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Earl Russell: My Lords, the last time I praised a speech by the noble and learned Lord, Lord Mayhew of Twysden, he began his reply, "I listened with growing eagerness for the 'however clause'". I shall not keep him in suspense. So this time, if he will forgive me, I shall begin with the "however".

The noble and learned Lord made one small point on which I believe him to be in error. He said, "provided what the Government do is not in conflict with any other of our international obligations", which he believed not to be the case. Perhaps I may draw his attention to a clause in the 1951 UN Convention on Refugees, on which the Government have relied. I refer to Article 33(2):


It is precisely the phrase "reasonable grounds" which does not appear in Clause 21 of the Bill, where one might have thought to find it. At the least, that risks putting us in breach of our obligations under the UN convention of 1951, which I regard as significant.

I admire the noble Lord, Lord Davies of Coity. He is a man of courage. He is the only noble Lord to have spoken full-heartedly in defence of the order now before the House.

Lord Acton: My Lords, so did the noble and learned Lord, Lord Mayhew.

Earl Russell: My Lords, full-heartedly? I hope that the noble Lord, Lord Acton, can recall his concluding words about judicial review. That is what I would have said before turning to the "however clause" had I had occasion to put it there.

The noble Lord, Lord Davies of Coity, thought it sufficient to cite 11th September and Al'Qaeda. I hope he understands that those of us who wholeheartedly support the Motion tabled in the name of my noble friend Lord McNally, of whom I am one, are not one whit less hostile to terrorism than those who support the government order. I have read the reports in The Times of the Al'Qaeda attempts to construct a Nagasaki-style bomb, as well as the reports of their use of ricin pellets, seven seeds of which could kill a child. I am under no illusion about what we are dealing with, but to my mind that creates an obligation to testify not only to the strength of our feelings, but to put forward measures that are going to be effective.

Thus the question the House must consider is this: are these measures the most effective means of dealing with the situation? It would be a very grave

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mistake—and it is one which the Home Secretary has at least come uncomfortably close to making—to assume that protecting us against terrorism and preserving our civil liberties are in some way antithetical. They are not. Our civil liberties are one of the weapons we can use in the battle against terrorism. I believe them to be an extremely important element in our weaponry.

Lord Davies of Coity: My Lords, I thank the noble Earl for giving way. Would he concede that, in the arena of terrorism, covert activity is paramount? As a result, sometimes it is necessary to detain suspects on the basis of intelligence and sourced information which could not be presented to the court for fear of causing damage to our national security.

Earl Russell: My Lords, I concede without question the first half of the noble Lord's remarks, but because good intelligence is paramount, ensuring the sympathy of potentially neutral opinion is vital. If an innocent person is arrested, it is likely that the next time a terrorist proposition is put in front of him, he will no longer be innocent.

I do not know whether the noble Lord was in the Chamber for the debate held on 16th October. He would have heard my noble friend Lord Alderdice, who knows something about this subject. My noble friend stressed the importance of detaching the extremist terrorist from the potentially sympathetic, semi-neutral opinion in which, to utilise Mao Tse Tung's phrase, "he swims like a fish in water". Every time we over-react, we make that process a great deal harder. Every time we invoke a sense of injustice in those we arrest, we create another potential terrorist. Every time we offend those capable of passing on valuable intelligence, we receive less intelligence as a result. That is the mistake made by Al'Qaeda when the twin towers were attacked. Look at how much more intelligence we have received since 11th September. It was also the mistake made by the IRA when they began bombing the Tube. That campaign could have brought us to our knees within a few weeks, but the IRA gave it up. I learnt a great deal out of that experience.

I am not in politics simply to testify to my feelings. It can be taken for granted throughout Parliament that all stand against terrorism. I do not think that we need to prove it. However, the Home Secretary is in real danger of sounding like the proverbial left-winger who goes about testifying to his feelings in the most eloquent manner, with the result that he does not produce effective measures. I want the measures taken to counteract terrorism to be effective. That is why I am not prepared to vote in support of them until I know in what form the Bill leaves this House. I shall vote for the amendment tabled by my noble friend Lord McNally.

Lord Acton: My Lords, before the noble Earl sits down, could he clarify a point for me? In fairness to the noble and learned Lord, Lord Mayhew, I understood

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his speech to be totally in favour of the order and wholly against Clause 29 of the Bill. Am I wrong in that?

Earl Russell: My Lords, I do not think that it is possible for a speech to reflect both of those views at the same time, but if the noble and learned Lord wishes to clarify his position, he is in his place and he may do so.

Lord Mayhew of Twysden: My Lords, I hesitate to interrupt or intervene in this interesting and rather flattering discussion. In my view, I concluded that the Government were entitled to their order for reasons which I shall not repeat, having inflicted them once on noble Lords. However, I venture to warn the Government of severe trouble in the future in regard to their attempt to exclude judicial review over the whole of the process on which they seek to pin public confidence for the measure.

Earl Attlee: My Lords, I am grateful to the Minister for his explanation of the order. As regards the Bill, it will require detailed examination. Long nights lie ahead, but I am sure that noble Lords will complete their deliberations on the Bill on schedule.

I suspect that if no order had been put before the House first, the noble Lords on the Liberal Democrat Benches would protest: "No Bill without first considering the order". I do not deny the degree of urgency required here, but I am not absolutely convinced on that point. However, I am convinced about the need for and desirability of the order because of one sentence contained in the schedule:


    "It will be open to a detainee"—

who would be a foreigner and not a citizen of the United Kingdom—


    "to end his detention at any time by agreeing to leave the United Kingdom".

If the order is put to a Division, I shall support the Government.

Lord Richard: My Lords, I rise briefly to say that I regard this as a somewhat unhappy piece of legislation. It is not one that I can approach with a great deal of enthusiasm; indeed, it goes against most of my political and other instincts. However, we all know very well that from time to time governments have to take steps that they do not particularly like. Noses have to be held, if I may so put it. Over the years more noses have been held than that of the noble Lord, Lord McNally, who is experienced in the internal workings of government.

If the order must be passed, then the Government are under a duty to try to justify it. They need also to justify the passage of the Bill. I have two questions to put to my noble friend on the Front Bench, to which I hope he will be able to respond. First, why do we need to pass the order before the Bill? I do not support the Liberal Democrat Party on this matter, but the thought has occurred to me with a great degree of force, as it has to the noble Lord, Lord McNally. One

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would have thought to see the two pieces of legislation the other way around; namely, that we would find out what powers were sought by the Bill and that, once those powers had been adequately expressed and the legislation passed, then we would have the order derogating the Human Rights Act. Perhaps there is a reason, which I hope that my noble friend will make clear.

Secondly, what practical difference to the powers of the Home Secretary will the passing of the order make before the passage of the Bill? Does it give him additional powers that he otherwise would not have? Does it enable him to do anything that he thinks he should do which he cannot do now? If that is the situation, the Government will have gone a fairly long way towards justifying the introduction of the order.

I shall not discuss the legislation because the time to discuss it will be when it is introduced. Therefore the temptation to make Second Reading speeches on the passage of the order should be resisted.

Perhaps I may make one final comment to my noble friend who is to reply. I have been called lots of things in my political life, but I have never been called a "fairy" before. There are all kinds of reasons, perhaps, why I have not, but I sincerely hope that that kind of language will be eschewed in future.


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