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5.55 p.m.

Lord Roberts of Conwy: My Lords, I can think of no one who could have led your Lordships better in this debate than the noble Lord, Lord Chalfont. He brought his finely honed mind to bear on the great problem of balancing the interests of national security against the interests of the individual citizen and his liberty. I add my congratulations to the noble Lord, Lord Wilson of Dinton, on an erudite and enlightening speech based on years of experience serving government.

We are all mindful of the fact that we are conducting our discussion at a time of war—a war against terrorism as well as a war against Saddam Hussein. National security is an especially sensitive issue and a prominent consideration in our minds. As noble Lords have said, traditionally, in wartime the citizen is prepared to allow his liberty to be temporarily curtailed in the interests of all—as represented by the state. But the state tends to err on the side of zeal. It takes no chances and therefore takes more powers than it may need.

All that may be tolerable in hostile circumstances, provided that our liberties are returned to us in due course. They seldom are, as Simon Jenkins pointed out in The Times last Friday. The headline on his article says it all:

There has been spate of anti-terrorist legislation, much of it controversial and some of it still under scrutiny by Parliament. Some of it arises from our obligations

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under European Union law. As the Joint Committee on Human Rights pointed out to the Government, many of our rights are affected. It may be some consolation that both Europe and the United States face much the same problems as we do.

I am bound to say that the situation in which we now find ourselves is exceptional in that while our forces are engaged in open conflict with Iraq, possible terrorist attacks at home may be instigated not by our principal antagonist but by other "enemies in our midst", as the noble Lord, Lord Carlile of Berriew, described them.

The recent arrest and detention of people suspected of being international terrorists reminded some of us of similar detentions of Nazi sympathisers in the United Kingdom during the Second World War. But the dimension of the problem appears to be much greater now than it was then—especially, perhaps, because of the Northern Ireland situation and the huge volume of immigrants, refugees and asylum seekers, of whose loyalty and reactions we cannot be certain. There are, I believe, 21,000 Iraqis in this country.

Nevertheless, we should give due consideration to Liberty's finding that,

    "of more than 7,000 people detained in Britain under the Prevention of Terrorism Act, the vast majority have been released without charge and only a tiny fraction have ever been charged with anything remotely resembling terrorism".

We are reluctant to lock people up without charge in this country, but our formidable anti-terrorism legislation allows us to do so. We are also told that constant vigilance and surveillance is essential for the protection of our trusting society, and we have a number of authorities with the necessary powers to carry out such surveillance, intercept communications and so forth, with the authority of the Home Secretary.

What concerns us is that such activity may get out of hand and become a tool of tyranny. We do not want to create a Stasi state, as in East Germany, where the state's omniscience about the citizen deliberately reduced him to a slavish subject. The guardians must be guarded against themselves and the potential abuse of powers—a danger which is ever present. Like the noble Earl, Lord Erroll, I, too, was reassured by the statements given by the noble Lords, Lord Wilson and Lord Armstrong.

Although I believe with Dylan Thomas that,

    "After the first death there is no other",

by which he meant to emphasise the unique sanctity of individual human life, I think that the massive scale and horrendous nature of the death and injury threatened by terrorists is a relevant factor. The terrorist threat builds up fear in society at large and adds to the justification for exceptional measures to frustrate such activity by every possible means.

The magnitude and dreadful nature of certain types of crime excite similar public antipathy and horror. I am referring to child abduction and murder, serial killings and rape, the trade in hard drugs and the gang culture and gun crime that so often accompanies it. The war against crime is always with us and we know

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that we must sacrifice some of our liberties and right to privacy if we are to gain and maintain an upper hand in that war. Our willingness to sacrifice grows with the enormity of the crime and our horror in the face of it. The lesser the crime, the less willing we are to sacrifice.

There have been a number of references today to freedom and privacy in communication, now vastly enhanced in scope by modern technology and likely to be enhanced further if even a quarter of what the noble Baroness, Lady Greenfield, foresaw is realised. And I have no reason to doubt that it will not all be realised.

The Government's order last year listing the authorities that might claim access to communications data—the who, when and where but not the contents of communication—was dubbed a "Snoopers Charter" and was withdrawn by the Home Secretary after a hefty barrage of criticism. This month, a new consultation paper was published with a healthy and helpful admission that he had got it wrong. And, of course, the Government had got it wrong in the sense that every Tom, Dick and Harry in authority appeared to have staked a claim to access.

Without going into detail, the new consultation document seeks to limit and justify those who may seek access and to discipline them in the event of abuse. In his foreword, the Home Secretary twice mentions "Big Brother". It is not him that we fear so much as his mischievous little brothers in all kinds of institutions up and down the land.

Annex E of the paper contains a number of interesting, fundamental questions for a broader debate and is relevant to our discussion today. The first question is: is there a contradiction between an expectation of respect for individual privacy—"your privacy"—and an expectation of necessary and proportionate intrusion into the privacy of those acting contrary to the public interest—"someone else's privacy"?

There are further questions about what protection for privacy the citizen should expect in order to maintain the balance between his privacy and his interest in a society safe from crime; about how the trust of the public can be won in the use by the authorities of techniques to invade privacy; and about how the benefit to the public can be shown and reassurance provided. Should unlawful privacy violation by criminals or law enforcers be acknowledged as a crime? Indeed, these are major questions—some easier to answer than others—that apply not just to the area of private communications but to a wider area in which, for example, CCTV is used for more sophisticated purposes than its original purpose.

My own provisional conclusion, like that of my noble friend Lord Lucas, is that the state must present ample justification every time a fresh invasion of privacy or curtailment of liberty is proposed, along with as much protection against official abuse and safeguards as can possibly be given. And most importantly, the state should try to anticipate how and when the limitation can be brought to an end and the liberty lost can be restored. A sunset clause can be a

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great restorative, as the noble Lord, Lord Dahrendorf, implied. The price of liberty is eternal vigilance but that vigilance is not limited to the state and its organs, it extends to the individual citizen who must not only assist the state to be vigilant but be wary of the state itself.

6.6 p.m.

Lord Falconer of Thoroton: My Lords, I, too, congratulate the noble Lord, Lord Chalfont, on securing this debate at this particular time. I thank him in two respects. First, his speech set the tone for the debate; namely, the highest possible level. Secondly, it framed the questions and gave some tentative answers in a way that really informed the debate.

I congratulate the noble Lord, Lord Wilson of Dinton, on his maiden speech. The noble Lord knows that everyone says how wonderful maiden speeches are, but his really was exceptional. From personal experience, I know that the noble Lord, Lord Wilson of Dinton, will bring exceptional wisdom and human warmth to the proceedings of this House. We are truly lucky to have him both in this debate and in others that will follow. I welcome him and congratulate him on his speech.

This is an incredibly well-timed debate. Armed intervention is going on in Iraq. We are still in the aftermath of the events of 11th September 2001. The balance between national security and individual freedom is one of the most important issues that both the executive and the legislature have ever had to face. They face it all the time. The noble Lord, Lord Armstrong of Ilminster, is right that every case must be looked at on its individual merits. But that is not a sufficient basis on which to approach the issue. Some principles must be set forth so that there are some guidelines by which one steers a course in relation to striking that difficult balance. Those principles will not provide the answer. Each individual case has to be looked at, but on the basis of those principles.

Perhaps I may suggest some principles on which one should proceed. First, our society is based on the liberty of the individual. It is what we fight to protect where necessary. Our starting point, therefore, in a free democratic society, must be that the liberty of the individual should not be limited unless a proper case for limitation is established. Plainly, threats to national security can form the basis of such a case, but only on the basis that the threat to liberty which the threat to national security poses justifies that limitation of liberty. The noble Baroness, Lady Williams of Crosby, is right. At all stages, one must be careful to ensure that the limitation one imposes, either permanently or in the face of an actual threat, is proportionate to the threat which is posed.

In applying the particular principles, it is important to dwell for a moment on what we mean by "liberty". We all know what we mean by liberty. One particular strand running through the debate was that liberty includes the right to be private. One's privacy is an important commodity which one is entitled to protect

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in a free society. The constant reference to that is caused partly by the growth of information technology, which makes so much of what one does available to a wider public, but is also due to the way that society has developed. People have less and less trust in government and large organisations. Therefore, they look much more for protection in relation to their privacy.

We need a full and properly informed debate about when is it appropriate to infringe the privacy of individual members of society. We all agree that privacy can be infringed when it is necessary to fight crime, but what is the precise nature of the circumstances, what is the right sanction when intrusion goes too far, what are the right protections that need to be provided?

At the very minimum, whenever we, as a society, propose to infringe people's privacy, there should be a completely transparent debate about the reasons for that infringement and a clear setting out of safeguards. We are only in the process of that debate; it has not been concluded.

The noble Lord, Lord Roberts, referred to the consultation document Access to Communications Data which has been published by the Home Office and which actively seeks to promote debate. There are many unresolved aspects of the privacy debate that we need to address in the context of the world described by the noble Lords, Lord Selsdon and Lord Marlesford, and the noble Baroness, Lady Greenfield.

The noble Lord, Lord Selsdon, complained that you could find his address and a map of how to get to his house. As he was saying that I thought, "Well, the telephone directory has done that for some time". The noble Lord, Lord Marlesford, said:

    "Almost anything we want to do is possible".

Aldous Huxley speaks again. The noble Baroness, Lady Williams of Crosby, then made the appropriate point that everything we do may well be possible but the track records of large organisations in trying to introduce computer systems suggests that not everything is possible. The noble Baroness suggested that it will soon be possible to have an e-mail sent direct to your brain. These are three different world views in relation to which we need to address the issue of privacy.

I digress in making these remarks—they go to the question of what are the liberties of the individual that need to be protected—but I thoroughly endorse the tone of the debate which suggests that privacy is one of them. We need a proper debate on what are the limits in that respect.

Let me suggest a number of other principles. Any limitations on individual freedom must be proportionate to the threat; they must be sanctioned by law and cannot take place on an ad hoc basis; and they must be implemented in a way which ensures that there are safeguards and that the activities of the executive are subject to monitoring, scrutiny and accountability. If limitations are implemented excessively, the framework must ensure that the monitoring, scrutiny and accountability arrangements

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are likely to identify and remedy such excesses. In other words, if protections are put in place they must be effective.

We all recognise that in some circumstances they will not be totally effective and that in many other cases they will be. The trial of a person charged with a crime is an effective scrutiny. Where one is dealing with national emergencies and with different circumstances, obviously the arrangements will be one step further removed. But, in every case, there must be monitoring, scrutiny and accountability.

As the noble Lord, Lord Dahrendorf said, a limitation should last only as long as the threat that justifies it. In some circumstances, the threat which justifies it will last for ever—for example, in fighting crime, the restriction of individual liberty will be justified as long as there is a threat of crime. But the noble Lord, Lord Dahrendorf, is right. There will be occasions when restrictions which are justified by a particular threat will no longer be justified once the threat has disappeared.

Those seem to me to be the basic principles. I am sure that there are others, but they are the starting points for building a framework of principles.

Governments have to face a number of problems when they are dealing with these issues. As the noble Lord, Lord Wilson of Dinton, said, the Government frequently know more than the individual citizen. The Government also have a duty, which the individual citizen does not have, to anticipate threats. It is not only important for the Government to respond to a threat once it has matured, they must also anticipate what may be coming down the pipe. The extent to which the Government are able to acknowledge threats will vary from case to case.

Although the Government know more and must anticipate threats, above all, in our society, they must persuade before they can extend limitations on personal freedom. That is the great safeguard in our system. The noble Lord, Lord Goodhart, said, very fairly, that the Government's legislation on terrorism has been "fairly accurately targeted". He went on to say that that was partly as a result of the work of your Lordships' House.

The debate post-11th September in the body politic in the United Kingdom was between the executive and Parliament as to the right way forward. It was informed by what was politically possible against the knowledge that the Government brought to it. In my view, it produced the right result.

The noble Baroness, Lady Williams, referred to extracts from the report of the noble Lord, Lord Carlile of Berriew, and said that we may have got it wrong in a number of respects. We should not fool ourselves that we will always get legislation precisely right, but we did put in place monitoring arrangements to study how the legislation worked in practice. The way in which we operate generally produces a much more accurate result than we give ourselves credit for.

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In those circumstances, it is perhaps fair to recognise that the executive has a role to perhaps press a little harder than Parliament would otherwise expect so that the debate to which I have referred can be concluded. So those are the principles and that is how it has worked in practice.

Perhaps I may pick up on three other points that have been raised in the debate and which may have something to do with the Government. First, the Regulation of Investigatory Powers Act has been greatly misunderstood. Under that Act we are seeking to bring coherence and scrutiny to the process by which a wide range of bodies can ask for information and communication from individual members of the state. It has been perceived to be an extension of the powers of the state and various state bodies. That is not right. It seeks to apply one of the principles to which I have referred—that is, to ensure that there is proper monitoring, scrutiny and accountability of the way in which the powers of the state operate.

The second point concerns entitlement cards and the consultation paper issued by the Government. The consultation ended on 30th January and, in the light of that consultation, we are now considering what to do. We have made clear that the entitlement card proposal is not designed to be a step in the fight against terrorism. Its main aims are to make it easier for the citizen to access services provided by the state; to make it easier to fight identity fraud; and to make it easier to identify who can and cannot legitimately be in this country. Identity fraud takes a number of forms but, as has been pointed out, the terrorists who attacked the World Trade Centre on 11th September at no stage sought to hide their identity. The entitlement card deals with different issues.

The final point refers to the question raised by the noble Baroness, Lady Williams of Crosby, in relation to what the Government have done about making representations in regard to the Guantanamo Bay suspects. The answer is that we have pressed the American Government to make a decision as quickly as possible about what will be the next stage.

The debate has raised many questions, a number of which we have failed to answer. It has provided a basis of principle on which the striking of this difficult balance can be achieved.

6.19 p.m.

Lord Chalfont: My Lords, the debate is due to end at 6.25 p.m. and so I have time only to thank the noble Lord, Lord Wilson of Dinton, for choosing this debate in which to make his perceptive and thoughtful maiden speech and to thank all noble Lords who have taken part. I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.

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