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Lord Newton of Braintree: My Lords, I am grateful to my noble friend on the Front Bench for her courtesy to me, although I should emphasise that I see as no part of that that I am now speaking formally on behalf of the Opposition as distinct from speaking in my capacity as chairman of what was a very non-partisan committee of Privy Counsellors. I saw my noble friend nodding vigorously. I am glad to see that that is accepted.

It is only a week and 10 minutes, almost to the second, since I last addressed the House on what was very broadly the same subject—though, of course, it was a bit wider last week. Therefore, my remarks today will be correspondingly brief. I am aided further in that by the fact that the noble Lord, Lord Holme of Cheltenham, who was an invaluable member of the committee, has made a number of the points that I might have made had I been minded to rehearse what I said last week. However, in passing I observe that—alongside the other difficulties that I spoke about last week, and that the noble Lord has spoken about—I continue to be puzzled at the apparent presumption that, even with the alleged terrorists who can be dealt with under Part 4—and bearing in mind the litany that the Minister produced last week of terrorist acts elsewhere directed at British property and British citizens—the best answer is to get them somewhere else. I continue to have reservations about that.

My principal purpose now is to make clear to the House that neither I personally nor, I think, the committee collectively would wish to oppose this order. That is not because we resile in any way from the concerns which both I and other members of the committee and, indeed, Members of the House at large set out in last week's debate. Indeed, it appears to me that

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those concerns have been underlined and further validated by the various events that have taken place during the week, including the publication of photographs, rather dramatically, of British—UK national—suicide bombers; the return of a number of Britons—UK nationals—from Guantanamo; and the SIAC judgment to which the noble Baroness referred. Nevertheless, those concerns, however valid, do need to be set in the context of two other considerations.

The first, of course, is that none of us doubt that there is a threat; that it is not going to disappear quickly; and that the Government do have a duty to seek to prevent it materialising, even if we do not think that what they have in place strikes an appropriate, effective and sustainable balance between the various considerations involved. The second is that none of us think that finding such a balance is a quick or simple task. It needs careful and thorough consideration, involving careful and thorough consultation, and leading to legislation, if it does, which can be subject to careful and thorough scrutiny. In other words, I, at any rate, would accept that the word "urgently"—which we used in our report to describe the need for a replacement—is not the same as "precipitately".

For reasons we all understand, the legislation that we are discussing was conceived and passed at a speed much greater than, but for the circumstances, anyone, including, I hope, the Government, would have thought desirable. I believe that none of us would wish to create a vacuum which would have to be filled in a similar way, which is what would no doubt happen were the renewal sought today to be refused.

As has been indicated several times, the Government have undertaken to have a further six months of extensive discussion and consultation in terms on which I touched last week and which I do not propose to go through again. As I said then, there appears now to be a much greater acknowledgement of the need to address some of the difficulties we identified than any we detected during the course of the long work of the committee of inquiry. In my judgment the right course now is to let the Government get on with that and to make a further judgment when we know what emerges from it.

Before I sit down, I should obviously say a few words about the Liberal Democrat amendment, not least because it was moved, though not, I think, originally tabled by, the noble Lord, Lord Holme of Cheltenham. I listened very carefully and, I need hardly say, sympathetically, to what he said in view of the noble Lord's membership of the committee of Privy Counsellors. I think he knows that I stand shoulder to shoulder with him on what I take to be his purpose of emphasising the importance that is attached to these issues by the committee and, indeed, I think, the House. There is no difference between us on that. It needs to be made clear that many of us who will have no great difficulty in supporting renewal today would have—if I may use the understated language that I always prefer—much greater difficulty in a year's time if by then there was neither the

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actuality nor the reasonably early prospect of something which better met the concerns that the committee and others have expressed.

That said, I want to refer—the noble Lord, Lord Holme, paved the way for this—to the precise terms of our recommendation. It can be found in various places, but I refer to paragraph 25 on page 11 of our report, which states:

    "We strongly recommend that the powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should:

    a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; and

    b. not require a derogation from the European Convention on Human Rights".

That embraces three concerns because there are two wrapped up in paragraph a. One is that it does not deal with terrorism that cannot be shown to be linked to Al'Qaeda. The other is that it does not deal even-handedly with terrorists of UK and foreign origin. Paragraph b constitutes the third element—the fact that it requires a derogation.

I am not totally happy about an amendment that asks me to march behind a banner which picks out only one of those considerations and appears to make it paramount. Although I stand shoulder to shoulder with what I take to be the principal purpose of the noble Lord and his party, and do not resile from that, I am afraid that I would not be able to march through the Lobby behind that particular banner even though, because of my sympathy for what I take to be his main purpose, I would not wish to march through the Lobby against him either. In other words, I should abstain.

Lord Lester of Herne Hill: My Lords, I spoke on 4 March in the important debate on the report of the Privy Council review committee of the noble Lord, Lord Newton of Braintree. Therefore, I must be very brief today. On that occasion the noble Lord, Lord Judd, and I, as members of the Joint Committee on Human Rights, expressed the unanimous concern of that committee and others about the excessive width of the powers given to Parliament under the Anti-terrorism Act, as did many on all sides of the House, and, of course, as did the Newton committee. Indeed, concern was expressed about the unique derogation—unique among European states—that has been entered by the United Kingdom Government.

The Privy Counsellors' committee, as everyone knows, put forward an alternative approach with detailed options of a very important character. Those were at the time peremptorily rejected by the Home Secretary. When I asked the Minister at col. 829 of Hansard whether, for example, the Government would have an open mind about the important idea of being more inquisitorial and using the French juge d'instruction approach—which was one of the proposals of the Newton committee—the noble Baroness gave an understandably equivocal reply and said,

    "I cannot say that that has been rejected".—[Official Report, 4/3/04; col. 829.].

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But the problem is that it was rejected in the discussion document and so we are left at the moment in an unsatisfactory position because we do not know whether the rejection by the discussion document of all of the main recommendations of the Newton committee really means what it says, or, as my noble friend Lord Holme of Cheltenham asked, are the Government genuinely open-minded? That seems to me to be a critical question in this debate.

May I say—this is not flattery; it is just the plain truth—that I have great respect for the complete integrity of the Minister and for her personal commitment to the rule of law which transcends partisan politics? If I may say so, she is a precious asset for the Government at a time when their commitment to the rule of law, and public confidence in that commitment, is at a very low ebb. Therefore, when the noble Baroness comes to the Dispatch Box to commend these measures in the way that she does, I, for one, regard that as of very great importance indeed because I know that she would not do so if it were against her conscience or conviction.

I would support my noble friend's amendment if he decided to divide the House. There are, of course, dangers in that course as, if the Government were to win a vote, they would no doubt quite wrongly pray that in aid in litigation before the House of Lords or before the European Court of Human Rights as some kind of measure of the proportionality of what is now to be renewed. It is not a matter of arithmetic or who happens to be here at this particular time in the House. Ultimately, it will be a legal question for the supreme authority of the United Kingdom and, if necessary, for the Strasbourg court to decide whether the powers taken and their exercise are, in the words of the convention,

    "strictly required by the exigencies of the situation"—

that is to say, for the protection of public safety, public order and the protection of human life against the scourge and evil of terrorism.

The touchstone in answering that legal and political question is whether the means used are necessary to achieve the Government's and Parliament's entirely legitimate aims of combating that great scourge and evil. I have to say that the Government's refusal to apply these measures to British citizens suspected of terrorism on the ground mentioned in the discussion paper—that the powers are so draconian that they should not be applied to British citizens—gravely weakens any argument of proportionality since the scourge of terrorism is not a scourge of foreign nationals' terrorism. It does not make the slightest difference whether the terrorist, or suspected terrorist, has British citizenship or not.

The other great weakness in the Government's case is the fact that all other European states equally threatened by the scourge of terrorism have not found it necessary to introduce such sweeping powers and then to derogate from the convention. I know that the derogation has caused grave concern among senior

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officials in the Council of Europe, who see it as an extremely bad example. However, that is a matter for the courts.

Does the Minister agree that the test of proportionality, as laid down by the Law Lords in recent cases under the Human Rights Act, involves asking and answering the question of whether the means taken by Parliament and the Government are no more than are necessary to achieve their legitimate aims? Is the least sacrifice being made of the basic rights of the detainees in the sense that there is no alternative involving a lesser sacrifice? That was what the House of Lords decided in the Daly case, led by the noble and learned Lord, Lord Steyn.

If that is the test and if the Newton committee has put forward a series of alternatives that are less restrictive of human rights, I believe that the Government will find it difficult in any further litigation to justify the measures taken, according to the test of what is strictly required by the exigencies of a situation; and if Ministers reject a series of proposals by an independent committee of Privy Counsellors that has been established by Parliament with the express purpose of considering the proportionality of the measures that we passed in the statute.

Therefore, my noble friend's amendment is of critical importance, not whether we vote upon it or what the outcome is, but regarding the question he asked. If the truthful answer is that the Government do not have an open mind about every recommendation by the Newton committee and have closed the door to them, I would say as a lawyer—who may often be wrong—that the Law Lords or the European Court of Human Rights would be likely to say that the principle of proportionality and the "least sacrifice" test have not been satisfied. That is why I am so glad that my noble friend has asked that question and why obtaining a specific reply from the Minister is important.

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