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Baroness Williams of Crosby: My Lords, I intervene briefly to underline the importance that we on these Benches attach to the sentiments expressed by my noble friend Lord Holme of Cheltenham in very powerful and eloquent language.
I want to say, first, that we should not make the mistake of trying to define terrorism in too narrow terms—a point raised, in particular, by the noble Lord, Lord Newton. This morning, a terrible incident occurred in Madrid. It is important to say that it took place in a country which is not related to Al'Qaeda and where terrorism has been one of the weapons chosen by certain groups in society. Following on from what was said by the noble Lord, Lord Judd, it occurred in a country which has not sought to derogate from the European Convention on Human Rights—perhaps because it has experienced dictatorship and therefore understands deeply how significant it is to hold on to the basic foundations of a just society, the rule of law and democratic ideals.
Secondly, as stated by the noble Lord, Lord Newton, real concerns arise from the way in which we try to resolve the problem of people who are detained but not tried. As the noble Lord, Lord Judd, pointed out, removal is a very strange way to deal with the issue because we then simply export to other countries which are even less capable of dealing with the matter people who we believe pose a serious threat to society. It is extraordinary that we should have allowed that to happen unquestioned when, undoubtedly, some of those who are said to pose a serious terrorist threat will be sent to continue their dangerous activities elsewhere. That is hardly a sensible approach to global terrorism.
Thirdly, as has been said by a number of noble Lords—not least, the noble Lord, Lord Newton—I believe it is important to underline that we are giving greater consideration to what is accepted by the Minister, the Home Secretary and others as a continuing threat. In the other place on 25 February, the Home Secretary asked the House to,
- "retain part 4 for the foreseeable future".—[Official Report, Commons, 25/2/04; col. 306.]
My final important point is that we need an absolute assurance from the Minister concerning the reaction of the Government, as expressed in an intelligent and constructive debate on 25 February in another place. Then, the Home Secretary indicated willingness to listen sympathetically to proposals for ways in which detainees could be tried and to a whole range of measures, including that suggested by my noble friend Lord Lester of Herne Hill—the inquisitorial approach. We need a clear indication from the Minister that that will be regarded as something to be pursued urgently in the review. There needs to be a true sense that it is one of the most important things that the Government should do. There can be no question of this measure returning for a further annual extension without the Government having addressed the serious implications of our derogation and the serious implications for our belief in democracy of sustaining a rule in which men and women can be detained for years without ever being tried for what they are said to be suspected of.
12.45 p.m.
Baroness Hayman: My Lords, I am aware that I rise not in the correct order and I apologise for speaking this late in the debate. It means that many of the points that I wanted to make have already been made eloquently, not least by the chairman of our committee, the noble Lord, Lord Newton, and by the noble Lord, Lord Holme of Cheltenham, in putting forward his amendment, the noble Baroness, Lady Williams, and my noble friend Lord Judd. I agreed almost entirely with my noble friend's speech, although I wish to pick up on one point that he made concerning the conditions in which the detainees are being held.
I visited both Belmarsh and Woodhill to see the detainees and had the opportunity to speak to them. I also had the opportunity, as did other members of the committee, to see the facilities that had been provided by the Home Office following the recommendations of the noble Lord, Lord Carlile of Berriew. I believe we all agreed that they are excellent facilities and we all regretted deeply, as did the noble Lord, Lord Carlile, in his latest report, the decision of the detainees not to take advantage of those facilities. I hope that that provides some reassurance that what we considered to be a totally appropriate regime and environment are in place, should the detainees wish to go there.
Of course, that does not detract from the issue that we are debating today—that is, whether the detention itself is an appropriate measure. On that, I start by saying that, like others who have spoken, I shall be supporting the renewal of the provisions put forward by my noble friend today. I believe it would be irresponsible of this House not to support the renewal of Part 4 unless and until we have in place a replacement set of measures—I believe that it will be a set of measures rather than a single measure—that better balances the eternal difficulty of reconciling the right of all citizens to security and public safety against the right of suspects to what is, in the Home Secretary's words in the introduction to the discussion document, non-negotiable—the right to a fair trial. Equally, I believe that it would be irresponsible of the Government not to take the opportunity presented to them by a year's renewal.
Perhaps I may say, having been part of its authorship, that the Privy Counsellor Review Committee published a very considered report. We sat for a long time; we heard a lot of evidence; we thought a great deal about the issue; and the report has been not badly reviewed in some areas. In our report—the report of the noble Lord, Lord Carlile of Berriew—there is adequate material on which I believe the Government could take action. Like the noble Lord, Lord Newton, I believe that the crunch will come not on today's renewal debate but were we to be faced with a renewal debate in a year's time without, as he said, satisfactory changes having been made or the prospect of a better package.
So, in spirit I am very much with my colleague and committee member, the noble Lord, Lord Holme of Cheltenham. I have to say that the spiritual may not be echoed by the corporeal as far as voting is concerned, were the noble Lord to push the amendment. The reason for that echoes the words of the noble Lord, Lord Newton. I believe that the balance of the noble Lord's amendment in referring only to the derogation issue is not satisfactory.
The reasons I shall give today for being deeply concerned about Part 4 are not those civil libertarianism issues which have been raised and spoken about eloquently—not that I am not concerned about them—but the efficacy issues. I took very seriously the tenor of the contribution made in another place by my honourable friend Vera Baird QC about not assuming that other countries' regimes were better or less destructive of civil liberties than our own simply
because they had not gone through the process of seeking a derogation. I think that it is to the Government's credit that they recognise the need for a derogation and were willing to argue the case for it. So I do not think we should assume that everywhere else is necessarily better than ourselves. There was some evidence to the committee about long periods of detention in other countries under other mechanisms—equally unsatisfactory I would suggest in civil liberty terms—but that has not been given the imprimatur of a derogation because the government concerned have never sought it.Today of all days, when in another European country we have seen multiple deaths from terrorism, is a day to consider the efficacy of these provisions as well as what they do in terms of civil liberties. My concerns are threefold in that area. The first is around the whole issue of identification, policing and disruption. Before anything can be done to a suspected terrorist, we must know that they are a suspected terrorist. That is why in the debate last week I welcomed the additional resources that are being made available to the security services. I hope they will also be made available to Special Branch in the Metropolitan Police and other police forces, because it is enormously important.
We have referred today to the case not of the suspected terrorist but of the known terrorists of UK nationality who were suicide bombers in Israel. The Guardian used the phrase that they were noted by MI5 but not judged to be a security threat. So the first hurdle of identification of people who are a threat apparently was not met. That is the first hurdle before we talk about any measure, whether detention without trial, prosecution or surveillance and disruption.
That is the first issue. For the second issue one can take the same example because of the potent photographs of those two young men kitted up to do their terrible deed. They were pursuing, in their own minds certainly, a cause that was very specific; it was a Palestinian cause. It was a Hamas press release that told us what they had done.
The link with Al'Qaeda, which would be necessary to bring them under the remit of Part 4, would then have to be established with perhaps more or less difficulty, but it would become a link with a link with a link. We categorised it rather jokingly as, "I have danced with the man who has danced with the girl who has danced with the Prince of Wales". But we do have to understand that Part 4 and the derogation allows us to tackle only terrorism that is related to Al'Qaeda. So, if there is a different ideological base or a different base in terms of the organisation, those who pose the threat cannot be captured by Part 4.
Of course the efficacy of Part 4 comes into doubt most clearly and in the most focused way when we deal with UK citizens, whom it does not cover. Many noble Lords have made the point today that I made last week; that is that in anti-terrorist legislation we should be looking for measures that meet the threat appropriately and not measures that are only efficacious against one section of the community; and, as the noble Baroness,
Lady Williams, said, that efficaciousness is deeply undermined by the defence that is always made by the Government; namely, that these people could leave the country at any time.I think that it has been generally accepted that if they pose that great a threat, it is not a satisfactory remedy for them to be "at loose" elsewhere and able to adopt another identity and perhaps return to this country to plot against UK citizens or citizens of any other country. If they are not that great a threat—it is not a threat to us that they are walking around—and they are not detained in another country, equally, they could be contained under surveillance noted in this country. So I do not understand the logic of the Government's position concerning that.
It leads us into a situation with the SIAC reviews which, for any of us brought up in liberal traditions and with an understanding of the British legal system, is difficult to accept. SIAC is constructed with great care. Having observed its proceedings and read both the open and closed judgments I have to say that no one could cast aspersions on how the process was undertaken by anyone involved, and I include the Home Secretary, who I believe from what we saw certainly has taken the greatest care with certification.
I made several members of the committee laugh by saying that observing SIAC was like Kafka played by the rules of cricket. That really was the sense you got out of the process; that an enormous lot was being done to try and ensure a scrupulousness in administering something that was fundamentally flawed—fundamentally flawed because those accused did not know what the accusation was and they or their lawyers did not have the right to see the evidence against them.
I know it is not easy to deal with these situations. We should not pretend that it is. There will always be a group of people, of whatever nationality, where the information against them—the mosaic of intelligence, reports and hearsay that has come forward—will make anyone who sees it deeply anxious that they should be stopped from being a threat, but which is not of an evidential standard for a normal prosecution in the criminal courts. That will remain a tremendously difficult issue with which to grapple. There is a range of measures on offer; from looking at offences that could be created—as suggested by the noble Lord, Lord Carlile of Berriew—to looking at the admissibility of intercepted evidence—perhaps the noble and learned Lord, Lord Lloyd of Berwick, may speak about this in a moment; and looking at the possibility of constructing a trial that allowed an investigating judge to look at some of this difficult secret evidence that should not be in open court, should not damage the security services or put them at risk.
There is a way of devising a range of measures and a package of measures that will better balance both giving additional protection to UK citizens and discharging the UK Government's responsibilities, but less undermining the fundamental liberties that we all hold dear on which our liberal democracy is based. I implore my noble friend not to interpret the fact that I am here to, in the immortal phrase used in my time
in another place, "abstain in person" on the amendment of the noble Lord, Lord Holme of Cheltenham, should he decide to divide the House, in any way as detracting from the urgency of the Government looking to bring forward a better package of measures so that we are not faced with a renewal order next year.1 p.m.
Lord Lloyd of Berwick: My Lords, it is difficult to measure up to such an eloquent speech as the one that we have just heard. I agree with every word of it. It is not the only eloquent speech that we have heard today. Like others, I support the renewal of these powers. Having heard what the Minister said, there seems to be no question about that; it goes without saying. Like others, I look forward urgently to the day when Part 4 can be replaced, the sooner the better, as far as I am concerned. The noble Lord, Lord Holme of Cheltenham, has done the House a great service by moving his amendment to the Motion.
That seems to be even more so if the Minister is right in the message that I think she was giving, that the threat is not, as we had all hoped in the aftermath of 9/11, one that would soon go away or at least diminish in strength. She gave an extremely gloomy message today, that this threat is likely to continue more or less indefinitely. If that is the case, then surely it is all the more important that we should take the message from the noble Lord, Lord Holme of Cheltenham, very seriously indeed.
The two points I have to make are very pedestrian compared with the points that have been made so far in the debate. As the Minister will remember, a week ago I asked her whether the reason why those who are currently detained without trial is a gap in the substantive law—a gap in the Terrorism Act 2000—or whether it is some evidential difficulty. I think I received the answer this morning when the Minister referred to evidence being unavailable as the reason why they are not being prosecuted. Perhaps she could confirm that what I heard was correct. If so, perhaps she could tell us a little more about the evidential difficulty. Is it a practical difficulty, the practical difficulty of which we are all aware, of producing oral evidence in court, which would put lives at risk, or is it a legal difficulty by reason of the Regulation of Investigatory Powers Act 2000? Or is it perhaps a mixture of both? She ought to be able to give us an answer to that question without giving comfort to the terrorists who we all know may be in our midst.
My second point relates to the recent decision of the Special Immigration Appeals Commission. The noble Lord, Lord Holme of Cheltenham, asked why the Government are contemplating an appeal in that case. I echo that question. Is it because the commission erred in law, in which case I can well understand why an appeal would be necessary? Or is it because the commission reached a decision on the facts with which the Government disagree? Again, I hope that she will be able to answer that question without saying that the
whole matter is sub judice, which is an easy thing for Ministers to say when they do not want to answer awkward questions.I was a little surprised, although again I may have misheard her, that the Government had been disappointed by the decision of the commission. Why should they be disappointed? Surely the release of one more person who has been wrongly detained is something to rejoice at? During the first Iraq war, I and two others had the job—we were known as the three wise men, a description that may have applied to the other two and not to me—that is now performed by the Special Immigration Appeals Commission. We were abolished by statute, and that is not the first time that I have had the privilege of being abolished by statute.
My job then was to interview the many people who had been detained in Pentonville prison on the grounds that they were a risk to security. It is an experience that I shall never forget. A lot of people had been, to use a crude phrase, "rounded up" on evidence provided by MI5. Our job was to go to see those people, talk to them and find out what we could about them. Of course, inevitably we found out that many of them were being detained on evidence that was totally worthless, and many were being detained even on the grounds of simple mistaken identity. On those occasions, our job was to go to the Home Secretary, which we did, and say, "You must release A, B, C and D", and the Home Secretary released them. He never once gave me the impression that what I was telling him was disappointing. So why now should the Government be disappointed by the conclusion which the Special Immigration Appeals Commission has reached? They should be pleased.
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