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Earl Russell: My Lords, does the noble Lord agree that if this House were to lose its power to reject statutory instruments, the power to introduce all this by statutory instrument will be an even more nugatory restriction than it is at present?
Lord Waddington: My Lords, indeed it would. I entirely agree with the noble Earl. I was concentrating so much on the Bill that I was not thinking of the possible implications of changes in our powers under second stage reform of this place.
I want to emphasise this point about the European arrest warrant. One must look at the scope of that warrant to get clearly in one's mind the potency of this regulation-making power. If the regulation-making power is so great that it could put into law the European arrest warrant, it means that the Minister could legislate by regulation in order to provide a power for someone to be removed from this country to face trial abroad for offences that are completely unknown in this country—xenophobia, for example.
The power is wide enough to enable the Minister to take steps with regard to offences against children—that has nothing to do with terrorism—offences concerned with drug trafficking, and offences in connection with corruption and fraud. All those are words in Article 29 of Title VI of the European treaty. It also gives the Minister power, as set out in Article 31e, to establish the constituent elements of criminal acts by delegated legislation—again, not in the field of terrorism but throughout the whole of our statute book dealing with criminal law. These are truly dramatic powers, which ought to make the hair of any noble Lord who has hair stand on end. They embrace not merely the agenda adopted at Tampere—although that is wide and sweeping enough, with its reference to new police powers and the harmonisation of criminal laws—but everything else in Title VI of the treaty.
I confess that I would object to such powers of delegated legislation in any Bill. Powers to legislate on matters affecting the liberty of the subject should be dealt with by primary legislation. Why were these matters included in Title VI, the third pillar, in the first
place? They were put there to ensure that they would, in view of their sensitive nature, be dealt with at an intergovernmental level and, in Britain's case, be implemented by primary legislation. I understand that that was the whole purpose of the third pillar. It is wrong that such powers to make delegated legislation should be sought at all. It is doubly wrong that they should be sought in emergency legislation with limited scope for debate.6.15 p.m.
Lord Ahmed: My Lords, the terrorist attacks in the United States on 11th September have changed our perception, our lives and indeed the whole world. None of us can condemn enough to comfort those who have lost their loved ones. However, we need to be cautious while legislating to protect individual citizens from those who create havoc in our society through international terrorism that we do not infringe civil liberties and discriminate against any sections of our community.
I remind your Lordships that legislation and military power alone do not prevent terrorism. The United States had Xsecret evidence" laws in place three years before the tragic events of 11th September. They gave the United States authorities powers of detention without trial, and have been seen as contrary to the principles of freedom of speech, freedom of expression and civil liberties. It may not surprise your Lordships to know that 95 per cent of those detained were Arab Muslims.
In order to reduce the threat of international terrorism, we need to strive for global social justice, eradicate poverty and corruption, promote democracy and safeguard freedom of speech. We need to promote the United Nations Universal Charter of Human Rights and to deal with illegal occupations and oppression. We must also reform the United Nations Security Council so that it mirrors the world of the 21st century instead of reflecting the past.
Nothing could ever justify the terrorist attacks on innocent civilians. However, history bears witness to the fact that this is how some individuals react against some nations. For example, in the 1960s, during the Algerian struggle, bombs exploded in Paris; and in the 1980s, when tension grew in Northern Ireland, bomb attacks took place in London. Now that tension is growing in the Middle East, such tragic events have taken place in New York and Washington.
The Home Secretary has emphasised his concern to find a balance between the security of this nation and the duty of our country to protect people under the regulations of the European Convention on Human Rights. While I acknowledge the necessity to ensure both elements, I am anxious to see that the appropriate provisions are made and that there is no abuse of power.
I congratulate the Government on introducing the incitement to racial or religious hatred clauses, which are essential. Until now British Muslims have been subject to the xenophobic assaults of the extremist far
right groups such as the BNP and the National Front who have taken an explicitly anti-Muslim stance to avoid prosecution under race legislation.Events since 11th September have strengthened my opinion that, as we have religious discrimination laws in Northern Ireland and the Race Relations Act 1976 covering the Jewish and Sikh communities—and rightly so—other religious groups such as Hindus, Muslims and Christians should be similarly protected.
During the tensions that occurred in the north of England this summer, a certain right-wing figure was openly attacking the British Muslim community. This week, posters have gone up in London, and the Internet site of that person's organisation is full of lies and attacks on the Muslim community, inciting religious hatred and violence against Muslims.
Two weeks ago, a senior Member of this House claimed, XYou cannot be a Muslim and be British". I said then, and I say now, that we take pride in being Muslims and we take pride in being British. No one should be misled by any Xrent a quote" organisation claiming that five British Muslims had been killed in Mazar-i Sharif by the US bombing when two weeks later they turned up in Islamabad. British Muslims should not be made responsible for the actions of a few individuals, just as we do not hold all Catholics responsible for the actions of a few IRA or Real IRA members.
Perhaps I may take this opportunity to congratulate the Government again on taking such an active role in researching and implementing religious discrimination laws to protect all religious and non-religious groups. The Derby University and Cambridge University reports on the issue, and the support of the Home Secretary and the Prime Minister, have been much appreciated by many communities. Islam teaches us that while we may comment we must not mock and abuse other religions. This is in accordance with the long-standing tradition of freedom of speech but without stirring religious hatred in our nation. The British Muslim community is keen to see that implemented by law. Although I would have preferred a separate incitement to religious hatred Bill rather than the carrot and stick approach in this Bill, I am prepared to support any legislation that will protect individuals from racism and xenophobia.
Nevertheless, I am concerned at the speed with which this legislation is being considered. The Home Secretary calls for the making of proportionate provisions for the threat to national security. But are we also sufficiently prepared to anticipate the effects of those provisions on our nation?
I have three main concerns regarding the practical implications of the Bill. In his reply, will the Minister say how the religion clause will affect the British Muslim community? How accurately and appropriately will people suspected of terrorism be detained? How justly will the police use their additional powers?
The British Muslims are wary that they will be segregated from society because of their religious beliefs, especially in the light of recent world events. If we are to include religion under the same umbrella as terrorism, then it is inevitable that some people may consider certain religious beliefs to be a form of terrorism. We do not want to see that happen. While I strongly support religious discrimination laws, I propose that that should be a separate Bill. This is necessary to avoid any misunderstanding between the two issues and to emphasise that the Government are wholly supportive of the need to improve religious relations.
Secondly, the derogation of the detention clause poses an obvious risk of people being wrongly detained. Perhaps I may emphasise this point as there is clear evidence in our history of such past practices. There have been many cases where innocent people in their hundreds have been detained: for example, during the Second World War, in Northern Ireland and, more recently, at the time of the Gulf War. A further concern is whether, in keeping with the religion clause, there will be unjust detaining of suspects on the basis of religious prejudice.
Thirdly, I agree with the proposal to give the police and Customs services the authority to demand the removal of any item of clothing, and so on, which they believe is being worn wholly or mainly for the purpose of concealing identity. We must take all necessary action in the interest of public safety. But there is a feeling that that power may be abused. There have already been cases where Muslim women have been ordered to remove their head coverings, scarves and hi'jab without substantial reason when visiting relatives in prison. This has caused deep humiliation and distress. I thank the right reverend Prelate the Bishop of Manchester for mentioning the burka and similar concerns to which I have referred. The Qur'an outlines how important it is for Muslim women to be modest and the hi'jab is one of the means of achieving that. To date, no connection has been established between criminal activities and Muslim women wearing the hi'jab. That should be noted; it should be considered an expression of religious belief. In his reply, will the Minister please assure the House that the hi'jab will be recognised as a religious practice?
Finally, I support the Government in their actions and request that we proceed with caution. Our nation cannot sit in fear and all necessary actions must be taken to secure the safety of this country and its people. It will not be appropriate to cause internal struggles and discontent at a time when we must have a strong united front, closed to hate crimes and terrorism but open to offerings of compassion to those in need of our support. Let it be clear that this House will not tolerate prejudice; that a person's personal beliefs and faith will be respected under the custom of civil liberties; and that those who are religious should be free to practise the teachings of their faith.
6.25 p.m.
Lord Mayhew of Twysden: My Lords, it is a great pleasure and a privilege to follow the important speech
of the noble Lord, Lord Ahmed. It was moving to hear him say that he and other Muslims took pride in being British. I do not think that I am alone in expressing my pride in sharing my nationality with him and with them. It is not through any lack of respectful interest that I do not explore the very important questions that he raised about Part 5 of the Bill. I intend to deal exclusively with Part 4.It is often said that in every war freedom is an early casualty. We do well to remember that. Emergencies have a habit of outlasting those who declare them. In our own country the emergency in Northern Ireland is now in its 30th year and still going strong. We need to take care that our scrutiny of emergency legislation does not become blunted. We need a clear mind as to how to test any government's claim that once again emergency measures are needed if the country is to be defended. In particular, we have to test what the Government advance as necessary legislation and test whether it goes too far.
I agree with my noble friend Lord Waddington about the many parts of the Bill which I believe fail the test. There is only one sensible test: what hostile threat should the Government reasonably foresee; and what is the limit of reasonable measures which should be taken to meet it? There is a rather uncomfortable cliche that an ounce of practice is worth a pound of theory. It is only a cliche because it is true. The best, but not the only, guide to what one can reasonably foresee is what has happened in the past. The more recent the past the better the guide. But it is not the only guide because sometimes threats have also been made. Their credibility has to be assessed; as does what the recent past tells us about those who make them. In bringing forward the Bill, I believe that the Government are content to be judged by that measure. Whether or not they are content, that is how they should be judged; but they must be fairly judged.
It is extraordinary how quickly some people forget. We know that hindsight is a faculty which has 20:20 accuracy. But for all too many of us—none who has spoken in this Chamber today—retrospection soon becomes massively myopic. It has often been said recently that it is a good thing that we are not legislating in the immediate aftermath of the events of September 11th. But I am not so sure. That enables me to say at this point how glad I am to be able to salute the charming and thoughtful maiden speech of my old friend and colleague, the noble Lord, Lord Maclennan of Rogart. He took pleasure in the fact that we were legislating after some 10 weeks. I am not so sure that that is altogether a good thing. The reality of those bodies hurtling out of the windows of the blazing towers is even now fading—perhaps because subconsciously we want it to. Yet the Government tell us that they and we face the foreseeability of terrorist attacks within this country no less horrifying in their scale and evil. We must beware a psychological need to fade out the memory of that horror when we ask whether the severity of the Government's proposals is warranted.
Do we accept what the Government tell us and, if we do, are their proposals proportionate to the gravity of the risk of which they warn? It is not naive to say, in matters of supreme gravity, that a democratically elected government are entitled to be trusted. What would people say if someone who could not have been lawfully deported but who was credibly suspected of being an international terrorist had been left at large to launch or assist such an attack on this country when power could have been taken from Parliament to detain him until he chose to leave? People would say, XYou could see it coming, yet you did nothing".
I should not care to stand before this country and say that to seek such legislation would have been a grave departure from principle and one giving rise to a dangerous precedent. Would not the country answer, XYou already had a dangerous precedent on 11th September, yet you chose to accept the risk to us that it would not be followed here—even though you were warned by your advisers and by the blatant threats of known terrorists"? I have faced some difficulties in my time and survived them but I should not care to face that situation because I should have failed in the most important duty of all. Allowing the nicety of my admirable principles to prevail over a threat of such magnitude would be seen as disproportionate, to put it mildly.
I am sorry to put the matter so starkly, but the Government are entitled to believe that they have a stark choice. Some people argue that the Government had more than one alternative. It is said that, by some fancy footwork, the Government could have denounced the whole human rights convention, then—in a twinkling of an eye—re-entered it with a reservation on Article 3, which guarantees the right to life. That way, they could lawfully deport a suspect in the sure and certain expectation that he would lose his life at the other end or at least be tortured.
Even if that approach had worked, I should find it disreputable and unworthy—and I believe that the country would have done so. Whether it will be lawful to kill bin Laden will itself be subject to well-established principles of law—as everybody in the relevant services recognises.
Nor is it enough to suggest criminal prosecution as an alternative. As one might expect constitutionalists to know, it is for the independent Director of Public Prosecutions, not Ministers, to determine whether a prosecution of that type shall be brought. The DPP will require evidence that is not only admissible but available and likely to lead to a conviction. It comes as no surprise that the need to protect sources would generally stymie that requirement.
The only alternatives are true internment—and there is something to be said for it in some circumstances or cases—or to do nothing, for which there is no case. The Government are justified in taking the route of immigration control and curtailing a suspect's liberty to that extent. It is of great importance that the suspect should be able voluntarily to leave this country at any time. However, here I part
company with the Government. Much of the Bill has no connection with the emergency but I will deal only with Clause 29's attempt to exclude judicial review.Where we must accept the need to curtail a suspect's liberties to a limited extent, there is no need to exclude the jurisdiction of the courts over the process of that curtailment—that is, the jurisdiction of all courts except the Special Immigration Appeals Commission, if that is a court. I say that without the slightest intention of causing offence to anybody who sits on that commission. It was invented four years ago, for a different purpose, and there is good reason not to seek to exclude judicial review.
In the bad old days before we had any administrative law in this country, judges slavishly used to accept that if a Minister thought fit to do something that an Act of Parliament allowed, that was the end of the matter. Judges thought that they had no power to review whether the Minister had gravely misdirected himself on the law or taken account of wholly irrelevant matters, to the grave disadvantage of a citizen who was left with no redress.
All that has changed, not so as to substitute the judge as the decision maker but to acknowledge the judge as a legitimate referee in cases where it is said that the relevant rules have been broken. If judges find that the rules have been broken, they say, XGo back and start again". That development has proved an effective curb on the improper exercise of executive power in public matters. Where a case has required this, it has been resolved in a few hours—with the Court of Appeal also standing by for an immediate hearing.
I was disappointed to hear the Home Secretary—whom I greatly admire—grumbling so soon after entering the Home Office about judges being unelected. No matter what government have been in office, senior judges have been a thorn in Ministers' occasionally errant flesh. Quite right too. Ministers used to say to me when I was the Attorney-General, XLook what your judges have done now". I would reply, XThey aren't my judges. They aren't anybody's judges". That was the whole point. If judges were elected, they might seem to be.
Jurisdiction is so vitally important that no precedent at all should be set for excluding it—especially when there is no need. We can bet our boots that any such precedent would be relied upon to justify further attempts at excluding judicial review in future. I concede that the Government are entitled to argue that, under the Bill, the commission could do everything that a divisional court could do by way of judicial review and that an appeal lies with the Court of Appeal—but only on a point of law. We will no doubt examine that matter further in Committee but it is not sufficient reason to make an exclusion that was never made when the commission was established by statute four years ago. Neither the SIAC's own decisions nor those of the Minister were protected by judicial review then and that should remain the position with the new and enlarged jurisdiction conferred by the Bill. We
have it on the Home Secretary's authority that not one judicial review of a SIAC case has taken place, so there is no reason to fear factitious duplication now.I must not stretch your Lordships' patience by further criticism, though one is spoiled for choice—not least, the unexplained exclusion of terrorists concerned only with the affairs of any part of the United Kingdom. I confidently expect that the noble Lord who is to follow me, Lord Jenkins of Hillhead, will deal with that aspect.
I conclude with the fervent hope that the Government will have second thoughts in any event on excluding judicial review—failing which, I hope that your Lordships will invite the other place to think again.
6.39 p.m.
Lord Jenkins of Hillhead: My Lords, I begin by adding my congratulations to those that were so warmly expressed by the noble Lord, Lord Waddington, to my noble friend Lord Maclennan of Rogart on his distinguished maiden speech, which combined persuasiveness and elegance to a remarkable degree. He made some neat beginning remarks about how he and Viscount Thurso had changed Houses. Led by that, I am tempted to add a glancing reference to the fact that, had it not been for my noble friend Lord Maclennan, while I might still be standing here this evening and I might still be called Lord Jenkins, I would not be called Lord Jenkins of Hillhead. I owe that entirely to his perception, almost exactly 20 years ago.
I have not troubled your Lordships for many months past, believing that when one gives up a leadership it is best to allow one's successor—and now my successor but one—to get on with it untrammelled. However, as almost exactly 27 years ago, on 28th November to be precise, I introduced a Prevention of Terrorism (Temporary Provisions) Bill—with what turned out to be ironic parentheses—I thought that perhaps I ought to speak.
I confess that I got that Bill through on a still tighter timetable than has been the case here. I moved the Second Reading at 3.30 on a Thursday afternoon and completed all stages in the Commons 17 hours later, having made 14 speeches—short ones, happily—during the night. Sometimes I resisted amendments and sometimes I accepted them, when they seemed to have convincing arguments. The pressure was by no means wholly from a libertarian point of view. There were several who wanted me to turn the BBC into a government agency as far as Northern Ireland was concerned. I resisted that as firmly as I resisted the moves to weaken the provisions. Your Lordships sat especially early on the Friday morning and the Bill was ready for Royal Assent at 9.30 that morning.
The balancing factor is that we made it clear that, as the Bill had been introduced rather hurriedly, it could not continue except with primary legislation—not an executive order—six months later, when there had been time for reflection and consideration.
In view of all that, it would not be possible for me, without the most blatant hypocrisy—one tries to avoid it in its blatant form, at any rate—to denounce the principle of a legislative response to acts of terrorism or its accelerated passage through Parliament. However, I have a number of reflections from that experience, not all of which may be entirely welcome to the Home Secretary.
While the atrocity in the wake of which I was acting was of an immensely smaller scale than that of September 11th, it was much nearer to home. The two explosions in Birmingham pubs caused 24 deaths and nearly 200 serious injuries, almost entirely among young adults. They were part of a series of events, many of which were in Birmingham. The Guildford bombing had also happened only six weeks previously. Birmingham was not only the second city of England; it also happened to be the city of the constituency of the Home Secretary of the day—though I hope and believe that that did not influence my judgment.
None the less, I did not then contemplate any return to the 1971 policy of indefinite internment without trial, which had become heavily discredited and which, in retrospect, is undoubtedly thought to have exacerbated rather than contained the IRA terrorist threat. The new powers taken then were much more precise and limited.
First, the police were allowed to detain a suspected terrorist for up to 48 hours on their own authority and then for a further five days with the specific authority of a Minister of the Crown. Secondly, much tighter controls at the points of entry for Northern and southern Ireland were introduced. Thirdly, and most controversially, the Home Secretary was given powers to exclude from Great Britain—that is, just from this island and not from the United Kingdom as a whole—citizens of the Republic of Ireland or those originating in Northern Ireland had they not been domiciled here for 20 years if it appeared to him, on advice, that they were, or were likely to be, involved in acts of terrorism. However, two independent assessors were appointed to whom representations could be made.
Those were the practical measures. There was another that was largely for show: making the IRA an illegal organisation. It had not been illegal on this island before. Hitherto it had been able to engage in marches and funeral demonstrations.
Looking back, what do I think of that Act? I think that it helped to steady a febrile state of opinion at the time and to provide some limited additional protection. However, I doubt that it frustrated any determined terrorist. I think that it made it possible to defeat what looked at first as though it might be a strong mood to restore the death penalty for terrorist offences, which I believe would have greatly exacerbated the problem from a martyrdom point of view. The fact that we were able to win that vote only three weeks later with a crushing majority in the House of Commons owed a great deal to the courageous support of the late Viscount Whitelaw, who had become convinced during his time in Northern Ireland
of the disastrous effect of the death penalty for terrorist offences. I do not take the same view as the noble Lord, Lord Waddington, on that issue.If I had been told at the time that the Act could still be on the statute book 20 years later, I would have been horrified. It is often the provisional that endures. We should be very careful about justifying something on the grounds that it is intended to last only for a short time.
There is a wider consideration. Not at all as a direct result of that Act, but associated with the mood of that time there occurred some of the worst miscarriages of justice in the recent history of British criminal law. Guildford and Birmingham became notorious names in that context. There was undoubtedly a certain atavistic desire to get any Irishman and convict him. That affected police, prosecuting counsel, judges and juries. As a result, several years in the 1980s had to be spent on a campaign under the inspired leadership of the late Cardinal Basil Hume, supported by the noble Lord, Lord Merlyn-Rees, and myself, as well as those two towering legal eminences, the noble and learned Lords, Lord Devlin and Lord Scarman, to right some of those appalling mis-convictions.
In reaching my conclusions, I owe your Lordships a great apology. I am afraid that I cannot stay for the end of the debate, as I have a compelling engagement. I hope that I shall be forgiven for that. I much dislike having to leave early.
At a time of threat, to be seen to be doing something rather than nothing is a natural human—and perhaps particularly ministerial—reaction. But something, anything, is by no means always better than nothing. You can do more harm than good. It should be very carefully directed at the threat and not splayed over a wide area of increase in executive powers. It should be done with a wary consciousness that what starts as a temporary measure is only too likely to last. Above all, something should be done within a framework of respect for the rule of law and an awareness of the need for those at the hinge point between the security of the state and the freedom of the individual—and no one is more at that hinge point than the Home Secretary of the day particularly when there is public clamour—to remain as calmly judicial as possible. I have sympathy for Mr Blunkett with the conflicting pressures upon him. But I cannot endorse this Bill as it comes unamended to your Lordships' House.
Looking back, I say this. I do not exactly regret having introduced the Prevention of Terrorism (Temporary Provisions) Act 1974. I believe that it was inevitable in the circumstances. But it is not one of the legislative measures of which I am most proud.
6.51 p.m.
Lord Rogan: My Lords, as an Ulster Unionist, I am always keen to give my support to any measure which seeks to tackle terrorism within our borders. This occasion is no different. That said, I have to tell noble Lords that this Bill does not in my view go far enough.
Parliament was recalled at the beginning of September 1998 to debate the Criminal Justice (Terrorism and Conspiracy) Bill. This legislation, your Lordships will remember, was deemed necessary by the Government following the terrible atrocity just over two weeks earlier in Omagh. Twenty-nine people died as a result of that Real IRA bomb attack, and many hundreds were injured.
The mood across the country at that time was one of great sadness coupled with understandable outrage. There was also a desire to do something—anything, almost—to ensure that the perpetrators of the act were brought to justice and that the distressing scenes which we witnessed could never be repeated. However, more than three years on, I must report to your Lordships that not one person has been convicted under the Criminal Justice (Terrorism and Conspiracy) Act 1998. I therefore respectfully ask the Government, as we prepare for the Committee stage of the Anti-terrorism, Crime and Security Bill, to listen carefully to the arguments that are set out in this Chamber and to study closely the amendments that are being tabled by noble Lords in all parts of this House in an attempt at improvement. As the Minister is no doubt aware, rushed legislation is very often not effective legislation no matter how sincere the Government's intentions may be.
My principal difficulty with this Bill is the failure to extend it to Northern Ireland. This was referred to by the noble Lord, Lord Dixon-Smith. The repercussions of this are potentially very great indeed. Last week my party leader, David Trimble, and the leader of Her Majesty's Opposition, wrote a joint article which appeared in the Daily Telegraph under the heading,
- XThere's no such thing as a 'good terrorist', Mr Blair".
Clause 21(4) of this Bill states that,
- X'international terrorism' does not include terrorism concerned only with the affairs of a part of the United Kingdom".
Despite the protestations of Gerry Adams that the actions of the IRA terrorists and the actions of Al'Qaeda terrorists are somehow different, I fail to see the distinction. The Government try to justify their decision to exclude so-called Xdomestic terrorists" from the Bill on the grounds that the IRA is on ceasefire. Yes, the IRA may well be on ceasefire—of a sort—but the Real IRA is most certainly not on ceasefire and neither for that matter are the UDA, the UFF or the LVF. And, yes, while IRA volunteers over recent years have not been as active in the United Kingdom as previously, we now know that they have been keeping themselves occupied in other parts of the world.
As Mr Trimble and Mr Duncan Smith pointed out in their article,
- XThe links between international terrorists and Irish republicans are well-established. In August, three senior republicans were apprehended in Colombia, suspected of collaborating with the narco-terrorist group FARC. Much of the IRA's arsenal results from its connections with the Arab world, specifically Libya. Prominent members of the Basque separatist movement, ETA, have been regular visitors to republican conferences over the years".
I think the problem is obvious to see. I simply find it rather disturbing that our Government, particularly our Prime Minister, can spend so much time flying around the world seeking to bolster the international coalition against terrorism, yet are apparently comfortable in excluding from the provisions of the Bill terrorist groups which operate on our very own doorstep.
It has been well-publicised that my party leader has signed a letter to the Home Secretary, David Blunkett, seeking the extension of the Anti-terrorism, Crime and Security Bill to Northern Ireland. However, the media seem largely to have ignored the fact that the letter was also signed by the Deputy First Minister of Northern Ireland, the new SDLP Leader, Mark Durkan. That indicates, as we all know, that the desire to see the Bill extended to the Province is not just a Unionist demand. It is a wish shared on both sides of the political divide in Northern Ireland. I trust that the Minister will take that into account when we begin the Committee stage of the Bill.
Before resuming my seat, I want quickly to flag up one other issue which I hope we can discuss in some detail in Committee. I am referring to the admissibility of wire-tap evidence in bringing prosecutions against terrorists. Any noble Lord who has turned on the radio or television in recent weeks to be updated on the current situation in Afghanistan will no doubt have encountered a procession of individuals talking about the importance of intelligence in this so-called war against terror. Some of those individuals are well qualified to talk about such matters; some are perhaps not so well qualified. But all of them are right.
When the Prime Minister decided that it was right for the United Kingdom to stand shoulder to shoulder with the United States in the action against Osama bin Laden and his accomplices in both Al'Qaeda and the Taliban, he did so primarily on the basis of a dossier of information provided to him by the intelligence agencies. One can be certain that wire tap evidence formed a large proportion of the intelligence contained in that dossier. Surely if our Prime Minister and this Government can decide to send our troops into battle on the strength of such information, then it can only be sensible for it to be used to bring terrorists to justice in our own courts.
7.1 p.m.
Baroness Whitaker: My Lords, the reports my noble friend the Minister listed in his opening speech, including that of the Joint Committee on Human Rights of which I am a member, induced undertakings which go some way to improve the safeguards in the
Bill. They should have the effect that when we work to defeat international terrorism, we do not disproportionately undermine from within the human rights framework of democracy which terrorism aims to destroy.I wish briefly to refer to three parts of the Bill: those dealing with detention, religious hatred and corruption. The Joint Committee report makes other points and I look forward to seeing the government response to all of them.
On the difficult clauses which set up a system of detention for suspected international terrorists who do not choose to leave the UK, several distinguished and learned noble Lords have already spoken and more will speak later. I shall therefore simply refer to an illuminating context which I heard last week from the president of the European Court of Human Rights, Lazius Wildhaber, when he gave the Paul Sieghart lecture to the British Institute of Human Rights.
Judge Wildhaber described the European Convention on Human Rights—the foundation of our own Human Rights Act—as,
- Xprotecting democracy by recognising the state's right to counter terrorism".
- Xbalance the vital needs of the state with the strongest protection of human rights",
In that connection I particularly welcome the positive response made by my right honourable friend the Home Secretary to doubts raised in the Joint Committee about the objective justification for ordering a suspect to be detained. He confirmed that in another place by moving amendments to include the words, Xreasonably" and Xreasonable grounds for a belief", which allows the Special Immigration Appeals Commission to assess judicially the grounds for detention. As Judge Wildhaber also said,
- XThe enemy of rights is arbitrariness".
My right honourable friend also promised to define more clearly Xlinks with" terrorists as grounds for detention. That will be important.
The Xsunset" clause, which follows representations from the Joint Committee and others, is also to be welcomed, underlining as it does the essentially temporary nature of any derogation from human rights' obligations because of circumstances which may and, we hope, will change.
I welcome Part 5 of the Bill extending the prohibition on inciting racial hatred to religious hatred, including inciting hatred against people
because they have no religious belief, and not only because it remedies the unfair anomaly which my noble friend described. When I was chair of Camden's Race Equality Council, I came across many examples of abusive hatred and discrimination, particularly but not only against Muslims resulting in intimidation, assault and terror against children as well as adults.I welcome the statutory affirmation of equality for all religions and beliefs. As someone of Jewish background who is nevertheless a humanist, I am also glad to see my non-religious creed on a level with other beliefs, I think for the first time in English law. That provision implements in practice the right we all have to observe our religious belief in freedom, and now is the right time to do it because it follows the acts of terrorism that have increased violent prejudice and cause a present danger.
As for freedom of speech and the freedom to make jokes, surely one of the tests of the mature democracy referred to by the noble Lord, Lord Maclennan of Rogart, in a notable maiden speech, is that we can all understand what is different about Xinflammatory" and Xcritical" or Xsatirical". It is the action of a civilised society to define that borderline when there are pressure points. Only a week or so ago the United Nations Human Rights Committee urged the UK to extend its criminal legislation to cover offences motivated by religious hatred. Even if such a provision were rarely enforced, the fact that it is on the statute book sends a signal that beliefs are equally respected in this country. That being so, I suggest it is anomalous to retain the common law offence of blasphemy against Church of England beliefs and, following my right honourable friend Frank Dobson in another place, I hope we can adopt the amendment drafted by the Law Commission which would repeal it.
Finally, I greatly welcome Part 12 of the Bill, which realises the much-heralded implementation of the OECD Convention against Bribery of Foreign Public Officials. I do so in conjunction with Transparency International (UK) on whose advisory council I sit. It has been argued that bribery has little to do with terrorism. But clandestine funds and money laundering have a very close connection with terrorism, as the noble Lord, Lord McNally, said. Corrupt governance is where terrorism flourishes and to undermine the systemic causes of terrorism we need to rely on system changes rather than fire-fighting and bombs. The measures which enable the tracking of bribe money are those which can identify and block the resources of international terrorists.
I said that the Bill aims to implement the Convention. It does so, as my honourable friend Beverley Hughes admitted in another place, minimally. I think we could, with very little adjustment, do even better. The Bill defines foreign public officials by applying the 1889 UK law definition of a public body to the foreign equivalents; that is, local authority and government officers. This leaves out anyone holding legislative office, or officials or agents of public enterprises or public international organisations. The OECD convention covers all such people, and for good reason. It would be easy to
amend the Bill to provide for what the OECD intended. It is very good news that foreign bribes will, in effect, no longer be tax deductible; but it would also be helpful to extend the jurisdiction of the Serious Fraud Office expressly to include serious corruption offences and to remove the requirement for the consent of the Attorney-General to institute proceedings, as the OECD advocated. None of those points detracts from the considerable achievement of bringing these provisions on to the statute book.In conclusion, I am heartened by the willingness of my right honourable friend the Home Secretary and my noble friend the Minister to listen to the voices of human rights commitments as our legislation takes the fateful step of protecting democracy by means which include the temporary curtailment of rights. I hope the listening mode will continue through all the stages of the Bill. I return to Judge Wildhaber:
- XTerrorism is anti-democratic. But democracy should neither be under-protected nor over-protected".
7.12 p.m.
Lord Selsdon: My Lords, the noble Lord, Lord Maclennan, obliquely referred to one of the origins of terrorism being the revolution in France which led to the heads of large numbers of the aristocracy being removed at that time. Today, the government adopt legislation to remove Members of your Lordships' House, often at will. However, there is no similarity between that and terrorism because legislation cannot in itself remove terrorism.
Noble Lords will know the origins of terrorism. I believe that the strict definition of the word is Xgovernment by intimidation" and that a terrorist is someone who seeks to promote his views by intimidation. I find it difficult when I look at this piece of legislation not to experience a certain anxiety. I get what the Americans call Xgoose bumps". There is something wrong with it. Yet I pay tribute to all those who worked long hours and long nights to put together what I regard as an admirable White Paper. However, as a piece of legislation it has much missing.
I turn to what I regard as the most important commodities that are available to us in this country: freedom and privacy. But both suffer if they are confronted with fear. I believe it was Thomas Carlyle who said that the first duty of man is the subduing of fear. At this time I believe that the first duty of government is the subduing of fear. We have little knowledge of the impact of 11th September, but previous events caused anxiety. The English bombing of Libya led to many people refusing to come here because they thought that Libya could bomb England. The same applied to Baghdad.
I have no legal qualifications in this area and I am not learned. However, during my working life I have been lectured to by many third, second or even first world governments with firmly held views and vociferous criticisms. They used to ask, XWhy, when you are our friends, do you harbour in your own country people who wish to overthrow us not democratically but by violence?" That has been the
case for many years. Some of those people pass through Croydon. I should declare an interest as Baron Selsdon of Croydon. I should have preferred a title drawn from one of my old family relationships in Scotland but that was not in my gift.I refer to the phrase, XHis presence in the United kingdom may be prejudicial to public order and good discipline". I understand that we have an awful lot of people whose presence in the United Kingdom could be prejudicial to public order and good discipline. I do not see how this piece of legislation as currently drafted will remove fear and take us much further forward. I recognise within it the hand of American legislation where bribery and corruption and other ingredients are included. I ask myself why it is all necessary.
Let us look at the financial world in which I have worked for years. There is plenty, probably too much, legislation which requires certain reports and returns to be made under the European convention of 1993 on money laundering and forfeiture and under recent legislation. That involves much bureaucracy and causes much concern and is an extraordinary invasion of the rights of the individual. If someone has not paid his telephone bill or filled in the appropriate forms, he is told by his bankers, who may have looked after him, his family, his ancestors and his children for years, that their hands are tied unless he fills in those forms.
Here I come to the basic principle of banking which is often forgotten; that is, the source and application of funds. I refer to the duty of care that a bank or anyone in the financial institutions has to his client. That includes confidentiality. It also includes that lovely phrase, XKnow thy customer". Before we had XBig Bang" and a widening of the financial institutions, everyone had a bank manager whom he or she had usually met. Now one picks up the telephone, dials a number and is told to press one of a series of buttons. I remind your Lordships that should they wish to speak to someone they should never press a button. Ultimately, they will get a voice. However, there is no longer a manager whose duty is to make sure that he protects the bank and his customers. Many people used to say of someone, XHe does not bank with a respectable bank and, therefore, he is not trustworthy". We need to say to those involved in the banking system, XIt is up to you now to follow that philosophy of knowing your customers" rather than try to increase the legislation in that area.
These days you can move money around in a way you never could before. You can swap things. You do not actually have to have cash passing through accounts. You can barter. But, at the end of the day, is terrorism about money? What was the cost of taking a small penknife on a plane? What is the impact of that and how much funding is needed in this country? Anyone can be a terrorist and create fear.
Here I move on to another area. What is the fear? It is not necessarily the fear of being blown up. It begins with anxiety. Anxiety then becomes fear and fear becomes terror and terror becomes panic. Fear is often fear of the unknown. Here I come to the horrendous
schedule of viruses and bacteria that have scared the living daylights out of so many people. However, I could not even see smallpox among them.I hope that I may make a suggestion to the Government. Most of those bacteria can be treated in one form or another, although viruses are not so easily treated. I hope that the Government will do me the favour of writing me a long letter which I could circulate widely and which perhaps could even be incorporated in an announcement in the newspapers. The letter should list the diseases in the schedule, the cures, the people who have them and should tell people not to worry so much. People are worried and I believe that the young are more worried than we are. Of course, taking into account their average age, I assume that at one time or another noble Lords have all been vaccinated against smallpox. Certainly we have a long life expectancy and are probably immune to many of the diseases. But it is disease that causes fear.
I move on to another concern which many of us cannot quite make out at the moment. I refer to nuclear and other types of attack that are mentioned. What is the fear and how can the Government alleviate it? The Government cannot remove fear by this Bill, but they can remove it by communication. I am sorry that no right reverend Prelate is with us at present because one debate in this House moved me greatly. It was initiated by the most reverend Primate the Archbishop of Canterbury and was, in effect, on the role of religion in the creation of war or the creation of peace.
As your Lordships know well, half the world is made up of people of the book: those of Jewish faith, who are the oldest; those of Christian faith; and those of Muslim faith. All have a community of interests and all recognise each other. The belief which is at large at present that it is all right to go out and kill someone, after which one will go to heaven, is not accurate. I suggest that the leaders of those three faiths take a leaf out of the book of His Royal Highness Prince Charles and start to provide a little more explanation. In my view, if a Muslim were to study the Koran correctly, he would see that what is being proposed at present is against the Koran. Therefore, I believe that some of the problems can be cured by providing information.
I do not understand many of the other elements of the Bill. They are complicated and cause me considerable anxiety. In the debates that are to follow in Committee, I hope that the Government will end up with something that is workable. I wish them well and commend them on their action. However, at present it may not be necessary to move quite so quickly but merely to indicate to people the direction in which we are moving.
7.22 p.m.
Lord Dholakia: My Lords, all of us, irrespective of race, colour, religion or nationality, are affected by the events of 11th September in America. As my noble friend Lord McNally said, for that reason the objective of the Anti-terrorism, Crime and Security Bill is not in
dispute. All reasonable people will support measures that bring greater security to people living under United Kingdom jurisdiction. But it would carry more weight if the provisions were commensurable with justice and proper scrutiny.No one disputes that the events that took place in New York and Washington were an attack not only on the civilised world but also on our democratic values. We need to look beyond the revulsion, hatred, fear and anger. We must respond, and this Bill is no exception because terrorism erodes our own liberties. The principles of equality and liberty are rightly cherished. They had to be fought for and, in many parts of the world, including Afghanistan, they have still to be won. For that reason, we must not allow terrorism to control our ideal of an open society which values freedom, justice, liberty and peace. That is why we are concerned about the wide and undefined discretion of the Home Secretary.
This country has a sound record on human rights, both nationally and internationally. We set standards which other countries follow. The measures described in the Bill should be explicit about judicial scrutiny by way of judicial review. The powers of the Secretary of State are wide and affect the rights and liberties of individuals. Therefore, it is important that decisions are reviewed both judicially and administratively so as to ensure that justice, which in some cases may not seem to be done, can be challenged by other means.
I shall concentrate on only two measures in the Bill. One relates to the denial of access to the asylum procedure for a suspected international terrorist. Is it not a cornerstone of our justice, and in this Bill is it not vital, that those who are suspects and who are detained indefinitely have a right to know the full nature of what is alleged against them? What safeguards are in place to ensure that a regular review takes place of those who are detained?
My second point relates to incitement to religious hatred. I shall deal with that matter later. Needless to say, I have the support of many Back-Benchers on the government side of the House. I am delighted also that the noble Lord, Lord Campbell of Alloway, broadly shares my view. I look forward with great interest to his contribution.
The Bill will be judged by a number of criteria. The main one which concerns us all is the balance between protecting our freedom and ensuring that our hard-won liberties are not sacrificed by the threat of terrorism. This is where I part company with the Minister. I am afraid that the Bill has lost that balance. In a way, it is a victory for those who are out to destroy our civilised values. For that reason, we should send a clear message to the terrorists, both here and on the international scene, that we shall deal with them but shall not sacrifice our freedom and liberties, which are the essence of our parliamentary democracy. To do anything less is to offer terrorists precisely what they set out to do.
The United Kingdom Government supported the 1951 Convention on Refugees. The Bill as drafted would lead to the denial of access to full and fair
procedures in accordance with that convention. I am told by the UNHCR that there is no need for such a provision because the international refugee instruments do not offer protection to persons who have committed acts of terror or extreme violence. Will the Minister confirm that that is so? If it is, why do the Government need that measure?Perhaps I may refer to Clauses 34 and 35. I hope that I have referred to the correct clause numbers; they seem to change fairly frequently. They are contrary to the principles that are central to the 1951 convention. Clause 34 infringes the principle that a person who requests asylum should be given access to fair and effective procedures for determining their refugee claims. It is a matter of serious concern that such infringement will arise when asylum appellants before the Special Immigration Appeals Commission are denied consideration of their asylum claim on account of a certificate issued by the Home Secretary. For the SIAC appellants concerned, the application of the 1951 convention would be suspended.
I was deeply moved by the contribution made by the noble Lord, Lord Corbett of Castle Vale, to the Human Rights Act 1998 (Designated Derogation) Order 2001. The noble Lord reminded us that in Parliament we all have a duty to do what we can collectively to safeguard the safety and security of citizens. But we also have a parallel duty to safeguard the human rights of citizens as well. The noble Lord reminded us of the Gulf War, when 50 Palestinians living in the United Kingdom were detained because of an alleged link to terrorism. The same happened to many Iraqis and Arabs. All were released without charge and many claimed asylum in the United Kingdom. To rub salt into the wounds, they even had to pay a financial contribution towards wrongful detention.
I have never accepted that the Government know best. They got it wrong during the Gulf War and they will get it wrong again. If people living in the United Kingdom are suspected of being terrorists or are agents of terrorists, why have we allowed them to live in peace and security in this country for so long? Why did it take the events of 11th September to fish them out? Why did we not use the powers in Section 56 of the Terrorism Act to deal with those who are involved in terrorist activities or who incite others to do so?
The Bill contravenes the requirement that asylum applicants are entitled to have all aspects of their claims considered. In any event, it provides that, where Article 1(F) or Article 33(2) are at issue, no consideration should be given to whether the asylum seeker has a well founded fear of persecution. Any threat to the asylum seeker's life or freedom would be disregarded as Clause 34, which is limited to SIAC cases, and Clause 35 apply to all asylum procedures.
Perhaps I may explain why we on these Benches are concerned. The effect of the Bill would be to suspend the application of the 1951 convention and dispense with the long-established principle of due process, fairness and natural justice in asylum procedures. Those clauses undermine the letter and spirit of the
convention. The 1951 convention as it currently stands is adequate to award the grant of protection to a person involved in acts of terror or serious violence. Therefore, there is no justification whatever for proposing changes to asylum procedures in order to address questions of national security.I turn to Part 5, which relates to racially aggravated offences—assault, public order offences, criminal damage, harassment and attacks that are aggravated by religious hostility. The provision concerning incitement to racial hatred will be extended to cover religious hatred. The provision goes much further than the domestic situation and includes cases in which hatred is directed against groups that are abroad.
The Home Office seems to have woken up rather late in the day. I fail to understand why that provision forms part of this emergency Bill. In a debate on the Criminal Justice and Public Order Bill as long ago as June 1994, my noble friend Lord Lester of Herne Hill said that with the resurgence of anti-Semitism and in the light of the settlement in this country of a large Muslim population and other religious minorities, it was particularly important that the law should signal Parliament's recognition of groups that define themselves by their religious beliefs and that the law should offer them some effective protection against words or conduct that deliberately stir up hatred against them because of their beliefs.
At that time the Runnymede Trust published the report of a distinguished commission, which was chaired by the right reverend Prelate the Bishop of Oxford. It called for the creation of a law on incitement to religious hatred in mainland Britain, as there is in Northern Ireland.
After all these years, the Government have seen fit to introduce a measure that we broadly support, but which should not be part of the anti-terrorism Bill. It requires detailed consideration and it should take into account not only incitement but also matters relating to religious discrimination. Matters relating to cases in which the hatred is directed against groups abroad will immediately bring the Government into the politics of the Subcontinent and the Middle East.
Has the Minister given any thought to incitement against, for example, the Ahmedian community in Pakistan, which was perpetrated by someone from this country? What impact would that have on the Muslim community in this country? The last thing that we want is for those battles to be fought on the streets of London.
Creating new offences will never on its own protect members of racial or religious groups from violence and abuse. We need seriously to examine whether the police, in investigating an offence involving the incitement of hatred or one that may be racially or religiously aggravated, look for and produce evidence, and whether the Crown Prosecution Service adequately presents that evidence.
When I served on the Home Office working party on racial attacks and harassment, we constantly received complaints involving the distrust of criminal justice agencies, particularly the CPS, and about the need for
such agencies to recognise racial aggravation. There was also a concern that the CPS is more willing to prosecute members of ethnic minorities than members of the white majority who commit racist crimes. In most cases, the CPS fails to recognise racial motivation as an aggravating factor.The record so far relating to incitement to racial hatred has been very poor. The situation involving religious hatred is no different. In a debate on 21st November, the right reverend Prelate the Bishop of Oxford pointed to the difficulty that since 1988—more than 12 years ago—only 42 defendants have been successfully prosecuted and that in 1999 there were only four prosecutions, which resulted in only three convictions. Anyone who saw last Sunday's XPanorama" programme on BBC1 will vouch that extremists circumvent the laws so that they can carry out their vile propaganda against other minorities.
There is also concern about the security of all communities in Britain. The Government have rightly recognised that, but they have done so in the wrong context. Religious hatred, particularly when it is directed at minorities, has existed from the time when minorities set foot in this country. The events of 11th September are not required to recognise that. We on these Benches find it difficult to accept that the Bill is the right place for such legislation. We are not alone in that—even the Commission for Racial Equality argues that a distinction can be made between anti-terrorism measures that can be justified as necessary in the current emergency situation and those that have wider implications and which should be given greater consideration in Parliament.
When will the Home Office and Downing Street learn that these measures are resented not because they are inappropriate but because they patronise ethnic minorities and the Muslim community in particular? My advice to the Minister is that religious hatred is not new. I could have told him about that when I first arrived in this country in 1956. The matter needs to be looked at not in a piecemeal fashion but as a comprehensive measure that will take into account the prohibition of direct and indirect discrimination on grounds of religion or belief. We need not worry about the statutory definition of religion or belief because practices that are contrary to human rights, as guaranteed by the Human Rights Act, will not be lawful.
The Minister would have our full support if legislation that was separate from the anti-terrorism Bill was involved. That would allow your Lordships' House seriously to consider what was appropriate and how we could command the respect of all citizens. To do otherwise smacks of the Jo Moore syndrome; that is, in this case, to clear the Home Office cupboard while the going is good.
It is not the Government's job to interpret other people's cultures. I refer to facial coverings and so on. In the 1960s, we received international condemnation when some women from the Subcontinent were subjected to virginity testing at Heathrow Airport. The single error of subjecting an individual to having to
remove facial covering—that is a deep cultural value—could damage relations between racial communities for years.Finally, I am officiating at a major function tonight, which was planned about six months ago. I ask noble Lords to accept my apologies for not being in the House later—I shall not be able to hear subsequent speeches. However, I shall make up for that by reading Hansard tomorrow.
7.36 p.m.
Lord Beaumont of Whitley: My Lords, this is a Bill in response to a crisis. There are golden rules about such legislation, which is usually passed very quickly through your Lordships' House and another place. If those golden rules are not observed, such legislation is usually regretted afterwards. That is probably particularly true with Bills affecting civil rights and especially true with Bills stemming from the Home Office. There is plenty of evidence for that from the Defence of the Realm Act onwards, and probably from before that.
One of the golden rules is that the Bill should be concise, clear and deal only with the crisis. It should not therefore be a vehicle for the Home Office to shove in various measures that it has up its sleeve for other purposes. The noble Lord, Lord Waddington, spoke informatively about that. This Bill, on the contrary, as many noble Lords have pointed out, is large. It has 165 clauses and several schedules. In parts it is not at all clear and it deals with many matters that are not just to do with terrorism.
The Green Party realises the need for the Bill and supports it, but we are concerned about certain threats to civil liberties. Although members of the Green Party are totally law-abiding people, we are given to protesting about some of the arrangements of those in power. As a result, we shall seek to probe and perhaps move amendments to certain clauses, which I shall now list.
The first is Clause 92, which deals with photography and involves the power to pass on photographs of people who are not guilty of any crime to practically anyone, including foreign governments. Consider the purposes for which photographs of Kurdish protests in this country might be used if they were passed on to the Turkish Government.
The second is Clause 94, which involves the power to require the removal of disguises. We do not challenge the principle of asking people to be recognised, but we wish to qualify the way in which that is done, because it is often misused and people are often arrested for not removing their face-gear when they have not been given proper time in which to do so.
The third is Part 8. We want to clarify whether Xfissile material" includes nuclear waste of the kind that passes regularly through London by rail, and of which a great many of us disapprove and object to intensely.
The fourth is Clause 116. We believe that the need to report plans should be limited to serious cases and that one should not be arrested for not reporting the kind of light and possibly idiotic conversation which may take place at a dinner party.
We support the Bill but we want to make certain that it does not inadvertently remove important civil liberties. During the forthcoming days I look forward to working closely with my old colleagues in the Liberal Democrat Party on those issues and with other noble Lords in other parts of the House.
7.41 p.m.
Lord Brennan: My Lords, this is probably the most wide-ranging Bill in peacetime in its curtailment of traditional principles and what we thought to be fundamental human rights. However, I do not reject it for that reason. I simply say that it should be investigated with particular care.
Its objective, according to ministerial statement, is to counter the threat of international terrorism. The executive wishes to act and to do so now. It is for Parliament to revise and to do so thoughtfully. It is humbling but reassuring for a comparative newcomer to your Lordships' House to have listened to the maiden speech of the noble Lord, Lord Maclennan, and in particular to the noble Lord, Lord Jenkins of Hillhead, and the noble and learned Lord, Lord Mayhew of Twysden, who introduced into the debate enormous experience and judgment. When the executive wants to act and Parliament needs to revise, they are the kind of voices which help to ease the inevitable tension.
It would take a particularly uninquiring mind totally to accept the Bill or totally reject it. There is much to be welcomed, much to be doubted and much, we hope, to be changed. I shall put to your Lordships for consideration at this stage and for ministerial consideration three aspects of the Bill which illustrate the range of its diversity. First—this may surprise many noble Lords—I ask whether the Bill has gone far enough. Secondly, can it be balanced in its essential Part 4, which deals with detention without trial? And, lastly, has it gone too far in Clauses 110 and 111?
I turn to the first question: has it gone far enough? Most reasonable observers would be of the opinion that one of the most effective weapons in suppressing terrorism is to suppress its means of being financed. That requires not only national legislation but international action. I particularly welcome Parts 1 and 2 of the Bill and their inter-relation with the relevant provisions of the Terrorism Act. However, I must point out to the Minister and to the House that in 1999 a draft international convention was put before the United Nations. Its objective was to suppress the financing of terrorism. Our ambassador is in charge of the implementation of the Security Council resolution of 28th September, a principal component of which is that countries should report back in December as to the action they have taken to suppress, among many things, the financing of terrorism.
I invite the Minister to tell us in detail—if not now, certainly in Committee—whether the Bill combined with the Terrorism Act fulfils Article 18 of that 1999 convention, the general purpose of which is to ensure internationally as well as nationally the tightest control of financing arrangements which terrorists can use through normal banking and financing procedures. Most people in the public arena would think that if we were to take action on that front we would have done something extremely important and significant. That is a general conclusion. Has the Bill gone far enough? I await explanation about my suggestion regarding the convention.
The second question is how we can best achieve a balance with regard to Part 4. It offends the sentiment of anybody who believes in human rights to have a concept in a Bill which involves detention without trial, but sometimes that is unavoidable. Here we have the situation where those suspected of serious international terrorist crimes cannot be deported back to the relevant country where they may be tried for such crimes because to do so would expose them to death or torture and thereby breach their human rights. To me as a citizen, not as a lawyer, it is an absurd proposition to suggest that such a terrorist can remain at large in this country because of that risk or because he can find no other country to go to. I agree with the noble and learned Lord, Lord Mayhew, that in the public mind that state of affairs would require the type of action the Government are undertaking because there is no alternative.
However, I further agree with the noble and learned Lord, Lord Mayhew, that in designing a system to counter that risk such a system must involve adequate legal protection and, at the least, the provision of judicial review. If that is introduced, the balance is preserved. I await with interest an explanation of why that legal protection is either inappropriate or unnecessary. It is not legal semantics; it is a protection. Even if Part 4 of the Bill passes and there is a derogation, the law of the European convention will prevail in the sense that the Government may have to answer for the provisions if they are not reasonably balanced.
The law will prevail for this potential reason. The Government invoke the derogation from the Act because of a public emergency that threatens the life of the nation. In taking any necessary steps because of that objective they must act only to the extent strictly required by the exigencies of that situation. Therefore, the Bill should go no further than is required by those exigencies. If it goes further—we shall examine that in Committee—the case of Aksoy v Turkey a year or two ago shows that even where there has been a derogation, an affected party can go to the European Court. That court will effectively determine whether the government in question have followed the requirements of the convention in the way I have described. As I said a few moments ago, there may come a time when the Government have to explain themselves to that court if a balance is not preserved.
My third concern goes to the opposite extreme. Has the Bill gone too far? I am a convinced European. But I value the criminal law of my own nation because it reflects the culture, the history and the standards of my own people. The right to trial by jury and the principle of habeas corpus are criminal law principles with which I am acquainted and which I value and understand.
Two years ago a Select Committee of this House rejected the European Commission's proposal for a corpus juris. For the very reason that we can be Europeans but still preserve our national criminal law system. I know of no senior lawyer in this country who advocates a corpus juris. That is not to say that proper provision should not be made to implement the third pillar provisions as and when they arise. The critical question is how to implement them. I find it constitutionally difficult to accept that a meeting of Ministers in Europe can decide what the criminal law of this country will be and that it should then be enacted by secondary legislation. I find that constitutionally difficult to accept.
How can that state of affairs be avoided? The third pillar includes, as one of its major objectives, dealing with terrorism. Can it be plausibly argued that such a serious criminal offence with such serious penalties can properly be dealt with in the process I have just described and by secondary legislation, as to the offence as to the standard required for conviction, and as to the sentence then to be imposed?
I had thought when I joined this House that Parliament's functions included a primary fundamental function to make the criminal law of this land by primary legislation. I remain a convinced European. I invite consideration of this question. I ask whether such a vitally important constitutional matter is properly to be included in the Bill in the terms in which it is presently included. The Bill, I fear, goes too far.
I launched these three points by complaining that an uninquiring mind would either be for or against the Bill. I hope that my inquiring mind is not proved overly fertile if I say it is a Bill that should progress in some parts, should be balanced in others and should be very much questioned in the third sector that I described.
I said that Parliament should exercise a revising function. It should do so with intellectual rigour because of the vital importance of the objective and the means being sought to reach that objective. But that intellectual rigour should not become intellectual rigidity either by those who will propose amendments or by those on the Front Bench who will seek to resist them. Determination can rapidly become obduracy and obduracy can rapidly sink to an obscurantist failure to appreciate the merits of the opposite side's argument.
It was very important (was it not?) for the noble Lord, Lord Jenkins of Hillhead, to remind us that in the 1970s, which I remember well from doing some of those terrorist trials, the atmosphere was so dangerous. But even then, as Home Secretary in the
17-hour passage of the Bill in 1974, he listened to and was ready to accept sensible amendment. Surely that will arise in the passage of this Bill.In one of our debates about the state of affairs in Afghanistan in September and October, my noble and learned friend the Leader of the House reminded us that there would come a time when legislation such as this would fall to be considered and revised. He prudently reminded us of the terrible example of the Official Secrets Act. That Act, swept into force and eternally vilified thereafter, is still difficult to get off the statute book. It was a wise judgment which I am sure will be reflected by the Ministers on the Front Bench handling the Bill.
At the end of the day we all approve the objective, but we all, as parliamentarians, want to conclude our discussion on the Bill satisfied that we have engaged in reasonable and intellectually mature debate that balanced the objective against the means.
7.56 p.m.
Lord Campbell of Alloway: My Lords, it is a sheer privilege to follow the noble Lord, Lord Brennan, and particularly the remarks that he has just made. I wish to associate myself with them unreservedly.
The noble Lord took three points: first, the emphasis on international action to suppress financing. I go along with him on that wholeheartedly. Secondly, with regard to balance and Part 4, I totally accept what he said. The type of action is accepted at least so long as it is protected by judicial review. That was a point taken by the noble and learned Lord, Lord Mayhew, and with which I wholly agree. Thirdly, he asked: does the Bill go too far? Again, I agree with the analysis of the noble Lord, Lord Brennan. I agree with all that he said on that, and in particular in the context of the constitutional position.
I shall deal with only two points and I shall try to keep my remarks reasonably short. The first relates to Part 5 of the Bill—the incitement to religious hatred—and the second to Clauses 21 to 33 of Part 4. First, as to incitement to religious hatred—Part 5—notice has been given that in Committee objection will be taken to that part; that is, to the Question that Clauses 37 to 43 stand part. Criminalisation of incitement to religious hatred has no sufficient connection with this anti-terrorism Bill. If it were hustled on to the statute book in a desire to protect our Islam community, it could work much unintended mischief and could well defeat such purpose.
There is much discussion, further discussion, thought, further thought, safeguards and assurances required before Part 5 could be accepted as drafted or indeed, in the time available, amended. I wholly take the way in which that was put by the noble Lord, Lord Dholakia, a moment ago. That is wholly apparent also from the short debate in your Lordships' House on 21st November (at col. 1223 of the Official Report), and in particular some observations of the right reverend Prelate the Bishop of Oxford; from the sense of the full debate of another place yesterday
(at col. 673 of Commons Hansard), and from paragraphs 56 to 60 of the Second Report of the Joint Committee on Human Rights.If the Government want to criminalise incitement to religious hatred, so be it. But a new Bill should be presented. That point was dealt with by the noble Lord, Lord Ahmed, and the reverend Prelate the Bishop of Manchester; I think that it is about to be dealt with by the reverend Prelate the Bishop of Southwark who is shortly to speak. I ask the Government again to take that on board. The new Bill would be presented with safeguards for freedom of expression by those who speak or write in favour of or against religion—or against those who do not believe in a religion; we must have a wider spread than has yet been dealt with. XReligion" has to be a religion in some form accepted as such.
I turn to certification of suspected international terrorists under Clause 21. I cannot help but wish to congratulate the noble Lord, Lord Maclennan of Rogart, on his magnificent maiden speech, and to rely very much on his appreciation—and on that of my noble and learned friend Lord Mayhew of Twysden and my noble friend Lord Waddington—because it is wholly accepted that certification as an executive act by the Secretary of State and detention are wholly requisite and proportionate responses to the global threat in the wake of 11th September. But what is not accepted is the manner of implementation by the SIAC regime, which is open to the most serious objection, as other noble Lords have said, as affording no substitute for judicial review—habeas corpus—as administered by the High Court.
The regime fails to comply with the minimum tenets of natural justice when a person so certified by certification loses his liberty. The person is entitled to know the substance of the grounds on which the certificate is granted—a point made by the noble Lord, Lord Dholakia. The person is not entitled to have a free choice as to who should represent him before SIAC on appeal. Grounds are at the root of the essence of the process of judicial review. If you do not know the grounds, I do not know how you can cope with judicial review. The appeal from SIAC is limited to a point of law, dependent on the advice of an-house advocate who is not able to tell his client the grounds on which the certificate is issued. It sits behind closed doors and, save on a point of law, its decision is final. The jurisdiction of the High Court is excluded by Clauses 30 and 31.
The rigidity of the statutory framework under Clauses 21, 25 and 26—albeit as amended and somewhat improved in another place—lacks the flexibility of judicial review as administered by the High Court, which is accustomed to dealing with privilege from disclosure on grounds of national security, and in which loss of liberty takes immediate precedence, as in all courts, over all other business.
The exclusion of the jurisdiction of our courts under Clauses 30 and 31 usurps the function of the judiciary. It is in breach of the separation of powers which is the basis of our unwritten constitution. It is not a
proportionate response to the global threat. It does not meet the test as put by my noble and learned friend Lord Mayhew. It is much to be doubted whether the European Court of Human Rights would accept the derogation under Article 15 sought by the Motion. I explained why I thought so on 19th November and shall not repeat it.In Committee, with the support of the noble Earl, Lord Russell, an amendment to Clause 21, which was foreshadowed on 19th November at cols. 888 and 889, will be tabled to ensure that the written grounds of suspicion and belief will be served on the person with the certificate when the certificate is served. They will show the substance of the case against him—not the details, but sufficient substance so that he knows what he has to meet. Notice will be given of objection to Clauses 30 and 31, which exclude the jurisdiction of the High Court, standing part of the Bill.
If it were to be implemented, the proposed regime would afford an abuse of executive power because, however we consider it, it is not strictly requisite in the circumstances. I am not now speaking about the convention; I am speaking about emergency legislation in time of war where some such provision could be strictly necessary. But we are not in a situation where this proposed regime is strictly necessary, and, because it is not, it is unconstitutional and an abuse of executive power.
It is the function of this House to contain and protest against an abuse of executive power. It is the duty of this House, as sole guardian of the constitution, to defend it.
8.10 p.m.
Lord Thomas of Gresford: My Lords, all noble Lords in this House will be united in defeating terrorism. The debate on the Bill is to discover the most effective response to the terrorist acts of 11th September. I therefore approach the Bill in the most constructive way possible and any criticisms I may make in no way diminish my determination to ensure the safety of the people of this country.
As regards Parts 1 and 2, I agree with the sentiments expressed by the noble Lord, Lord Brennan, that attacking the financial basis of terrorism is an effective way of scotching it. My criticism of Part 1 is that perhaps it does not go far enough. It suggests that a magistrates' court should deal with the financial implications when cash and property are seized from terrorists. The sums involved could be considerable and the powers of forfeiture, compensation for victims, decisions on the earmarking of property and the tracing of property could give rise to complicated issues of law and fact. The magistrates' court is not the appropriate place for those to be determined. I hope that the Minister will consider that at least the county court should have jurisdiction over such matters.
As regards the freezing orders, I note that the responsibility for making them rests with the Treasury, which is to act upon a Xreasonable" belief. That word appeared in the Bill when it was first drafted and it suggests that the Government fully accept that judicial
review can apply to the provisions of Part 2, notwithstanding the fact that the freezing order is to be made by way of statutory instrument under the affirmative procedure. That does not prevent judicial review. I should be grateful if in reply the Minister could confirm that judicial review will apply to the provisions of Part 2.Part 3, which relates to the disclosure of information, is different. My noble friend Lord Dholakia called it the XJo Moore clause"; a good time to bury the bad news. The bad news is that it extends Clauses 47 to 49 of the Criminal Justice and Police Bill which the Government withdrew last May. Under Clause 17 no fewer than 53 public authorities, as set out in Schedule 4, are required to assist any criminal investigation or proceedings being carried out in the UK or abroad. Those are not just proceedings connected with terrorism but any criminal investigation. According to the Bill, the tribunal abroad may be a court of some standing or it may be any tribunal.
There appears to be no judicial control, no tests of reasonable grounds for believing that a crime has been committed, and no suggestion that conditions should be laid down by anyone concerning disclosure. Therefore, disclosure overseas could take place even though the conduct being investigated is not criminal conduct in this country and no charge has been brought.
To illustrate that, the BMA is concerned about the position relating to medical records. Confidentiality has previously been overridden only in cases of serious crime in this country. Now it appears to extend to any criminal proceedings. Will the Minister say whether there are any curbs to that general requirement for disclosure from those various public authorities?
Clause 19 permits the disclosure of all the 32 million tax files and all the VAT records kept in this country not just to the police but, for the first time, to the security services. That provision did not appear in the clauses of the Criminal Justice and Police Bill which were withdrawn in May. Again, the provisions are not limited to terrorism. Clause 19(2)(a) permits the disclosure to the security services,
- Xfor the purposes of facilitating the carrying out by any of the intelligence services of any of that service's functions".
Under Part 4, terrorists should be locked up. No one who has any experience of terrorist trials and who has seen the evidence and photographs which go with such trials can for one moment be enamoured of those who seek to use terrorist methods for political and ideological motives. The Americans propose to introduce military tribunals which can sit anywhere in the world. They have precedence for that going back to the days of the Civil War. Those military tribunals will reach a majority decision on conviction and on sentence, even though the sentence they may pass is that of death. They can convict simply on the basis of
reason to believe in guilt rather than sureness of guilt, which is the standard of proof we apply in this country. President Bush recently said that suspects will receive,
- Xa full and fair trial".
In this country, under these provisions, for us, who have for centuries been the guardians of the common law, the Government's proposals are to dispose even of the fair trial in relation to Part 4 detainees. The Home Secretary does not have to be satisfied that a detainee is in fact a terrorist; suspicion and belief will be enough. Obviously, he will not be acting from anything he knows himself; he must rely on informers who pass information to the security services, which pass it to the Home Secretary. That wellspring of information may well be polluted. There can be no investigation of the quality of the information that is provided to the Minister. There is secret information to the secret services and then it is passed on through secret procedures for the locking up of the detainees. The detainee has no opportunity to challenge the information that has been laid against him. Habeas corpus and judicial review is denied to him, as was pointed out by the noble Lord, Lord Campbell.
I have detected a dangerous anti-lawyer culture on the Government Front Bench. I find it to be defensive because the Home Secretary and Ministers in this House who have that anti-lawyer attitude feel a little uncomfortable when dealing with people who have hands-on experience of the matters and the criminal justice system which come before the House. The defensive attitude is to make jokes about lawyers and to pooh-pooh their attitude. In fact, the freedoms of this country were won by lawyers such as the advocate Erskine, by juries and by famous judges such as Lord Atkin and others who saved the freedoms for individual people against executive interference.
It is suggested that the Special Immigration Appeals Commission is a wonderful appeal system against the Minister's certificate. When the Minister introduced the Bill today, he said that it was a major part of our constitutional framework. It is a new and untried part of our constitutional framework, and I believe that it is a busted flush. It was set up to deal with decisions to deport people, not imprison them indefinitely, but it has dealt with only three cases. In one case, that of Mr Rehman, the commission was bold enough to disagree with all the findings of fact of the Minister, in particular that the individual had engaged in military training and fund-raising on behalf of a terrorist organisation. The commission found precisely the opposite. However, the noble and learned Lord, Lord Hoffmann, said in the Judicial Committee of this House:
- XEven if the appellate body [the commission] prefers a different view, it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained".
The procedures are so important. The noble Lord, Lord Campbell of Alloway, described the procedures before the commission and I do not repeat them. But I have been involved in habeas corpus and judicial review proceedings. I was involved in the first case in which public interest immunity in a criminal case was claimed by the Government. I am aware of the protections that can exist in those proceedings. It is possible for the Government to claim public interest immunity to prevent the disclosure of informers or information in the possession of the Government which they do not wish the public to know. It is also possible for the issues which arise to be dealt with fairly and properly. It is very important that there should be full disclosure in those proceedings. It has all the safeguards of the legal system and, as far as concerns habeas corpus, centuries of tradition behind it. It is one of the foundation stones not merely of the law of this country but that of the United States and many Commonwealth countries which have inherited the common law. For the Government to attempt—I do not believe that they would succeed—to set aside habeas corpus and judicial review is entirely wrong.
There is really no substitute for charge and trial. The Government must have thought that that was the right way to go only 18 months ago when they introduced the Terrorism Act 2000. Under that legislation weapons training, directing terrorism, collecting information that is useful to terrorism and even inciting terrorist acts abroad entirely outside the jurisdiction of this country are all offences punishable with terms of imprisonment from 10 years to life. That is a fair armoury to deal with the threat of terrorism.
Even if a detainee cannot be deported because of Article 3 this country still has jurisdiction to try him here for terrorist offences that he has committed abroad involving explosions or chemical or biological weapons. One way to deal with the difficulties of obtaining proof is to invite foreign governments to provide this country with evidence so that a person whom we cannot deport to another country under Article 3 can be tried here. At trial procedures can be adopted which will protect witnesses and members of the security services. Public interest immunity for sensitive material is placed under judicial control. Such material is not disclosed to the defendant if it is contrary to the public interest.
The truth is that detention without trial does not stop terrorism but breeds it because it is full of potential injustice. We have heard that it was introduced in Northern Ireland in 1971 and abandoned four years later, as my noble friend Lord Jenkins said. It is ironic that on 12th January 1998, which is less than three years ago, the noble Lord, Lord
Dubs, then a government Minister, said during Second Reading of the Northern Ireland (Emergency Provisions) Bill:
- XIn this Bill, the decision has been taken to get rid of the power of internment. Frankly, it has not worked. The Government cannot see any circumstances in which they would wish to use the power of internment. It is fundamentally a process that is against the rule of law and undermines democratic principles. The Government believe that to get rid of the power is sensible and signals their adherence to the rule of law and democracy. We do not believe that it in any way weakens the power of the Government to deal with terrorism. The use last time of internment to deal with terrorism was a failure. We believe that the use of internment would strengthen the terrorists because it would give them a further argument in their communities against the Government and we want to deny them that".—[Official Report, 12/1/98; col. 909.]
I do not believe that the events of September 11th have so fundamentally changed the threats to our society that it is necessary to introduce in this Bill the equivalent of internment. The reaction to those events must be steady and proportionate. We did not introduce detention without trial following the Brighton and Canary Wharf bombs. What greater attack upon the government of this country could there have been than the terrorist attack in Brighton during the Conservative Party conference? We must not panic now. Those parts of the Bill which introduce that sense of panic must be defeated.
8.26 p.m.
The Lord Bishop of Southwark: My Lords, I am glad to be able to make a contribution from these Benches to this important debate which raises so many fundamental issues. My noble friend, the right reverend Prelate the Bishop of Manchester, has already spoken on the subject of civil liberties. I now focus on the proposals to deal with incitement to religious hatred. I must declare an interest as co-chair of the National Interfaith Network. I have represented the Church of England for many years on the Inner City Religious Council located in what is now called the Department for Transport, Local Government and the Regions. During that time the council has made several efforts to put the questions of religious discrimination and hatred onto the statute book. So I appreciate this attempt by the Home Secretary to respond to the anomaly that members of some religions have some protection in law either through the common law concerning blasphemy or because they are regarded as a definable ethnic grouping, while other faiths have no such protection. The clauses in this Bill redress the balance to a certain extent.
As noble Lords have heard, some people feel that while there is a case for legislation in this area it is unfortunate that the proposals reside in a Bill whose overall concern is that of anti-terrorism. But, knowing how difficult it has been over the years to persuade the Home Office, under governments of several political colours, to bring forward legislation on this subject, I for one am grateful for this attempt in whatever Bill it resides.
The noble Lord, Lord Waddington, reminded us that the subject had been on the agenda of the Home Office since the 1980s. I suspect that that is where it
would have remained—on the agenda. It appears that the Muslim Council of Britain shares that view, according to the statement that it issued in support of this legislation following a meeting with Home Office Ministers yesterday. There is some merit in having the legislation in this Bill. September 11th and its aftermath placed stresses and strains on the religious fabric of society. Some extremist groups were not slow to stoke the fires of anti-religious phobia smouldering below the surface of civilised life.But what of the proposed legislation itself? I am not an expert on the diet of clergy, but I think I can say that the proposed legislation before us to combat religious hatred is something of a curate's egg. It sets out to offer protection to members of religious groups when others would stir up hatred against them by reason of their adherence to those religious groups. By Xreligious groups", the provisions mean groups whose members are defined by reference to religious belief, or, indeed, lack of religious belief.
I welcome the Bill's implicit acknowledgement of the importance of religion in human life and society. Belief, difference of belief and lack of belief stir up some of the deepest passions known to humanity. In this secular age, I am glad that religion's power is not discounted here.
I welcome, too, the Janus nature of the legislation before us, which, in the words of Hamlet, looks both before and after. Looking fore, the legislation protects members of a religious group from the incitement of hatred directed against its followers from those outside. Looking aft, it aims to curb expressions of hatred from extremist religious groups within a religion.
Every religion has its extremists. I cannot speak for other faith communities but, for myself, I know that I would not wish to have my Christianity defined by some of the wilder actions and statements of its more extreme members. It may well be that members of other world faiths feel that the extremist positions within their faiths actually betray the ideals of their faith. Although it may be hard for them to say so publicly, they might be quite glad if the law of the land offered restraint to such groups.
There is a further reason for welcoming the provisions in the Bill. This lies in the fact that the clause concerning the incitement to religious hatred is careful to deal with persons and not with theology. Your Lordships are dealing with a Bill concerned with religious belief and religious affiliation as a fact and not as an issue.
I welcome the fact that the Bill is not, therefore, encroaching on the questions of the relative merits of the faiths espoused by Her Majesty's subjects, nor quashing the legitimate criticism, or even ridicule, of any one of those faiths. Perhaps it is all the more important in this secular age to remind your Lordships that the Bill indeed requires not only religious groups but also what we might call Xareligious" groups to accept such criticism and ridicule. They do not always accept it gracefully.
For all these reasons I welcome the Bill. However, there are reasons for caution to which I wish to draw your Lordships' attention. The wide provision made for religious groups is wide indeed, extending to those of all faiths and none. Indeed, there even seems to be no apparent requirement that the faith in question is a faith, or a non-faith, recognised by anyone else.
There are, however, as your Lordships know, groups which purport to be religious, and which are certainly espoused with all the zeal of a true believer, in which little is apparent beyond oppression and abuse. I would not wish to encourage your Lordships to think that the sin of hatred was acceptable towards such groups, but neither would I wish your Lordships' House to condone some destructive sects which might call themselves religious.
I believe that if the legislation is applied with focus and with integrity, there should be no difficulty in preventing it from being inappropriately used, but your Lordships may wish to note that the proof of the pudding will be in the eating. I am always a little nervous when the answer to such hard questions is, XWe must let the courts decide".
Another reason for caution is the effect that the proposals might have on the witness which adherents of all faiths might wish to make. Of course, there can be no room for the stirring up of religious hatred in this witness, but legitimate evangelism must not be curtailed by this legislation. I wish to seek assurances from the Minister that it will not be.
There is another aspect of the legislation which is a potential cause for concern. It is that the legislation does not attempt to deal with religious discrimination as such. There are good reasons for this. Religious discrimination and terrorism are two different things. This legislation deals with terrorism and, as I have indicated, I would not wish to suggest that it would even be appropriate to wrap up all religious hatred issues with the question of terrorism. Religious hatred is alive and kicking well outside the borders of what might be described as terrorism.
However, the United Nations Human Rights Committee urged the United Kingdom not only to extend its criminal legislation to cover offences motivated by religious hatred, but also to take other steps to ensure that all persons are protected from religious discrimination. Your Lordships may therefore wish to remember for a future time that, although the legislation before us deals with the matter of religious hatred, discrimination is still a matter about which much thinking needs to be done, and it needs to be done both in your Lordships' House and in another place.
In another place, there was an attempt to use this legislation to remove the common law offence of blasphemy. Since that amendment was rejected, there is little need for me to take up your Lordships' time on the subject. However, it is perhaps worth reiterating the views of the Church of England on the law of blasphemy. In a nutshell, we would not be opposed to a revision of the blasphemy laws if something better could be put in their place. XSomething better" would
be something which covered more religions than the Christian, or, indeed, more Churches than the Church of England—if it is, indeed, only the Church of England which enjoys protection under current laws.However, Xsomething better" may not be easy to produce. It can be argued that any attempt to extend the blasphemy law to cover all faiths is bound to fail because the beliefs of some faiths could well be described as blasphemous in terms of the beliefs of others. No legislation will remove this fact of life—or, more accurately, this fact of faith. This probably means that no simple extension of the law of blasphemy will quite do. We can, however, try to find other ways to ensure that the deeply held beliefs of one group are not offensively ridiculed or disturbed by others. It would be good to do so.
But that is for another time and another day. We must not let the best be the enemy of the good. Today we are dealing with the good of tackling the evil of incitement to religious hatred. The proposed legislation does not do everything, nor are its consequences totally predictable, but I believe that it is an honest attempt to tackle a real problem and I would wish to give it my support.
8.38 p.m.
Lord Clinton-Davis: My Lords, it is a privilege to follow the right reverend Prelate. The underlying theme that he suggested to the House was that we should view the situation that this Bill represents with appropriate caution. I share that view. It is for the Minister to convince me, and people who think like me, that the invasions of civil liberties enshrined in the Bill are justified.
Before I come to that, may I commit an unpardonable act and refer to my friend, my noble friend Lord Maclennan of Rogart. I knew him when he was simply Bob Maclennan, but I know that it is different in this place.
I remember very well the dying days of 1978 when he was at the Department of Consumer Affairs and was drafted in with my right honourable friend Michael Meacher who dealt with the Companies Bill while I dealt with the Merchant Shipping Bill. Every Monday and Wednesday, all three of us gathered round a table and spoke about the Companies Bill, for which I happened to be responsible. This is virtually the first occasion in 23 years that I have had the opportunity to say thank you. They were a terrible team! I think it will be generally agreed that our fellow Minister is doing very well at the Department for Environment, Food and Rural Affairs.
My plea, like that of the right reverend Prelate, is for caution. We need to be ever more vigilant when a Bill reduces freedoms—especially those that we rightly take for granted. My commitment in this debate is to listen carefully to what my noble friends have to say. Their task is a most difficult one. They must face up to the terrorist while at the same time convincing people like us that the derogations of civil liberties that are proposed are wholly justified.
I do not say this lightly. In facing up to the problems posed by the Bill, if amendments are suggested from the Conservative or Liberal Democrat Benches I shall have no difficulty in entering a different Lobby if I am convinced that that will strengthen the Bill and at the same time strengthen civil liberties.
I am profoundly concerned that under the terms of the Bill the Home Secretary is given wide discretionary powers in a way that is unprecedented. As I understand it, he is able to detain any individual that he, the Home Secretary, and those advising him suspect is Xan international terrorist" or Xa domestic terrorist". There is no proper judicial oversight of those powers. We could be left with a situation where the Home Secretary was behaving quite differently in cases that came before him. That is to say that, so far as concerns his judgment, precedent can be of very little value. Frankly, I need to be persuaded that that is right. At the present time I do not believe that it is.
The question is whether, to use the Home Secretary's own words, the Bill strikes a perfect balance between protecting freedom and ensuring that hard won human liberties are not trampled under foot. That is indeed the test. Does the Bill follow that course? The onus is on the Minister. Many of us are not wholly convinced that that is the situation.
The burden is heavy. It is not made easier by the absence of scrutiny of large sections of the Bill by the House of Commons. It could have been done; it should have been done. But the House of Commons had to accept, literally, everything that was placed before it. There was no time for debate. That is wrong. Too much is left to the subjective view of the Home Secretary. Why should he be exempt from providing objective justification for what he decides? Is not that objectivity in accord with the legal standards that we have learnt to take for granted?
Let us remember that the usual procedures of examination by judicial review are to be replaced by the Special Immigration Appeals Commission. Is that right? It is fundamentally different from the court's approach to this subject when it is sitting in judicial review. No longer will the appellant and those representing him have all the intelligence that is available to the Minister. That was the gravamen of my interjection when the Minister broached this matter. I am not wholly convinced by his argument.
Certainly, the commission will know all the intelligence that is available to the Minister. Those representing the Home Secretary will obviously know. But that information is not to be made available to the appellant. Why not? Would it so undermine the purpose of what is proposed?
It is true that the appellant will have recourse to the Court of Appeal, but only on a point of law. The issue will be decided by the Court of Appeal, provided that the appellant faces removal. If I am wrong about any of this, I stand to be corrected, and I shall be happy to be corrected. I note that the Attorney-General nods with approval.
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