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Lord Mayhew of Twysden: My Lords,

This reversal of Cicero's famous aphorism was proclaimed about 60 years ago by a Law Lord, whom I believe was Lord Atkin, in the famous case of Liversidge v. Anderson. Although he was in a minority of one, those words in his judgment continue to be cited with admiration by everyone who studies the rule of law in our country.

In a democracy most right-thinking people, as we are allowed to say, believe that even amidst the clash of arms, whether in time of war or public emergency

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that threatens the life of the nation, the laws should nevertheless continue to govern the actions of the executive. It does not follow from that, surely, that in these dire circumstances the laws should remain unchanged. It is the duty of every government and parliament to provide sufficiently for the defence of the United Kingdom. The very writs which summon us to this place command us to consider these vital matters. In the light of that, one needs to consider whether or not the Government are justified in the course which they seek today. We are told by the Government that by reason of international terrorism a public emergency exists which threatens the life of the nation, in the language of the European convention which is now part of our domestic law. In the light of the events of 11th September and what we have learnt subsequently, I do not believe that we should have any difficulty in accepting that.

If that is true, the United Kingdom is empowered by the convention to take measures which derogate from its obligations under the convention, but only to the extent—this is important—strictly required by the exigencies of the situation, provided that in so doing it does not breach any of its other international obligations. I am not aware of any of those. It is quite clear that nothing may be done by the United Kingdom Government under that power unless the measures concerned—we are talking about the present Bill—are strictly necessitated by the danger that the Government have identified. We must examine how the case is put by the Government. I do not believe that it can be put more precisely. With the greatest respect to my noble friend Lord Campbell of Alloway, I do not believe that the Government's case pre-empts any debate that can reasonably be anticipated.

The Government say that there are people in this country whose presence is believed by the Secretary of State to present a threat to the security of the UK and whom he suspects to be international terrorists. He says that he cannot deport them to the country from which they come because the conditions which prevail there would make such deportation illegal. Either we must allow them to be at large in this country, with all the dangers that that represents, or Parliament must take some measure to protect this country unless and until, or for such time as, the persons suspected agree voluntarily to go elsewhere where they can be accepted. That is how the Government put the case, and they will justify the Bill that is now being debated in another place.

I believe that in today's circumstances we should accept the Secretary of State's assurance. I am very well aware of the dangers of this kind of legislation. Equally, I along with all noble Lords am very well aware of the dangers which face the civilised world from the kind of terrorism that we saw in action last September. We should accept that there are at large in our country people who fall within that narrow and extremely dangerous category. I believe that in times like these, on matters of national safety of such importance, a democratically elected government are

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entitled to be, and should be, trusted, subject to safeguards of review, by the Parliament that sustains them.

We were told by the noble and learned Lord, Lord McNally, that the Government had resorted to expedience and that the proposals were flawed in that regard. I would rather have expedient legislation than inexpedient legislation. I have always taken issue with the pejorative sense in which people employ that word today. One recalls that in the Book of Common Prayer one prays on behalf of certain beneficiaries for such benefits as may be most expedient for them. I do not regard that as too serious an objection.

I also make the point—I am rather surprised that so far it has not been taken—that by derogating from the whole of Article 5.1(f) the Government have gone wider than their purported very narrow purposes justify. But I suspect that technically it would have been very difficult to derogate from Article 5.1(f) alone. In any event, the Government will have to answer before the Court of Human Rights for any measures that they bring forward after derogation and in pursuance of it, as they would have to do before our own courts. I believe that our courts would, and certainly should, strike out any measure that went wider than the Bill that is before another place at the moment.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord. Is he aware that that is a very difficult question? It is not clear to a number of us whether the British courts would have any power of review given that Article 15 of the convention has not been incorporated and the way in which the ouster clause is phrased. It appears that the only tribunal that can do so is the court at Strasbourg.

Lord Mayhew of Twysden: My Lords, no question has ever proved too difficult for the noble Lord to argue, as I remember from my time as Attorney-General. In any event, this must come before the Court of Human Rights; the convention itself demands that it be reported. Therefore, it will only be a matter of time before the legitimacy or otherwise of such further measure is tested. I believe that the Government are entitled to the order that they seek and are entitled to it now. As I understand the matter, in any event it was necessary to make this order pro tem on 11th November because the Bill was to be debated two days later in the other place. How could it be said, short of an order, that it complied with the convention obligations of the Government?

That said, I give warning—if that does not sound too pompous—that the Government will face considerable trouble when the Bill comes forward by reason of Clause 29, which has been dwelt upon so effectively today. I believe that to attempt to exclude from the review of the judiciary actions that are at the centre of the whole process is thoroughly misguided, misconceived and rather disgraceful. It is likely to prove futile in any event, because I do not believe that it will wash with Parliament, and it certainly will not

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wash with the judiciary. I happen to believe that judicial review is a far more effective safeguard of human rights than even the convention.

4.30 p.m.

Lord Corbett of Castle Vale: My Lords, we all have a duty in Parliament to do what we can collectively to safeguard the safety and security of the citizen. But we also have a parallel duty to safeguard the human rights of the citizen as well and that is what gives me concern about this order today.

What in fact the Government are saying to your Lordships' House is "Trust us, trust our judgment. We will do our best although there are narrow and specific circumstances where we, the Government of the United Kingdom, want to stand above the law". It is my strong view that this is not a good enough basis on which to base human rights.

I wish quickly to remind your Lordships' House that we do not come empty headed to this debate. Unhappily, we have long experience of anti-terrorist legislation in this Parliament. Perhaps I should make clear to your Lordships that I come here with attitude about terrorist legislation. I was in the other place when literally overnight the first Prevention of Terrorism Act was steamrollered through that place with all the dire consequences that had for many citizens wrongly, brutally, gaoled for lengthy periods, only later to have those convictions quashed by the Court of Appeal.

I remind your Lordships that just 10 years ago, at the time of the Gulf War, 50 Palestinians living in the United Kingdom were detained because of their alleged links to terrorism. Thirty-five Iraqis were picked up and described as "soldiers" together with another 141 Iraqis and other Arabs. In fact, the 35 Iraqis were engineering and physics students. They had been described as soldiers because someone had learnt—it was never hidden—that their scholarships had been provided by the Iraqi military. Making two plus two add up to five, that led people to surmise that they must be soldiers of Saddam.

In fact, at the end of that war all were later released without charge and many repaid the trust which Saddam Hussein had put in them by claiming asylum in the United Kingdom. As regards the Palestinians, one of those detained was a Mr. Abbas Cheblak, a rare and treasured creature in the tangled politics of the Middle East, because he was an advocate of Arab-Israeli rapprochement. The person who led the campaign for his release was none other than the editor of the Jewish Quarterly.

I mention these points because we should not assume that either the security services or the police get these matters right all the time. Whether this was simple human error or over-zealousness at the time of the Gulf War by the security services, we shall never know. It may even have been some kind of PR campaign to stoke up support for the war. In any event—I remind your Lordships of this point—all of those detained were subsequently released. No action

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to deport was taken against any of them. Indeed, some of them were awarded compensation for that detention.

Last year, under the wide powers of the Terrorism Act, just 16 non-Irish people were detained alongside the 23 involved in the Afghan plane hijack. That does not suggest to me the need for extra powers if those presently in existence are so little used and apparently needed. There are powers in Section 56 of the Terrorism Act to bring criminal proceedings against those alleged to be directing terrorist activities or incitement to commit terrorist acts abroad from within the United Kingdom.

I ask the Minister this question. Why are these powers not felt to be sufficient to deal with foreign nationals here suspected of terrorism post 11th September? It will come as no surprise to the Minister, because of our experience in another place, that I find totally abhorrent the prospect of what could be—the Minister was kind enough to acknowledge it—indefinite detention without charge or trial. I say to your Lordships something which is known already from previous experience. There is a real and almost certain risk that if the order is passed and the Bill is carried in its present form, some of those detained will seek to use that detention to further their claimed cause.

The order smacks of all the worst aspects of the former Soviet Union and other repressive states. A person detained will not know the charge against him or her and those legally representing him or her will not know the reasons. When the Minister says that every six months there can be an appeal to review whether there has been any change in the circumstances, I say to the noble Lord that it is impossible for a detained person in this manner to argue that there has been a change in the circumstances if he or she does not know the circumstances which have led to the detention in the first place. That is Kafka at its worst.

I wish to make clear it to my noble friend the Minister that I acknowledge the very real problem of trying to deal, on the one hand, with those foreign nationals living here who cannot be removed or extradited because of Article 3 of the European Convention on Human Rights and, on the other, those who cannot be prosecuted because of a lack of evidence. But if there is a lack of sufficient evidence to charge, how can that slighter evidence in that comparative sense be used for the much more serious purpose of indefinite detention? It simply does not follow in logic.

It is not good enough to take the risk that big mistakes are going to be made, as they are bound to be, to find cute and cunning ways around the need to respect the laws of this nation where those we suspect of criminal offences are to be charged, tried and, if the evidence is sufficient, convicted. It is my belief that the powers of the Terrorism Act 2000, fairly fresh on the statute book, are wide enough. Those contained in the order are awesome. We are saying to people living here against whom no charge has been formally made and

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there has been no case in any court, "You are going to be lifted off the streets, out of your homes and detained in prison for as long as it takes for us to decide that you are no longer a threat to the security of this country".

Should the order and the parallel Bill go through, I hope at least that the Minister will be able to say again not simply that these powers will be used sparingly but that they will be used only as a very, very last resort and that as an alternative ever proper consideration will be given to prosecution under the Terrorism Act.

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