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Lord Campbell of Alloway: I ask—
Lord Campbell of Alloway: I am obliged to my noble friend. I hope that I may ask the noble Lord a simple question of principle concerning the Government's approach to the Bill, to primary legislation which it will involve and to the powers in the Bill to create subordinate legislation. I happen to agree unreservedly with the speech of my noble friend Lord Alexander. I happen to agree unreservedly—although I did not take part in the debate—with the views of the Chamber as expressed on Clause 110 yesterday. However, is the approach this—or, if it is not, should it not be?—that what is provided in the Bill in primary legislation and the powers to create subordinate legislation should be strictly related to the global threat of terrorism as it is perceived and should be proportionate to it? Is that the approach of the Government because, if it is not, I respectfully suggest that it should be and it must be?
3.45 p.m.
Lord Rooker: I believe that it is. The noble Lord has just touched on much wider aspects of the Bill. I have said many times in Committee that we accept that the Bill is being fast-tracked through Parliament. No one denies that. It is self-evident from the lack of time between stages that it is being fast-tracked. There is not much time between stages to permit mature consideration of noble Lords' contributions which
have all been extremely useful and helpful to Ministers. Clearly, this Chamber has had more time for discussion than the other place. However, we have repeatedly said that one cannot put in the Bill issues relating only to terrorism for reasons I hope I have explained.However, I say to the noble Lord that we have indicated that both Chambers ought to have the opportunity to revisit the whole Act of Parliament and to review its operational effect after a reasonable period, as I said at the beginning of last Thursday's debate. I floated the possibility that Members of the Privy Council from both Chambers could take an oversight of the whole Act—notwithstanding the statutory review of the detention powers by the noble Lord, Lord Carlile—with access to security provisions and everything else, report back to the Home Secretary and publish a report to be debated in both Chambers.
Last night the noble and learned Lord, Lord Donaldson, made a suggestion which constituted almost a compromise for those who demanded sunset clauses throughout or a block sunset. We are seriously considering the possibility of Xmarrying up" the proposal of the noble and learned Lord, Lord Donaldson, and the demand of those who want a block sunset; that is, a provision in the Bill to the effect that if within, say, two years—we said 15 months for the first review of the noble Lord, Lord Carlile—the Home Secretary had not published a review of the Act a block sunset would apply. That is an additional reason to set up such a review involving Members of this Chamber. This Chamber would have the right to debate the report which could contain recommendations on the detail of the Act as it would review the operation of the Act. It may state that some parts of the Act are working well but others need strengthening. The report may state that, in the light of experience, some provisions are too far-reaching. That offer is on the table. I genuinely believe that that type of approach would meet the substance of the point raised by the noble Lord, Lord Campbell. Many aspects of this primary legislation can create secondary legislation. In a way, the JHA aspect is slightly separate from the nature of the debate that we had last night. But there are other areas where secondary legislation will be created.
It is important that this House and the other place feel comfortable with the operation of the legislative process. If there is not a degree of comfort with it, it will be a festering sore in your Lordships' House and, indeed, in the other place. Frankly, that will interrupt the flow of our business and the consideration of many other issues. That will be to no one's benefit. It will not be to the Government's benefit, the Opposition's benefit or to the benefit of any party.
Therefore, in relation to looking at how the Act works, there is a possibility of compromise consistent with the Government's central objective. That objective is to get the Bill on to the statute book before the Christmas Recess. I make no bones about the fact that our central objective is to deal with this legislation and the necessary orders following the JHA before Christmas.
Baroness Park of Monmouth: Perhaps I may ask the Minister a question. I do so out of deep ignorance, I am afraid. If there were to be included in the Bill sunset clauses and the opportunity to review—I assume that that implies the opportunity to change and to go back upon some decisions in the light of the review in two years' time—what would be the status of that in terms of our obligations in Europe? Would we be able to decide not to pursue a line of action which we had agreed but which, on review, we found for some reason was not acceptable to us? Would it be possible for us to do that and to enforce those changes in the light of our obligations to Europe and the relationship of our law to European law?
Lord Rooker: It is a cop-out for me to say that that is a thoroughly hypothetical question because I understand the noble Baroness's intention in asking it. However, we would have to await the outcome of such a review. If a review took place along the rough lines that I have indicated, it would contain recommendations relating to the Act of Parliament—that is, its sections and subsections—depending on whether they had operated in a good, bad, indifferent or neutral manner. Of course, in any event, aspects of our international obligations must be taken into account; for example, in relation to the derogation from the human rights legislation. Therefore, there is no question that a mix-up with international obligations is involved. Parliament is sovereign. That is the only answer that I can give to the noble Baroness. It is a statement of fact that Parliament is sovereign. That is a pretty good answer.
Lord Elton: That was true, but, alas, it no longer is because there are certain things that we are bound to do by treaty when they are put upon us by a consensus of opinion in Europe. My noble friend asked whether that consensus would leave us free to treat this Bill as we wished in the event of a review such as he described.
I do not want to prolong this debate because many noble Lords want to hear the Statement. However, having listened to the noble Lord, I am reminded that we always refer to this as the XAnti-terrorism Bill". But it is not; it is the Anti-terrorism, Crime and Security Bill, and the Long Title makes it clear that it is designed to do a great many things other than fight terrorism. That is what makes us uneasy. We believed that we were being summoned to deal with a particular crisis in a particular way and that, when we had dealt with that, we would settle down and deal with questions such as whether photographs should be kept. I draw your Lordships' attention to Clause 90(9) on page 48 of the Bill. The provision set out there is reflected in later clauses. It states:
- XA photograph taken under this section . . . may be used by, or disclosed to, any person for any purpose related to the prevention"—
- X. . . detection of crime, the investigation of an offence or the conduct of a prosecution".
The noble Lord is being frank about this matter. He says that crime is a seamless robe, that a terrorist may make a living from selling drugs on the street and that, unless one is aware that every criminal is a potential terrorist or a potential paymaster of a terrorist, one will get nowhere. Those issues take us wider than the purpose for which we believed we were brought to this House. Therefore, the idea of a review, which I found very attractive early on, begins to seem less attractive. I believe that we shall have to look at the whole matter again fairly soon.
Baroness Carnegy of Lour: Perhaps I may take the Minister back to his account of the various amendments that have been moved. Some parts of the Bill which we are discussing will have to be implemented by the Scottish Executive and some will not. The Minister mentioned specifically one concerning fingerprinting which will apply to Scotland. Can I take it that the Labour/Liberal Democrat Scottish Executive and the Liberal Democrat Justice Minister are happy with what the Government propose?
Lord Rooker: From the information that we have received from Scotland, the noble Baroness may take it that they are content for us to legislate in this way. From memory, I believe that there is one area where the common law in Scotland is different from that in England and Wales. I cannot remember what it is, but the common law in Scotland suffices for what needs to be done; it does not need to be done in a statutory form.
Lord Marlesford: I found what the Minister said in relation to the amendments before us convincing. He convinced me that, although the provisions which we are discussing the possibility of amending are ancillary, they are also necessary for the combat of terrorism. Later, he started to talk about a compromise in relation to reviewing the Act. If, by that, he meant that we should pass the entire Bill on the basis that there would be a subsequent review, I am afraid that I would not be able to accept that. I believe that parts of the Bill—these amendments do not relate to them—require much more discussion than we shall be able to have over the next few days and I do not consider them to be central to the purpose of the Bill. Therefore, I hope that in due course the Government will be prepared to bring forward those provisions for proper scrutiny and consideration.
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