantage of the gap to make a few brief observations on three topics. The first two relate to Parts 12 and 13, and I want to add my voice to those of others who have said that these provisions should find no place in the Bill. Perhaps I may address Part 12 first, dealing with corruption and the bribery of foreign officials.
Anyone who knows about the criminal law of bribery will know that it is almost a standing joke that reforms have been called for for anything up to 40 years in this field and nothing has been done. The earliest unimplemented recommendations known to me are those of Lord Salmon, whose committee followed the Poulson affair. More recently, there have been reports from the Law Commission on the topic of bribery and corruption. The committee of which I had the honour to be chairman, the Committee on Standards in Public Life, endorsed some of the earlier recommendations. Then, in 1997, there was an OECD 266 convention on the bribery of foreign public officials. To put it in a nutshell, there is a whole area of law here that needs to be reviewed and looked at as a whole subject, and properly reformed. What we are given in the Bill is just a few snippets aimed at foreign types of corruption. It contains a limited number of provisions dealing with a confined aspect of corruption. It is a major topic, which should be tackled and introduced in either a separate Bill or in different conditions, without the haste that we have here.
In passing, perhaps I may say a word about the argument advanced by the noble Lord, Lord Dixon-Smith. If I heard him correctly, he was saying that we want to go a bit easy on this recommendation about no bribes to get a foreign contract, because if our businessmen do not pay bribes there will be others overseas who will be perfectly willing to do so. It may be that I did not hear the noble Lord very well. Perhaps he had his tongue in his cheek. But it seems to me that that is not a message that ought to go out from this House. That is all that I want to say on corruption. It is a big topic and it should be looked at seriously.
Secondly, as regards Clauses 110 and 111 providing for the implementation of the third pillar via delegated legislation, I urge on the House the view that we do not want to proceed in this hugger-mugger way of altering our law. The noble Lord, Lord Rooker, mentioned by way of example that there may be three conventions that ought to be implemented and this would be a way of doing it. But what we are doing is signing a blank cheque for all kinds of possible new provisions, including, if we read Clause 110(7), certain criminal offences. I find it extremely difficult to make out what the definition of them is, but undoubtedly the power to create new provisions by secondary legislation extends to criminal offences. It occurred to me that there may be issues here that are fit for consideration by the Select Committee on the European Union which could warn us and tell us what is the full scope of the words relating to the third pillar and the scope of what might be introduced. I do not believe that anyone in this House has the slightest idea of the width of the provision. There is no time to go into the definition of the third pillar, but that in itself is a complicated matter.
The third matter I want to address is the ousting of judicial review. I know that the noble Lord, Lord Harris, said that Queen's Counsel will be wishing to preserve their playground. I hope that he was not wishing to incite hatred against a class or sub-class of the community. But the effect of the provisions in Clause 30(1) and Clause 34(8) is quite serious. The clauses provide for no form of judicial review.
Why has streamlined review not been thought about? The idea seems to be that we should have the full process. I read a report in the newspaper of an extradition case that has taken three years to come to the House of Lords. If it decides aversely against the applicant, the case will go back to the Minister, and then there can be another round of judicial review possibly lasting a further three years. One has only to tell that to the man in the street for him to say, "That is scandalous. It is absurd". Is not it time that we got a 267 grip on our procedures for appeal? We can have swift, expedited appeals before an ordinary court. It is difficult to understand why this should be some closed community. I shall return to that point in a moment.
The noble Earl, Lord Russell—I am sorry he is not present—referred to the case of Anisminit. I am sure in his scholarly review of the case he noticed the names of counsel. I happened to be one of the counsel; I declare an interest in it. In that case, we were lucky to find a way by which the court could get round an ouster clause. Generally speaking, a clause which says that the court shall not review such-and-such a decision is a complete bar. Unless you can find some abuse, such as abuse of natural justice or some evident illegality by the tribunal, you have no hope of getting round it. The noble Earl was too optimistic in thinking that the courts would find ways round it. It is very difficult. You have to be very lucky with the evidence you manage to obtain.
§ Lord Bassam of Brighton
My Lords, I rise only to remind the noble Lord that there is a convention in the House that speeches in the gap should be limited to no longer than four minutes.
§ 11.32 p.m.
§ Lord Goodhart
My Lords, we are at last on the home stretch. I declare an interest. I am vice-chairman of the council of Justice, an organisation which among other things has produced what I regard as an extremely valuable briefing paper for this debate.
We have had a wide debate which has crossed party lines. I have found myself in agreement not only with my noble friend Lord Maclennan in his distinguished maiden speech, and other noble friends, but also with many speakers on other Benches. I hope that other noble Lords will forgive me if I single out in particular the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Brennan. I noted that of eight speakers from the Government Back Benches only the noble Lord, Lord Harris of Haringey, gave anything like full support to his Government. I await with interest the reply of the noble and learned Lord the Attorney-General. The Government may recognise that if one has a bad case one needs to get the best advocate one can buy. Advocates do not come better than the Attorney-General.
I recognise that the 11th September changed the world. Those people who planned and carried out the atrocities demonstrated an organisational skill, fanaticism and rejection of all the norms of human behaviour which was breathtaking. We have therefore supported the Government's actions and their support of the US in the destruction of the Al'Qaeda network and the removal of the Taliban tyranny. Those who commit or sponsor terrorism must, wherever they may be and as soon as possible, be brought to justice.
We cannot say that an 11th September atrocity can never happen in this country. I agree with the analysis of the risk by the noble and learned Lord, Lord 268 Mayhew. As the closest allies of the US. we are, next to them, a prime target. We can and do support all proper steps that can be taken to defend the people of the United Kingdom against tyranny. Had the Government introduced a short and focused Bill, limited specifically to the essential measures to deal with the heightened threat of terrorism, we would have supported it. However, the Government have introduced a vast Bill going far beyond the immediate problem. I remember the furore when Jo Moore sent an e-mail on 11th September saying that it was a good opportunity to release stories that her department wished to bury. What the Government have done with this Bill is to use llth September to resurrect bits and pieces of legislation which have little or nothing to do with terrorism and to tack them on to what is supposed to be an emergency Bill. That is not so different in principle from Jo Moore's action.
In principle, we support Parts 1 and 2 on terrorist property and freezing orders. I was interested by the suggestion of the noble Lord, Lord Brennan, that those parts do not go far enough. He may be right. We support Part 6 on weapons of mass destruction; Part 7 on pathogens and toxins; Part 8 on the security of the nuclear industry; and Part 9 on aviation security. We have concerns about some issues—such as the role of the Atomic Energy Authority Police, to which my noble friend Lady Harris of Richmond referred.
We support also Part 12, which deals with bribery and corruption outside the United Kingdom. I agree with the noble Baroness, Lady Whitaker. We understood that Part 12 had all-party support. Although we agree that it is technically out of place in an emergency Bill, it does not require much further debate and is unlikely to take up much time. Like the noble Lord, Lord Neill of Bladen, I was concerned at the attitude of the noble Lord, Lord Dixon-Smith: "Everybody does it, so we must go on doing it too'. Corruption is an enormous evil that contributes greatly to poverty in much of the developing world.
Part 12 implements the OECD convention that was ratified by this country in 1998. We have been criticised for our continuing failure to implement that convention. I suggest that the noble Lord, Lord Dixon-Smith, looks at the House of Commons research paper on Part 12 that is available in the Library.
I refer to parts of the Bill that are not targeted at terrorism or matters of urgency outside the context of terrorism and need much fuller discussion than they will receive here. Part 3 deals with the use of information held by public authorities for the purposes of criminal investigation and proceedings. It is not concerned with just terrorist crimes but with any crimes. My noble friend Lord Phillips spoke strongly on that subject and I agree with him.
Schedule 4 lists no fewer than 53 UK statutes and 13 pieces of Northern Ireland legislation. Information that is given to public authorities under those statutes will be made available to those investigating and proceeding against crime—including overseas authorities. Part 3 raises serious questions under data 269 protection laws, the right not to incriminate oneself and the right to privacy under Article 8 of the European Convention on Human Rights. It is not appropriate for inclusion in the Bill.
Part 5 deals with religious hatred. We regret that reports that the Government were intending to omit the new crime of incitement to religious hatred have turned out to be untrue. We already have a crime of incitement to racial hatred. Many support the extension of that offence to cover religious hatred—including the noble Lord, Lord Ahmed, the noble Baroness, Lady Whitaker, and my noble friend Lord Dholakia. I agree that provision should be contained in a separate Bill. There are many issues to debate. Can we be sure that the new crime would not interfere unduly with freedom of speech? People must remain free to criticise and even ridicule others' beliefs. We cannot ban Monty Python's "Life of Brian", which caused offence to many Christians, or impose our own fatwah on "The Satanic Verses".
Should such a measure stop at race and religion or extend to other hate crimes, such as homophobia? Should we couple the introduction of the crime of incitement to religious hatred with the abolition of the outdated crime of blasphemy? There are mixed views on the merits of the new crime. The noble Lord, Lord Ahmed, speaks for many Muslims who support it but some Muslim groups fear that the new crime may be targeted not at protecting them but at being against them. They should be consulted. It is wrong to introduce such a new crime without full consultation or any consultation.
Parts 10 and 11 give the police extended powers to search, examine, fingerprint and photograph suspects without their consent and to insist on the removal of disguises. Those powers are not limited to terrorist suspects. This is not the time to go into the merits of such proposals. The right reverend Prelate the Bishop of Manchester spoke powerfully, as did the noble Lord, Lord Ahmed. They are plainly a major extension of police powers going far beyond terrorism and are wholly inappropriate for rushed legislation such as this.
Part 11 is similar. The retention of communication data is useful for terrorist investigation, but Part 11 goes far beyond terrorism. Again, this is a contentious issue. Unless Part 11 is limited to terrorist crimes, it should not be in the Bill.
Clauses 110 and 111 enable agreements on third pillar matters to be enacted by secondary legislation. The Delegated Powers and Regulatory Reform Committee, of which I am a member, has published a highly critical report. I agree with the noble Lords, Lord Waddington and Lord Brennan, on the subject. Third pillar agreements can include matters of great public importance that are obviously inappropriate for secondary legislation.
As everybody knows, we on these Benches are strong supporters of the European Union. But we do not support those clauses. They do not extend the powers of the European Union over the United 270 Kingdom. They could not do that. because all third pillar agreements require the unanimous consent of member states. The clauses extend the powers of the executive over Parliament because they deprive Parliament of the right to consider new legislation by the normal parliamentary processes. The comparison with Section 2(2) of the European Communities Act 1972 is flawed and unsound. The clauses should be removed from the Bill.
Part 4 is the most controversial aspect of the Bill. It is unquestionably targeted on terrorism. I understand the Government's problem. There is a small group of people who have no right to be in the United Kingdom and whose presence may be a danger to national security. They cannot be deported or extradited to a country that may execute or torture them. Let us assume that it is also not possible to find a third country that is willing to accept them and to which they are willing to go. In a few cases, I do not think that we should rule out detention as a possible option, but the controls on that must be extremely strict. They are far from strict enough in the Bill.
At least four necessary safeguards do not appear in the Bill. First, I agree with the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Brennan, and many other speakers that judicial review must not be excluded. It may be that the right of appeal to the Special Immigration Appeals Commission provides sufficient legal protection to the detainee. If the courts believe that, any application to the ordinary courts for judicial review will be rejected. However, the possibility of judicial review should never be excluded. This is an extremely bad precedent, as the noble and learned Lord, Lord Mayhew, said. If the Government get away with it this time, they will be tempted to try again. Judicial review must be retained as an essential element.
Secondly, cases should be reviewed at intervals of not more than three months, as opposed to the six-month period proposed. Thirdly, the sunset clause for Part 4 should not have to wait for five years. The period should be one year so that we can reconsider the whole matter as soon as possible as part of new primary legislation if the Government wish to continue with it. A year is twice as long as was provided for in the Act passed by my noble friend Lord Jenkins in 1974.
Fourthly, wherever possible a detainee should be charged and tried in the United Kingdom rather than kept in detention without trial. This is a very important consideration. I believe that the United Kingdom courts should be given jurisdiction to try all terrorist offences wherever they are committed, whoever commits them and whoever the victims are.
The present law is a patchwork of jurisdictions. The United Kingdom courts have universal jurisdiction over some terrorist offences; for example, under Section 62 of the Terrorism Act 2000 over acts of terrorism involving the use of explosives or biological or chemical weapons. But the courts do not have jurisdiction over all terrorist offences. The United Kingdom courts probably would not have jurisdiction 271 to try anyone who planned or assisted the 11th September atrocities unless that assistance had been given in the United Kingdom. I believe that terrorist offences should be crimes of universal jurisdiction as piracy has long been and as other crimes such as torture now are. None of these safeguards would endanger national security. We shall be unable to give support to Part 4 of the Bill unless those safeguards are added. I also agree with my noble friends Lord Dholakia and Lord Russell that it is wrong to deny access to the asylum procedures for people who are suspected of terrorism and that Clauses 34 and 35 should go from the Bill.
I add this: the idea that the European Convention on Human Rights is something which we can leave and return to at will, as suggested by the noble Lords, Lord Dixon-Smith and Lord Waddington, is completely unacceptable and unrealistic. That is especially so if the purpose is to allow suspects to be sent back to death or torture. That would be far worse than keeping people here in detention. I agree with what the noble and learned Lord, Lord Mayhew, said on the issue.
The Government should be ashamed of this Bill. It introduces detention without trial, admittedly in special circumstances, but without enough safeguards. It extends police powers not only over terrorism but over ordinary crime. It extends the powers of the state to obtain and use information over a wide spectrum and for purposes not limited to terrorism. It gives the executive power to push important legislation through Parliament by statutory instrument. The Bill does all these things on the basis of legislation which has been considered for no more than three days in the other place and is being considered in an extreme hurry in your Lordships' House. This is not the way to deal with important legislation which is contentious and much of which does not warrant the urgency which would justify this exceptional procedure. The Government do not deserve an easy ride and I do not believe that they will get one in your Lordships' House.
§ The Earl of Onslow
My Lords, before the noble Lord sits down, can he give an undertaking that if none of his concerns is listened to by the Government and if they argue against them the Government will be defeated, that the Liberal Democrat Party—and this applies to my noble friends on the Front Bench—will not duck from our responsibility if we do not agree with the Commons and this matter continues in the way it threatens to?
§ Lord Goodhart
My Lords, I believe that these are extremely important issues. I very much hope that the Government will see the force of the proposals that we have made and accept them. I warn them that if they do not do so, they face a very real risk of very serious trouble.
§ 11.49 p.m.
§ Baroness Buscombe
My Lords, in winding up this excellent and sometimes controversial debate on behalf of Her Majesty's Opposition, I shall endeavour to reflect briefly on some of the many salient points 272 raised by your Lordships and offer some additional points for the noble and learned Lord, the Attorney-General, to answer. Perhaps I may begin by joining others in congratulating the noble Lord, Lord Maclennan of Rogart, on his eloquent and thoughtful maiden speech.
This Bill contains far-reaching measures, some of which have little or nothing to do with combating terrorism. If the powers contained therein were temporary, perhaps it would not matter quite so much. However, even Government Ministers seem unaware of its true implications.
The Secretary of Slate for Defence, the right honourable Geoff Hoon MP, stated on the Frost programme on 11th November 2001, when the Bill was already in draft form,This is a temporary measure to deal with a particular problem".It is our duty to ensure, to the best of our ability, that measures which will not assist our fight against terrorism and which in some instances are unacceptably draconian, are exposed and opposed.
My noble and learned friend Lord Mayhew of Twysden, when speaking in the debated Motion last week to approve an order to derogate from Article 5 of the European Convention on Human Rights, recalled the words of Lord Atkin in the case of Liversidge v Anderson 59 years ago. Lord Atkin warned that,amid the clash of arms, the laws arc not silent, they may be changed but they speak the same language in war as in peace".A fundamental difference between that time of war and now is that it was believed then that hostilities would last only a few more years.
Now we are faced with a different kind of hostility and one which may afflict us for many years to come. It is therefore all the more important that we consider with care the proposals before us. As the noble Lord, Lord Rogan, said, rushed legislation is very often not effective legislation. That point was also stressed by the noble Earl, Lord Russell. At least we have allowed ourselves some time for scrutiny, unlike our elected colleagues in another place. So much for democracy!
I turn to the Bill itself. First, with regard to terrorist property we have already heard concerns regarding the jurisdiction for dealing with these very sensitive and often complex matters. We contend that magistrates' courts are not the right place and, indeed, the Proceeds of Crime Bill currently in another place addresses that point. So please can we have some consistency?
Part 2, relating to the freezing of assets, exposes a very anti-social proposal. It seems that this Government want to freeze the assets of individuals or corporations who, by whatever means, act to the detriment of our economy, whether or not that action is unlawful. The test,action to the detriment of the UK economy",will cover foreign exchange dealers operating in Frankfurt and dealing in sterling—an activity which is currently legitimate.
Taking that one step further, imagine how Germany would react if, for example, the Deutsche Bund proposed a hostile hid for the London Stock 273 Exchange, and the Treasury, thinking that a bad idea (the test is purely subjective) applied for a freezing order on the Deutsche Bund funds to stop the transaction taking place. Can the Attorney-General tell us tonight whether that is part of the Prime Minister's positive vision for Europe?
Turning to Part 3, at first glance I thought it all looked familiar and quickly realised that these very same proposals were, as we heard from the noble Lord, Lord Phillips of Sudbury, dropped at our insistence from the Criminal Justice and Police Bill earlier this year, because the Government had not allowed Parliament enough time to scrutinise them properly. Indeed, those proposals were not scrutinised at all in another place last time and nor in consideration of this Bill. Incidentally, when the proposals were presented to us in the Criminal Justice and Police Bill, I do not recall any mention of terrorism.
We would not mind so much if the effect of these clauses was to fight terrorism. That is our purpose and should be the purpose of this Bill.
So will the Attorney-General answer concerns that have been expressed both in the media and in another place with regard to these proposals that provide for the disclosure of confidential information across an enormously wide range of government agencies? It is our contention that these proposals will enable all government agencies to share information with police forces from anywhere in the world. That raises concerns in respect of the need for a process to approve the provision of information, especially where the criminal investigation is taking place in a country where there is inadequate data protection legislation.
In addition, Clauses 17 and 19 allow police to trawl through files to consider whether a crime has been committed, even when there is no evidence that a crime has been committed. Also, Part 3 treats all data in the same manner, with no regard to whether it is personal, possibly sensitive data, confidential business information or information requiring less stringent protection.
Moving to Part 4, will the noble and learned Lord explain to your Lordships tonight why someone who seeks to terrorise UK citizens by means of bombs or otherwise on account of some alleged grievance arising in the UK or against its government should not be treated the same as someone who does so on account of an overseas problem? How can the Government even begin to talk tough on terrorism if they are afraid of upsetting known terrorists who have plagued the lives of all of us on these shores for the past 30 years and more?
In support of my noble friend Lord Selsdon, I ask what gives this Government the moral standing imperiously to demand that other countries should take tough action against terrorists when those terrorists affect us, if we are not prepared to treat all known terrorists on an equal footing in this country.
Much has been said about internment. We on these Benches will endeavour to persuade the Government that there is a viable alternative, that we can achieve a 274 better balance between protecting our safety—safety that experience warns us will be undermined if we intern without trial—and protecting the very fabric of our liberties. We urge the Government to consider, pursuant to Articles 57 and 58 of the European Convention on Human Rights, removing ourselves from the convention for one brief moment and then reentering with a reservation parallel to, although more restrictive than, the reservation that the French have entered into in respect of a deemed national emergency.
The Home Secretary would then have two ways of attacking the problem instead of just one when the one (currently proposed in the Bill) has serious drawbacks concerning the safety of the citizens of the United Kingdom.
We understand the reluctance to deport those who may as a result be in fear of their lives. However, as we speak, the double standards currently entertained by this Government are breathtaking. Let me quote my honourable friend Oliver Letwin, MP, who said last week in another place:f cannot understand how it can be right to refuse to extradite a gentleman whom we are trying to kill elsewhere".—[Official Report, Commons, 19/11/01; co1.51.]As my noble friend Lord Waddington said this evening, the Government are asking us to bow to a situation whereby if Osama bin Laden comes here claiming asylum, not only would we have to admit him to this country, but we could not extradite him to the United States if the Americans decided that they wanted to apply the death penalty. In that case, are the Government against him being bombed to death or even killed by one of our own troops in Afghanistan? In essence, are the Government willing to accept the consequential risk to all our lives of detaining without trial either bin Laden or any of his associates because that is just one foreseeable consequence of the Bill? Deportation to a list of countries prescribed and regularly reviewed by the Home Secretary offers a sensible and safer alternative.
Turning to the Special Immigration Appeals Commission (SIAC), can the noble and learned Lord the Attorney-General clarify for us tonight the Secretary of State's thoughts regarding SIAC and the parameters of Clause 29? The noble and learned Lord will recall that in Committee in another place the Secretary of State undertook to examine whether or not an appeal on a point of law includes appeals on the point of SIAC failing to follow its own procedures. Incidentally, the Minister sets great store by the fact that SIAC was set up following full debate in both Houses. We accept that. However, as has already been said this evening, it was set up for a very different purpose and we find it hard to accept that it is—with respect I quote the words of the Minister this evening—the "best instrument we could fashion".
I hope that the noble and learned Lord the Attorney-General will heed the words of my noble friend Lord Campbell of Alloway that these measures fail the minimum test of natural justice, or in the words of the noble Baroness, Lady Kennedy of The Shaws, fly in the face of natural justice. 275 With regard to Part 5, in short, although we believe that the provisions are well intended, it is our belief that they are unworkable and may cause more injustice and misery by default. To confuse the protection of any minority, but particularly Muslim minorities, with counter-terrorism creates an association which in itself is dangerous and derogatory. And because the provisions fail in the noble attempt to address difficult issues, we suggest that, rather than tinker in haste, we should all have the opportunity to consult more widely and then to consider carefully, in a separate Bill. how we can outlaw violence caused by religious hatred without compromising our coveted rights to freedom of speech.
The noble Lord, Lord Ahmed, spoke with passion about the Muslim experience in this country. I noted that he would rather see these matters considered in a separate Bill than accept the carrot-and-stick approach. The noble Lord, Lord Dholakia, said that it was patronising to suggest that measures are necessary as a result of 11th September—as if the acts that the Bill seeks to outlaw are something new. Let us also recall the prediction of the noble Lord, Lord Desai, that this will be seen as a special concession to the Muslim community. As he said, such a move will not help that community.
It is not at all clear what emergency need is met by inclusion of the provisions relating to police powers. Police powers are extended in several ways which appear to be unrelated to the investigation of terrorist activities. Further, it is hard to see how clauses relating to powers to insist upon the removal of head coverings in certain instances and the removal of any garment thought to he a disguise when in a pre-designated area or time are justified unless they are aimed at those wearing turbans or veils. Surely that move is in conflict with the principle behind creating a religiously aggravated offence. Perhaps the noble and learned Lord can reassure us on that point.
We have been told to expect a police reform Bill later in this Session. We believe that these provisions would be better placed in such a Bill, with more time for consultation and scrutiny.
I turn to the subject of the retention of communications data. Compliance with a code of practice or agreement would be no guarantee of compliance with the Data Protection Act 1998. As my noble friend Lord Northesk said, rapid access to focused intelligence is required. We question whether the broad data protection measures proposed achieve that objective or whether they simply create overload. Following on from what my noble friend Lord Northesk asked in relation to Article 8 of the European Convention on Human Rights, can the noble and learned Lord confirm that these proposals comply? We also have real doubts about the need to extend the period for which data is required.
With regard to the third pillar, the provisions enable a wide range of EU measures relating to police and judicial co-operation on criminal matters, whether concerned with terrorism or not, to be brought into effect in the United Kingdom by means of secondary 276 legislation. That point was pressed eloquently by noble Lords, including the noble Lords, Lord Goodhart, Lord Brennan and Lord Hylton, my noble friends Lord Waddington and Lord Campbell of Alloway and my noble and learned friend Lord Mayhew. They asked how such serious criminal offences could be dealt with in this way. In the light of what the Select Committee on Delegated Powers and Regulatory Reform has reported in relation to this part of the Bill, in all authority how can the Minister justify retaining these clauses in the Bill?
In conclusion, there will be much to consider in the coming days. It is our hope that the Government will respectfully listen to our concerns. As the noble Lord, Lord Hylton, said, the Government must justify each and every encroachment upon our freedoms. They must listen and respond in the knowledge that we want this Bill to have the practical effect of combating terrorism in a number of ways—no more or less than that. We shall not accept any suggestion that criticism of some aspects of the Bill means that we are soft on terrorism.
§ The Earl of Onslow
My Lords, before the noble Baroness sits down, will she also give the undertaking that the noble Lord, Lord Goodhart. gave on behalf of the Liberal Democrats? I suspect that that was only 60 per cent of what I should have liked to hear. Will she give the undertaking from our Front Bench, too, that we shall go as far as possible, including forcing the Government to use the Parliament Act if that is considered necessary, to ensure that we protect the liberties and freedoms of our people? The dangers that the Bill produces have been pointed out from all sides of the House. Can she give us such an undertaking?
§ Baroness Buscombe
My Lords, it is our hope and belief that through the power of argument in this place we shall have the opportunity to persuade the Government to move in several important areas. I am reluctant to commit to more than that tonight.
§ 12.4 a.m.
§ Lord Goldsmith
My Lords, this has been a long debate in which many important points have been raised. It is right that it has been long: the length is justified by the importance of the issues—the protection of the people of this country from terrorist attack—and by the significance of the measures that the Government propose to deal with that threat.
The quality of the debate would have been high in any event but it has been enhanced by the reports of the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. Both of the reports were produced in very short time, for which we are grateful. Several noble Lords have referred to those reports, and I shall return to the points that they raised.
I add my congratulations to those extended to the noble Lord, Lord Maclennan, who made his maiden speech. I had the pleasure and privilege of serving with him on the Joint Committee on Human Rights until the general election. I am very pleased to see him in this 277 place. He asked whether a good swap was involved in his coming here and Lord Thurso going to another place. I will not be tempted down that route, save to point out that I am sure that all noble Lords very much welcome the noble Lord here and look forward to many more of his contributions.
Because of the length of the debate and the late hour, I shall do my best to deal with the main points among the many that were raised. Some of those points—this was very helpful—were made to indicate matters that would be covered in Committee. I hope that noble Lords will forgive me if I do not reply to those points at this stage.
There has been at least a large measure of agreement around the House on one critical issue it was described by the noble Lord, Lord Dixon-Smith, as the reality that the Government have set about dealing with. The noble Lord, Lord McNally, quoted—with, as I understood it, approval—United States commentators who suggested that there was a clear and present danger, and I believe that he, too, supported the Government in seeking to tackle that.
There is a large measure of agreement on this issue. With chilling words, the noble Lord, Lord McNally, pointed out the ease with which terrorists could, with little difficulty, bring death and suffering to thousands of innocent people on September 11th. That clear and present danger required the Government to act to protect the people of this country.
I take the liberty of echoing the words of my right honourable friend the Home Secretary, who reminded Members at the Bill's Third Reading yesterday in another place that we are engaging in the measure precisely because the bombings of the embassies in Tanzania and Kenya and the subsequent attacks on the World Trade Centre and the Pentagon were planned years in advance. The thwarted attacks in Jordan and on the US embassy in Paris were planned months, if not years, in advance. Whatever is currently taking place around us, those who are prepared to provide suicide bombers to attack others will have had their preparation—their network, funding and organisation—in place for a very long time.
Whatever the success we have in Afghanistan in freeing the people and pushing the Taliban, Al'Qaeda and bin Laden back into the mountains, we are still at risk. Those who dismiss that risk and pretend that because September 11th occurred weeks ago we can set it aside are making a grave error. I do not believe that that error is made by at least the majority of noble Lords, if not all of them.
Those events demonstrate that we now face a terrorist threat that is quite different from anything that we have previously faced. The scale of the atrocities was completely new. The attacks could not have been mounted without careful and sophisticated planning over many years. As my noble friend Lord Harris said, there was a complete change of scale. It is also right to remind ourselves of the threat restated by Osama bin Laden of a preparedness to use nuclear, chemical and biological weapons. My noble friend 278 Lady Kennedy of The Shaws drew attention to the intention to include in the Bill a provision outlawing the use of nuclear weapons. That seems to me not a matter of adverse comment but something which is entirely right to see in the Bill.
I remind noble Lords of the distinguishing feature of the attacks suffered; that is, an absence of warning. We do not know from where or at what time they may come. Some noble Lords, including those on the Opposition Front Bench, believe that the Government have not gone far enough. Others believe that we are going too far in some areas. As my noble friend Lord Rooker said, we could have put forward different measures. However, the Government believe that they have struck the right balance between individual liberties and the necessary protection of the people of and in this country, and a proportionate and appropriate response.
The Joint Committee on Human Rights recognised in its conclusions that the Government had made a sincere effort to safeguard rights while addressing the threat. Perhaps I may say to my noble friend Lady Whitaker that the Government carefully considered the comments in that report and have already responded to some.
The Bill is a sincere attempt to do no more than address the threat. Some noble Lords questioned whether certain provisions are required. It is the judgment of the responsible Ministers that they are. It must be remembered that a neat and tidy compartmentalisation into terrorism and other crime may not always be easy. The links between organised crime and terrorism can be clear. Drug money and other serious organised crime can be used to fund terrorism. As a result, in the early stages of investigation it may be hard to be sure that the crimes being planned or committed are specifically terrorist offences.
The Bill is wide ranging because it is designed to cover the new kind of terrorism which we now face. That means we have to review and, where essential, strengthen provision in many areas. It is not about dusted-off ideas, but about proposals which, in the judgment of the Government, are now needed to ensure that we are ready for this changed world and changed threat.
By way of example, several noble Lords referred to the proposed police powers relating to identifying marks or the removal of face coverings. I shall return to other observations made about those powers. How could that power be limited to cases only of a terrorist nature when, until the person is revealed and identified, his or her identity might not be clear; his or her connection with terrorist matters would not be known; nor would it be known what further investigation would need to take place?
Over the days to come noble Lords will carefully scrutinise these powers. That is why eight days have been set aside for that process. No doubt everyone would have preferred—
§ Earl Russell
My Lords, I am grateful to the noble and learned Lord for giving way. In the matter of face 279 coverings, will he consider allowing an exemption for people such as the victims of the Paddington train crash who need to wear face coverings for medical reasons?
§ Lord Goldsmith
My Lords, what I was going to say, and I shall gladly say now in response to the question of the noble Earl, Lord Russell, is that there must plainly be sensitivity to particular aspects—not just the one referred to by the noble Earl, but also, as mentioned by my noble friend Lord Ahmed, cultural and religious issues. Those matters will be the subject of a protocol, which has been referred to in another place, as to the exercise of powers. I shall come back to that point.
We recognise that the time necessary to deal with the Bill is a burden on all noble Lords. We would have preferred that llth September had not occurred and that therefore the urgency for the Bill would not have been necessary. We very much appreciate that the noble Lords, Lord Dixon-Smith and Lord McNally, expressed appreciation for what has been done so far to help in terms of dealing with the Bill. My noble friend Lord Rooker and I and others will continue to do what we can to assist noble Lords in their consideration of it.
I shall deal first with Part 4 and Part 5 of the Bill. Those are two of the most controversial of the provisions. I shall then deal with the other provisions. The Opposition Front Bench would have us go further than we have. They would have a denunciation of the convention and what they describe as "a reservation". The suggestion was made by the noble Lord, Lord Dixon-Smith, that other member states have done that. That is not the information that I have. But that can no doubt be looked at. I am proud to be part of a Government who do not want to throw aside our human rights obligations as is proposed.
It is important to set the context in which the powers in Part 4 arise. There has been, at least in some places outside this House, some lack of full understanding. The first and important point to note is that it relates to a person where there are grounds for deportation or to require that person to leave the country under existing immigration laws. For someone who is not a British citizen, who has no right to enter or remain in the United Kingdom and who is refused leave to enter, or someone in respect of whom a court makes a deportation order—again, not a British citizen—under existing immigration law there is a power to deport. There is also a power to detain such persons pending examination or removal.
That is an existing power contained in the Immigration Act 1971. Sometimes that detention can take, because of the appeal process, a significant period of time. It took some four-and-a-half years in the case of Chahal. But there can be an impediment to deportation, either practical—there is no way of getting back to the particular country—or, and more usually, the international agreement. Our obligations, particularly under Article 3 of the European 280 convention, prevent us from removing a person where it would place him at a real risk of execution, torture or inhuman or degrading treatment.
I go further. We would not want to send people to death or torture, irrespective of that obligation. But the law has gone further because both domestic law and the ECHR have said in effect that the detention with a view to deportation which is permitted under existing law could not be used if the Secretary of State knows that there is no prospect of removal.
The Bill states that a person may be detained under those existing powers even though removal for those reasons cannot be possible. The important point to make is that the Government have not taken the step of saying that we shall deport them anyway to torture or to death; rather we say that, despite the impediment on deportation, that existing power of detention will be used.
So it is a much narrower power than some people have so far depicted. It relates only to those where there is already a right to deport and to detain pending deportation, but because of our own insistence on their human rights we are prevented from so doing. The power will then be exercised only if two further conditions are met. Those are, first, that the Secretary of State reasonably believes that the person's presence is a risk to national security and, secondly, that the Secretary of State reasonably suspects that the person is an international terrorist—not, pace the noble Lord, Lord Phillips of Sudbury, because the person is unpopular.
§ Lord Campbell of Alloway
My Lords, I thank the noble and learned Lord. Does the noble and learned Lord, in that context, accept that the grounds—the substance of the grounds—for suspicion and belief should be made known to the person against whom the certificate has been granted?
§ Lord Goldsmith
My Lords, I do not accept that there should be a disclosure of sensitive intelligence information if by such disclosure we prejudice and undermine our own security. If your Lordships will permit, I shall come to that in a moment.
I venture to suggest, as did the noble and learned Lord, Lord Mayhew, that most people would accept that if a person has no right to be here; if, in addition, the Secretary of State reasonably believes that he is a risk to national security; and if, in addition, the Secretary of State reasonably suspects that he is an international terrorist, it is right to find a way of preventing that person from roaming free. Indeed, many would say that it would be remiss of the Government not to find ways to do so. That was the ultimate, hard question posed by the noble and learned Lord, with which the noble Lord, Lord Brennan, agreed. Of course, I recognise that others may take a different view, but at the end of the day, that is the dry and hard question that must be considered.
We must then consider what are the safeguards. There is no intention under the Bill not to comply fully with our obligations under the Geneva Convention.
281 Although the right reverend Prelate the Bishop of Manchester is not in his place—as he said that he would not be—I can assure him of that. I draw attention to the provisions in Clause 34, which simply and accurately track the obligations that exist under the Geneva Convention. Given the time, I will not read them, but I invite noble Lords to consider Articles 1(F) and 33(2). Clause 34 contains nothing that in any way undermines our obligations under the convention.
What are the safeguards? First, and most important, the person who is detained can bring that detention to an end by leaving if he or others find a place to which he can go. Secondly, the provisions are temporary. The powers are reviewable after 15 months and then one year. The provisions return to this House and the other place. What is more, there is a sunset clause.
§ Lord Thomas of Gresford
My Lords, before the Minister continues, can he confirm that a suspected terrorist could choose to go to a rogue state? Would that be acceptable to the Government?
§ Lord Goldsmith
Yes, my Lords, if they will have him, because this is not a power to detain; it is an immigration power, as the Home Secretary has made clear.
Thirdly, there will be an independent reviewer, the noble Lord, Lord Carlile of Berriew. There is also judicial scrutiny by SIAC, to which I turn.
§ Earl Russell
My Lords, I am most grateful to the noble and learned Lord; I am sorry to intervene again. Under the powers, if the suspected terrorists were returned to another European Union country, would they risk being returned here under the Dublin Convention?
§ Lord Goldsmith
My Lords, this is not a secret sending-back of people. It would be done by agreement to a country which was prepared to take the person in question. Therefore, I do not believe that the issue arises.
One of the strange things about the law is its special language. I have always appreciated the fact that a company is called a "legal person", which rather suggests that the rest of us are somehow illegal persons. But the same is true in relation to judicial review. "Judicial review" has a special and technical meaning. It is a term of art which relates to a form of judicial scrutiny which has a limited jurisdiction.
The Special Immigration Appeals Commission procedure is a judicial review in the sense of a review by a judicial body. It is, indeed, judicial scrutiny—and scrutiny, which I want to spend a moment explaining to your Lordships, which is greater than that which would exist under judicial review. First, the commission in any hearing consists of three members. Two must be members of the judiciary—one of them must be someone who has held high judicial office (in effect, a High Court judge)—and the third must be a lay member with a good knowledge of security work. Therefore, SIAC is a judicial body.
282 Secondly, the jurisdiction is wider under the Bill than judicial review. Judicial review, properly understood, is a process where the court looks at the exercise (usually of a discretionary power by a Minister) and considers whether it has been exercised, for example, for a purpose not authorised by the legislation or used in an irrational or unreasonable manner. Normally the court in judicial review is limited not to substituting its own view of the merits but to reviewing the legality of the decision in that rather narrow sense. However, that is changing a little in the light of human rights legislation.
Under the Bill, SIAC will have wider powers. Under the wording, for example, of Clauses 25 and 26, which have been amended by the Government, SIAC will ask itself whether at the time it considers the question there are reasonable grounds for believing or suspecting that the conditions are made out.
It is not the case, as was suggested by the noble Lord, Lord Phillips, that in the Rehman case the Judicial Committee of this House had placed some constraints on SIAC. What was there said, and it would have applied to any judicial decision, was that certain judgments are better taken by democratically elected governments, not by the courts.
However, if one properly considers what one is asking SIAC to do that judicial review would do, the answer is that there is nothing that judicial review would do which is not going to be done by SIAC. There is one constraint and one constraint only: that is back to the issue of sensitive intelligence information which cannot be disclosed. In those circumstances, one must find some other method of ensuring that the evidence can be reviewed by SIAC.
Contrary to the suggestions that certain noble Lords have made, the European Court of Human Rights in certain of its judgments has been approving of the idea of SIAC. Indeed, in the Chahal case, to which reference has been made—I have the judgment here—bodies such as Amnesty International, Liberty and the Air Centre drew the court's attention to a similar procedure in Canada from which the SIAC procedure was drawn. The European Court made the following comment:The court recognises that the use of confidential information may be unavoidable when national security is at stake … In Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information, yet accord the individual a substantial measure of procedural justice".That is what has been done.
§ Baroness Williams of Crosby
My Lords, in circumstances where neither the defendant nor his counsel is able to hear the details of the case that is being put, under the SIAC proceedings will a summary of the evidence which is laid before the commission excluding the most sensitive intelligence information be made available to that individual and his chosen counsel?
§ Lord Goldsmith
My Lords, the precise process that SIAC would use would plainly have to be resolved for this kind of case. But I anticipate that SIAC would want to ensure that, within the limits of confidential and sensitive information, the person involved knew the case with which he had to deal. Plainly, there are limits. The important procedure provided by MAC is the special advocate procedure which means that a highly experienced lawyer is engaged—not in substitution for the lawyer whom the applicant can have but in addition—to review the information and make points on behalf of the individual that he is not in a position to make himself. That demonstrates that it can certainly be done very successfully. That was why in the case of Rehman SIAC was persuaded to make an order which was, as it happens, subsequently reversed by the courts.
I respectfully invite noble Lords to consider very carefully whether they are being mesmerised by the expression "judicial review" and to consider whether the procedure for judicial scrutiny involving a High Court judge and special advocate procedure is a proper judicial scrutiny of the kind noble Lords have been raising.
§ Lord Mayhew of Twysden
My Lords, I am very grateful to the Attorney-General. I assure the noble and learned Lord that I am not being mesmerised by anything except his own skill in seeking to justify this provision. Perhaps I may ask three questions. When the Government brought forward their proposals to set up a jurisdiction for SIAC did they seek to exclude judicial review of the commission's procedures and operations? I believe that they did not. Secondly, what is the purpose of seeking in this Bill to exclude judicial review? Thirdly, is it not the case that judicial review can perfectly well handle cases that involve extreme intelligence sensitivity, and on occasions has done so?
§ Lord Goldsmith
My Lords, I draw the attention of the noble and learned Lord to Clause 31(3)(b) which makes sure that SIAC can hear proceedings which would, but for the exclusion, be brought in the High Court or Court of Session. The fundamental proposition is that once one recognises, as one must, the problem in relation to sensitive intelligence information SIAC deals with that problem and otherwise does everything that one expects from judicial scrutiny. It can substitute a decision, look at the circumstances, quash the Secretary of State's certificate and grant bail. The result is that in those circumstances the individual may be released from detention.
§ Lord Mayhew of Twysden
My Lords, is there any provision in the statute that set up SIAC which excludes judicial review? I do not believe that there is. If that is the case, why is it necessary to exclude it here?
§ Lord Goldsmith
My Lords, I intended no discourtesy by not dealing with that question. The noble and learned Lord is quite right, but what value will judicial review on top of an existing judicial 284 scrutiny provide? All it will do is add time and delay unnecessarily when a perfectly good procedure is being provided, once it is accepted, as I suggest one must, that there needs to be some special procedure to deal with the fact that sensitive intelligence information is being used.
§ The Earl of Onslow
My Lords, perhaps the noble and learned Lord will give way. In how many other instances is any action of the Government excluded from judicial review?
§ Lord Goldsmith
My Lords, I would suggest that it is actually not uncommon that where there is a specific statutory right to go to a particular judicial body, it would be very unusual ever to expect that one would use the judicial review procedure in this strict sense, judicial review being the power of the administrative court to review the legality of particular actions. From SIAC the matter can then go to the Court of Appeal.
The noble Baroness, Lady Buscombe, asked whether or not a point of law could include the fact that SIAC failed to follow its own procedures. I believe the better view is that it could. So there is a proper judicial route. I respectfully suggest that the comments that have been made about a breach of natural justice and there not being proper judicial scrutiny are rather wide of the mark when one properly understands what is the procedure.
§ Lord Thomas of Gresford
My Lords, as the noble and learned Lord has dealt with judicial review, will he deal with the much more ancient !provisions for applying for a writ of habeas corpus, which is an entirely different matter, where the person who has imprisoned or detained an individual has to justify that? Where does that fit in with SIAC?
§ Lord Goldsmith
My Lords, SIAC has the ability, on application, to review the Secretary of State's certificate and to quash it if it considers that it ought to do that, as set out in the Bill. It has lo look at the case at certain set limits; and it can do that more frequently if there is a change of circumstances. Given the limitations because of sensitive intelligence information, that, I respectfully suggest, is a proper and satisfactory way of making sure that there is judicial scrutiny. There is no arbitrary use of power by the Secretary of State; it is subject to scrutiny by a proper judicial body.
§ Lord Thomas of Gresford
My Lords, does the noble and learned Lord accept that I have dealt with habeas corpus applications where public interest immunity has been claimed by the Government? Where the judge has full control of all the material, he may, if he thinks it in the interests of the applicant so to do, release it to him.
§ Lord Goldsmith
My Lords, the noble Lord referred to public interest immunity, as did the noble Baroness, Lady Kennedy of The Shaws, but that is a means of keeping information away from a tribunal. We are 285 concerned to find a way that information can be put before the commission so that it can judge whether at that particular moment in time there are reasonable grounds for the suspicion that the Secretary of State has had. PII does not solve that problem; it keeps the information away rather than finding a method of getting it before the tribunal.
§ Lord Campbell of Alloway
My Lords, with respect, the noble and learned Lord has not taken the point. The hour is late and we are perhaps getting tired.
The third point of my noble and learned friend Lord Mayhew was not answered. I make no complaint. Will the noble and learned Lord assume that the High Court is fully capable of dealing with these security matters—it does so in other circumstances—and that therefore there is no problem of security with this material? If that is right, why on earth do the Government want to set up SIAC to deal with such matters if it can be dealt with perfectly properly in the normal courts of the land?
§ Lord Goldsmith
My Lords, the noble Lord's premise, with respect, is quite wrong. There must be a way of dealing with sensitive intelligence information to enable the tribunal, when it is a court, to look at that material and judge it for itself. In order to do that, we have an experienced commission—which has a High Court judge, another judicial officer and a third person who is experienced in security matters—to look at that material. The one adjustment that has to be made to ordinary procedures is to find a way in which the interests of the applicant can be safeguarded without the applicant seeing information which it could be very dangerous for the security of the country for the applicant to see. The way that is done is by having a special advocate there to represent the interests of the defendant in that respect.
I respectfully suggest that once that is seen and understood, the arguments about the absence of judicial review become much narrower and finer than the arguments in the debate have so far suggested.
§ Lord Thomas of Gresford
My Lords, will the noble and learned Lord forgive me for interrupting again? It is important to resolve this matter. Is not the difference between the SIAC procedure and habeas corpus or judicial review this? SIAC will see the material and may decide that it cannot be disclosed to the detainee or applicant but may still use it towards its decision. The High Court judge, on habeas corpus or judicial review, will still see the material, because it must be produced to him under a public interest immunity application, but cannot use it unless it is disclosed to the applicant in those proceedings. Is not that the distinction?
§ Lord Goldsmith
My Lords, it is the distinction. But, with respect, that proves the point. If the commission cannot use the material, it cannot judge whether or not there are reasonable grounds for the suspicion. It has to set that material aside. The whole point of the 286 process is to make sure—I should think that noble Lords would think this the right thing to do—that there is a judicial body which is able to look at the material, even though it is sensitive intelligence material, and decide whether or not there are reasonable grounds for suspicion. That is the SIAC procedure. It involves a judge, as in judicial review; it involves a special advocate, for the special reasons that I have identified.
§ Lord Phillips of Sudbury
My Lords, I am sorry to keep asking the Minister questions, but this is the nub of the debate. I, for one, am very impressed by the manner in which the Attorney-General is dealing with these matters. Is it fair to summarise the position as follows? On matters of fact, SIAC will have exclusive control and judgment over those facts, because there is no right of appeal on facts; and if it acts perversely in its consideration of the relevant facts, there will be no remedy at all for the detainee.
§ Lord Goldsmith
My Lords, I am not sure that that is right. In a judicial review, as properly understood, there would not be a review in that sense of the facts at all. That is why SIAC is the better procedure—because it enables such a review to take place.
If your Lordships will permit me, I should like to move on. That was an important point, but I am conscious of the time that I have taken. Perhaps I may turn relatively briefly to Part 5, dealing with incitement to religious hatred.
The background to the provision is clear. Over recent months, and in particular since 1lth September, we have seen that there are some people in Britain who seek to stir up hatred against members of religious groups. There have been attacks, for example, on mosques and on Muslims.
As has rightly been pointed out, the present position is that groups such as Sikhs and Jews are protected under existing legislation because, although there is a strong religious element. they are treated as constituting a racial group. That is not the present position in relation to certain other groups.
I have listened carefully to what has been said. This is an important and, for some people, difficult matter. I have listened carefully to the doubts expressed, for example, by my noble friends Lord Desai and Lord Warner. But I invite your Lordships ultimately to be particularly impressed by what was said by my noble friend Lord Ahmed and by the right reverend Prelate the Bishop of Southwark, who pointed out that it is important that this matter is dealt with. The suggestion that such provision should be delayed is, with respect, simply putting off an issue that needs to be dealt with now.
Reference was made to the Home Affairs Committee in another place. I note that the chairman of that committee, having heard the debate, said yesterday in another place that he was now persuaded that it was right to introduce such a provision. Perhaps I may identify the features of the Bill that provide protection.
287 The legislation will not prevent robust and sober religious debate, let alone comedy. There must be words which are threatening, abusive or insulting. There must be an intention to stir up hatred, or a likelihood in all the circumstances that it will be stirred up. "Hatred" is a strong word. It goes beyond contempt or ridicule. It is not, as has been pointed out, hatred of a religion but of a group which is defined by reference to its religious beliefs. Perhaps I may add this. It is not unimportant. There will be no vexatious private prosecutions because the offence is subject to a provision that no such offence can be brought unless it is either by or with my consent. Ultimately it will be for the court to decide whether the offence is made out. I suggest that it is appropriate, necessary and proportionate at this time to include that provision. The alternative, which is to delay, is to deny the protection of this important provision to categories of people for what could be quite some time.
I turn to the other parts and shall try to deal with issues raised. Where time does not permit I shall ensure that correspondence is sent. The terrorist funding provisions largely achieved support from your Lordships. The noble Lord, Lord Hylton, was good enough to give me notice of his question. He particularly wanted to know whether or not the Bill would deal with the proceeds of illegal blood diamonds coming from various countries in Africa. The focus in the Bill is on terrorist financing and terrorist property provisions where the proceeds fund terrorism. In so far as the proceeds which the noble Lord cites are suspected to fund terrorism, the Bill will deal with those items.
Part 3 deals with disclosure of information and data gateways. Noble Lords well understand that the basic provision is to remove current barriers which prevent Customs and Revenue officers providing information to law-enforcement agencies in their fight against terrorism and other crime. It is appropriate to include it in the Bill because of the importance of dealing with that kind of information. A number of points were raised about the limits on disclosure and the judicial oversight. At this late hour I hope that your Lordships will consider it appropriate if I say that those points have been noted and no doubt we shall return to them in Committee.
On police powers, I say much the same. I say this to my noble friend Lord Ahmed. As I indicated, the police will be issued with guidance on the conduct of their powers. Such guidance will take into account the sensitivities and cultural issues relevant to those concerned. Other noble Lords, including the noble Lord, Lord Harris of Haringey, and the noble Baroness, Lady Harris of Richmond, raised the same issues. They are important points. The noble Baroness raised the question of working arrangements with the police and accountability. The noble Earl, Lord Attlee, suggested that from his experience there will not be a problem in practice about the working arrangements. Greater accountability needs to go with wider powers; and steps are being put in place to deal 288 with that as regards the MoD Police and British Transport Police. Again, perhaps I may leave the detail to be considered later.
On bribery and corruption, there is all-party consensus that the provisions are right and appropriate. The Bill will outlaw acts of bribery by UK nationals and companies in the same circumstances as they are outlawed here. Corrupt and had government can be seen to be a breeding ground for terrorism. I am pleased that the noble Lord, Lord Dixon-Smith, nods enthusiastically at that proposition. We cannot allow our efforts to tackle global terrorism to be undermined by ignoring the development of circumstances in which it can grow and thrive. Therefore, I hope that noble Lords will be persuaded that it is right to include that provision in the Bill at this stage. In the longer term there can no doubt he consideration of further and different provisions.
My noble friend Lord Rooker will respond to specific and detailed questions about the OECD from my noble friend Lady Whitaker and to her helpful suggestions.
The noble Earl, Lord Northesk, raised a number of issues in a letter that mysteriously is not to hand, which I will also leave to be dealt with later.
I refer finally to the Part 13, third-pillar matters. The European Communities Act 1972 already pros ides for subordinate legislation to give effect to our obligations under European Community law to be introduced. Matters should be capable of being dealt with that way because if one is required to deal with them by primary legislation, that can be time-consuming and will not allow the UK to respond promptly on a European Union-wide basis.
Reinforcing police and criminal judicial operations with our EU partners is a key part of our response to international terrorism. A number of important measures have been agreed and an effective way of introducing them must be provided. I say to my noble friend Lord Brennan in particular that it is not the case that criminal offences cannot already be introduced by subordinate legislation because Section 2 of the European Communities Act permits that to be done. There is a difference between that and the current third-pillar provisions—which require unanimity between member states. We are only talking about matters that are introduced as a result of unanimous agreement.
The noble Baroness, Lady Carnegy of Lour, asked about the relationship between the Westminster and Scottish Parliaments. She will forgive me if I do not enter into a debate about the relationship between the two Administrations. The noble Baroness made an important point about co-operation between Ministers. I assure her that I meet regularly with the Lord Advocate, who is responsible for the prosecution system in Scotland—as I have responsibilities in England and Wales.
I hope that the noble Lord, Lord Marlesford, will forgive me for not entering into a debate about the passport office and his national insurance number, which appears to be already the subject of detailed 289 correspondence with my noble friend Lord Rooker. It is right to trust the executive, subject to review—as is happening in this Parliament—to protect the people of this country.
I refer your Lordships to the concluding observations of the noble and learned Lord, Lord Hoffmann, in the Rehman case:"Postscript. I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process".290 The noble and learned Lord, Lord Mayhew, referred more than once to trusting in these circumstances. I invite your Lordships to accept that all the proposed measures are appropriate to deal with the unprecedented situation in which we find ourselves.
§ Lord Phillips of Sudbury
My Lords, before the noble and learned Lord sits down, will he help us in this expedited procedure by giving us a list of the concessions made in the other place? A number of times tonight, the noble Lord, Lord Rooker, has referred to amendments that are going to be brought forward. Given the short time that we have to deal with the Bill, it would be immensely helpful to have a list of those concessions.
§ Lord Goldsmith
Yes, of course, my Lords.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at five minutes before one o'clock.