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Lord Harris of Haringey: My Lords, I begin by declaring an interest as the member of the Metropolitan Police Authority with particular responsibility for the national and international functions of the Metropolitan Police, in particular counter-terrorism. Given the discussions that I have had and the information that I have received, I am convinced that a number of serious attacks on this country have been averted in the past two or three years as a result of the actions and work of the Metropolitan Police, the security services, and others engaged in that work.
This Bill is necessary for a number of reasons. The first is the House of Lords judgment, which means that this issue must be revisited. Secondly, one of the issues that the judgment particularly highlighted was the distinction between overseas terrorists and those who are born in this country and are British citizens. We had the example yesterday of the conviction of the so-called "second shoe bomber". He was a home-grown British citizen found by the courts to be engaged in terrorisman indication that that is the nature of the problem that is now faced and that the Bill needs to extend in that direction. No doubt those who are avid
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followers of conspiracy theories will believe that there is a coincidence between that conviction yesterday and the fact that this Bill is here today. My understanding is that the trial was not expected to reach a conclusion yesterday, and it was entirely fortuitous that that has happened.
The main reason why this Bill is necessary, which has already been referred to by my noble and learned friend the Lord Chancellor, is that we are now dealing with a completely different order and nature of terrorism compared to five or 10 years ago; compared to the challenges faced by my noble friend Lord Merlyn-Rees in his time as Home Secretary and prior to that as Secretary of State for Northern Ireland. I highlight three factors. The first is the willingness and readiness to commit suicide as part of a terrorist act, which transforms the nature of what you need to do to detect and prevent that. Secondly, there is the willingness to cause substantial if not enormous loss of life, and the willingness and readiness to use biological, chemical, or conceivably nuclear weapons. That has not been present in the past, and there is a significant change to the response that is needed by the state in seeking to protect the liberties and lives of its other citizens.
Thirdly, perhaps the most important point is to recognise that these acts of terrorism are not about seeking to persuade our population of anything. Perhaps unlike what happened in respect of Northern Ireland, which was about creating a debate and discussion, this is not about convincing the British people of anything; it is altogether different. When some people say that we should not be passing legislation of this form in the next few days, I wonder what their response would be and how they would defend a situation in which Parliament had not taken steps to respond to the House of Lords judgment in this way.
I shall pose a hypothesis, in which the intelligence services receive intelligence from a previously known and reliable source, but one that is vulnerable, about the specific activities of specific individuals planning some operation. Perhaps those individuals were not previously known to the intelligence services; certainly there is no existence of surveillance data or other material on how that attack will be confronted. How long is it permissible to try to maintain such individuals under surveillance rather than intervene? The balance of risk alters if you are talking about individuals who may be prepared to countenance massive loss of life. In that situation, the balance of risk is different from when someone simply wants to blow up a car.
Baroness Hayman: My Lords, I am grateful to my noble friend for giving way. Does he accept that under Section 41 of the Terrorism Act police have the ability to arrest without a warrant and then to detain for up to 14 days before charging someone against whom there is a reasonable suspicion of being a terrorist? The control orders deal with someone who the Home
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Secretary has reasonable suspicion is a terrorist. Is the emergency situation not dealt with by the amendment that was envisaged yesterday by the Home Secretary?
Lord Harris of Haringey: My Lords, the risk is that that is detention for a fortnight while investigations proceed. There are clear indications that a fortnight may be insufficient under certain circumstances. Maybe that is a different way in which you could approach this issue. If you are facing that sort of investigation, where the material is not such that could be brought before the court because it would prejudice the intelligence source that has hitherto proved reliable, how long do you carry on before intervening? The intervention that my noble friend Lady Hayman talks about is a temporary intervention; it does not necessarily stop what is happening, and it may not succeed in that end. I wonder how many Members of your Lordships' House would be prepared to stand up afterwards and say that because we were not content to allow this Bill to go forward, we allowed some devastating terrorist act to take place. Those are real dilemmas, and this Bill is an honest attempt to try to balance the realities of the situation that we have before us.
The argument has been made that if only intercept evidence could be allowed in court, all those problems would disappear. My noble and learned friend the Lord Chancellor has addressed that in his remarks. The example that I have just given is not about intercept evidence; it is about material that is obtained from a source under different circumstances. Even as far as intercept evidence is concerned, there is a passing reference in the Congressional 9/11 report to the trials following the 1993 bombing of the World Trade Centre, and the fact that modes of communication between terrorists changed after that because of the publication of intercept evidence and the realisation of what was then possible with intercept evidence. This is not an easy thing.
Much of the discussion in the other place, and I suspect much of our discussion here today, will concern the role of judges. I have the advantage of being neither a solicitor nor a barristerso perhaps I do not have a belief that judges are the fount of all wisdom. However, it is worth reflecting on the question of accountability. The noble Lord, Lord Thomas of Gresford, gave us some interesting historical examples of the abuse of powers by the Privy Council, the Court of Star Chamber and so on. All of the examples that he cited were in the era before universal suffrage. I personally feel more comfortable when decisions about liberty are taken by someone who is publicly accountable through the electoral process rather than someone who is not.
Lord Harris of Haringey: No, my Lords, that is not the inference. There is the assumption that substituting
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a judge for a politician is somehow better. I do not think that that follows. I do not see that there is a particular sanctity in that regard.
Nevertheless, the Bill spells out a number of clear processes by which there can be judicial oversight and review of decisions. For example, I do not agree with the belief of the noble Lord, Lord Thomas of Gresford, that somehow the courts will have little to say on non-derogating orders. Clause 7(5) makes clear that the test is whether the Secretary of State's decision was flawed where his decision was that the order was necessary. That means that it is not simply the process which is challenged but the decisions taken as a result.
Lord Thomas of Gresford: My Lords, that suggests that the noble Lord does not follow what judicial review is about. Judicial review looks to see whether the Minister has followed the correct procedure in arriving at his decision. Is his decision flawed in that way? It does not seek to substitute the judge's view of the merits for that of the Secretary of State.
Lord Harris of Haringey: My Lords, I accept that. But it requires the court to consider whether the Secretary of State has misdirected himself or herself; whether the Secretary of State has taken into account factors which should not have been taken into account; and whether the Secretary of State has taken into account all the factors which should properly have been taken into account in reaching that decision. That seems to be a safeguard to which we can all subscribe.
Finally, the first element is that the legislation can be only part of a process of tackling terrorism. It is clearthe experience of internment in Northern Ireland demonstrates itthat if the power is used in a widespread or indiscriminate way, that will increase the alienation among those who, potentially, will become terrorists. Therefore, it must be a sparing power. The Home Secretary indicated that clearly in his speeches in another place.
Secondlyagain the indication has been given by government Ministersprosecutions should take place wherever possible. Again, that clear commitment has been given. The third important element is that the country, the Government, Parliament, and so on, do all in their power to start to redress those senses of fundamental grievance which fuel the way in which some young people are disaffected and drawn towards the path of terrorism. That means, for example, wishing the best for the peace conference currently under way a few hundred yards from here. It means tackling some of the longstanding grievances, whether in Kashmir, Chechnya or wherever they are. I believe that the Government are committed to that. It has to be part of a wider attack on terrorism. The Bill is necessary and should receive a Second Reading.
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