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Lord Merlyn-Rees: My Lords, the noble Baroness rehearses the danger of allowing a Home Secretary to lock people up without due course of trial, but that has been going on for 20 years. I locked people up without
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trial; the paper was put before me and I would sign it after making my own investigations. That happened under the Conservative administration beforehand. So why the outcry now, when it did not seem to matter with regard to citizens of the UK and colonies or Northern Ireland?
Baroness Anelay of St Johns: My Lords, the noble Lord has a very distinguished history as a Home Secretary, one that is almost second to none. I say "almost" only because I do not wish to praise other Home Secretaries less. I assume that his reference is to the situation in Northern Ireland, which all of us found extremely painful. Whatever may have happened in the past, in different circumstances, in Northern Ireland, I look today at what should be done this year, in these circumstances, in our British society, and what is the right thing to do now.
I was reminding the noble Baroness, Lady Scotland, that she had answered one of my two questions, but not the second, which was about non-derogating orders. I asked whether the Government considered that, taken together, these might also lead to a requirement of derogation. I note the argument put forward today by the noble and learned Lord the Lord Chancellor about non-derogating orders. I can only assume from his presentation that the Government are rejecting any idea that a combination of non-derogating orders, as we are calling those at a lower level, could lead to a requirement of derogation. We will need to press that strongly in Committee. I am concerned about burden of proof and judicial backstop powers with regard to non-derogating orders. I note that the noble and learned Lord and the noble Baroness, Lady Scotland, are nodding their heads. I look forward to some constructive discussions on that.
My problem is that, at present, a common thread runs through these proposals. It is a willingness to abandon proven principles of British justice, without a proven advantage in addressing the security threat. We should recognise that the problem we face arises as a result of poorly drafted previous legislation, drawn up in haste in the aftermath of 9/11. That mistake was, of course, understandable; but we should not try to repeat it now.
We need to examine all the issues to see whether, and how, the Bill can be amended to make it acceptable. The haste of the Government in another place meant that a vast list of vital issues failed to be debated in the time available. My honourable friend Dominic Grieve listed those issues in full at col. 773 of Hansard of 28 February. Noble Lords will, I am sure, be relieved that I do not intend to repeat them today. I merely direct the attention of noble Lords to that list so that they may see the fascinating matters that we will delve into on Thursday and Monday.
We must ensure that here, at least, the Bill is properly scrutinised and improved. We are, after all, trying to achieve the right balance between liberty and the protection and security of the British public. Our argument today is that the Government have still got that balance wrong in the Bill. How can we turn the
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Bill into something which, while consistent with long-standing traditions of British justice, will also be a valuable weapon in the fight against terrorism? That is the question we face. I give my commitment that I and my noble friends will devote all our energies to achieving the right answer in this Bill.
3.52 p.m.
Lord Thomas of Gresford: My Lords, we on these Benches agree that the security of the country is certainly the prime duty of government. However, that duty is not exclusively theirs. It is shared with the judiciary, the police and security services, the military and many others. The Secretary of State is rightly concerned with the prevention of terrorist acts which may be planned for the future. Government must be vigilant and rigorous in the interception and use of intelligence—and in the surveillance of suspects. It is essential for efficiency that their methods and techniques are kept secret. Yet this is nothing new. We have 30 or more years of mainland terrorism behind us in this country—not to mention the daily, dangerous and dirty war in which the security services are involved with the drug cartels.
The courts have developed techniques whereby the identity of informants and security service personnel can be absolutely preserved. The methods of surveillance may not be disclosed. This can be further refined, as the Newton committee pointed out in its report. The products of surveillance and intercept, in all such cases that come before the courts today, can be—and are—redacted or summarised to preserve the usefulness of the people and systems employed. Security is no justification for the breach of a fundamental principle which underpins our democratic system; no deprivation of liberty by ministerial say-so, no secret midnight knock on the door, no gulags—whether in Siberia, Guantanamo Bay or anywhere else.
I will spare noble Lords from the Magna Carta, but I will refer to Charles I. I am sure my late noble friend Lord Russell would not wish me to forget that period. Under Charles I, the security services were controlled by the Privy Council, the executive Secretaries of State at that time. They used the Star Chamber, here in the Palace of Westminster, as a political tool. For those who think we should adopt the continental way and abolish juries, the Star Chamber court was inquisitorial. It accepted evidence obtained by torture. It inflicted mutilation and punishments, with fines for seditious libels and other offences, upon the political opponents of the King. So Parliament abolished it. The great 18th century jurist Blackstone then said that,
"effectual care is taken to remove all judicial power out of the hands of the . . . privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. Nothing"—
"is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state".
Another example comes later on. In 1765 the Earl of Halifax—the Charles Clarke of his day—issued a warrant to be executed, not by constables, but by his
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messengers who, with force of arms, broke into the house of a publisher, Entick, to search for treasonable libel. They found nothing. It emerged in court that,
Entick's lawyer submitted that a power for the Secretary of State,
The Lord Chief Justice, Lord Camden, agreed and declared,
"our law is wise and merciful, and supposes every man accused to be innocent till he is tried by his peers".
That is something which you will hear today in every court in this land—and a rather more ringing statement of principle than we heard from Ms Hazel Blears last week. The Minister described the Bill with a phrase straight from the Blair bumper book of jargon, when she said:
"The Government provides a legislative framework to enable stakeholders to deliver the frontline measures which"—
That is the way in which the Government of today deal with issues of principle.
Deprivation or restriction of liberty by executive order is contrary to the genius of the law of England. That genius was taken by our forebears to all the colonies and dominions of the British Empire where, in the inheritance of our common law, it has taken a deep and unshakeable root. It was the basis of the Fourth Amendment passed in 1791 in the United States. There have been many examples. The noble Lord, Lord Merlyn-Rees, referred to internment in Northern Ireland. That was not a success; it did not achieve its purpose and was withdrawn.
Lord Merlyn-Rees: My Lords, internment in Northern Ireland was introduced by the Ulster government. It was withdrawn not by the Ulster government but by a Labour government. There are still people locked up in Northern Ireland under that heading in the way to which the noble Lord refers.
Lord Thomas of Gresford: My Lords, I am aware that it was Mr Faulkner who, as the then Prime Minister of Northern Ireland, introduced internment there. However, coming to today, why were so-called enemy combatants locked up in Guantanamo Bay? So that they could be confined, interrogated and tortured on foreign soil by executive order—away from the paramount requirements for due process that is the glory of the American judicial system.
The detail of the Bill proposes two separate processes. One is for a control order which violates Article 5 of the European Convention and which cannot be employed unless Parliament, by statutory instrument passed by both Houses, formally derogates from the convention. It has been conceded that house arrest will violate the convention. That is the derogating order. The second process does not necessarily mean deprivation of liberty, but restriction of liberty by the imposition of a series of
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obligations. That is the non-derogating order. It is conceded by the Secretary of State that a combination of such obligations could amount to the deprivation of liberty which would as things stand be quashed by the courts. The Bill itself completely fails to identify the dividing line—what number of obligations would breach Article 5?
The Secretary of State informed us in the Statement last week that he does not think it necessary to seek the approval of Parliament for a derogation at the present time. So house arrest is not immediately an issue. Nevertheless the Secretary of State seeks to persuade us that he needs this machinery. His great concession yesterday was that for the derogating orders, which he does not intend to introduce, he must apply to the court for the judge to decide on a balance of probabilities whether the evidence put before him by the Secretary of State justifies the making of a control order. Why does he need this machinery now in this Bill when he does not intend to use it? What does it say for future scrutiny if all that the Secretary of State has to do at some future date is to put a single statutory instrument through two Houses—a process which is very difficult to block—to put this machinery into action?
However, for the non-derogating orders, which the Secretary of State intends to introduce next week, there is no concession. We heard nothing yesterday. There is no movement on that. As from next week the suspect's liberty may be curtailed by the Secretary of State if he merely reasonably suspects a person to be engaged in terrorist activities. He may impose such obligations as he thinks fit. This is the Entick case all over again. The Minister makes an order without judicial involvement because here the only judicial involvement is if the suspect makes an application for judicial review. The Secretary of State does not go to court; the suspect has to go to court. The Secretary of State then only has to show to the judge that he was acting within the widespread powers granted to him by this Bill. The judge will have no role in deciding whether the control order is merited.
The noble and learned Lord, Lord Morris of Aberavon, asked the question which we should all be asking—why cannot the machinery which the Secretary of State proposed yesterday for the derogating orders, which he does not mean to bring into effect, be used for non-derogating orders to ensure that it is a judge who makes the decision to deprive a person of his liberty, at least in part? That is the fundamental issue that we have to face with this Bill.
However, there are further problems. First, the Bill says nothing about prosecutions. The Director of Public Prosecutions plays no part in the Secretary of State's decision. No order should be made, whether by a judge or a Minister, unless the Director of Public Prosecutions certifies that a prosecution is not possible on the evidence that he has before him. Secondly, the schedule gives to a member of the government, the Lord Chancellor, the power to make special rules about the mode and burden of proof and about the evidence that can be produced at these hearings. Perhaps the Minister when she replies will tell us whether evidence obtained by torture will be
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admissible provided it is some other country that does the dirty work. Are those the sort of rules of evidence that it is proposed to introduce? The rules may provide not just that the suspect will have no idea of the allegations against him, or the evidence upon which they are based, but even that he may not know the reasons for the Minister's or the judge's decision. He will not even know why his liberty is being curtailed.
The worst aspect of these provisions, and a matter which my noble friend Lord Carlile underlined in his recent report, is that the Secretary of State need not disclose even to the court whether at first instance or on appeal any material in the possession of the security services which helps the accused. That is contrary to every principle of disclosure that we have developed in this country over the past 50 years. How can it be argued that that is consistent with the right to a fair trial, because it amounts to a trial—
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