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Lord Falconer of Thoroton: My Lords, I apologise for interrupting but there is guidance which says that exculpatory material must be disclosed to SIAC. That guidance has been approved by SIAC. I am not aware of the part of the report of the noble Lord, Lord Carlile of Berriew, to which the noble Lord refers, but the practice is accepted by the court that exculpatory material must be disclosed.
Lord Thomas of Gresford: My Lords, if that is the present position under SIAC, why is it not in the Bill? Why is it not on the face of the Bill that full and fair disclosure must take place? As I was saying, how can these provisions be consistent with the right to a fair trial at common law, never mind about the European Convention? It is a blatant abuse of what we have known as the proper processes of justice.
Thirdly, the Government intend to maintain in place the special advocate procedure which the Joint Committee on Human Rights has said would breach Article 6. Two special advocates have already resigned in disgust at what they have been required to do. In written evidence to the Constitutional Affairs Committee published today, nine other special advocates wrote:
"Special Advocates have no means of knowing whether the appellant has an answer to any particular closed allegation"—
"except insofar as the appellant has been given the gist of the allegation and has chosen to answer it. Yet the system does not require the Secretary of State necessarily to provide even a gist of the important parts of the case against the appellants in the open case which is provided to the appellants. In these situations"—
said these experienced special advocates—
"the Special Advocates have no means of pursuing or deploying evidence in reply. If they put forward a positive case in response to the closed allegations, that positive case is inevitably based on conjecture . . . The inability to take instructions on the closed material fundamentally limits the extent to which the Special Advocates can play a meaningful part in any appeal".
Yet it is on this special advocate system that the Government rely as a safeguard for the appellant who is brought before the court.
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Fourthly, there is no provision in this Bill, as there was in Section 30 of the 2001 Act, for a judicial determination of the legality of any future derogation from Article 5. The noble and learned Lord the Lord Chancellor referred to the case of A against the Secretary of State. The Judicial Committee of the House of Lords had jurisdiction in the case of A because it was specially provided for in Section 30 of the previous Act. It is not repeated in this Bill. Nor is there any provision in this Bill for the appointment of a committee of Privy Counsellors to carry out a review of the kind conducted by the Newton committee. Nor is there a sunset clause, or anything resembling a sunset clause, within the Bill.
I summarise the basic principles: where it is impossible to prove guilt by due process, we on these Benches say that Article 5 should be maintained—its integrity should be maintained. There should be no deprivation of liberty, whether by court order or executive order. Restrictions on liberty not amounting to full deprivation may be imposed by a judge on the application of the Secretary of State in exceptional circumstances. Those circumstances must be proved to the satisfaction of the court in a contested hearing which is consistent with a fair trial. In particular, the suspect must know the nature of the allegations that he faces, and be provided with at least a summary of the evidence, as redacted under the guidance of the court. Disclosure of exculpatory material is essential.
This Bill can probably not be put into any acceptable form by amendment. We will do our best to co-operate with the Government, but the kindest thing may be to get all those stakeholders together and invite them to drive their stakes through the heart of the Bill. With proper time, and beyond the constraints of a pending election, all parties could come to a consensus on the best way forward to protect our security in these dangerous times, and to maintain the way of life that we enjoy, which is underpinned by liberty.
I recall the words of my late and noble friend Lord Jenkins of Hillhead in the debate on the previous Bill. He said:
"Above all, something should be done within a framework of respect for the rule of law and an awareness of the need for those at the hinge point between the security of the state and the freedom of the individual—and no one is more at that hinge point than the Home Secretary of the day particularly when there is public clamour—to remain as calmly judicial as possible".—[Official Report, 27/11/01; col. 200]
That is what we need: calm consideration with time to achieve a consensus that we all seek.
4.12 p.m.
The Lord Bishop of Worcester: My Lords, there are many in this Chamber more qualified than I am to speak about the detail of this Bill. I speak bearing in mind the responsibilities that I associate with the privilege of speaking from these Benches. These Benches have resounded with the words of people who have remembered that the most repeated text in the scriptures is the words "fear not". They have therefore remembered that terrorism is not just a series of unacceptable, revolting, disgusting actions. It is also a system of belief that the best way to achieve your ends in life is by terrorising people through fear.
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I also speak as a person with a vivid childhood memory of my parents describing to me what it was like the day my father was interned at the beginning of the Second World War.
I am therefore glad to speak about the privilege of living in a country with a certain spirit—"spirit" is the word I would use. The introduction by this Government of the European Convention on Human Rights into domestic law contributed massively to my sense of the good spirit of this country. The Government deserve and receive continued congratulations on having done that.
In this debate, I am most of all concerned that this Bill does not become what it currently has every sign of becoming: a victory for the terrorists. I am concerned that we are faced with legislation which is part of a transformative process in our society, progressively undermining its spirit, to which so much effort has been directed and which has cost so much to secure.
The events of the last week—and in this building over the last couple of days in particular—are a sign of the capacity of terrorists to undermine our capacity for calm and considered reflection. In that sense, if there are terrorists abroad in our society, they will be delighted that we are discussing this measure.
What contributes to their victory is not the reassurances offered by the noble and learned Lord the Lord Chancellor—and which will no doubt be offered again by the noble Baroness, Lady Scotland of Asthal, when she speaks—but the rhetoric which is the public background to a Bill of this kind, to which I have referred in other debates. We hear constant use of the word "emergency", although when it is used it is also said that there is currently no need for the non-derogating orders in this Bill.
The language of emergency always creates a certain atmosphere, and it is not the best atmosphere for reflection on the quality of your spirit as an individual or a society. We have heard it said, by people in very high places, that safety comes before civil liberties at a time like this. That is all very well when it is your safety you are thinking about, and other people's civil liberties. It is not so good when you find yourself in the position of Pastor Martin Niemöller, who found that there was nobody to protest about his civil liberties and safety, because all the people who might have protested had already been disposed of.
I recall the comment of the Leader of the House of Commons that it is terrorists who pose the main threat to our civil liberties. That remark illustrates the muddled thinking we can be led into by constant talk of emergency. Civil liberties are only endangered by the state. There are other dangers posed by terrorists, and they are extremely serious. I do not minimise them. There is something altogether different, however, when the state begins to turn on its people, or awards itself the power to do so.
I shall make two points before I sit down. Paragraph 9 of the Joint Committee's report refers to the derogations orders—that is a very good example of my point. It says that it is questionable whether it
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is legally possible under convention law to take the power to derogate without actually derogating when you do it.
I am not a lawyer, and I would not begin to comment on whether that is legally possible. What I do know is that, by taking the power to derogate, you have morally already derogated. You have constituted a society in which derogation is an existential possibility. You have already changed the spirit of our society, of which I spoke. This House should consider very seriously what that means, and whether it is important that an amendment is introduced to make it clear that, if we are going to talk about derogation, we had better do so now, when we are debating the primary legislation. Our spirit as a society will already have been changed if we give the Government this power.
My second point is about the non-derogation orders. It is constantly said that those orders do not constitute a direct attack on the liberty of the subject. As you read them individually, that is undoubtedly the case. What happens if, of the 15 possible restrictions that this Bill would allow the Home Secretary to place on an individual, say 10 of them are introduced in relation to a particular person? Shall we then, if we read these possibilities seriously, consider that person to be at liberty? Would not their life be rather like the lives of people who used to live in Iron Curtain countries? Did we call that liberty?
In short, I see this Bill as posing serious dangers of a spiritual kind to the society in which we live. I do not deny for one moment the seriousness of what was done, what has been done, and for all I know what is being planned by people of murderous intent. We need to arm ourselves with the resources of the spirit to stay clear and rational and not to give in to terror even in this Chamber.
4.20 p.m.
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