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The Attorney-General (Lord Goldsmith): My Lords, I am nodding with approval at my noble friend's suggestion that he is happy to be corrected. That is what I hope to do when I reply to the debate.
Lord Clinton-Davis: My Lords, that is what I meant. I know that the Attorney-General, who is a friend of mine, is capable of doing that.
I ask whether internment without trial is the most appropriate remedy, especially where there is no proper judicial scrutiny. I hope that the noble and learned Lord, Lord Goldsmith, will deal with that matter.
Are we going to confront a situation where only Muslims will be detained? Or are we going to face a situation where others will be detained as sacrificial lambs? By doing this, do we not risk the law being brought into disrepute?
I turn to the police powers. They are to be enhanced by Clauses 93 and 94. The police can demand the removal of facial covering and gloves where they consider that identification can be brought into question. The Joint Committee on Human Rights considered that that could be extended to non-terrorism cases. Is there anything in that? If so, we have to consider seriously where the situation is being taken. What the Joint Committee had to say is of utmost importance. The Library has done the House a service. It has produced a full note on the Bill. The committee said:
- XWe regard the provisions relating to police powers contained in clauses 88 to 92 of the Bill as being in need of additional safeguards and mature consideration, and accordingly draw them to the attention of each House".
Page 11 of the Library Note states:
- XThis country has more anti-terrorist legislation on its statute books than almost any other developed democracy. Much of it, rushed through in the wake of previous atrocities, proved ineffective and in some cases counter-productive and needed to be amended. Often it was supposed to be temporary and turned out to be permanent. It therefore behoves us to examine carefully the latest proposals in the wake of the atrocity on September 11".
The Government need to deal seriously with those words. I am sure they will. I do not envy them the difficult situation in which they find themselves. But it is for the Government and the Ministers here to persuade me and people like me—and I think there are many—that the hesitations which we have expressed about the measure are utterly misconceived. They have not done that so far; but we have several opportunities before us and I hope that they will succeed.
8.53 p.m.
Baroness Carnegy of Lour: My Lords, I want to say a brief word about how the Bill is being treated under the Scotland Act. It is worth mentioning because it seems to introduce an interesting new dimension in how to get devolution to work.
Much of the most important content of the Bill relates to matters devolved to the Scottish Parliament. However, on 15th November the Scottish Parliament decided to ask Westminster to extend the Bill to Scotland except for Parts 5 and 12 and the measures relating to the removal of disguises. Your Lordships may be interested to note in passing that when the Scottish Parliament decision to opt out from Parts 5 and 12 was made, that had already been included in the Bill which had been introduced in the House of Commons and ordered to be printed three days before on 12th November. It seems that the Government take the Scottish Parliament a little for granted as sometimes they do Westminster. Be that as it may, the outcome is that in most of the Bill, despite devolution, your Lordships will be legislating for Scotland as well as for the rest of the United Kingdom.
I understand that this is the 25th time that the Scottish Parliament has asked Westminster to legislate for it on devolved matters. Some have been small matters, some of considerable importance. On this occasion, I hasten to say that it seems extremely sensible, at least for the urgently needed measures, to legislate in that way. The United Kingdom as a whole must protect itself against terrorism and to legislate separately, north and south of the Border in different ways and at different speeds, would be unwise.
In any case, what would have happened if on these devolved matters Scotland had proceeded separately? During the Committee stage of the Bill in the House of Commons, I note that on most of the contested issues which relate to Scotland the Liberal Democrats and the Scottish Nationalists joined with the Conservatives to vote against the Government. Indeed, on several occasions the Liberal Democrats led the way. Had this been replicated in the Scottish Parliament the current measures could probably not have been proposed, let alone have become law. It is possible that the ruling Labour/Liberal Democrat coalition would have fallen apart in the process. After all, the Justice Minister and Deputy Chief Minister is a Liberal Democrat Member of the Scottish Parliament. It is even more interesting to speculate on how this sort of thing would be handled if there were different parties in office at Westminster and Holyrood, but that, fortunately, is for the future.
Turning briefly to the contents of the Bill, like other noble Lords I welcome some clauses and am anxious about others. I believe that what is now Part 5 relating to incitement to religious hatred may have the opposite effect of that intended. I have thought a lot about this, and have talked to a lot of people. I shall say no more about that now. However, I hope that the Government listened carefully to the extremely interesting remarks today of the right reverend Prelate the Bishop of Southwark, the comments over a period of time of the noble Lord, Lord Campbell of Alloway, and in particular to those of the noble Lords, Lord Ahmed and Lord Dholakia. I know what the Government seek to do; we all want it to happen. But there are problems. I believe that they are linked to some confusion between religion and culture. I may be wrong but I think that that is at the heart of the problem.
The Law Society of Scotland suggests that, given the close interrelationship between the Bill and how the Scottish law will operate subsequent to the Bill, the Government should continue to consult with the Scottish Executive as the Bill develops. For example, the Law Society of Scotland considers that the provision on noxious substances in Clause 112 can be dealt with under Scottish law as a breach of the peace and hoaxes involving noxious substances, referred to in Clause 113, can also be dealt with under existing Scottish law. It would be helpful if the Minister could assure us that there will be continuing discussion with Scottish Ministers as this develops. I realise that speed is of the essence. It is very difficult. But it is important not to create problems in that area.
My last point relates to Clauses 110 and 111 on the third pillar. I hope that all noble Lords will read carefully the report of the Delegated Powers and Regulatory Reform Committee of this House and the remarks in this debate of my noble friend Lord Waddington. I am a member of that committee and will read with great interest the Minister's remarks about the report in his opening speech. I thought that I was greatly encouraged but one can never quite believe one's ears. I shall wait until Hansard appears tomorrow, to know how encouraged I am. I want to say more but will keep my remarks for Committee.
Decisions made by the Council of Ministers that come to Westminster having had no scrutiny in Europe, often after being negotiated to a swift timetable, are difficult for our Select Committees to trace. Decisions are often made before a Select Committee can have a go. It is important that proposals from the Council of Ministers are made subject, if necessary, to primary legislation. The Government's attempt to arrive at hasty decisions on some subjects will not work in the case of matters dealt with under the third pillar. I hope that we will all read what has been said about that aspect in reports and by your Lordships. I look forward to the Committee stage of the Bill.
9.1 p.m.
Earl Russell: My Lords, there are times in this House when I doubt whether I am engaged in political activities or research. At the moment, I am engaged in reading the parliamentary debates in 1628 on whether the king should be allowed to imprison without cause shown. The resemblance to present issues is remarkable. The arguments have changed remarkably little over four centuries.
Wearing an historian's hat, one has to give full weight to all sides of the argument. Points made by the executive have always caused some difficulty to the civil liberties side of the argument. I refer, for example, to the difficulty of betraying confidential or intelligence sources; or the need for urgent action in the face of potential serious crime, such as the Gunpowder Plot, which, had it succeeded, would have been on the scale of September 11th. Considering the
amount of legitimate authority that would have been destroyed, perhaps its effects would have been on a greater scale.The points made on the other side of the argument also have great force—not least that the executive, in deciding to use such powers, is in danger of being judge and party in its own court and, having got such powers, is also tempted to put them to further use. The point at issue in 1628 was whether the king could imprison Members of Parliament for refusing to lend him the sums they had refused to vote him in taxation in their parliamentary capacity. Give an executive a power and it may use it impeccably—but we do not know what its successors will do.
I thank the Government for the care that they have taken not to present this as a debate for and against terrorism. We are all equally against terrorism. My desire to stay alive is as great as the Minister's desire. We are arguing about the effectiveness of measures. The noble Lord, Lord Brennan, in an extremely interesting speech, just about got it right. The noble Lord said that nobody is suggesting that dangerous terrorists should remain at large because we cannot return them to the country from which they came. He said that any power must be placed under proper legal protection. I agree with that also and equally.
One must subject any measure for restricting civil liberty to certain tests. First, is the measure more likely to bite on the guilty than on the innocent? Secondly, is the measure likely to reduce the crime at which it is aimed? Thirdly, one must remember that there is no such thing as a crime so terrible that an innocent person should be imprisoned for it.
Where I oppose parts of the Bill—only parts—it is because I am not convinced that they pass those tests. My concern is making powers effective. My noble friend Lord Thomas of Gresford touched powerfully on the point that nothing does so much to increase terrorism as injustice—especially injustice that cannot be remedied in any court of law. I agree also with my noble friend Lord Dholakia about the UN convention and about Clauses 34 and 45 of the Bill. The reputation of asylum seekers in this country is not as high in justice as it should be. Anything that risks, perhaps entirely inadvertently, giving the impression that there is an association between asylum seeking and terrorism or that anything in the UN Convention on Refugees provides protection for terrorism is to be resisted—especially in light of Section 33(2) of the 1951 convention. I say nothing with which Ministers disagree but I would be extremely grateful if they will confirm that that is the case.
Because of the impression that asylum seekers create, Clauses 34 and 35 should not remain in the Bill in anything like their present form. Certain people, because of the merits of their asylum claims, will not be examined and will not be subject to any review of the facts. Appeal is allowed only on a point of law, which is designed to protect the most inaccurate part of the decision-making machinery of the whole British Government—and that is saying something. The Home Office has a knack of wandering into minefields
when it makes decisions. Your Lordships may remember an application that had a note attached saying, XThis is a pile of pants". It was an application by a refugee from Afghanistan. Look at what we are being told now about the situation of the population of Afghanistan.Some years back, the Home Office was extremely suspicious of the notion that any persecution was happening to Czech or Slovak Roma. My noble friend Lady Williams of Crosby tabled a Question on the subject to the Foreign Office and got an extremely different Answer from anything that she was hearing from the Home Office. I found that discrepancy interesting. The lack of any investigation into any question of fact on appeal is a matter likely to be of some concern.
I am also a little concerned about the lack of examination of the asylum claim, because it strengthens the tendency that we see all too often for the condemnation of terrorism—in which I fully join—to develop into a full-blown 17th century doctrine of non-resistance. In 1938, my mother was attempting to enter the United States and was asked to sign a declaration that she believed that resistance to authorised government was not justified under any circumstances whatsoever. She looked at this and thought, and then wrote, XI agree with this. I think the United States should be still subject to the British Crown". It took my father considerable diplomatic effort to get her in after that.
That shows the force of what, in discussion on this Bill, I have come to think of as the Nelson Mandela point. I remain completely unrepentant concerning—indeed, I am proud of—the hospitality that this country has in the past given to members of the African National Congress. I hesitate to say that people who have no recourse to the ballot box have a right to resort to terrorism—in fact, I do not say that. However, as UNHCR says, the lack of consideration of merit of the asylum claim means that there is no way of testing the proportionality of the exclusion by the Home Secretary's certificate. In an appeal that goes beyond the borders of this country, that could be a very material point. It certainly does not become us to forget it.
I have a number of particular points to raise. I am grateful to the Minister for the inclusion of the word Xreasonable" in Clause 21. Whether that goes far enough is another question. It is necessary that there should be some disclosure of grounds in order that any proper hearing could take place. Getting that right will be a matter of intense difficulty, although I do not believe that it is insuperable.
The reference to Xlinks" with international terrorism has not been thought through. I understand what is meant, but we should consider the case of Mr bin Laden's son. I do not mean one of the sons in Afghanistan in training under Al'Qaeda, but his entirely innocent son who was, until recently, an undergraduate at Harvard. The American authorities have told that young man that they have no ground of suspicion against him but that at the moment they
advise him to discontinue his studies at Harvard for his own safety. I declare an interest in the view that one does not have to take responsibility for everything that one's father does. Were my father present, I am sure that he would join me in making that declaration mutual. The word Xlinks" does not quite say what the Government intend.
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