§ 3.55 p.m.
§ Lord Chalfont
rose to call attention to the balance between national security and individual liberty in a democratic society; and to move for Papers.
The noble Lord
said: My Lords, perhaps I may say how much I look forward to this brief debate—although perhaps I am alone in that. I should also say 815 how much I shall appreciate the maiden speech of the noble Lord, Lord Wilson of Dinton. His experience gives him a special insight into these matters.
I should begin by saying that in using the term "national security" in the Motion, I do not mean to restrict the debate to national security only in the sense of defence. I am concerned here with the balance between, on the one hand, the interests of the state and society in the broader sense and, on the other hand, those of the individual citizen on the other. In fact, a better phrase than "national security" might be found in one of the prayers we use to start the proceedings each day in your Lordships' House,the public wealth, peace and tranquillity of the realm".Yet the events of September 2001 have underlined the fact that there is now a serious threat to our national security in the narrower sense and that, in defending ourselves against it, we may be obliged to employ measures which would not be appropriate in a totally safe and unthreatened society.
The question is simple: to what extent, in ensuring the safety and well-being of our democratic society as a whole, should we adopt policies which, even temporarily, restrict the liberty of individuals in that society? As I have said, it is a simple question but, as always, it is the answer which is a little more difficult.
We need first to examine the two principal factors in the equation: what is the nature of the threat to society, and how far is the freedom of the individual endangered by our reaction to it? The threat to national security—the military threat—comes, as noble Lords will know, from a unique kind of global terrorism with its motivation in a fanatical religious extremism, the aim of which is no less than the destruction of our liberal democratic society and of the freedoms and tolerance that we have developed over the centuries. It is a violent and ruthless extremism that is totally without humanity or compassion. We are dealing here with a very serious threat and it is simply childish and self-deceiving to use, as do some people, debating society phrases such as, "one man's terrorist is another man's freedom fighter", or to talk glibly about meeting the threat of terrorism by finding a remedy for its causes.
Some of those who oppose the terrorist threat are so-called "sleepers", living among us, ostensibly as peaceful citizens, but ready to strike, lethally and without warning. So the threat to our security can come suddenly, not only from outside but also from within. Our society is in danger of becoming what the Home Secretary, Mr David Blunkett, called in a press interview,an airy-fairy libertarian world, where everybody does precisely what they like and believe the best of everybody, and then they destroy us".The syntax of that statement may be slightly precarious, but its truth is unmistakable.
Then there is the other kind of threat to the public wealth, peace and tranquillity of the realm. It comes from crime, vandalism and what has been called "anti-social behaviour". It is not too extreme to say that we are now living in a society in which violent crime, the 816 gun culture and the virtual anarchy which is associated with drugs and gang warfare are inspiring apprehension and fear in society as a whole. Burglary and robbery seem to be regarded in some sections of society as alternative leisure activities. In many residential areas of our capital cities, people are afraid to walk alone after dark, while older citizens are not even safe in their own homes.
I think it is fair to say that no reasonable person would deny that we have the need, and indeed the duty, to defend our society and its values against both of those threats. Some would argue that that may legitimately involve measures which restrict the freedom of action of our citizens; in other words, which may erode their liberty, even if only temporarily. One of the primary responsibilities of a freely elected government is to protect their citizens from harm; to ensure, as I have said, the maintenance of the public wealth, peace and tranquillity of the realm. If that is threatened, is it not right to place limits on individual freedom if, in doing so, we diminish or remove the threat?
That may be a simplistic formulation of the issue, but it leads to the crucial question: are we in danger of passing the point of balance at which individual liberty can legitimately be restricted in pursuing what the state regards as the common good?
To what extent is individual freedom being restricted and to what extent are individual rights being endangered today? Every human rights activist has his favourite list of alleged attacks on individual freedom—many were described in a recent series on the BBC World Service, which asked the question: "Have governments decided that, for the time being at least, there are more important priorities than guaranteeing the liberties of their citizens? If so, are they correct?". The BBC's conclusion seemed to be that the answer to the first part of the question was: yes—governments, including our own, have decided that there are more important priorities than individual liberty; and, no, they are not correct to do so.
The BBC is not necessarily the fount of all wisdom or objectivity in these matters, although there is some evidence to support that point of view. The organisation Liberty—the National Council for Civil Liberties—has been very concerned for some time about the impact on civil liberties of counter-terrorism legislation, with special reference to the Terrorism Act 2000, and also about derogations from the European Convention on Human Rights. Not surprisingly, Liberty takes the view that special anti-terrorism legislation creates a twin-track criminal justice system in which people suspected of terrorist activities have fewer rights than suspects under the ordinary criminal law.
Those concerns are not altogether surprising. In the past five years, the Government have brought forward 12 criminal justice Bills. Recent legislation and proposed legislation, much of which has been brought forward on grounds of national security, seem to suggest that the point of balance is shifting away from 817 the sacred principle of individual liberty. Everyone will have his own list, but many people are concerned about such developments as the proposed change in the law as regards double jeopardy and the threat to the right to trial by jury.
There are questions in many minds about the increasingly prevalent use of closed circuit television and the potential intrusiveness of plans for what are called entitlement or identity cards. Many people view with special alarm the American proposal for a Total Information Awareness system, involving a centralised recording of e-mails, credit card transactions and telephone calls; and there seems to be a growing prevalence of the practice of arbitrary arrest and incarceration without trial. All are matters of grave concern.
One aspect of the problem is reflected in the consultation paper published earlier this month by the Home Office: Access to Communications Data. Last summer, the draft order adding public authorities to the list of those with access to communications data was strongly resisted and the Home Secretary withdrew it, conceding that he had got it wrong. However, in the new consultation document the Home Secretary makes the following statement:The concerns highlighted by the reaction to the withdrawn order are only part of a much wider debate about the balance between privacy and protecting the public from crime".It may be argued that crime and privacy are not the same as national security and liberty. But I would argue that they are, in fact, aspects of the same problem. The invasion of privacy is itself an erosion of individual liberty. The Home Secretary seems to endorse this, by quoting in the consultation paper the European Convention on Human Rights, which, he says,permits compromise of an individual's freedom, but only in accordance with the law and where necessary to protect life or prevent crime".The new consultation document seeks to explain why public authorities need access to communications data—in other words, to such things as itemised telephone call records, on-line tracking of communications and the identity of telephone subscribers.
It is arguable that all these measures may be necessary in the defence of society against crime and the threat of terrorism. As Isaiah Berlin, one of our modern political philosophers, has written:We must preserve a minimum area of personal freedom [but] we cannot remain absolutely free and we must give up some of our liberty to preserve the rest".However, I would suggest that we must not cross the frontier beyond which we sacrifice so many of our individual liberties that we are no longer a free society. On one side of that frontier stand societies sure of their civilised values. As the classical political philosophers have always insisted, that frontier may shift, but it is always recognisable.
818 My question today is: are we sure of our civilised values? Are we capable of recognising and preserving the balance—which, once it is lost, may be impossible to restore? As Edmund Burke said in his Reflections on the Revolution in France,I flatter myself that I love a manly, moral regulated liberty as well as any gentleman".But individual liberty must, as Burke went on to say, be combined with peace and order, civil and social manners. Recent developments in our streets, inner cities and elsewhere lead me to doubt whether those virtues—civil and social manners—any longer go along with individual liberty in this country. It is arguable, therefore, that we may need strong measures to ensure the peace and tranquillity of the realm.
Even those who share my life-long commitment to the principle of individual liberty may be concerned about some of the activities of marchers, protesters and demonstrators for various causes who frequently make our streets and public places "no-go" areas for ordinary citizens trying to live their own lives and go about their own business. It is worth remembering that the European Convention on Human Rights, which I quoted a moment ago, and which is often quoted in support of some of these activities, states clearly that the freedom of right of expression is subject to a number of conditions, including,the protection of the rights of others"—the protection of the rights of others, my Lords.
Perhaps in that phrase lies part of the answer to the question that I posed at the beginning of my remarks. My Lords, I beg to move for Papers.
§ 4.7 p.m.
§ Lord Marlesford
My Lords, we owe a debt of gratitude to the noble Lord, Lord Chalfont, for introducing such an important and topical subject.
At this moment, we are fighting three wars: a war in Iraq against Saddam; a war against terrorism; and a war against crime. These are all wars to protect individual liberty—the liberty of the Iraqis from a dictatorship which is obscene in its satanic cruelty to human beings; the liberty of those who have no connection with international politics but who can, at any moment, be cut down by the terrorist, who will go for the safest, and thus probably the most innocent, target; and the liberty of ordinary citizens to go about their daily lives in reasonable confidence that their lives and property will be secure from the common criminal.
I believe that it is therefore necessary to re-think fundamentally the balance between national security and individual liberty. I start from the simple proposition that individual liberty is a function of national security. Without the second, you cannot have the first.
If public policy in a democratic society is to reflect the concerns and priorities of the citizens, as I believe it should, then it is the task of government to introduce such safeguards as may be necessary to meet those wishes. 819 There is so much to be done and so much which can be done. Thanks to the acceleration of technology, many of these safeguards can be put in place not only with huge precision and efficiency—and, at the same time, safeguarding the liberties which they seek to protect—but at ever-diminishing cost.
I would like to mention the recent report of the Select Committee on Science and Technology entitled Chips for Everything, which was introduced in a debate here last week in a remarkable speech by its chairman, my noble friend Lord Wade. I strongly recommend your Lordships who have not already got it from the Printed Paper Office to read it.
Almost anything we want to do is now possible.
In the short time available to me, I can give only a few examples of where I believe changes in policy are needed. I start with the urgent need to be able to identify citizens of all ages with certainty. This, of course, takes one straight to the controversial subject of identity cards. But it is not the card that matters. It is the foolproof identification of each of us. This is profoundly democratic because it means everyone is treated exactly the same in terms of their identification. It does, of course, involve a unique reference number which must be linked to individuals by biometric measures. There are many of these—the oldest and best known is the fingerprint. More modern methods include eye and face matching and, ultimately, DNA.
There was a time when the police thought that the need for and value of such methods was questionable. No longer. I have in recent months heard the Commissioner of the Metropolitan Police call on two occasions for the introduction of identity cards, which he says must have the essential biometric component.
The Government are toying with what they call an entitlement card. To produce something which fails to meet the toughest criteria of certainty, privacy and security would be an inexcusable waste of public money.
Let me say a word about the humble passport. By fortunate coincidence, I received a Written Answer to a Question only yesterday which I suggest highlights the wholly inadequate passport system we have in this country. I asked:Whether immigration officers at points of entry into the United Kingdom have the facility to check on-line the validity of British passports presented by persons leaving or arriving; and how long after the reporting in any part of the world of a lost of stolen British passport this information is available to immigration officers at points of entry into the United Kingdom".The Minister's answer was that UK immigration officers do not have direct access on-line to the UK Passport Agency database and that details of passports reported as lost or stolen are sent to the Immigration Service Warnings Index, which is available. It is not electronic. The Minister continued:As part of its anti-fraud programme, the UK Passport Service is developing a database for passports reported lost, stolen or recovered".—[Official Report, 24/3/03; col. WA 53.]Is it not amazing that in the year 2003 such a database does not already exist?
820 Let me go further: do your Lordships realise that there is no enforced requirement to surrender the passport of a deceased person? The street value of a deceased person's passport is considerably greater in criminal circles than the value of a stolen or lost passport, because it is thought, perhaps wrongly, that there is a smaller risk that somebody might have noticed that the holder was dead. Yet when I raised this subject fairly recently, I was told that enforcement of surrender was not a practical proposition and was too sensitive to grieving relatives.
There are many other subjects we could raise and will raise. We live in a world of growing menace, and we have to adapt to this new world. The noble Lord, Lord Chalfont, referred to the balance—it is a balance of security against terror. The Americans have put responsibility for this at Cabinet level. I would like to see us do the same.
§ 4.14 p.m.
§ Lord Goodhart
My Lords, I, too, am very glad that the next speaker will be the noble Lord, Lord Wilson of Dinton. Very appropriately, he is to be followed by one of his predecessors as Cabinet Secretary, the noble Lord, Lord Armstrong of Ilminster. However, I am surprised and somewhat disappointed to see that, apart from three Members on the Front Bench, the Labour Benches are entirely deserted and there is no speaker who takes the Labour Whip speaking in this debate.
I declare an interest in this matter as a vice-chairman of the council of Justice. That certainly makes me one of the human rights activists to whom the noble Lord, Lord Chalfont, referred in introducing this timely and important debate. In view of his speech and its emphasis on the dangers of allowing national security concerns to interfere with personal liberty, I am tempted to welcome him to our number.
There must be a balance between security and liberty. That is particularly important because of the terrorist threat. The war with Iraq is also relevant, as is the war against crime, although I would put that under a different heading from national security.
We have lived with a terrorist threat in this country since 1969, although the threat from Al'Qaeda and similar organisations is worse than that from the IRA. With some exceptions, the IRA aimed to limit rather than increase the number of people who were killed by its terrorist actions.
I can envisage circumstances in which there might need to be further restrictions, but it has not so far been necessary to restrict the everyday activities of ordinary citizens. It is possible that in future there may be circumstances in which it is necessary, as the noble Lord, Lord Marlesford, suggested, to have identity cards. I am not yet persuaded that that is the case. Identity cards are likely to be of more use in dealing with benefit fraud than terrorism. They are not, I believe, needed for security purposes. 821 I do not see CCTV in public places as a serious problem, though access to communication records is considerably more worrying. I was very glad that the Government backtracked somewhat on their earlier rather alarming proposals.
Legislation concerning terrorism has so far been targeted fairly accurately on terrorism and terrorists, partly due to the action in your Lordships' House of both Opposition parties when it came to dealing with some of the very alarming provisions contained in the Anti-terrorism, Crime and Security Act 2001.
Obviously, legislation concerning terrorism involves restrictions which, as the jargon goes, engage human rights law. They operate as restrictions on convention rights under the European Convention on Human Rights and the Human Rights Act. For example, the power to proscribe certain organisations under Section 3 of the Terrorism Act 2000 is a restriction on freedom of association. The right to seize money belonging to a terrorist organisation is an interference with the right to peaceful enjoyment of possessions. Prohibition of advocacy of terrorism is a restriction of the freedom of expression under Article 10.
The fact that this legislation restricts rights does not mean that it contravenes human rights. The European Convention on Human Rights is, I believe, a realistic document. The restrictions it imposes must be prescribed by law and necessary in a democratic society. The restrictions must be proportionate, and the more serious the threats to security, the more intrusive those restrictions may be. In an extreme case, where a public emergency threatens the life of the nation, the European Convention on Human Rights recognises a right of derogation—that is, a right to exclude the operation of some of its provisions from some convention rights.
The present system is able to cope with foreseeable security problems. However, some people have proposed that we should emasculate the Human Rights Act and withdraw from the European Convention on Human Rights. Plainly, such action would be neither necessary nor desirable. It would be a surrender to terrorism. Calls for the scrapping of the Human Rights Act come mainly from those who do not believe in human rights to begin with.
There are even worse suggestions than scrapping the Human Rights Act. In the USA—although not in this country, as far as I am aware—there has been a call for the legalisation of torture as a tool of interrogation. I would find that horrifying. It would be reducing ourselves to the level of the terrorists.
In a crisis, civil liberties may be restricted in the interests of national security. We need to defend ourselves. However, we are defending not only our lives, but our liberties as well. If we restrict those liberties, we must do so only in order the better to defend ourselves.
§ 4.21 p.m.
§ Lord Wilson of Dinton
My Lords, I rise to address the House with a sense of surprise and pride. I am surprised because, having had the honour of listening to debates for many hours in this House in the 1960s and 1970s as a private secretary to the late Lord Brown of Macrihanish and as an official, not for one second did I think that I would address the House myself. I feel pride because over a long period I have developed a great respect for your Lordships and for the role of this House. It is a great national institution and I am very proud to be a Member of it.
I also congratulate the noble Lord, Lord Chalfont, on this crucial debate. Having been a permanent under-secretary at the Home Office for approaching four years and Secretary of the Cabinet for approaching five years, I am familiar from within government with the problem of striking the balance to which the noble Lord rightly referred. I know very well the difficulty involved, as, I am sure, does the noble Lord, Lord Armstrong, who occupied both those offices a little while before me.
I have always thought it helpful to approach the subject by looking at the famous dictum of John Stuart Mill, which I have taken the liberty of checking for accuracy, although I have often tried to remember it. He said that,the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others".That is a good starting point for any discussion on the balance. However, there is a familiar paradox built into that statement. In order to protect liberty, we may have to restrict it by invading privacy or by restricting freedom of movement, although, as the noble Lord, Lord Goodhart, said, we must never descend to the level of the terrorists, or we have lost the battle.
The trouble—and I speak from much experience—is that the perception of that harm varies, as does the perception of what severity of action is required in order to protect ourselves against it. That is a peculiarly difficult debate to have if some parties have more knowledge than others. Those in government who deal with these issues of law and order every day—those who receive the reports and warnings on threats to national security and deal with the very proper concerns of the police and the security services—get a concentrated view of the destructive forces in society and begin to realise that they are real in a way that one is not necessarily exposed to in other walks of life. Terrorism, espionage, serious crime, animal rights activists and so on pose a cumulative danger that gives one a sense that life is quite threatening.
The problem is made more difficult because, as has rightly been said, the limits of what we should tolerate shift. Speaking in another context, the late Lord Devlin once said,there must be toleration of the maximum freedom that is consistent with the integrity of society".However, he also said that the limits of that tolerance shift. The balance between individual liberty and national security does not always remain the same. It 823 is not the same in wartime as in peacetime and there are varying shades in between. We have become aware in recent years that we may have systems and structures that are vulnerable to serious harm by relatively simple means that we may not previously have realised. September 11th was a terrible example of that, but there have been others, including the Tokyo Underground incident and the opera house in Moscow. Although it was not an issue of national security, I think the fuel supply crisis a few years ago also brought home the ways in which we are building in vulnerability that we may not have known we had.
The public are well aware that there is a shift. Governments find themselves under great pressure to act. They cannot always disclose the full extent of their knowledge and they do not always want to advertise weaknesses or alarm the public unduly. At the same time, this must not become a debate in which those who are concerned about harm see only the harm and those concerned with liberty see only the threat to liberty. It has to be a dialogue about where the balance is.
We need to focus on three crucial safeguards. First, the national institutions that are responsible for striking the balance have always had and must retain a sense of respect for liberty and for due process. I pay tribute to the integrity of those who worked with me in the Home Office and the Security Service. They have built that into their culture and are not always given full credit for doing so. It is fashionable not to trust people in authority. There are some good features of our institutions that may not be apparent.
Secondly, it is never enough for governments to say, "Trust us". It is important that we have set up independent watchdogs who have access to information about the extent of harm. Even if they cannot disclose all the information that they know, they can none the less provide some reassurance to Parliament and the public that the balance is being struck properly and is not being abused. I have in mind in particular the Intelligence Services Commissioner, the Investigatory Powers Tribunal and the work of the noble Lord, Lord Carlile of Berriew, to which I pay tribute. These and a number of other independent watchdogs play a crucial role. I also pay tribute to the Intelligence and Security Committee, which has the power of oversight and can direct the investigator to review the work of the intelligence agencies.
Finally, the most important line of defence is Parliament, and particularly this House. It has always played a crucial role in oversight of the executive. It must continue to play that role. That is why I particularly welcome this debate, which is in accordance with that great tradition, which I support.
§ 4.28 p.m.
§ Lord Armstrong of Ilminster
My Lords, your Lordships will understand that it is a very special pleasure for me to be able to be the first to congratulate my successor and former colleague, my noble friend Lord Wilson of Dinton, on his maiden speech. He has 824 spoken with wisdom and judgment and we all look forward to hearing from him many times on these and other subjects.
It is a funny thing, but former secretaries of the Cabinet who have the good fortune to be elevated to this House often make their maiden speeches on issues of security. I did so myself and I remember being rebuked by Lord Bonham-Carter, who reminded me that supporting the government of the day could not be regarded as non-controversial.
I also join in the gratitude that your Lordships have expressed to the noble Lord, Lord Chalfont, for giving us the opportunity to discuss this important issue of striking a balance between national security and individual liberty. In a funny way, it is a relatively modern issue. I doubt whether Cardinal Wolsey, Sir Francis Walsingham, the Earl of Strafford or even Sir Robert Walpole, to name but four, lay awake at night thinking about the individual liberty of the subject. However, it is an issue that is very much with us today and on which it is extremely difficult to generalise.
Like my noble friend Lord Wilson, I had to confront the issue many times during the last 17 years of my career in public service. Perhaps my most public confrontation with it was when I gave evidence in proceedings in the courts of Australia, New Zealand and England in which the British Government of the day sought injunctions to prevent the publication of Mr Peter Wright's notorious book Spycatcher. I claim a modest entry in the Guinness Book of Records for giving evidence in the High Court in Wellington, New Zealand, on one Monday and in the High Court in London, England on the following Monday.
I will be thus far economical with the truth, as not to risk boring your Lordships by recounting the reasons why I thought then and still believe today that the Government of the day were right to seek, on grounds of national security, to override Mr Peter Wright's individual right to publish his book, for that is only one example of the point that I am concerned to make this afternoon.
Like my noble friend Lord Wilson, as Permanent Under-Secretary of State at the Home Office, I confronted the same dilemma every time I was called on to advise the Home Secretary of the day whether he should sign a warrant for a telephone interception on grounds of national security. Clearly, intercepting someone's telephone is a gross invasion of his individual liberty, but no one, or almost no one, would say that there could be no conceivable circumstances in which a decision to intercept on the grounds of national security would be justifiable.
So it seems to me that, in seeking to strike a balance between national security and individual liberty, it is not possible to argue that individual liberty should always prevail and that there are no conceivable circumstances under which the interests of individual liberty should not prevail. It is an issue for which it is impossible to lay down general rules about how the balance should be struck. It must be struck in each separate case; it must depend on the wider 825 circumstances, the perceived needs of national security in those circumstances and on a judgment about whether those needs, in the particular case, override the duty to respect the rights of individual liberty.
When I was called on to advise the Home Secretary on these judgments, the question that I asked myself, and asked the Secretary of State to consider, was whether the arguments on national security grounds for doing whatever was proposed were strong enough to justify overriding the right of individual liberty. I remember cases in which I advised, and the Minister agreed, that they were not strong enough. Of course, I remember many other cases in which I thought, and the Secretary of State agreed, that they were strong enough, but for neither of us was the decision open and shut or automatic. The balance had to be struck afresh each time.
As my noble friend Lord Wilson reminded us, the decision about how to strike the balance will often depend on security considerations that it is not possible to disclose publicly. The decision must rest, therefore, with those who have access to that information. In the end, it comes down to a matter of trust. The Secretary of State who is called on to take the decision must be able to trust that the agencies who seek his decision will give him and his senior official advisers all the information on which his decision must depend. Like my noble friend Lord Wilson, I pay tribute to the integrity of the security services in their dealings with these matters. The Minister must be able to trust his senior official advisers to tell him when they believe that a case has not been sufficiently established. He, upon whom the responsibility of the final decision rests, has to deserve and retain the trust of Parliament and the public that his decisions will be reached responsibly after striking what he believes is the right balance.
Some people, even some of your Lordships, may feel that such decisions should not be left to civil servants or security agencies, which might be regarded as too apt to give undue weight to security considerations. That is why it is appropriate and necessary that the decisions should be taken by Ministers, as they always have been in my experience. I say that not because Ministers necessarily have a monopoly of right judgment in these matters, although they may have, and be expected to have, a strong sense of the importance in our democratic system of the maintenance of individual liberty. Ministers carry the ultimate responsibility for decisions in this area, which may sometimes seem of little moment in comparison with the great issues of the day but are of great moment in relation to the rights of individual citizens. Those activities are now supervised, monitored and given oversight by various commissioners and the parliamentary oversight committee.
We may not be able to lay down rules as to how a right balance should be struck in each case between national security and individual liberty, but we can and should require Ministers, who are accountable to Parliament, to be responsible for the decisions that have to be made in striking that balance.
§ 4.35 p.m.
§ The Lord Bishop of Chester
My Lords, in Nelson Mandela's autobiography, Long Walk to Freedom, I was struck by the climax—the day of the first free election with universal suffrage. Mandela recounts that it was not the prospect of victory for the ANC or his own accession to power that elated him as much as casting a vote along with his fellow South Africans in the birth of a proper democracy, with the accompanying dignity that only democracy can convey.
I do not believe that the Judaeo-Christian tradition can lay an exclusive claim to the emergence of modern democracy, but a certain correlation is obvious from a glance at the map. Democracies rest on a belief in the inalienable rights and freedom of each individual. The modern notion of the freedom of the individual, although much developed in modern secular thinking by J.S. Mill and many others, goes back to the Jewish belief that each person is unique, created by God and made in his image. That was continued in the Christian tradition, although there was now a sharper sense in which freedom itself was seen as a gift of God—"You shall know the truth, and the truth shall set you free".
In an ancient world which saw human life as all too often dominated by fate and forces outside our control—and, indeed, with a lack of democracy—that came as a breath of fresh air. It cut across social and cultural divisions; in Christ Jesus there was to be neither Jew nor Greek, slave nor freeman, male nor female. The Christian vision of society is a deeply inclusive vision—in which, for example, the stranger is welcomed and fed unconditionally, in a sense. I need hardly add and acknowledge that societies and nations claiming a Christian vision at their heart have all too often fallen short of it, as the noble Lord, Lord Armstrong, hinted. Let us take the obvious example of slavery. It is a matter of deep sadness that it took nearly 1,800 years before William Wilberforce and others steered an abolition Bill through Parliament.
The Judaeo-Christian tradition also includes the idea of nation states with definite roles and purposes, both for the good of individuals and for the wider world. It is assumed that there will be rulers and governments with power which they are called on to exercise for the common good. Some suggest that the nation state has now had its day, or at least its heyday. I am not so sure, although I recognise the strains that the global society and economy generate. My own sense is that nations will relate better to one another if they do not neglect their own identity and distinctive character, although that character will always be formed in partnership and relationship with others. Britain has been a richer and more humane society as the dominant English ethos has been checked and shaped in relation to the distinctive identities of Scotland, Wales and Ireland.
Today we are engaged in the slow but enriching task of welcoming a new wave of immigrants to our shores—from the second half of the 20th century into the 21st century. The threat from international terrorism has arisen at this time and in that context. It 827 is a threat that threatens to destabilise our society. It is an unpredictable threat that can encourage us to fear the worst, which is not always wise, although the changing nature of our world, its sophistication and interconnectedness, means that the threat can be very large. More people lost their lives on September 11th, when no munitions were used, than at Pearl Harbor.
There are new challenges to maintain national security, which it is the responsibility of governments to face. There can be agonising choices, as have already emerged from this debate and on the larger political scene in relation to Iraq.
Easier travel and global communications combine with very sharp differences in wealth and freedom around the world to generate movements of peoples and the ever-increasing pressure on immigration especially into the wealthier and more democratic countries. Europe is especially open to such movement. In those circumstances, governments do indeed face sensitive and difficult decisions. For example, it would not at all surprise me to see the introduction of identity cards; and, provided that the police, immigration and security services wish to see that, I think that it can be warmly welcomed. Other speakers—including the noble Lord, Lord Wilson, in his memorable maiden speech—drew attention to a number of issues that have arisen and may yet arise.
As for immigration policy itself, provided that it is operated with the maximum degree of humanity, I believe that government policy in general needs our support. To me it is not so much a question of whether asylum seekers might be detained on arrival—I am actually quite happy to support that—my concerns are about how they are viewed and treated when they are so detained. The standards of education, healthcare and advice which they are given must be maintained at the highest standards that we would want for our own established citizens. A few of those who arrive will indeed be intent on no good, and that possibility has to be honestly considered. But it should not be allowed to colour the general approach that we take to those who arrive in very vulnerable conditions on our shores.
Do we recognise in the stranger-in-the-midst someone who is every bit as much a child of God and made in His image as you and I? For all societies are judged ultimately by the way in which they treat, look after and value the most vulnerable in their midst. Our immigrants and asylum seekers are first, in my view, among those. That does not answer the difficult questions and dilemmas which may yet have to be faced, but it is the foundation of a society that aspires to be called free and civilised.
§ 4.41 p.m.
§ Lord Selsdon
My Lords, when I was a child, perhaps I thought as a child, but I was certainly taught as a child. One of the things I was taught was about country—it may now be called geography. I was taught where the countries were and about their rivers and their values. I was taught that gold came from the Gold Coast, ivory from the Ivory Coast, grain from 828 the prairies in Canada and coal from coal mines all around the world. When I became a man, I did not necessarily put away those childish things. I used to ask myself, "What is the value of what?" I found a map from the Department of Trade issued in the year of my birth which showed that there were more active ports in the United Kingdom and that more trade went through the United Kingdom than anywhere else in the world. We also had a great manufacturing base. I worshipped people such as Brunel and I longed to drive railway trains and do other things of that sort.
As time went on, I found that many of those great assets of the United Kingdom had faded away. We manufactured no more. We had no more empire. I gradually wondered what we were left with. Then, suddenly, it came to mind, as through a glass darkly—it is called services. But it is not services. The one thing that we had but failed to value and appreciate is not a commodity such as gold but something else. In one of the arguments I had with friends about the importance of coffee to soldiers fighting in Latin America, where they had guns with grinders in the butt, and in other arguments about the importance of the Silk Route, I was brought back to earth by the Germans. They pointed out that semiconductors—the microchip—have overtaken all other commerce and products in the world of the sale. What did the microchip do? It set out to destroy the two great commodities that we have in this country, which we have fought for and have cost us dear—privacy and freedom. Those are commodities on which no value can be placed.
The noble Lord, Lord Chalfont, started in one way, and I am going to move on in another. Without boring your Lordships and going back to what I was taught, I simply say that I am who I am and not what someone tells me I am. I do not believe in carrying passports. I believe that security is based on knowledge. I believe that banks should know their customers under their old philosophy. "Know thy customer" should be an Act and a law. However, we are now relying on the semiconductor. We are told to, "Press one … press two … press three", and if we do so we may end up speaking to someone in India. If someone presses a wrong button, his account may be raided, as mine was only a week ago, by £19,000. If someone finds a card number on the Internet, before you know it, that number can be used to purchase products as far away as Cincinnati, Ohio.
Why has that happened, and what do we do about it? I am not entirely sure, but I shall give some historical examples. My grandfather had the privilege of being Postmaster General. It was a crime to tamper with the post. Is Internet tampering a crime? Is opening other people's correspondence or recording it a crime? It should be. But in the days of Postmaster Generals, who were in the Cabinet, there was also the telephone. I was brought up in Newbury. Although we were the last to be on direct dialling, we knew that the telephone operator would not only tell people how to contact the doctor, but also listen in to the call. That was acceptable. However, we also knew that, when we 829 went on to directory inquiries, people would not be able to get our address. If someone was ex-directory, not even his number was available.
Now it is all very easy. I feel as though I am betraying a state secret. One can go on the Internet and type "bt.com", and up on the screen will appear the question, "What name and where?" One can type in a name and find that person's address and postcode. One can then click on "map". On to the screen will come a map with a little red circle showing where that person lives. If one is still excited and feels more adventurous, one can click on "aerial photograph", and on to the screen will appear an aerial photograph of the house. If one is clever, one can narrow down the photograph, certainly to the size of a tennis court and, with a bit of skill, to the size of a car. One can then click on "directions"—which might state, "Leave House of Lords; turn right; turn left", and give the miles to the destination. Someone at Heathrow could note the name on someone's baggage and ring up a friend. Before you know it, your private address could be gone. I give that as one example.
Years ago, with my colleague from the bank, we introduced a draft Bill called the Protection of Privacy Bill which showed that a total of 97 Acts of Parliament gave the Government, without permission or a court order, the power of search and entry into a home. I thought that I might try to reintroduce it. On 26th June 1976, in her halcyon days as Secretary of State for prices and consumer protection, the noble Baroness, Lady Williams of Crosby, admitted that her officials had the right of search and entry under 15 Acts of Parliament. We have invaded privacy for so long, perhaps the moment has come to realise that security is based on the protection of privacy.
§ 4.47 p.m.
§ Lord Monson
My Lords, space was left for me at this point in the speakers' list but, because of an apparent computer glitch, my name was left out. I am afraid therefore that noble Lords will have to wait a little for the noble Lord, Lord Maginnis.
I, too, thank my noble friend Lord Chalfont for introducing this important and timely debate and for his excellent speech. Securing the right balance between individual liberty and national security is never easy. In times of national emergency, governments the world over tend to panic and introduce excessively repressive measures. One thinks of the bewildered Italian waiters and German Jewish refugees interned in the Isle of Man and elsewhere in 1940 under the 18B regulations. Far worse was the treatment meted out to loyal and law-abiding Japanese-American citizens in California and elsewhere in the months and years after Pearl Harbor. The McCarthyite hysteria following the Soviet takeover of eastern Europe is perhaps another case in point.
On the other hand, when there appears to be no immediate threat democracies tend to go too far the other way, becoming excessively lax where national 830 security is concerned. We, for example, allow certain people who are not British subjects or Commonwealth or EEA citizens to live permanently in Britain who not only have no loyalty to this country, its institutions or its traditions, but who are positively hostile to this country and everything it stands for. That is taking liberalism to excess. We should emulate most other civilised countries and become more robust when confronted by such matters.
Having said that, for the most part the balance tends to be tilted unnecessarily far in the reverse direction at the expense of individual liberty. This House did a quite splendid job in watering down last year's panic anti-terrorism legislation. Even so, the finished product embodies certain new offences which have nothing to do with terrorism, and gives other causes for concern.
Is it not ridiculous for the police to be currently threatening demonstrators who make rude gestures at United States military aircraft—not that I approve of such gestures—with prosecution under Section 5 of the Public Order Act 1986? Threatening and abusive gestures may well merit prosecution; gestures that are merely insulting do not.
The matter of identity cards is once again rearing its ugly head. Most unusually I disagree totally with the noble Lord, Lord Marlesford. There may well be a valid case for entitlement cards, for use when obtaining treatment on the NHS and so on, but identity cards, which must by definition be compulsorily carried at all times to be effective, are another matter altogether. It would be illegal, for example, to nip out of one's front door to post a letter 50 yards down the road without carrying one's identity card. A woman sunbathing on a beach would have to conceal such a card somewhere in her bikini. As someone once pointed out, you would effectively need a passport to step outside your own front door.
Moreover, let us remember that during World War Two British prisoners in Nazi prisoner of war camps, with only the most primitive materials and equipment at their disposal, managed to produce forged identity documents which, more often than not, fooled the Gestapo. Can one seriously imagine that, with all the advantages of modern advanced technology at their disposal, today's terrorists are not capable of forging identity cards in their millions, should they be introduced?
Finally, I have a question for the Minister which I believe is relevant. I am particularly heartened in that respect by what my noble friend said at the outset. The Minister will not be able to answer me today, not least because the present administration are in no way responsible for what happened 16 years ago, but he may care to investigate and write to me placing a copy of his reply in the Library.
On 10th January 1987, what was almost certainly a nuclear convoy—although this was never publicly admitted by the Government—was heading north-west from Portsmouth. Not far from Salisbury one of the heavily laden lorries skidded on black ice and ended up in a ditch. When local villagers came out to 831 see what was happening, they were surrounded by armed soldiers and police and then interrogated. Their names and addresses were taken. Subsequently, those totally innocent villagers, who included a Methodist preacher, an insurance broker, a farmer and a local councillor, discovered that their names and addresses had been put on the files of the United States National Security Agency in Maryland. For all one knows, they are still there on file. The then government and nearly all the British media remained virtually silent on the matter—very sinister. Only the now defunct Today newspaper, in fine crusading mode, tried to pursue the truth, as did the honourable Member for Salisbury, Mr Robert Key. But neither the MP nor the newspaper got very far.
What I should like to hear from the Minister in due course is, first, whether the names of the innocent Wiltshire villagers are still on FBI, CIA or some other American police or security tiles, and, secondly, what British agency disgracefully passed their names and addresses over to the Americans? Was GCHQ at fault, as has been suggested? I hope that we do not have to wait until the year 2017—under the 30-year rule—to find out.
§ 4.54 p.m.
§ Lord Maginnis of Drumglass
My Lords, I congratulate the noble Lord, Lord Chalfont, on securing this debate and giving us the opportunity to consider how we might achieve balance between national security and individual liberty. It is a matter of relevance—indeed of urgency at this present time. In the few minutes available I intend to confine my remarks to what is current.
Perhaps it will be appropriate if I illustrate what I feel by looking at the BBC's role in the context of the two criteria pertinent to this debate. Having scan read yesterday's Official Report on the Communications Bill, I was virtually overwhelmed by the incestuous nature of that debate. The plaudits of self-congratulation in terms of our broadcasting system were at variance with my experience.
I have just spent a long weekend visiting grandchildren in Switzerland and, while there, had the dubious experience of listening to 96 hours of what used to be considered the epitome of considered research and objectivity—the BBC World Service. What a presumptuous and self-indulgent lot the correspondents turned out to be; how superficial and patronising was their reporting and, bluntly, how the Saddam Hussein regime must welcome their ill-informed assessments of what is happening around them and their predictions of what is to come.
From a privileged position—I believe that the Minister used the term "embedded"—among our troops, they were able to analyse how the next phase of the battle was to be fought, who might be in what location, possibly where and when, and the armaments at their disposal. Should our military commanders in the field be so encumbered?
Every instance of resistance by Saddam's forces was reported with apparent relish and evoked the prediction that the war would not be the "walk over" 832 that Prime Minister Blair and President Bush might expect. I have not heard those two gentlemen or anyone other than the press ever suggest that events would be other than what they are turning out to be. Is the good image of "war correspondent" as we once knew it, and its association with loyalty and courage, now gone for good? How many of those out there with our troops have ever worn a uniform or ever subjected themselves to the discipline of soldering? Bluntly, are some of them qualified to be next to or near a battlefield in the first place?
We must all have heard or seen the instantaneous TV reports of Saddam's forces shredding the bulrushes with gunfire in the hunt for, fortunately, a mythical pilot who had allegedly parachuted into the water. How many airmen's families had to sit at home envisaging their son or husband as the prey? What did that do for morale, for compassion, for individual liberty or for the truth?
But it would be wrong to lay all the blame at the door of the correspondents alone. How have they come to be there under an obligation to provide wall-to-wall coverage of events that should not be turned into a spectacular? What do the governors of the BBC decree we should have to endure irrespective of the damage it may do? That question should have been asked long ago. Long before we actually went to war the anti-government rhetoric was stomach-turning and blatantly irresponsible. Much of what was being openly speculated upon was dangerous to our front-line troops and that continues—but even more so today—to be the case.
The press is not exclusively the guardian of democracy. It should, at best, take second place to what happens here and in another place but, instead, it projects itself as being in conflict with democracy rather than being complementary to it.
Since the beginning of the debate as to whether or not the United States and the United Kingdom have an obligation finally to stop Saddam Hussein—the man whose regime has been responsible for perhaps up to 1 million deaths—the BBC in particular has fostered and sustained the opposition to military action on our part. It has marshalled opposition rather than seeking to educate opinion. When it was alleged that hundreds of thousands of women and children would die in hostilities, it was accepted and regurgitated as though it were the gospel. We should at least have heard by now some acknowledgement of the exemplary manner in which our military commanders have planned and are executing this campaign with the result that fewer than 100 civilians have died—less than Saddam would slaughter in a good day under his regime.
I said during the debate in this House on Iraq that no one marched in favour of war. Yet there has been no real effort by the news media to at least indicate the superficiality of some of the opposition of, for example, schoolchildren such as those who took time off school to demonstrate outside Parliament and bad-mouth Prime Minister Blair and President Bush. Is that what individual liberty is about? If 13 year-olds are encouraged to denigrate arbitrarily the decisions of 833 national leaders, how can we expect them, two or three years later, to show respect for parents and teachers? The superficiality of one-line condemnations of our current national purpose is portrayed as considered opinion. It is not and has been a negation of individual liberty and a threat to security.
Because of time constraints, I have confined myself to where the BBC is at fault, but it is not exclusively part of what is in danger of becoming a new fifth column in our society. I identify the BBC because I expect our national news agency, financed by the great British public, at least to attempt to seek perfection. We cannot and should not confine the examination of the question to this debate. The House could do worse than engage in a thorough examination of how individual liberty has been confused with indiscipline, how national integrity is suffering and national security endangered.
§ 5.2 p.m.
§ The Earl of Erroll
My Lords, the debate is very timely and important, and we must thank the noble Lord, Lord Chalfont, for initiating it. I want to think about how well-intended national measures can cause quite a few problems for citizens. It is a matter of balance. I find it very interesting, because I have been sitting on a couple of groups that responded to two consultative papers, one from the PIU on privacy and data sharing, and the other from the Home Office on entitlement cards, benefit fraud and so on.
The subject of identity cards and privacy often comes up in discussion with friends. Many of them take the attitude of asking what the honest person has to fear, to which my answer is, "Which one of you has never made a mistake? Have none of you got any youthful indiscretion that you would rather was forgotten?" Such indiscretions do not matter at the time, but one never knows who will hit the limelight later in life—who will become famous for some reason. Think of the unfortunate e-mails that flew around about an activist looking into the Paddington rail disaster, where someone was trying to dig up discrediting material retrospectively.
The problem that we come down to is that, if agencies have huge powers to be able to trawl for information on people retrospectively or even proactively, one does not know what they will turn up, especially when computers can find very tenuous connections. There is the old statistical suggestion that everyone is within six jumps or links to everyone else around the world. I have had that proved to me many times on all sorts of matters. All noble Lords in the Chamber now have a link within six jumps to Osama bin Laden, because I sit on a council with someone whose wife's brother is married to one of his cousins. If someone wanted to drum that up, they could give some interesting and discrediting ideas where there was actually no connection at all.
The problem comes with leaks. Nowadays, unfortunately, information seems to leak on a horribly regular basis. When everything was kept secret there 834 was not such a problem. Another problem—it is an old one and is always voiced—is quis custodiet ipsos custodes. The excellent maiden speech of the noble Lord, Lord Wilson of Dinton, was very reassuring on that point, but I hope that matters remain that way. I would hate to see the rise of an equivalent of J. Edgar Hoover over here, and I have said before that there is always that danger.
The other half of my thoughts have been on how we protect people. The judiciary has to worry about what I call the rules versus the effect of law. One can have lots of rules, some of which are put in place to prevent public servants from abusing their position and powers. The danger is that if one then does not accept certain things that happen to come up by accident and are outside the relevant rules, one negates the effect of law that is trying to protect people. Then there are failed prosecutions, with the failure to lock up the person who will damage the public. Suddenly the law is discredited and one tries to tighten the rules up, but that proves worse for other members of the public. We want to look at the effects sometimes rather than only the rules.
The Data Protection Act is very interesting on that basis. It is there to protect us from all sorts of misuse of data. Many people complain about the lack of joined-up government, but half the reason that governments cannot join everything up is that they are not allowed to. There are some very stupid provisions in that Act about not being allowed to exchange addresses and other items that are quite publicly available. That is a good example of when, as the noble Lord, Lord Selsdon, pointed out, one can merely click on another website. As something is freely available, why not use that to benefit people? The same applies to enhanced customer service in companies. A lot of rules inhibit being able to provide what the public want. We need to look at some such rules, because they are not sensible and do not do what they should.
I would like to cover ID cards very quickly. The real problem with ID is that one has to catch the criminal first. Once one has caught the person it does not always matter to know who they are, although that can be useful to make other connections. It will not protect the populace merely to have ID cards among them, as the ID card itself is no protection. It has certain positive points. Taxpayers do not want their money wasted in benefit fraud and are fully entitled to make sure that it is paid to the right person, so there is justification in certain circumstances.
Identity checking on money-laundering provisions and to prevent terrorism sounds wonderful, but I am not sure how students and children are supposed to get bank accounts. My son was quite lucky. Because he had one that I opened for him years before such measures were in place, he was able to prove where he lived. Under FSA regulations, one now has to have some proof of identity—a passport or a shotgun certificate—and proof of where one lives in the form of a utilities bill. How many children have utilities bills addressed to where they live? We are going over the top. 835 I have no idea how the Government will roll out their universal bank to everyone if they comply with the rules. In that case, the Government should not fine the bigger banks, which have to bend the rules to keep their customers. I suspect that the only person that those measures prevent from money laundering is the poor Zimbabwean farmer desperately trying to get money out of the country. I am quite sure that terrorists know how to get round them.
We again come back to the problem of people leaking information. If everything were brought together and my identity proved and centralised, I would find it embarrassing for someone to leak information to the press on how little I was worth.
That is about all that I need to say, except that the citizen is left with a great feeling of powerlessness. We have many extra layers of government now, with the European Union, national parliaments with regional government coming in, local government, and a proliferation of agencies. We must keep a watch on their powers. I used to be very worried about and against the ECHR. I am now beginning to see where it has a purpose, but again we need balance on that.
§ 5.8 p.m.
§ Baroness Greenfield
My Lords, I congratulate the noble Lord, Lord Wilson of Dinton, on a most insightful maiden speech, and thank the noble Lord, Lord Chalfont, on providing the opportunity to debate this very timely subject. Not only are the issues relevant to our current society and the crisis that we face at the moment, but I fear that they will be more pressing still as the century unfolds. We are living in a world that is increasingly dominated by a technology that will enable us to monitor and manipulate the individual as never before.
That monitoring could occur at all levels, be it molecules, cells in the body, brains or environment. We are only now starting to realise the consequences of gene manipulation, but so far it has been harder to target those in the human body. Thanks to new technologies, however, that is coming increasingly within reach so that it would be much more feasible and possible to target the genes in situ. At the level of brain cells, we are becoming used to a culture of manipulation by drugs, be they prescribed or proscribed, so that in future we will not only seek relief from mental or physical suffering but to alleviate shyness or become smarter.
At the level of the body and the brain, nanoscience is becoming the manufacturing industry of the 21st century. In so doing, it will enable us to access, as never before, events that link our brains and our bodies. Imagine small devices in our arteries that monitor and read out our hormone or arousal levels, and the status of hunger and fear, and that being accessible to a third party.
Finally, there is the level of the body in the environment, which was touched on by the noble Lord, Lord Selsdon. I want to explore that area a little further. New types of computers are currently being developed, such as quantum computers, which will 836 soon mean that erstwhile confidential information will no longer be safe. It will be possible to access all information about any individual; such information will indeed be accumulating. Imagine in the future going into your bathroom and, in your mirror, a read out telling you that you have incipient gum disease. There is also a welter of information concerning not just your health but what you are doing moment by moment, which could be available as a kind of log. Imagine an electronic daily diary for everyone that was available for everyone to inspect. If, as may be the case, there is increasing leisure time due to the freeing-up from mundane work by high technology, individuals will be able to spend more time logging in and watching the life narratives of each other. Although that might appear to be a rather pointless way of spending your time, one has only to look at the success of the television programme "Big Brother" to realise the interest of human beings in the moment to moment—seemingly banal—existence of their co-species.
As the century progresses, the cyber-world may be even more blurred from the real world. We already think of virtual reality, but that is a sort of gimmick. Augmented reality, as its name suggests, promises to be more pervasive. Augmented reality would enable one to see the world with additional information that would not normally be gleaned by your senses. Imagine going to a gathering or party and, as you look at someone through your glasses, their CV or further information about them flashing up in front of your face; they would be doing to same to you. Again, we will have more information provided about the individual and will therefore start to see a breakdown in the traditional barrier of our brains and bodies as individuals when that firewall, as it were, is breached. However, it does not stop there; it can be more pervasive still.
Already, scientists are able to grow brain cells on integrated circuits. We know that brain cells can communicate using electric signals. Those can be interfaced with conventional electronics. Again, one has another type of computer, the neuro-chip, which is a sort of carbon/silicon hybrid. Even more relevant to this debate is the fact that because carbon and silicon can talk to each other so easily, we can now have implants in the brain. That might sound like science fiction but already at Emory University there is a quadriplegic patient—a patient who is paralysed from the neck down—who was unable to move. He has received an implant into his brain containing something called nerve growth factor, which, as its name suggests, enables brain cells to grow into it. Over a few months, those brain cells have connected with the electronics so that now—incredibly—the patient can "will" a cursor to move on a computer screen. That is clearly a marvellous medical advance but, on the other hand, it raises the spectre of direct insertion of information into the brain. Imagine e-mail going directly into your brain.
My view is that although that is not exactly I ikely—because the physiology of the brain is not organised in a way that will enable specific targeting—it is all the 837 more sinister for that because we will now be able to monitor or disrupt thought processes, albeit directly but none the less haphazardly. That is because the brain is, above everything, highly malleable.
The relationship between the brain and the environment is a two-way street. We see the world in terms of the associations that we have already formed, but every moment we are alive those connections are being modified by what is coming in. The new technologies will enable us to improve our performance in the world and, indeed, our quality of life. But, by the same token, we will be more open to third-party access and targets for terrorism.
We are facing a century where the new technologies—molecular biology, the development of so-called "smart drugs", nanoscience and, in particular, information technology—are giving us two possibilities. On the one hand, they are giving us a means of manipulating and monitoring the individual as never before, and, on the other hand, they are a means of gaining great insights into the questions that we have been asking for a long time about the human mind, such as: what makes you the individual you are, and how does the brain generate consciousness?
Which way are we going to go in terms of those two possibilities? In the words of the late Carl Sagan:It is suicidal to create a society dependent on science and technology in which hardly anybody knows anything about science and technology".There is one way in which we can try to offset the suicidal scenario—that is, to help to develop a scientifically literate society.
§ 5.14 p.m.
§ Lord Tanlaw
My Lords, it is a privilege to follow my noble friend Lady Greenfield, who gave us a tantalising—if rather fearsome—glance at the future. She may spell that out in her book called, I believe, "Tomorrow's People", which may be coming out later in the year. We also heard in the maiden speech of my noble friend Lord Wilson of Dinton what it is like at the top and the difficult decisions that have to be made with information to which we do not have access but the Cabinet does on an almost daily basis. Above all, I am grateful to my noble friend Lord Chalfont for instigating our debate on this important subject. He warned us about the implications of the loss of individual control over our activities through possible intrusion by security agencies using the latest surveillance technologies.
That is the same kind of technology that allows us to see on our television screens each evening, in real time and from the comfort of our own home, the harsh reality of the battlefield many thousands of miles away. We have been shown with considerable pride by the controllers of the war in Iraq how the Army, Navy and the Air Force use the latest electronic surveillance devices to identify with pinpoint accuracy friend from foe on the battlefield before destroying enemy buildings, equipment or personnel. However, things can go drastically wrong, as they did last week, when 838 the identification processes are misread or malfunction under battle conditions. That resulted in the tragic loss of one of our aircraft and its brave crew and in the more recent sad loss of one of our tanks through "friendly fire".
Does the Minister agree that robot systems of identification will always be as fallible as their human masters who control and design them? Does he agree that whatever legislation connected with national security we may pass in this House should make allowance for those defects?
We live in a world in which IT and AI—that is, information technology and artificial intelligence—dominate virtually all aspects of our life. It is a world in which personal and national security plays a major part. It is also a world in which our personal identity may have to be refined, as will individual liberty, if and when ID locators control our movements and artificial intelligence our personal thoughts.
Is it that we are about to re-visit in 2004 George Orwell's world of Nineteen Eighty-Four? I think not; that is, not just yet. The Minister will no doubt agree that that may be unlikely in view of the poor statistics provided in the latest report of the Public Accounts Committee. The report points out that the 2001 census failed to identify and count at least 1 million of the population. That defect, according to today's Daily Mail, included one in five of the real population in 10 London boroughs and two-thirds of the people in one particular borough. Does he also agree that it is precisely in those areas in London where undesirable elements of our society can hide themselves from authority? Is not that the reason that London has been chosen—or apparently been chosen—by many terrorist organisations as a useful base? Will he reassure the House that his department will use all the latest technology at its disposal to see if those statistics can be improved?
The report from the Science and Technology Select Committee, to which many noble Lords have referred, entitled Chips for Everything—the House debated it on 14th March—explained that microchips were and are the key to that future world. IT has created a world in which we can monitor not only ourselves but also virtually anything that moves. To take a simple example—that of farming, in which I have a declared interest—the management of animal husbandry is being transformed by the advances in the electronic monitoring of stock through ID locator implants. Do the noble Lord, Lord Marlesford, and all those of us who are for identify cards agree to implants that could show our location all the time? That would cover the point of the noble Lord. Lord Monson, about the lady in the bikini. There would be no problem carrying an implanted identity card into the briny.
On the subject of identity cards, I believe that in Israel shoppers all have implants so that the large department stores can monitor their identity as they go through the door. If we are for identity cards, then we must go all the way. Do we agree that they will be part and parcel of our lives or must we wait for the first ghastly suicide bombers before we start to consider 839 such matters here? I believe that the noble and learned Lord should consider the matter and that all those who talk about identity cards should simultaneously consider implants.
The use of surveillance cameras and sophisticated IT in organising vehicle movement has, again, in my view, brought about an improvement to central London. Motorists are able to put up with the inconvenience and cost. There has been a loss of liberty, but there has also been a compensating benefit.
Bearing in mind that the surveillance technology of the kind referred to by my noble friend Lady Greenfield, which is available in this country and to modern societies, is also available to despotic regimes, such as the one that the coalition forces are attempting to replace in Iraq, will there be any form of restriction on the export of such products to those areas?
§ 5.21 p.m.
§ Lord Lucas
My Lords, I am grateful to the noble Baroness, Lady Greenfield, for reminding us what a horrific world it would be if everyone knew everything about us, including what we were doing and where we were going. Privacy is a terribly important part of being human, from the first time we tell a fib to our parents about what we have been doing or where we are going to the ordinary business of running our everyday lives. It is absolutely essential that a large part of our lives should be our own and not belong to or be open to other people.
I do not believe that I was entirely convinced by the argument of the noble Lord, Lord Wilson of Dinton, that the bureaucracy can be trusted to safeguard our liberty; nor was I convinced by the right reverend Prelate the Bishop of Chester that the history of the Church is one of liberty. It certainly was not according to the way I was taught the history of the Church. I believe that, beyond anything else, the preservation of liberty is the business of Parliament and of others who are not concerned with government or, in other ways, with the powers in the land. They must ensure that this critical part of our being a free and worthwhile nation is preserved.
When we consider legislation which, in particular, poses a danger to liberty, we must not give the Government blanket permissions; we must justify each and every trespass. We must ensure that the Government do not only do things because they can but that, when they do things, they are effective. We must also ensure that the Government consider all possible ways of achieving the same end without the diminution of our liberty.
It is common that authorities do things because they can or that they choose to do the things that they can do rather than the things that are important. I remember running a business in Sydenham. One year we had a fraud, but the police would not touch it. We had an armed robbery, and the police took three hours to arrive. But when there was a fight in the pub opposite, two vans turned up within 30 seconds because that was something with which the police felt equipped to deal.
840 During my time in this House, we have passed legislation on hand guns which was said to be to deal with the problem of the use of such guns in crime. However, the use of hand guns in crime has increased astronomically since then. The legislation that we passed did no good at all in terms of benefits to citizens, but it did a great deal of harm to a large number of people who enjoyed an Olympic sport. I believe that we need to give more care to infringing on liberty simply because it is easy to do.
My noble friend Lord Marlesford raised the question of ID cards. He said, "Now we can do anything". We cannot do anything because we are faced with the practicalities of working with human beings. That is why something as obvious as passports is not properly controlled and checked. It is desperately easy to do, but a government who cannot, after all their years in office, answer my Written Questions electronically will be seriously challenged when it comes to something mildly more difficult, such as passports. One should not think that just because one can see the theoretical benefits of ID cards they will be achieved in practice. We must think through the way such things will work with humanity.
DNA is useful in the way that it is used at present. However, if it is used universally, then one will begin to encounter problems with it. Some people have two DNA structures. If a person has a blood transfusion, he will have two kinds of DNA within him. If a drop of blood is spilt from a thief who has just had a blood transfusion, whose blood will it be? If someone has received a bone marrow transplant, which kind of DNA will appear at the scene of a crime? Once DNA becomes universal, we must ask whether it is sufficiently accurate to distinguish perfectly between all 50 million of us. No, it is not. There is an error factor which means that, if DNA is used universally, problems will be encountered. If its usage becomes common, then, whatever detection system we use, people will find ways of giving the wrong DNA at the crucial time.
The noble Lord, Lord Tanlaw, talked about chipping. Even the current low level of chipping that we have for dogs is got round by criminals. If we applied it to people, the criminal and terrorist classes would find ways to deceive the system when they wished to do so.
We also need to consider the effectiveness of what we are proposing. Many noble Lords may remember the Government's proposals on the Regulation of Investigatory Powers Bill and how they were going to control the flow of information over the Internet. It took a long while to persuade the Government to back off that and to consider the practicalities. They are now doing so. One of the great contributions of this House to legislation is that, two or three years after the passage of that Bill, the substantive measures are still not in place because the Government are at last considering the practicalities.
As usual, the answer is that, where you come up against something that threatens liberty and where the Government feel that they have to make incursions on 841 liberty, there is often a better way of doing things. In the case of the RIP Bill, the answer is human intelligence. One can do a great deal more with good old human intelligence than with electronic intelligence unless it happens to be GCHQ, which has real ability to deal with high quantities of data and sort through them. The ordinary policeman is far better off with human intelligence.
Let us consider the question of a terrorist trying to spread an engineered virus through the human population. It will not do much good to tie us all up in knots in trying to prevent that happening. It will not do much good if, in trying to make the life of an individual terrorist more difficult, all our lives are made more difficult, because the terrorist will find a way round it. In ensuring that we know who is doing what and where, we need to employ good old-fashioned systems through human intelligence. We do not need to infringe liberty on many of the occasions when the Government ask us to do so.
§ 5.28 p.m.
§ Lord Ouseley
My Lords, I thank the noble Lord, Lord Chalfont, for initiating this debate and for allowing us the opportunity to hear such contrasting presentations on this very important issue. I was particularly pleased to hear the noble Lord, Lord Wilson of Dinton, and I congratulate him on his remarkable maiden speech. I was also pleased to hear the contrasting speech of the noble Baroness, Lady Greenfield, which offered us an insight into the cyberworld. It is both fascinating and frightening.
Like the noble Lord, Lord Goodhart, I come to this debate from the human rights perspective of someone who is concerned about the rights and liberties of individuals. The increasing threats to our liberty posed by serious and violent crimes and the fear of crime and terrorism place a greater and increasing reliance on more intensive activity by the police and security services in protecting individual and collective rights and freedoms in our democratic society.
Increased surveillance is an inevitable part of the security services. At times of high risk, such as these, we are indebted to those who have combined intelligence-led operations with legal compliance—I stress legal compliance—to deter and detain those who represent the greatest threats to our well-being.
Surveillance and its reliance on advanced technologies, however, means that more people are potentially under investigation as many parts of the state's apparatus garners information about us, as individuals, tracking our personal telecommunications and electronic communications and other personal data. My personal view, over a period of time—and shared by others to whom I have spoken—was that if you have nothing to hide you have no need to worry. But personal information is mine and not the state's. It is already the case that agencies such as the police, the National Criminal Intelligence Service, the National Crime Squad, Customs and 842 Excise, the Inland Revenue and the intelligence services know more about individuals than they can reasonably remember themselves.
However, information can be used irresponsibly and covertly to destroy the lives of individuals. Only a few weeks ago the editor of the Sun admitted openly to a Select Committee in another place that payments have been made by newspapers to the police for information. I have heard no significant repudiation by the state of such activities.
Of course, it is at times like these, when national security is of such concern, that we witness the emergence of scapegoating, victimisation and stereotyping of types of people who might be regarded as "not one of us"—or to use one of the many post-9/11 mantras, "You are either with us or against us". The issues of Islamaphobia, racism and xenophobia have the potential to influence official reactions and responses to national security concerns. Those issues also influence individual attitudes and behaviour. The real concerns held by many people about possible human rights violations cannot be overlooked when national security decisions are being made. There is a gap in the trust held by sections of the public over the pervasive intrusion into the privacy of their lives by the state's agencies.
How can there be trust when it is known that personal information can be disclosed and is disclosed without respect for the person and unknown to the person? What can the Government do alongside the state agencies to build trust and to help more people to understand the conflicting demands? For starters, they could do more to generate genuine public debates. They can make more information available on a need-to-know basis, including wider availability at accessible public places.
Furthermore, there should be a thorough review of all existing legislation on privacy-intrusive activity to ascertain that it is conducted in accordance with the law and with codes of practice and that it adheres to the principles and rights enshrined in the European Convention on Human Rights. Article 8 of the convention asserts both the right of individuals to have their privacy protected and respected, while undoubtedly recognising the legitimacy of certain public authorities lawfully to interfere with such a right in specifically prescribed circumstances.
It is the potential abuse of power and information and how it could be used in discriminatory ways against visible minorities, asylum seekers, refugees, travellers and other vulnerable sections of our society that continue to cause most concern. It is evident to many that the proliferation of new technologies and their increasing advancement will be of benefit to those in the security and protection services. It is also crucial that the legal framework to control, to conduct and to regulate the use thereof and to ensure accountability is clearly understood by the public.
It is the Government's responsibility to set out such a framework of public accountability and to convince us of the legitimacy of intrusion into privacy rights so that we can understand the real benefits arising 843 therefrom. Those people who run the law enforcement agencies and the security services should have a statutory duty continuously to engage in public confidence raising and trust building. Their use of privacy-intrusive activities and being accountable for operating in non-discriminatory ways also requires continuous parliamentary scrutiny.
We have a responsibility to the citizens of the UK to strive to get the balance right to maintain national security while protecting individual liberty in our democratic society. When the Minister responds I hope that he will acknowledge the importance of allaying the fears of vulnerable communities and that he will indicate a commitment to engage the public in understanding the contradictions involved, the actions being pursued and the safeguards being applied.
§ 5.34 p.m.
§ Lord Dahrendorf
My Lords, a few months ago, a very senior officer in the US Attorney General's department was asked about the prisoners taken in Afghanistan and brought to the American military exclave at Guantanamo Bay in Cuba. He said, "We could have shot them on the battlefield". To the response that that was not what happened and in reply to a question about the status of the prisoners now, the official replied: "They have no rights, they are combatants". Recent reports suggest that those people are held in cages and in a condition of extreme humiliation, without representation or the prospect of legal redress.
I realise of course that that is not the subject of the debate, but it illustrates what can happen when individual liberties are suspended in the name of national security. Prisoners of an undeclared war are an extreme case. However, the lines of jeopardy can lead quite rapidly from those suspected of terrorist acts, through to so-called "enemy aliens", to members of groups regarded as suspect for some reason, to all citizens in democracies under threat who have to forego some of their basic rights for a period in order to preserve the integrity of their country.
I have seen enough threats in my life not to be naive about the balance of liberty and security which has to be struck in such conditions. To that extent, I certainly agree with the introductory comments of the noble Lord, Lord Chalfont, and with the noble Lord, Lord Wilson of Dinton, when he emphasised that there is no hard and fast line but a shifting process of striking a balance. Given the natural proclivities of popular sentiment and of governments, I am also aware that it is often liberty that is at greater risk than security. It cannot be said too often therefore that it weakens the effective defence of our values if we violate them at home. Unless we remain jealous of our rights, the suspension of individual liberties in the name of national security can reach a point at which one wonders whether we still live in a democracy worth defending. Liberty must, at all times, including times of clear and present danger, be the guiding principle of our actions.
844 One of the reasons why I am proud to be a member of your Lordships' House is that, when faced with legislation restricting individual liberties, we have done everything in our power to defend basic rights. One of the reasons why I am proud to have become a citizen of this country is that even at times of war individuals remain free to express their views. These days I disagree with the protesters out in the street, but they must have the right to make their voices heard. The fact that Parliament listens, indeed that members of the Government and notably the Prime Minister engage with dissident views, is a source of strength.
Let me add two footnotes of a more practical nature. The subject of our debate rightly refers to individual rights. At times of war or of terrorist threats to security, the individual is often an early victim. People begin to think of friend and foe, of them and us. Individuals are subsumed into categories, and they keep, or lose, their rights because they belong to categories. To some extent that is understandable, but on closer inspection it is neither practical nor acceptable. It is in fact an affront to the principles of liberal democracies.
Examples are unfortunately numerous. Suffice it to say at this time that the terrorist acts of 9/11 or Saddam Hussein's crimes must never be turned into a generalised exclusion, let alone persecution, of Muslims, Arabs or indeed Iraqis. It is essential to realise that liberty adheres to individuals. Security in a liberal order is therefore defended against individuals who threaten it and violate the law. It cannot be right to seek to exclude whole categories from human and civil rights.
My second footnote is familiar but warrants repetition. Threats to security are in principle limited in time. Wars have an end—an early end one hopes. The trouble with the notion of a "war on terrorism" is that it is possible to claim that it never ends and to use this claim to justify restrictions on the liberty of citizens for ever. It is a crucial task of Parliament to make sure that governments are prevented from abusing legitimate temporary objectives for illicit permanent measures. If ever there was a case for time limits on the validity of primary and secondary legislation, it is in restrictions on individual liberty in the name of national security in a democratic society.
§ 5.41 p.m.
§ Baroness Williams of Crosby
My Lords, I too thank the noble Lord, Lord Chalfont, for bringing the debate to the attention of the House, for introducing it and for underlining what a profoundly complex issue we are trying to address in the House today.
We recognise that a government's first duty is to protect their citizens. We also recognise that, in protecting their citizens, they must bear in mind that it would be foolish to destroy the very thing they are attempting to protect; namely, individual liberty.
In the debate we have interestingly heard a great deal about this balance. I want to pay a special tribute to the noble Lord, Lord Wilson of Dinton, who spoke not only with his characteristic modesty but also with 845 great wisdom and experience. I am sure the House will look forward to his future contributions, recognising that few noble Lords can claim the breadth of experience that he brings to the Chamber. It was also extremely important and significant to hear from his predecessor, the noble Lord, Lord Armstrong. I shall say more about his speech later.
It is perhaps appropriate for me to quote the words of that very distinguished Member of this House—at whose memorial service many of us will be tomorrow—Lord Jenkins of Hillhead. He said: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".—[Official Report, 27/11/01; col. 200]We all recognise, as my noble friend Lord Dahrendorf so eloquently said, that there is a huge danger of destroying liberties and then finding it virtually impossible to bring them back again.
The noble Baroness, Lady Greenfield—who, because of the miracles of technology to which she referred, I was able to see on the video system in this place—referred to the effect of information technology. It brings about the possibility of an almost Orwellian world, one in which almost everything depends upon the objective for which such techniques are being used. We know there has been a huge increase in the incidence of surveillance, ranging from CCTV to systems which mean that we can be seen in detail from many thousands of feet above the surface of the globe. As a number of noble Lords have said—for example, the noble Lord, Lord Lucas—this means there is a much greater threat to the individual privacy of citizens even in a democracy than existed before information technology had opened all these possibilities to us. We need to think about how we can create a framework which establishes an adequate and successful degree of regulation of these new technologies.
Perhaps, to strike a more cheery note, I might quote the famous Russian historian. Dr Solovyev, who said that liberty rose in the interstices of the state. I suppose one might be grateful that so many computer systems appear to be so extremely inefficient that time and again in this House we hear about how they have gone seriously wrong. It does cheer one up quite a lot.
I offer considerable praise to the Government and to this House, among others, for the way in which the Anti-terrorism, Crime and Security Act was handled. One thing that happened in that Act—and your Lordships had a great deal to do with it—was continually to tie it back to its purpose; to remind our citizens and ourselves that the purpose of the Act was to counter terrorism, not to counter any kind of bad behaviour we might care to try to deal with. By tying it back in that way I think we created both an effective Act and also one that was to some extent proof against the danger of being spread beyond its purposes. The Government behaved imaginatively in accepting many 846 of the amendments tabled in your Lordships' House and produced in consequence a better Act than we would have had without those amendments or without the Government's initiative.
It is perhaps appropriate to quote one statistic. Since the Terrorism Act was passed, according to my noble friend Lord Carlile of Berriew, who was charged with a review of the system, 304 arrests have been made, 40 people have been charged, three people have been convicted, 13 people are still in detention, and not a single charge of terrorism has been laid. That shows how it is easy to get matters out of balance.
In that context I say two other things. First—I think rightly—we have tried in this country to set up a system of reviews. The Government have pointed to the problem of reviewing cases in open court when they often concern detailed and secret intelligence information. The system of reviews that has been installed and the establishment of my noble friend Lord Carlile to review the working of the Act, while certainly not perfect, contribute a great deal to protecting liberty in the face of one of the most intensive threats one could invent, challenging it, and indeed making its presence known.
We have, at least to some extent, managed to find the balance to which the noble Lords, Lord Wilson and Lord Armstrong, referred. It is crucial to be able to establish the innocence of those detained because, by the nature of security, a number of people will be arrested and held who are innocent of what they have not yet been charged with. It is absolutely crucial that we find a method that enables those innocent people to escape from the clutches of the law and from detention in prison. I hope we have the balance more or less right. We have just extended the power of detention for another year. Any democrat is frightened of the power of detention without charge. Rightly, it needs to be reviewed and looked at continually.
I wish to say something about the restrained and sensible behaviour of the police—not in every case, but in a great many cases. On more than one occasion fairly late at night I have visited the demonstration outside the Houses of Parliament in order to talk to some of those involved. I spent some time in the company of those demonstrators and of the police. With few exceptions, the police behaved with astonishing restraint and humour. Given the extent to which our liberties depend upon the behaviour and restraint of the police and the endless pressures brought to hear on them by the current situation, it is appropriate and right that this House should praise them for the way they stand up evening after evening, day after day, to the pressures of passionate political opinion expressed on both sides. It is crucial that they do. It is part of what it means to be a free society. If one looks at what happens to demonstrators in many other parts of the world, including some highly developed parts of the world, I think we can say that the police have been an important bastion of our liberties, although not always blameless.
I say a word which follows on from what my noble friend Lord Dahrendorf said. It is perhaps the most unpopular thing I feel obliged to say, but I think it 847 needs saving. Rightly, the Secretary of State for Defence, Mr Geoffrey Hoon, complained bitterly in another place about the treatment of our prisoners of war in Iraq. His remarks were echoed in this House by the noble Baroness, Lady Oppenheim-Barnes. That is quite right. It is appalling and humiliating for prisoners of war to be displayed on television for the delight, laughter or satisfaction of people throughout the world who happen to be on the side of those who took those prisoners.
However, because double standards are dangerous things, we must also remember that the prisoners taken to Guantanamo Bay were also displayed on television—on CNN, to be precise. I happen to have seen the broadcast. They were displayed wearing black hoods, kneeling in the dust and, in most cases, with their heads between their knees. When we talk about the Geneva Convention, it must be binding on all sides—all of the more on those with higher standards, because they set the standards for the world. It is therefore important that if we rightly—I emphasise that word—complain about the displaying of our own prisoners of war, we must draw our allies' attention to the importance of ensuring that they too uphold the word and letter of the Geneva Convention.
In that context, I straightforwardly ask: what representations have the Government made about those British citizens who are currently still held at Guantanamo Bay? I am told—rightly or wrongly, I do not know—that there are some six British citizens in that condition. When they took their case to the Appeal Court—again I give profound credit to the judiciary, who time and again stand up against popular prejudice to ensure that the law is upheld—the Master of the Rolls, the noble and learned Lord, Lord Phillips, said that those men had been cast into "a legal black hole".
They may be guilty; they may be innocent. But, as British citizens, I believe that they have the right to be represented by the Government and for questions to be asked about why they cannot have access to lawyers or any kind of court. We should make it plain, as the mother of the whole idea of the rule of law, that it should apply even to the least of our citizens. The right reverend Prelate the Bishop of Chester referred to Nelson Mandela. I should like to cite another of his remarks:A nation should not be judged by how it treats its highest citizens, but its lowest ones".In our present situation, what could be much lower than a Muslim Briton held in Guantanamo?
Finally, I cite my noble friend Lord Carlile of Berriew, because what he says reflects the wisdom of the noble Lords, Lord Wilson and Lord Armstrong. He states:
I have reflected too on the need to avoid an over-reaction to a perception of danger—the perception that sometimes may be greater than the reality. The balance is a difficult one".Several noble Lords have referred to the temptation for politicians to play safe. Playing safe means that time and again they place the balance on the side of security, because they will be blamed if things go 848 wrong. If they place the balance against liberty, they will not be blamed. And, long ahead, people will forget the part they played in undermining it.
I conclude by citing perhaps the wisest words of all uttered by someone whom I think that none of us could possibly question or doubt in terms of our national standing—none other than the former Prime Minister, Winston Churchill. It was preceded by a remark by the then Home Secretary, Herbert Morrison, who said, and I weigh these words:What the House must do is to keep watch on the Home Secretary".As Home Secretary, he pointed out that Home Secretaries, more than most Ministers, are under constant temptation to ensure that security is the overriding consideration, because they will be blamed if anything goes wrong. Winston Churchill later 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".I especially weigh the following words: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".Those words still echo here; I want to be quite sure that they echo among the courts and in the attitudes of our allies. I commend the Motion to the House.
§ 5.55 p.m.
§ Lord Roberts of Conwy
My Lords, I can think of no one who could have led your Lordships better in this debate than the noble Lord, Lord Chalfont. He brought his finely honed mind to bear on the great problem of balancing the interests of national security against the interests of the individual citizen and his liberty. I add my congratulations to the noble Lord, Lord Wilson of Dinton, on an erudite and enlightening speech based on years of experience serving government.
We are all mindful of the fact that we are conducting our discussion at a time of war—a war against terrorism as well as a war against Saddam Hussein. National security is an especially sensitive issue and a prominent consideration in our minds. As noble Lords have said, traditionally, in wartime the citizen is prepared to allow his liberty to be temporarily curtailed in the interests of all—as represented by the state. But the state tends to err on the side of zeal. It takes no chances and therefore takes more powers than it may need.
All that may be tolerable in hostile circumstances, provided that our liberties are returned to us in due course. They seldom are, as Simon Jenkins pointed out in The Times last Friday. The headline on his article says it all:In any conflict, the true victor is always the State".There has been spate of anti-terrorist legislation, much of it controversial and some of it still under scrutiny by Parliament. Some of it arises from our obligations 849 under European Union law. As the Joint Committee on Human Rights pointed out to the Government, many of our rights are affected. It may be some consolation that both Europe and the United States face much the same problems as we do.
I am bound to say that the situation in which we now find ourselves is exceptional in that while our forces are engaged in open conflict with Iraq, possible terrorist attacks at home may be instigated not by our principal antagonist but by other "enemies in our midst", as the noble Lord, Lord Carlile of Berriew, described them.
The recent arrest and detention of people suspected of being international terrorists reminded some of us of similar detentions of Nazi sympathisers in the United Kingdom during the Second World War. But the dimension of the problem appears to be much greater now than it was then—especially, perhaps, because of the Northern Ireland situation and the huge volume of immigrants, refugees and asylum seekers, of whose loyalty and reactions we cannot be certain. There are, I believe, 21,000 Iraqis in this country.
Nevertheless, we should give due consideration to Liberty's finding that,of more than 7,000 people detained in Britain under the Prevention of Terrorism Act, the vast majority have been released without charge and only a tiny fraction have ever been charged with anything remotely resembling terrorism".We are reluctant to lock people up without charge in this country, but our formidable anti-terrorism legislation allows us to do so. We are also told that constant vigilance and surveillance is essential for the protection of our trusting society, and we have a number of authorities with the necessary powers to carry out such surveillance, intercept communications and so forth, with the authority of the Home Secretary.
What concerns us is that such activity may get out of hand and become a tool of tyranny. We do not want to create a Stasi state, as in East Germany, where the state's omniscience about the citizen deliberately reduced him to a slavish subject. The guardians must be guarded against themselves and the potential abuse of powers—a danger which is ever present. Like the noble Earl, Lord Erroll, I, too, was reassured by the statements given by the noble Lords, Lord Wilson and Lord Armstrong.
Although I believe with Dylan Thomas that,After the first death there is no other",by which he meant to emphasise the unique sanctity of individual human life, I think that the massive scale and horrendous nature of the death and injury threatened by terrorists is a relevant factor. The terrorist threat builds up fear in society at large and adds to the justification for exceptional measures to frustrate such activity by every possible means.
The magnitude and dreadful nature of certain types of crime excite similar public antipathy and horror. I am referring to child abduction and murder, serial killings and rape, the trade in hard drugs and the gang culture and gun crime that so often accompanies it. The war against crime is always with us and we know 850 that we must sacrifice some of our liberties and right to privacy if we are to gain and maintain an upper hand in that war. Our willingness to sacrifice grows with the enormity of the crime and our horror in the face of it. The lesser the crime, the less willing we are to sacrifice.
There have been a number of references today to freedom and privacy in communication, now vastly enhanced in scope by modern technology and likely to be enhanced further if even a quarter of what the noble Baroness, Lady Greenfield, foresaw is realised. And I have no reason to doubt that it will not all be realised.
The Government's order last year listing the authorities that might claim access to communications data—the who, when and where but not the contents of communication—was dubbed a "Snoopers Charter" and was withdrawn by the Home Secretary after a hefty barrage of criticism. This month, a new consultation paper was published with a healthy and helpful admission that he had got it wrong. And, of course, the Government had got it wrong in the sense that every Tom, Dick and Harry in authority appeared to have staked a claim to access.
Without going into detail, the new consultation document seeks to limit and justify those who may seek access and to discipline them in the event of abuse. In his foreword, the Home Secretary twice mentions "Big Brother". It is not him that we fear so much as his mischievous little brothers in all kinds of institutions up and down the land.
Annex E of the paper contains a number of interesting, fundamental questions for a broader debate and is relevant to our discussion today. The first question is: is there a contradiction between an expectation of respect for individual privacy—"your privacy"—and an expectation of necessary and proportionate intrusion into the privacy of those acting contrary to the public interest—"someone else's privacy"?
There are further questions about what protection for privacy the citizen should expect in order to maintain the balance between his privacy and his interest in a society safe from crime; about how the trust of the public can be won in the use by the authorities of techniques to invade privacy; and about how the benefit to the public can be shown and reassurance provided. Should unlawful privacy violation by criminals or law enforcers be acknowledged as a crime? Indeed, these are major questions—some easier to answer than others—that apply not just to the area of private communications but to a wider area in which, for example, CCTV is used for more sophisticated purposes than its original purpose.
My own provisional conclusion, like that of my noble friend Lord Lucas, is that the state must present ample justification every time a fresh invasion of privacy or curtailment of liberty is proposed, along with as much protection against official abuse and safeguards as can possibly be given. And most importantly, the state should try to anticipate how and when the limitation can be brought to an end and the liberty lost can be restored. A sunset clause can be a 851 great restorative, as the noble Lord, Lord Dahrendorf, implied. The price of liberty is eternal vigilance but that vigilance is not limited to the state and its organs, it extends to the individual citizen who must not only assist the state to be vigilant but be wary of the state itself.
§ 6.6 p.m.
§ Lord Falconer of Thoroton
My Lords, I, too, congratulate the noble Lord, Lord Chalfont, on securing this debate at this particular time. I thank him in two respects. First, his speech set the tone for the debate; namely, the highest possible level. Secondly, it framed the questions and gave some tentative answers in a way that really informed the debate.
I congratulate the noble Lord, Lord Wilson of Dinton, on his maiden speech. The noble Lord knows that everyone says how wonderful maiden speeches are, but his really was exceptional. From personal experience, I know that the noble Lord, Lord Wilson of Dinton, will bring exceptional wisdom and human warmth to the proceedings of this House. We are truly lucky to have him both in this debate and in others that will follow. I welcome him and congratulate him on his speech.
This is an incredibly well-timed debate. Armed intervention is going on in Iraq. We are still in the aftermath of the events of 11th September 2001. The balance between national security and individual freedom is one of the most important issues that both the executive and the legislature have ever had to face. They face it all the time. The noble Lord, Lord Armstrong of Ilminster, is right that every case must be looked at on its individual merits. But that is not a sufficient basis on which to approach the issue. Some principles must be set forth so that there are some guidelines by which one steers a course in relation to striking that difficult balance. Those principles will not provide the answer. Each individual case has to be looked at, but on the basis of those principles.
Perhaps I may suggest some principles on which one should proceed. First, our society is based on the liberty of the individual. It is what we fight to protect where necessary. Our starting point, therefore, in a free democratic society, must be that the liberty of the individual should not be limited unless a proper case for limitation is established. Plainly, threats to national security can form the basis of such a case, but only on the basis that the threat to liberty which the threat to national security poses justifies that limitation of liberty. The noble Baroness, Lady Williams of Crosby, is right. At all stages, one must be careful to ensure that the limitation one imposes, either permanently or in the face of an actual threat, is proportionate to the threat which is posed.
In applying the particular principles, it is important to dwell for a moment on what we mean by "liberty". We all know what we mean by liberty. One particular strand running through the debate was that liberty includes the right to be private. One's privacy is an important commodity which one is entitled to protect 852 in a free society. The constant reference to that is caused partly by the growth of information technology, which makes so much of what one does available to a wider public, but is also due to the way that society has developed. People have less and less trust in government and large organisations. Therefore, they look much more for protection in relation to their privacy.
We need a full and properly informed debate about when is it appropriate to infringe the privacy of individual members of society. We all agree that privacy can be infringed when it is necessary to fight crime, but what is the precise nature of the circumstances, what is the right sanction when intrusion goes too far, what are the right protections that need to be provided?
At the very minimum, whenever we, as a society, propose to infringe people's privacy, there should be a completely transparent debate about the reasons for that infringement and a clear setting out of safeguards. We are only in the process of that debate; it has not been concluded.
The noble Lord, Lord Roberts, referred to the consultation document Access to Communications Data which has been published by the Home Office and which actively seeks to promote debate. There are many unresolved aspects of the privacy debate that we need to address in the context of the world described by the noble Lords, Lord Selsdon and Lord Marlesford, and the noble Baroness, Lady Greenfield.
The noble Lord, Lord Selsdon, complained that you could find his address and a map of how to get to his house. As he was saying that I thought, "Well, the telephone directory has done that for some time". The noble Lord, Lord Marlesford, said:Almost anything we want to do is possible".Aldous Huxley speaks again. The noble Baroness, Lady Williams of Crosby, then made the appropriate point that everything we do may well be possible but the track records of large organisations in trying to introduce computer systems suggests that not everything is possible. The noble Baroness suggested that it will soon be possible to have an e-mail sent direct to your brain. These are three different world views in relation to which we need to address the issue of privacy.
I digress in making these remarks—they go to the question of what are the liberties of the individual that need to be protected—but I thoroughly endorse the tone of the debate which suggests that privacy is one of them. We need a proper debate on what are the limits in that respect.
Let me suggest a number of other principles. Any limitations on individual freedom must be proportionate to the threat; they must be sanctioned by law and cannot take place on an ad hoc basis; and they must be implemented in a way which ensures that there are safeguards and that the activities of the executive are subject to monitoring, scrutiny and accountability. If limitations are implemented excessively, the framework must ensure that the monitoring, scrutiny and accountability arrangements 853 are likely to identify and remedy such excesses. In other words, if protections are put in place they must be effective.
We all recognise that in some circumstances they will not be totally effective and that in many other cases they will be. The trial of a person charged with a crime is an effective scrutiny. Where one is dealing with national emergencies and with different circumstances, obviously the arrangements will be one step further removed. But, in every case, there must be monitoring, scrutiny and accountability.
As the noble Lord, Lord Dahrendorf said, a limitation should last only as long as the threat that justifies it. In some circumstances, the threat which justifies it will last for ever—for example, in fighting crime, the restriction of individual liberty will be justified as long as there is a threat of crime. But the noble Lord, Lord Dahrendorf, is right. There will be occasions when restrictions which are justified by a particular threat will no longer be justified once the threat has disappeared.
Those seem to me to be the basic principles. I am sure that there are others, but they are the starting points for building a framework of principles.
Governments have to face a number of problems when they are dealing with these issues. As the noble Lord, Lord Wilson of Dinton, said, the Government frequently know more than the individual citizen. The Government also have a duty, which the individual citizen does not have, to anticipate threats. It is not only important for the Government to respond to a threat once it has matured, they must also anticipate what may be coming down the pipe. The extent to which the Government are able to acknowledge threats will vary from case to case.
Although the Government know more and must anticipate threats, above all, in our society, they must persuade before they can extend limitations on personal freedom. That is the great safeguard in our system. The noble Lord, Lord Goodhart, said, very fairly, that the Government's legislation on terrorism has been "fairly accurately targeted". He went on to say that that was partly as a result of the work of your Lordships' House.
The debate post-11th September in the body politic in the United Kingdom was between the executive and Parliament as to the right way forward. It was informed by what was politically possible against the knowledge that the Government brought to it. In my view, it produced the right result.
The noble Baroness, Lady Williams, referred to extracts from the report of the noble Lord, Lord Carlile of Berriew, and said that we may have got it wrong in a number of respects. We should not fool ourselves that we will always get legislation precisely right, but we did put in place monitoring arrangements to study how the legislation worked in practice. The way in which we operate generally produces a much more accurate result than we give ourselves credit for.
854 In those circumstances, it is perhaps fair to recognise that the executive has a role to perhaps press a little harder than Parliament would otherwise expect so that the debate to which I have referred can be concluded. So those are the principles and that is how it has worked in practice.
Perhaps I may pick up on three other points that have been raised in the debate and which may have something to do with the Government. First, the Regulation of Investigatory Powers Act has been greatly misunderstood. Under that Act we are seeking to bring coherence and scrutiny to the process by which a wide range of bodies can ask for information and communication from individual members of the state. It has been perceived to be an extension of the powers of the state and various state bodies. That is not right. It seeks to apply one of the principles to which I have referred—that is, to ensure that there is proper monitoring, scrutiny and accountability of the way in which the powers of the state operate.
The second point concerns entitlement cards and the consultation paper issued by the Government. The consultation ended on 30th January and, in the light of that consultation, we are now considering what to do. We have made clear that the entitlement card proposal is not designed to be a step in the fight against terrorism. Its main aims are to make it easier for the citizen to access services provided by the state; to make it easier to fight identity fraud; and to make it easier to identify who can and cannot legitimately be in this country. Identity fraud takes a number of forms but, as has been pointed out, the terrorists who attacked the World Trade Centre on 11th September at no stage sought to hide their identity. The entitlement card deals with different issues.
The final point refers to the question raised by the noble Baroness, Lady Williams of Crosby, in relation to what the Government have done about making representations in regard to the Guantanamo Bay suspects. The answer is that we have pressed the American Government to make a decision as quickly as possible about what will be the next stage.
The debate has raised many questions, a number of which we have failed to answer. It has provided a basis of principle on which the striking of this difficult balance can be achieved.
§ 6.19 p.m.
§ Lord Chalfont
My Lords, the debate is due to end at 6.25 p.m. and so I have time only to thank the noble Lord, Lord Wilson of Dinton, for choosing this debate in which to make his perceptive and thoughtful maiden speech and to thank all noble Lords who have taken part. I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.