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Lord Holme of Cheltenham rose to move, as an amendment to the above Motion, at end to insert "but this House calls on Her Majesty's Government to replace Part 4 of the Anti-terrorism, Crime and Security Act 2001 with alternative provisions which do not require derogation from the European Convention on Human Rights."

The noble Lord said: My Lords, in moving this amendment, I am responding to the very clear and persuasive presentation by the Minister. I want to make quite clear what this amendment is not. It is not a fatal or wrecking amendment, nor is it intended to be. At the end of the day, the Government will have the renewal of their powers under Part 4 of the Anti-terrorism, Crime and Security Act for a further 12 months. But this amendment is intended to get a much clearer statement from the Government of exactly what will happen during those 12 months and to apprise them of the consequences should they try to sustain their first blanket rejection of the principal conclusion of the Privy Counsellor Review Committee, which was chaired by the noble Lord, Lord Newton, who I am very pleased to see in his place today.

Despite a full and excellent debate last week, it is worthwhile briefly summarising where we are today and how we got here. As we all know, the Act was passed in haste in 2001 to deal with the threat of terrorism which, if not new, since we have had to deal with threats of terrorism in this country for some time, seemed in its focus—because of the attempts of the malign leadership of Al'Qaeda to mobilise a network of terror from fundamentalist Islam—and in its extent after the awful atrocity of 9/11 to have escalated dangerously. The noble Baroness will recall that, despite the emergency in the autumn of 2001, that Act was heavily criticised in its passage through Parliament on three grounds. The first was that the process was over-hasty, did not allow for full and detailed scrutiny, and did not correspond to the criterion, set out in the Terrorism Act 2000, of properly considered, principled counter-terrorist legislation that should follow the four principles that had previously been set out by the noble and learned Lord, Lord Lloyd of Berwick, who I am also very pleased to see in his place this morning.

I shall remind your Lordships of those four principles because they are relevant to this discussion. First, anti-terrorism legislation should approximate the ordinary criminal law as closely as possible. Secondly, additional statutory powers may be justified, but only if they are necessary to meet the anticipated threat and then that they should strike the right balance between the security of the public and the rights and liberties of the individual citizen. Thirdly, such additional powers might imply consideration of additional safeguards and, fourthly, such laws should comply with the UK's obligations in

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international law. During the course of the debate in the autumn of 2001, all those issues figured largely. It is fair to say that doubts were expressed on all of them. At the same time, the scope and efficacy of the measures proposed were questioned.

Secondly, the Bill was criticised because it seemed to import a number of measures into anti-terrorism legislation that did not belong there and which, if they belonged anywhere, belonged in mainstream legislation. It was felt in the House, and in another place, that this piggybacking looked like opportunism, or perhaps a flurry of simulated activity by the Home Office that was designed to impress, rather than a focused approach to a new threat, which we all agreed existed. Thirdly, great concern was expressed about Part 4 of the Bill on the grounds that indefinite detention without proper trial is alien to British tradition and international law, and it was thought to be unacceptable.

Noble Lords will recall that the legislation got through Parliament, and your Lordships' House in particular, only because of the promise of a review by a committee of Privy Counsellors. I think that it is fair to say that the agreement of both Houses was strictly conditional on that committee being established and its conclusions were eagerly anticipated.

The committee, chaired by the noble Lord, Lord Newton, of which I had the honour to be a member, took a lot of evidence. We met as a committee 22 times and we paid 18 relevant visits in smaller groups. Our conclusions have been very well reported and they were, as the Minister said, well debated last week, so I shall not rehearse them again in detail. In summary, although we accepted unequivocally that the threat is serious—that is common ground between the Government, the committee and, I suspect, most Members of both Houses—continuing and needs a special response and we accepted that some of the new powers are well founded and well used, which is something that we looked at carefully, we were nevertheless very critical of the legislative process that created the Act. We found it honeycombed with extraneous provisions, which, if introduced at all, should be in mainstream legislation, and we found the provisions of Part 4 of the Act simply unacceptable.

This amendment refers, as evidence of the unacceptability of Part 4, to the fact that it requires derogation by the UK from the right to liberty under Article 5 of the European Convention on Human Rights. Some people may say that that is not the only thing wrong with it. That is true and I shall remind your Lordships of some of its other flaws in a moment. Some people may say that derogation is not the most important thing wrong with it. Perhaps, but derogation is not to be dismissed lightly. Attempts have been made to say that other European countries have not had such a strict interpretation placed on their emergency provisions as we have. Other people have said or implied that derogation is a small price to pay for the right measures. But we are the only European country that has had to derogate from the right to liberty. In my view, it is a sad day for this country. It is a stain on our reputation as the home of

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individual rights and personal freedom. Moreover, such derogation clearly does not conform to the fourth principle of anti-terrorist legislation of the noble and learned Lord, Lord Lloyd, that it should comply with the UK's obligations in international law.

Part 4 is deeply flawed in other ways. It has bent procedures designed for immigration and asylum matters into a strange shape. It detains people for an indefinite period. The process, to which the Minister referred, although operated properly in the verdict of my noble friend Lord Carlile, is lengthy and, crucially, it treats the threat from foreigners suspected of terrorism in a totally different way from British nationals suspected of being an equivalent threat.

The Government justify this last flaw in Part 4—the Minister has just repeated the justification in her speech—by saying that the threat comes predominantly from foreign nationals. I understand that that was their original assessment in 2001, and who knew then? That seemed to be a reasonable assumption at the time. But now the Government know better. Not only have there been highly publicised cases involving British nationals, such as the "shoe bomber", but our committee received and published uncontested evidence from the authorities that approaching half of those suspected of terrorism are British citizens. I suppose that that now includes the Guantanamo returnees. Yet the Government repeated their assertion of a predominantly foreign threat on page 7 of their discussion paper last month. Although I thought that the Minister had nuanced it slightly to "primarily" in the debate last week, I see she is back on "predominantly". I simply do not understand the Government's mathematics. May I ask the Minister yet again to set the record straight? We need the understanding and support of the public if we are to fight terrorism effectively, and I do not believe that misrepresentation and xenophobia help in that.

In summary the committee concluded that the shortcomings of Part 4 in terms of both efficacy and principle were such that it should be replaced as soon as possible. At this point, perhaps I may ask the Minister to comment further on why the Government have chosen to appeal the case in which a Libyan national who had been detained under Part 4 was released yesterday on appeal by Mr Justice Collins. Can she say why the Government, who seemed very pleased with the way in which the SIAC procedure operates, would find it necessary to appeal when the verdict goes against them? I really do not understand that. Perhaps she can explain that to the House.

The committee suggested several approaches which in various combinations might assist the Government in their deliberations. We certainly did not purport to have some sort of magic replacement formula instantly available. There are difficult trade-offs to be made, and there are disadvantages to most ways forward. I think that one has to concede that; anyone who has spent any time thinking about it recognises that. Clearly, finding the right alternative will not be easy. However, as the noble Baroness graciously conceded last week, that is the task of the Government, not of the review committee. Now, the Government have not only our ideas to help them; they have the interesting

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suggestion of my noble friend Lord Carlile of a new offence—"preparatory to terrorism"—and they have invited debate and new ideas during a six-month period which has variously been described as being one of discussion or consultation.

Here we come to the nub of the amendment. Do the Government go into this period of discussion and debate with a genuinely open mind? Are they determined to do their level best not to be here at this time next year, standing pat on Part 4 and asking supinely for its renewal, but determined to come forward with a better alternative? For example—the noble Baroness was somewhat coy about this in last week's debate—will they ensure that they complete their review on the total ban on the use of intercept evidence within the same six months in which the consultation proceeds?

I have to say that the first omens are not encouraging of the Government's determination to do better on this score. The Home Secretary, shooting from the hip, did his level best to wing the Newton report before it got off the ground by disparaging it and misrepresenting its main conclusion. The February discussion paper, which might have represented a more mature reaction to these proposals, must be one of the feeblest and thinnest Whitehall documents ever to be described as a discussion paper. It totally fails to answer most of the points made by the committee. It grasped avidly at the few points where our conclusions are supportive of current government policy. It dismisses, in paragraphs, substantial points of criticism developed over pages of careful argument—our conclusions not only on Part 4, but on many other important issues such as the clear recommendations on the need for proper oversight of the disclosure of information provided for in Part 3 of the Act, which the noble Baroness will recall was an issue raised by the noble and learned Lord, Lord Browne-Wilkinson, in the debate last week.

So, is the Government's position on the forthcoming six-month debate as stated by the Home Secretary when he said:


    "The Government's mind is open on the long-term way forward. We are not advocating any particular cause"?

Those are fine, very promising words. Or is the position as the Home Secretary said a few paragraphs earlier in the same discussion document:


    "The Government believes that these powers—Part 4—continue to be an essential part of our defences against attack"?

Those two phrases occur within about 10 lines of each other. Home Secretary speak with forked tongue.

I believe that the House needs clarity of intention from Ministers today. If the Government were to give a clear signal that they, too, are looking hard for a fairer, more effective and more even-handed way of dealing with suspected terrorists whatever their origin, and that their hope, intention and expectation is to come back with it to Parliament in good time so that today is the last renewal of Part 4, this amendment would be unnecessary. On the other hand, if the Government are merely playing for time in the face of the unanimous recommendation not only of the

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Newton committee but of the Joint Committee on Human Rights, I believe that they are misreading Parliament badly. This amendment is a necessary and timely warning and a wake-up call, not only on behalf of Liberal Democrats but, I believe, of the whole House, which the Government would be prudent not to ignore. From today, Part 4 is living on borrowed time. I beg to move.

Moved, as an amendment to the above Motion, at end to insert "but this House calls on Her Majesty's Government to replace Part 4 of the Anti-terrorism, Crime and Security Act 2001 with alternative provisions which do not require derogation from the European Convention on Human Rights."—(Lord Holme of Cheltenham.)

Noon

Baroness Anelay of St Johns: My Lords, in debates on orders it would be the usual procedure at this point that the Front Bench spokesmen from this side of the House would put forward their views. I suggest, however, that this is rather an unusual situation and that the House might find it more appropriate if I reserved my remarks until just before the Minister responds, and that instead I might turn to my noble friend Lord Newton, who chaired the committee, to present his remarks at this point.


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