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The Earl of Onslow: My Lords, before the noble Lord sits down, can he give an undertaking that if none of his concerns is listened to by the Government and if they argue against them the Government will be defeated, that the Liberal Democrat Party—and this applies to my noble friends on the Front Bench—will not duck from our responsibility if we do not agree with the Commons and this matter continues in the way it threatens to?

Lord Goodhart: My Lords, I believe that these are extremely important issues. I very much hope that the Government will see the force of the proposals that we have made and accept them. I warn them that if they do not do so, they face a very real risk of very serious trouble.

11.49 p.m.

Baroness Buscombe: My Lords, in winding up this excellent and sometimes controversial debate on behalf of Her Majesty's Opposition, I shall endeavour to reflect briefly on some of the many salient points

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raised by your Lordships and offer some additional points for the noble and learned Lord, the Attorney-General, to answer. Perhaps I may begin by joining others in congratulating the noble Lord, Lord Maclennan of Rogart, on his eloquent and thoughtful maiden speech.

This Bill contains far-reaching measures, some of which have little or nothing to do with combating terrorism. If the powers contained therein were temporary, perhaps it would not matter quite so much. However, even Government Ministers seem unaware of its true implications.

The Secretary of State for Defence, the right honourable Geoff Hoon MP, stated on the Frost programme on 11th November 2001, when the Bill was already in draft form,

XThis is a temporary measure to deal with a particular problem".

It is our duty to ensure, to the best of our ability, that measures which will not assist our fight against terrorism and which in some instances are unacceptably draconian, are exposed and opposed.

My noble and learned friend Lord Mayhew of Twysden, when speaking in the debated Motion last week to approve an order to derogate from Article 5 of the European Convention on Human Rights, recalled the words of Lord Atkin in the case of Liversidge v Anderson 59 years ago. Lord Atkin warned that,

Xamid the clash of arms, the laws are not silent, they may be changed but they speak the same language in war as in peace".

A fundamental difference between that time of war and now is that it was believed then that hostilities would last only a few more years.

Now we are faced with a different kind of hostility and one which may afflict us for many years to come. It is therefore all the more important that we consider with care the proposals before us. As the noble Lord, Lord Rogan, said, rushed legislation is very often not effective legislation. That point was also stressed by the noble Earl, Lord Russell. At least we have allowed ourselves some time for scrutiny, unlike our elected colleagues in another place. So much for democracy!

I turn to the Bill itself. First, with regard to terrorist property we have already heard concerns regarding the jurisdiction for dealing with these very sensitive and often complex matters. We contend that magistrates' courts are not the right place and, indeed, the Proceeds of Crime Bill currently in another place addresses that point. So please can we have some consistency?

Part 2, relating to the freezing of assets, exposes a very anti-social proposal. It seems that this Government want to freeze the assets of individuals or corporations who, by whatever means, act to the detriment of our economy, whether or not that action is unlawful. The test,

Xaction to the detriment of the UK economy",

will cover foreign exchange dealers operating in Frankfurt and dealing in sterling—an activity which is currently legitimate.

Taking that one step further, imagine how Germany would react if, for example, the Deutsche Bund proposed a hostile bid for the London Stock

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Exchange, and the Treasury, thinking that a bad idea (the test is purely subjective) applied for a freezing order on the Deutsche Bund funds to stop the transaction taking place. Can the Attorney-General tell us tonight whether that is part of the Prime Minister's positive vision for Europe?

Turning to Part 3, at first glance I thought it all looked familiar and quickly realised that these very same proposals were, as we heard from the noble Lord, Lord Phillips of Sudbury, dropped at our insistence from the Criminal Justice and Police Bill earlier this year, because the Government had not allowed Parliament enough time to scrutinise them properly. Indeed, those proposals were not scrutinised at all in another place last time and nor in consideration of this Bill. Incidentally, when the proposals were presented to us in the Criminal Justice and Police Bill, I do not recall any mention of terrorism.

We would not mind so much if the effect of these clauses was to fight terrorism. That is our purpose and should be the purpose of this Bill.

So will the Attorney-General answer concerns that have been expressed both in the media and in another place with regard to these proposals that provide for the disclosure of confidential information across an enormously wide range of government agencies? It is our contention that these proposals will enable all government agencies to share information with police forces from anywhere in the world. That raises concerns in respect of the need for a process to approve the provision of information, especially where the criminal investigation is taking place in a country where there is inadequate data protection legislation.

In addition, Clauses 17 and 19 allow police to trawl through files to consider whether a crime has been committed, even when there is no evidence that a crime has been committed. Also, Part 3 treats all data in the same manner, with no regard to whether it is personal, possibly sensitive data, confidential business information or information requiring less stringent protection.

Moving to Part 4, will the noble and learned Lord explain to your Lordships tonight why someone who seeks to terrorise UK citizens by means of bombs or otherwise on account of some alleged grievance arising in the UK or against its government should not be treated the same as someone who does so on account of an overseas problem? How can the Government even begin to talk tough on terrorism if they are afraid of upsetting known terrorists who have plagued the lives of all of us on these shores for the past 30 years and more?

In support of my noble friend Lord Selsdon, I ask what gives this Government the moral standing imperiously to demand that other countries should take tough action against terrorists when those terrorists affect us, if we are not prepared to treat all known terrorists on an equal footing in this country.

Much has been said about internment. We on these Benches will endeavour to persuade the Government that there is a viable alternative, that we can achieve a

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better balance between protecting our safety—safety that experience warns us will be undermined if we intern without trial—and protecting the very fabric of our liberties. We urge the Government to consider, pursuant to Articles 57 and 58 of the European Convention on Human Rights, removing ourselves from the convention for one brief moment and then re-entering with a reservation parallel to, although more restrictive than, the reservation that the French have entered into in respect of a deemed national emergency.

The Home Secretary would then have two ways of attacking the problem instead of just one when the one (currently proposed in the Bill) has serious drawbacks concerning the safety of the citizens of the United Kingdom.

We understand the reluctance to deport those who may as a result be in fear of their lives. However, as we speak, the double standards currently entertained by this Government are breathtaking. Let me quote my honourable friend Oliver Letwin, MP, who said last week in another place:

XI cannot understand how it can be right to refuse to extradite a gentleman whom we are trying to kill elsewhere".—[Official Report, Commons, 19/11/01; col.51.]

As my noble friend Lord Waddington said this evening, the Government are asking us to bow to a situation whereby if Osama bin Laden comes here claiming asylum, not only would we have to admit him to this country, but we could not extradite him to the United States if the Americans decided that they wanted to apply the death penalty. In that case, are the Government against him being bombed to death or even killed by one of our own troops in Afghanistan? In essence, are the Government willing to accept the consequential risk to all our lives of detaining without trial either bin Laden or any of his associates because that is just one foreseeable consequence of the Bill? Deportation to a list of countries prescribed and regularly reviewed by the Home Secretary offers a sensible and safer alternative.

Turning to the Special Immigration Appeals Commission (SIAC), can the noble and learned Lord the Attorney-General clarify for us tonight the Secretary of State's thoughts regarding SIAC and the parameters of Clause 29? The noble and learned Lord will recall that in Committee in another place the Secretary of State undertook to examine whether or not an appeal on a point of law includes appeals on the point of SIAC failing to follow its own procedures. Incidentally, the Minister sets great store by the fact that SIAC was set up following full debate in both Houses. We accept that. However, as has already been said this evening, it was set up for a very different purpose and we find it hard to accept that it is—with respect I quote the words of the Minister this evening—the Xbest instrument we could fashion".

I hope that the noble and learned Lord the Attorney-General will heed the words of my noble friend Lord Campbell of Alloway that these measures fail the minimum test of natural justice, or in the words of the noble Baroness, Lady Kennedy of The Shaws, fly in the face of natural justice.

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With regard to Part 5, in short, although we believe that the provisions are well intended, it is our belief that they are unworkable and may cause more injustice and misery by default. To confuse the protection of any minority, but particularly Muslim minorities, with counter-terrorism creates an association which in itself is dangerous and derogatory. And because the provisions fail in the noble attempt to address difficult issues, we suggest that, rather than tinker in haste, we should all have the opportunity to consult more widely and then to consider carefully, in a separate Bill, how we can outlaw violence caused by religious hatred without compromising our coveted rights to freedom of speech.

The noble Lord, Lord Ahmed, spoke with passion about the Muslim experience in this country. I noted that he would rather see these matters considered in a separate Bill than accept the carrot-and-stick approach. The noble Lord, Lord Dholakia, said that it was patronising to suggest that measures are necessary as a result of 11th September—as if the acts that the Bill seeks to outlaw are something new. Let us also recall the prediction of the noble Lord, Lord Desai, that this will be seen as a special concession to the Muslim community. As he said, such a move will not help that community.

It is not at all clear what emergency need is met by inclusion of the provisions relating to police powers. Police powers are extended in several ways which appear to be unrelated to the investigation of terrorist activities. Further, it is hard to see how clauses relating to powers to insist upon the removal of head coverings in certain instances and the removal of any garment thought to be a disguise when in a pre-designated area or time are justified unless they are aimed at those wearing turbans or veils. Surely that move is in conflict with the principle behind creating a religiously aggravated offence. Perhaps the noble and learned Lord can reassure us on that point.

We have been told to expect a police reform Bill later in this Session. We believe that these provisions would be better placed in such a Bill, with more time for consultation and scrutiny.

I turn to the subject of the retention of communications data. Compliance with a code of practice or agreement would be no guarantee of compliance with the Data Protection Act 1998. As my noble friend Lord Northesk said, rapid access to focused intelligence is required. We question whether the broad data protection measures proposed achieve that objective or whether they simply create overload. Following on from what my noble friend Lord Northesk asked in relation to Article 8 of the European Convention on Human Rights, can the noble and learned Lord confirm that these proposals comply? We also have real doubts about the need to extend the period for which data is required.

With regard to the third pillar, the provisions enable a wide range of EU measures relating to police and judicial co-operation on criminal matters, whether concerned with terrorism or not, to be brought into effect in the United Kingdom by means of secondary

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legislation. That point was pressed eloquently by noble Lords, including the noble Lords, Lord Goodhart, Lord Brennan and Lord Hylton, my noble friends Lord Waddington and Lord Campbell of Alloway and my noble and learned friend Lord Mayhew. They asked how such serious criminal offences could be dealt with in this way. In the light of what the Select Committee on Delegated Powers and Regulatory Reform has reported in relation to this part of the Bill, in all authority how can the Minister justify retaining these clauses in the Bill?

In conclusion, there will be much to consider in the coming days. It is our hope that the Government will respectfully listen to our concerns. As the noble Lord, Lord Hylton, said, the Government must justify each and every encroachment upon our freedoms. They must listen and respond in the knowledge that we want this Bill to have the practical effect of combating terrorism in a number of ways—no more or less than that. We shall not accept any suggestion that criticism of some aspects of the Bill means that we are soft on terrorism.

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