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The Earl of Onslow: My Lords, before the noble Baroness sits down, will she also give the undertaking that the noble Lord, Lord Goodhart, gave on behalf of the Liberal Democrats? I suspect that that was only 60 per cent of what I should have liked to hear. Will she give the undertaking from our Front Bench, too, that we shall go as far as possible, including forcing the Government to use the Parliament Act if that is considered necessary, to ensure that we protect the liberties and freedoms of our people? The dangers that the Bill produces have been pointed out from all sides of the House. Can she give us such an undertaking?
Baroness Buscombe: My Lords, it is our hope and belief that through the power of argument in this place we shall have the opportunity to persuade the Government to move in several important areas. I am reluctant to commit to more than that tonight.
12.4 a.m.
Lord Goldsmith: My Lords, this has been a long debate in which many important points have been raised. It is right that it has been long: the length is justified by the importance of the issues—the protection of the people of this country from terrorist attack—and by the significance of the measures that the Government propose to deal with that threat.
The quality of the debate would have been high in any event but it has been enhanced by the reports of the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. Both of the reports were produced in very short time, for which we are grateful. Several noble Lords have referred to those reports, and I shall return to the points that they raised.
I add my congratulations to those extended to the noble Lord, Lord Maclennan, who made his maiden speech. I had the pleasure and privilege of serving with him on the Joint Committee on Human Rights until the general election. I am very pleased to see him in this
place. He asked whether a good swap was involved in his coming here and Lord Thurso going to another place. I will not be tempted down that route, save to point out that I am sure that all noble Lords very much welcome the noble Lord here and look forward to many more of his contributions.Because of the length of the debate and the late hour, I shall do my best to deal with the main points among the many that were raised. Some of those points—this was very helpful—were made to indicate matters that would be covered in Committee. I hope that noble Lords will forgive me if I do not reply to those points at this stage.
There has been at least a large measure of agreement around the House on one critical issue—it was described by the noble Lord, Lord Dixon-Smith, as the reality that the Government have set about dealing with. The noble Lord, Lord McNally, quoted—with, as I understood it, approval—United States commentators who suggested that there was a clear and present danger, and I believe that he, too, supported the Government in seeking to tackle that.
There is a large measure of agreement on this issue. With chilling words, the noble Lord, Lord McNally, pointed out the ease with which terrorists could, with little difficulty, bring death and suffering to thousands of innocent people on September 11th. That clear and present danger required the Government to act to protect the people of this country.
I take the liberty of echoing the words of my right honourable friend the Home Secretary, who reminded Members at the Bill's Third Reading yesterday in another place that we are engaging in the measure precisely because the bombings of the embassies in Tanzania and Kenya and the subsequent attacks on the World Trade Centre and the Pentagon were planned years in advance. The thwarted attacks in Jordan and on the US embassy in Paris were planned months, if not years, in advance. Whatever is currently taking place around us, those who are prepared to provide suicide bombers to attack others will have had their preparation—their network, funding and organisation—in place for a very long time.
Whatever the success we have in Afghanistan in freeing the people and pushing the Taliban, Al'Qaeda and bin Laden back into the mountains, we are still at risk. Those who dismiss that risk and pretend that because September 11th occurred weeks ago we can set it aside are making a grave error. I do not believe that that error is made by at least the majority of noble Lords, if not all of them.
Those events demonstrate that we now face a terrorist threat that is quite different from anything that we have previously faced. The scale of the atrocities was completely new. The attacks could not have been mounted without careful and sophisticated planning over many years. As my noble friend Lord Harris said, there was a complete change of scale. It is also right to remind ourselves of the threat restated by Osama bin Laden of a preparedness to use nuclear, chemical and biological weapons. My noble friend
Lady Kennedy of The Shaws drew attention to the intention to include in the Bill a provision outlawing the use of nuclear weapons. That seems to me not a matter of adverse comment but something which is entirely right to see in the Bill.I remind noble Lords of the distinguishing feature of the attacks suffered; that is, an absence of warning. We do not know from where or at what time they may come. Some noble Lords, including those on the Opposition Front Bench, believe that the Government have not gone far enough. Others believe that we are going too far in some areas. As my noble friend Lord Rooker said, we could have put forward different measures. However, the Government believe that they have struck the right balance between individual liberties and the necessary protection of the people of and in this country, and a proportionate and appropriate response.
The Joint Committee on Human Rights recognised in its conclusions that the Government had made a sincere effort to safeguard rights while addressing the threat. Perhaps I may say to my noble friend Lady Whitaker that the Government carefully considered the comments in that report and have already responded to some.
The Bill is a sincere attempt to do no more than address the threat. Some noble Lords questioned whether certain provisions are required. It is the judgment of the responsible Ministers that they are. It must be remembered that a neat and tidy compartmentalisation into terrorism and other crime may not always be easy. The links between organised crime and terrorism can be clear. Drug money and other serious organised crime can be used to fund terrorism. As a result, in the early stages of investigation it may be hard to be sure that the crimes being planned or committed are specifically terrorist offences.
The Bill is wide ranging because it is designed to cover the new kind of terrorism which we now face. That means we have to review and, where essential, strengthen provision in many areas. It is not about dusted-off ideas, but about proposals which, in the judgment of the Government, are now needed to ensure that we are ready for this changed world and changed threat.
By way of example, several noble Lords referred to the proposed police powers relating to identifying marks or the removal of face coverings. I shall return to other observations made about those powers. How could that power be limited to cases only of a terrorist nature when, until the person is revealed and identified, his or her identity might not be clear; his or her connection with terrorist matters would not be known; nor would it be known what further investigation would need to take place?
Over the days to come noble Lords will carefully scrutinise these powers. That is why eight days have been set aside for that process. No doubt everyone would have preferred—
Earl Russell: My Lords, I am grateful to the noble and learned Lord for giving way. In the matter of face
coverings, will he consider allowing an exemption for people such as the victims of the Paddington train crash who need to wear face coverings for medical reasons?
Lord Goldsmith: My Lords, what I was going to say, and I shall gladly say now in response to the question of the noble Earl, Lord Russell, is that there must plainly be sensitivity to particular aspects—not just the one referred to by the noble Earl, but also, as mentioned by my noble friend Lord Ahmed, cultural and religious issues. Those matters will be the subject of a protocol, which has been referred to in another place, as to the exercise of powers. I shall come back to that point.
We recognise that the time necessary to deal with the Bill is a burden on all noble Lords. We would have preferred that 11th September had not occurred and that therefore the urgency for the Bill would not have been necessary. We very much appreciate that the noble Lords, Lord Dixon-Smith and Lord McNally, expressed appreciation for what has been done so far to help in terms of dealing with the Bill. My noble friend Lord Rooker and I and others will continue to do what we can to assist noble Lords in their consideration of it.
I shall deal first with Part 4 and Part 5 of the Bill. Those are two of the most controversial of the provisions. I shall then deal with the other provisions. The Opposition Front Bench would have us go further than we have. They would have a denunciation of the convention and what they describe as Xa reservation". The suggestion was made by the noble Lord, Lord Dixon-Smith, that other member states have done that. That is not the information that I have. But that can no doubt be looked at. I am proud to be part of a Government who do not want to throw aside our human rights obligations as is proposed.
It is important to set the context in which the powers in Part 4 arise. There has been, at least in some places outside this House, some lack of full understanding. The first and important point to note is that it relates to a person where there are grounds for deportation or to require that person to leave the country under existing immigration laws. For someone who is not a British citizen, who has no right to enter or remain in the United Kingdom and who is refused leave to enter, or someone in respect of whom a court makes a deportation order—again, not a British citizen—under existing immigration law there is a power to deport. There is also a power to detain such persons pending examination or removal.
That is an existing power contained in the Immigration Act 1971. Sometimes that detention can take, because of the appeal process, a significant period of time. It took some four-and-a-half years in the case of Chahal. But there can be an impediment to deportation, either practical—there is no way of getting back to the particular country—or, and more usually, the international agreement. Our obligations, particularly under Article 3 of the European
convention, prevent us from removing a person where it would place him at a real risk of execution, torture or inhuman or degrading treatment.I go further. We would not want to send people to death or torture, irrespective of that obligation. But the law has gone further because both domestic law and the ECHR have said in effect that the detention with a view to deportation which is permitted under existing law could not be used if the Secretary of State knows that there is no prospect of removal.
The Bill states that a person may be detained under those existing powers even though removal for those reasons cannot be possible. The important point to make is that the Government have not taken the step of saying that we shall deport them anyway to torture or to death; rather we say that, despite the impediment on deportation, that existing power of detention will be used.
So it is a much narrower power than some people have so far depicted. It relates only to those where there is already a right to deport and to detain pending deportation, but because of our own insistence on their human rights we are prevented from so doing. The power will then be exercised only if two further conditions are met. Those are, first, that the Secretary of State reasonably believes that the person's presence is a risk to national security and, secondly, that the Secretary of State reasonably suspects that the person is an international terrorist—not, pace the noble Lord, Lord Phillips of Sudbury, because the person is unpopular.
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