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Lord Rooker: My Lords, I am reluctant to intervene as much of what the noble Lord says is inaccurate, but his final comment is, frankly, not true. The National Health Service number issued to millions of people in this country has for several years had nothing whatsoever to do with the wartime identity number. Several years ago everyone was issued with a brand new number; it has nothing to do with the wartime identification system. That went out years ago.
Lord Marlesford: With great respect, I have known my national identity number since I was a child in the war. It was TXAP774, and it is still my national health number. I have put that number on every form and those forms have never been sent back. I reject any suggestion that that type of monitoring infringes to a disproportionate extent civil liberties or human rights.
I turn briefly to the handling of asylum seekers and the recently announced asylum application registration card, which is intended to replace the standard acknowledgement letter. I want to raise a question about the right of asylum seekers to travel outside the UK. On 7th November the noble Lord told me that asylum seekers who travel abroad while their claims are being considered are deemed to have withdrawn their applications for asylum. He said that the ARC is not a travel document and will not confer the right of entry.
Yet on 10th August this year the Home Office Immigration and Nationality Directorate issued a specification for the updating of a personalised document issuance system that includes a travel document, known as Xpassport-style", for non-British citizens. It would allow them the same travel facilities as does a passport. I have obtained a copy of the Home Office specification. The figures in it show an explosion in the number of passport-style documents
Of course, one object of many asylum seekersespecially those who believe that they are unlikely to be given asylumis to play it long. Having to start their applications afresh as, under the Government's rules about foreign travel, they must, would be the ideal way of playing for time. I believe that that is yet another example of the Home Office not knowing what its hands and feet are up to.
The Government are asking us to take the soundness of this legislation on trust. I hope that I have provided examples of why I personally do not have sufficient confidence in the Home Office machine to do so. Why, therefore, should we subject the Bill to the full and detailed scrutiny to which it has not been subjected in another place, and why should we limit the rapid passage being demanded by the Government to clauses which are genuinely required with real rapidity?
My sad conclusion is that I am more impressed by the effectiveness demonstrated by the forces of terrorism than I have been by those of the government department sponsoring this Bill. The Bill should be divided between the essential and the inessential; between the real priority and the Home Office convenience priority. Before Christmas we should scrutinise and pass the essential, and there are additions to be made in that respect. Let the Government bring back other proposals at a later date. This House has the power to insist on a better Bill. It is our duty to do so.
Baroness Kennedy of The Shaws: My Lords, it is always said that one of the great strengths of this House is the specialist experience that individual Peers bring to debates. I always believe that to be the case, especially when I listen to the historical analysis of my noble friend Lord Russell. Clearly the noble Lord, Lord Marlesford, has cornered for himself a specialist understanding of passports.
One of my own areas of direct and long experience as a lawyer has been in the conduct of terrorist trials. In over 25 years of practice, I have acted inI worked it out last nighteither 14 or 16 major Irish cases arising out of the Troubles: the Brighton bombing trial, the Balcombe Street siege, the bombings at Harrods, Oxford Street, Warrington and the Ebury Bridge Road Barracks, and the appeal of the Guildford Four. The list is long. I have also acted in cases stemming from the conflict in the Middle East, from that in the Indian Subcontinent, and I have acted in cases involving the politics of animal liberation and anarchism. I have acted in a whole range of other trials that involved allegations of violence for political ends. When one gains a degree of expertise as a criminal lawyer, one is repeatedly instructed in such cases.
In that process, I suspect that I have become one of the few Members of this House who, if placed alone in a room with a lump of plastic explosive, a detonator, an alarm clock and a length of fuse wire, could probably make a home-made bomb without too much difficulty. I hope that that does not mean that I will end up on the special files of the security services!
I mention my experience because being involved in those cases has given me, to some extent, a long view of the criminal justice system and its relationship with terrorism. I am afraid that most of our failures derive from over-reaction. When the Prevention of Terrorism Act was introduced in the 1970sI was still a young lawyerwe made the first huge departure from the normal rules of arrest and detention. We made it possible to detain people for up to six days without access to lawyers or any other outsider, and it meant that the police could question those people repeatedly. The result, as we all know, was that in a number of notorious cases, vulnerable people admitted offences that they did not commit. I refer to the cases of the Birmingham Six, the Guildford Four, and Judith Ward, and there are others. On spurious intelligence and inadequate evidence, the Maguire family and a man called Guiseppe Conlon were all convicted.
We learnt that changing the rules and abandoning principle does not work. Getting the cases so badly wrong introduced a poison into the legal system that affected policing generally, not just in relation to terrorist trials. Bad practice took hold and the price, in terms of distrust and cynicism, has affected the confidence of the general public in our criminal justice system. It certainly meant widespread alienation of the Irish community living in Britain. Of course, we know what happened in Northern Ireland in the wake of internmentthat was one of the most powerful recruiting agents that the IRA ever had.
Bad laws have a price tag attached to them. Rushing to legislation is rarely successful. There is no such thing as temporary legislation; it is never temporary. In 1995, after the bombing of the Israeli Embassy, I acted for a Palestinian woman who was charged with placing the bombs. She was in factI stress thisan innocent woman. The current Director of Public Prosecutions, who was the prosecuting counsel in that case, would agree with that, as would the lead officer in the anti-terrorist squad who was also involved in the case. That woman ended up in the dock because of mistaken identity and poor work by the security services. The effect on her and her family was devastating, and the toll is still being paid. The effect on the Arab community was also devastating: the case engendered fear. A woman from a middle-class background, with a professional husband and two children at British public schools suddenly ended up in Holloway prison. The feeling in the community was, XIf it could happen to her, it could happen to any of us". She ended up in prison because of a tenuous association, and everyone became fearful.
I am afraid that I do not have complete confidence in the intelligence sources that will be relied on in the cases that we are discussing. Intelligence sources are often wrong. More importantly, I should be worried about accepting too readily intelligence from other security services, which may be highly questionable.
Many aspects of the Bill are unacceptable to me. However, at the heart of it is my sense of outrage at the idea of incarcerating people without charge or trial. There are a number of questions we should ask ourselves. Are these extraordinary powers necessary? The answer is that we already have the legal tools to combat terrorism. Our own terrorist legislation is some of the strongest in the world. If people are living here in Britain and have trained, counselled or procured the recent horrifying events in New York and if we have evidence of that, there is no difficulty in prosecuting them. If people are inciting terrorist crimes, we can put them on trial and imprison them.
However, the Home Secretary wants to detain people where the evidence is not strong enough to put them on trial or is not admissible. He wants to be able to incarcerate people without their knowing the reasons and the evidence upon which that incarceration will be based. To any person concerned with human rights, that cannot be acceptable. That is why the lawyers will tell the Minister that they are getting it wrong. Our experience must count for something.
There is nothing new in dealing with intelligence material. There have been suggestions that the evidence coming from intelligence sources cannot be used in court in the normal way because to do so exposes sources and informers. On many different occasions I have cross-examined witnesses in terrorist cases where their names are never disclosed; where they are referred to as XMr X" or XMiss Y" and where screens have been used. Now, with new technology, it would not be impossible for someone to give evidence in an adjacent room and for their whole face to be obliterated by shaking up the pixels on the screen. We could even use sound techniques to distort the voice. There are many ways in which evidence can be given without putting security at risk.
However, the main issue is that what is being suggested in the Bill flies in the face of natural justice. Another point of real concern is that the body which will be hijacked to fulfil the function of reviewing decisions taken by the Secretary of Statethe body already referred to, SIACis a tribunal established to consider deportation issues, and is not fitted for the purpose to which it will now be put. To suddenly row it in to take on the hugely important decision of indefinite incarceration of people without charge or trial is totally wrong.
Clause 29 deliberately and expressly excludes the courts, habeus corpus and judicial review from the whole procedure. It is an outrage against our liberties. It is a bridge I will not cross. I suspect that many in this House will feel the same. It is an affront to the values that we are protecting in the war that is being waged against terrorism. In the face of terrorism,
The guiding principle should always be that limitations on rights and freedom must be kept to an absolute minimum. Like others, I strongly support the proposals included in the Bill which deal with money laundering. I am also glad that the Home Office in its trawl for loopholes and other things that can be thrown into the Bill have discovered that there was no law to deal with possession of a nuclear weapon. What have we been paying the Home Office for for all these years?
In declaring war on terrorism I understand that we were doing so to preserve freedom and basic rights. But passing this kind of legislation undermines the values we want to protect. The Bill is an attack upon our freedom. When it comes to voting, I urge this House to stand firm in resisting the core of this legislation.
Lord Hylton: My Lords, it is a real pleasure to follow the noble Baroness, Lady Kennedy of The Shaws. Perhaps I may say to her that I as a layman have had the very strange experience of visiting in prison a number of victims of serious miscarriages of justice in terrorist cases. I was therefore delighted when the noble Lord, Lord Jenkins of Hillhead, mentioned in some detail the Birmingham Six and the Guildford Four and the long campaign that was required to establish the innocence of those people.
So I speak tonight as a rather sceptical layman. I believe that the burden is on the Government to justify the Bill's very miscellaneous contents. The first question that comes to my mind is whether a genuine public emergency, threatening the life of the nation, actually exists here now. I simply say that qualified opinions differ very much on that subject. I do not believe that acts of international terrorism have been conducted here since September 11th.
Before the ceasefires in Northern Ireland, conflict stemming from there caused well over 3,000 deaths, 45,000 injuries and the displacement within the United Kingdom of thousands of innocent civilians. It involved two attempts, as has been mentioned, to murder the whole Cabinet. Yet no one proposed such far-reaching measures as those before us today. How do the Government justify the existence now of a greater state of public emergency?
In the Bill we find clauses dealing with religious hatred in this country, or with the bribery of foreign officials overseas. I am sure that these are very desirable, but they are nothing to do with an emergency. I therefore strongly support those who have demanded that the measure be split into separate Bills. That would make it possible for long-term changes to be subject to normal parliamentary procedures, even if the emergency provisions may need to be enacted more rapidly. Here I agree very much with the noble Lord, Lord Marlesford.
The onus surely is on the Government to justify every extension of powers beyond those in the Terrorism Act 2000. Here I follow the noble Lord, Lord Thomas of Gresford. It would indeed be helpful to know what have been the results of recent arrests and detentions under that Act.
The Bill provides many serious grounds for concern. What, for example, will be its effect on community harmony and race relations in this country? Already there is anxiety among ethnic groups, some of whose members have belonged to, or who now support, the legitimate aims of overseas organisations that are banned in this country. I am thinking particularly of the Kurds and the Palestinians, but Chechens in this country might also be subjected to guilt by association and so might Afghans. Great care will be needed. We shall have to uphold the ancient principle of Xinnocent until proved guilty". Massive increases in penalties, with some potential prison sentences trebled, will also need thorough examination.
The London office of the United Nations Commissioner for Human Rights and others have expressed great concern over Clauses 34 and 35 of the Bill. Clause 34 will apply only to very small numbers of people, perhaps 10 or so a year. That is a strong reason why those people should be allowed to state their case as refugees, all the more so since, if they cannot be deported, they are likely to be detained unless they voluntarily leave the country.
Clause 35 is far more wide ranging. On that point I agree with the noble Lord, Lord Dholakia. It is likely to exclude significant numbers of people from the protections of due process and natural justice. At present, all factors are taken into account and there is a balancing of the fears of death and persecution against possible crimes committed elsewhere. What weight should be given, for example, to acts that are technically crimes in Iraq or Iran?
The proposed new dispensation may make the difference between the granting of full refugee status and exceptional leave to remain. That in turn may affect the prospect of a family being able to reunite in this country. It also seems that the Bill gives power to return people to other countries from the ports, thus denying them access to legal advice. I therefore strongly support those who ask for all the asylum and refugee clauses to be removed from the Bill and considered in a far more deliberate and careful way in the asylum and immigration Bill which we have been promised quite soon.
Up to now, this country has had an honourable record in applying the international convention on refugees. It would be sad if the alleged emergency drove us into arbitrary interpretations of the convention.
I turn to Part 5 and the concept of religious hatred. The conclusive test must surely be whether the hatred, or the words inciting it, lead on to violence against persons or damage to property. That extremely
I trust that the freezing orders in Part 2 will be wide enough to catch money suspected of being laundered here by dictators and members of governments. There has been far too much of that in cases ranging from Nigeria to the former Yugoslavia. Will the Bill also catch the proceeds of illegal blood diamonds coming from various countries in Africa?
My final concern, which has already been raised, concerns Clauses 110 and 111, which cover the implementation of the European Union third pillarsecret inter-governmental decisions. A massive Henry VIII clause allows such decisions to be given effect by secondary legislationalbeit by affirmative resolution. The Government may say that there are precedents for that. I reply that the major changes required for co-operation in criminal matters should, because of their sensitivity, remain subject to primary legislation. In that respect I agree entirely with the noble Lord, Lord Waddington.
The difficulty, of course, is to distinguish between major and minor change. If we were given adequate time, perhaps criteria could be found to make such a distinction. The noble Lord, Lord Brennan, asked forand I am sure will provideintellectual rigour in the Bill's forthcoming stages. That is one area where it is much needed.
I object to the haste with which the Bill is being driven forward. I object to the inclusion of items only tenuously connected to the alleged emergencyespecially those that I have cited: immigration and refugees; religious hatred; bribery overseas; and the third pillar. The Bill should be split up, and if the Government do not accept that, they are likely to do lasting harm that they will come to regret. Anything that decreases time-honoured freedoms and protections for the individual is in itself a victory for terrorism. The Government must therefore justify each and every encroachment, given the serious criticisms made from all sides of your Lordships' House today.
The Earl of Onslow: My Lords, when I saw the Bill I asked myself the following question: would its existence on the statute book have had any effect on those who drove hijacked aeroplanes into the side of two splendid skyscrapers on the waterfront of New York? I am afraid that the answer must be no, it would not. The incident happened as a result of the failure of intelligence. In the story, The Day of the Jackal, the intelligence service did not get the breaks it needed, the police did not pick up the hints and no one knew what was going to happen. I suggest that the Bill would not have made a blind bit of difference whatever.
That is not to say that I in any way believe that government should not keep legislation under very close review. It is government's prime duty to ensure that the Queen's subjects can go about their business in peace without let or hindrance and, above all, without interference from the outside ungodly.
I have been a Member of this House for many years and I have lost count of the number of terrorism Bills which have come before us. I remember that in 1998 or 1997 we debated the legislation which came before us as a result of the Omagh bombing. We were brought back here in the middle of September to rush through the legislation.
There is the terrible feeling that governments believe that they must do something and be seen to be doing something. That is not wise government; it is bad government and it is Xdangerous dogs" government. I slightly criticise my own party for not saying to the Government, XLook, you have got your Bill, but we shall not allow it through in this rushed process". Let us suppose, for instance, that the government review had taken place three weeks earlier and that the Bill had been introduced three weeks earlier. We should still have received it next week, but after a much slower and more deliberative process. Let us assume that the Government had not completed their review until January. Would it matter if the Bill had taken three weeks longer to produce? It is completely and utterly insufferable that the Bill described in today's Times as the XChristmas tree bauble Bill" should be rushed through so that we have Second Reading today and the Committee stage tomorrow. It is a 125-clause Bill.
It is not as though during previous periods of internment the forces of law and order have been anything other than incompetent. During the war they locked up hoards of people who had fled Nazi Germany through fear of persecution. The least said about internment in 1969 or whenever in Northern Ireland, the better. As regards Iraq, the Iraqi ambassador as he left the country said to those in the Foreign Office, XHere is a list of young men who are finishing their studies at British universities. You have seized the money, so will you please ensure that their university fees can continue to be paid out of the blocked account?". XYes", say those in the Foreign Office. Two days later, Plod goes round and locks the whole lot up as internment. I believe that every single one of those people decided to apply for political asylum and received it. It is not as though our efforts in interning the right people have been anything other than catastrophic.
It was said earlier that the number of people to whom the Government thought internment should apply would be 10 or 12. Do we really need to overturn centuries of British liberty for 10 or 12 people on whom a decent eye cannot be kept by the forces of law and order, or are those forces of law and order as incompetent as my noble friend Lord Marlesford says the Passport Office is?
Judicial review is not new. It is a sadness that the noble Earl, Lord Russell, is not in his place. At Eton I remember him as XRussell, CS", an incredibly clever little boy who seems to have grown up to be an incredibly clever old man! When James I, who was, according to the noble Earl, an early forerunner of Michael Howardthat fills me with complete joy!tried to pass into law a measure which had not come before Parliament, Lord Justice Coke said that
I thought that I might skate lightly over religious hatred. I believe that it is odious and hateful that Hindus should have a caste system that condemns individuals to be hewers of wood and drawers of water; in others words, XYou're a better man than I am, Gunga Din!", people. They may not rise in the social order or do anything other than clean lavatories throughout their lives. I believe that that is a very unpleasant attitude. The noble Lord, Lord Desai, told me earlier that it was a social custom, but I suspect that it is given authority by religious practice.
This Bill is full of horrors. If the House does not insist that the legislation is repaired and the nastiness removed, even to the point of seriously falling out with the House of Commons, there is no point whatever in this Chamber. It will be reformed into a collection not simply of XTony's cronies" but of XTony's clones". I would never want to sit in a House like that.
Lord Desai: My Lords, for the past 10 years in this place I have not liked very much anything that has come from the Home Office, and I do not believe that I am about to change my view about that. As the noble Earl, Lord Onslow, reminded us, this is the third terrorism Bill in the past four years. We were brought back from our holidays after the tragedy of Omagh because urgent action was needed and in one day we passed a Bill. I remind noble Lords that that Bill had an extra piece added on to deal not simply with Omagh but with terrorists who were doing things in this country against foreign governments. The noble and learned Lord, Lord Lloyd, told us in words of one syllable that that legislation would not work because it was flawed. Not a single person has been convicted under that legislation for what happened in Omagh. Therefore, what we did was a total waste of time.
Now we have another terrorism Bill. This one, like the post-Omagh Bill of 1998, has all kinds of added frills which are utterly irrelevant to the urgent purpose for which the Government want legislation. If the Government want legislation for urgent purposes, I surmise that Parts 1 to 4 are essential. We should stick to Parts 1 to 4, debate them and forget about the rest of the Bill. As has been pointed out about the part of the Bill dealing with nuclear weapons and so on, if the private ownership of nuclear weapons has not been banned until now, why attack private property at such a delicate time?
Many noble Lords have spoken to Parts 1 to 4, and to other parts of the Bill, and I broadly agree with them. All I have to say about Part 4 is that I would like the review under Clause 26 to be carried out every three months rather than every six months. I should like the executive to be on a shorter leash.
I am conscious of the factit has been said by many noble Lords, but especially by my noble friend Lady Kennedy of The Shaws, who knows something about itthat we have got things wrong a number of times because of mistakes by security services, the police or the prosecution services. The mistakes are legion. If you go to the United States, you will find that the reputation of British justice is extremely low. It is not high because we have done things which are outrageous.
I shall tell the House why we have done those outrageous things. I do not like saying this, but even in matters as trivial as the recording of names, racism makes us get it wrong. People do not know how to spell Irish names, let alone Arab or Indian names. So there are false identities. People are arrested because their name may look like someone else's name but they are not those people. That happens because the people recording names have no knowledge of Arabic, Hindi, Urdu, Afghan or any other language. All of them, I am sorry to say, look alike and therefore mistakes are made. I am very fearful that this Billespecially as there will be no judicial review, no trial and no open display of evidencewill make those matters much worse.
I am willing, more or less, to swallow some of these faults, but I do not like Part 5 at all. Many noble Lords have said that adding religious hatred to racial hatred will not work, but there is another reason. The whole idea that we need to add religious incitement is based on a fallacy. When certain kinds of people say, XKill the Muslims" or XGet rid of them", they are not concerned with the Muslim religion. As far as they are concerned, there is no distinction between race and religion. They are not talking about Bosnian Muslims, Turks or American Muslims; they do not know what Muslims they are talking about.
When people attack Muslims, Hindus or Sikhs, it is a straight racist attack. They are attacking Muslims of a certain colour, of a certain national origin, of a certain ethnicity. Therefore, in introducing this legislation, we shall not solve the problem; we shall simply be adding one more false category to all the others.
I have another worry. Much of the impression that has been given as to why this provision is necessary has concentrated far too much on Muslims. That will do nothing but harm to the Muslim community. It will be seen as a special concession to a particular community. That is not what the words say, but all the justification has been given. It will do those in the Muslim community no good to know that they have been singled out as an exception. To that extent, we should be careful as to whether we really do mean religion, or whether we mean something else. I think that we mean something else.
An additional consideration, as the noble Lord, Lord Dholakia, said, is that quarrels on the Sub-Continent will now be visited here with a double force. There is resentment among some Hindus that Muslims have been singled out for favour in the Bill. That may not be true, but that is how it is perceived both over there and over here. The last thing that we want is for communal riots in India to be re-enacted in this country because religious communities are encouraged to have separate identities. As soon as people have separate identities, they quarrel with each other. That is what identities are all about. We want to avoid that.
It would be a good idea if the Government were to break up the Bill and come back with Parts 1 to 4. We could battle day and night over Part 4 and improve it. They could leave the rest of the Bill aside, think about it and bring it back later, especially Parts 5 and 13. Part 13 raises grave problems, as the noble Lord, Lord Waddington, pointed out. If urgency is the problem, it
The disclosure provisions are mainly to be found in Part 3, in Clauses 17 to 20, and in Part 11, in Clauses 101 to 104. Many organisations are now beginning to realise that the purport of those sections could scarcely be more serious for the whole issue of public information, or private information drawn into the public sphere.
An important section dealing with these disclosure arrangements is to be found on pages 15 and 16 of the second report of the Joint Committee on Human Rights. The committee points out, correctly, that the Bill attempts to rehash those provisions which were rejected by this place when the Criminal Justice and Police Bill was before it in January and to extend the disclosure provisions. Public authorities will be required to disclose information to each other in relation to any criminal investigation. As many noble Lords have said, one of the many bones of contention across the House is that a Bill which is rushed through this House in order to deal with an emergency terrorist situation is being used for much wider purposes.
Under Part 3 of the Bill the authorities will be required to provide information in an extraordinarily wide range of circumstances: any criminal investigation; any criminal proceedings; and indeed any decision as to whether or not to investigate or pursue criminal proceedings. Public authorities include banks, health authorities, education establishments, all government departments and all quangos. The provisions will entitle Inland Revenue and Customs and Excise to reveal information about any individual in respect of any criminal matter whereas, as we sit here today, the only situations in which they can do that are those involving treason or murder.
Part 11 of the Bill will allow the Government to require Xcommunications providers" to store information for such period as the Minister may require. Initially, there is to be a voluntary code on retention of information but, if the Secretary of State believes that it is necessary so to do, he or she can then make a mandatory order requiring information to be stored for such period as the Minister may require. In this House we struggled to have reference to the Technical Advisory Board inserted in the Regulation of Investigatory Powers Act. That board is not referred to. I think that the Minister will agree that such a provision is a protection against misuse of some of the powers which are provided under the Bill.
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