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Lord Waddington: My Lords, I have to confess that on 16 December I felt some sympathy for the Home Secretary when the Appellate Committee gave its opinion on the matter of the Belmarsh detainees. I thought it pretty odd to condemn as unjustified discrimination a measure which provided for the detention of foreign nationals, but not British nationals, when the foreign nationals were only there because they could not be deported for fear that they would face torture and could leave the country if they wished. It did not seem to me that there was much equivalence between foreigners who could not be deported because they may face torture and Britons who could not be deported because they were British, but there it is.

The Appellate Committee was applying the Human Rights Act passed by this Government, and the Government have had to take the consequences. Unfortunately for the Government, however, we now know that there are plenty of well informed and intelligent people who believe that the present legislation also offends against the Human Rights Act and are of the opinion that if it is allowed on to the statute book, even after amendment on the lines proposed by the Home Secretary, it may well get a similar mauling from the judges.

In these circumstances one wonders whether the Government are doing themselves justice when they proceed with such haste. They certainly would not be in quite as big a mess as they are today if they had not insisted on rushing through the Committee stage and the Third Reading of the Bill in the Commons in one day.

I am bound to say that if the Government had come to the House now and said that the powers of house arrest were urgently required on security advice, I would have wondered about the reliability of that security advice—a point touched on by the noble
 
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Lord, Lord Plant. I would have pointed out how odd it was that for months the Belmarsh detainees should have been kept in prison on security advice that they were a threat to our security and yet on release they were not even going to be put under house arrest.

But the Government are not coming to the House and saying that they need power urgently to put people under house arrest. They are not saying that they are seeking the necessary derogation to bring such powers into immediate effect. And the Government have certainly not explained to my satisfaction why, if there is no such urgency, they are trying to force through the Bill with all speed. Surely they are not seriously arguing that the whole safety of the state depends on the power to put non-derogating control orders in place by the time the old legislation lapses on 13 March. I cannot believe that.

I think that the Bill is deeply flawed. One of our most treasured traditions in this country is that a person's liability should not be restricted save as a result of due process of law. It is certainly not in our tradition for a politician to be able to decide that a person's liberty should be curtailed. But neither, we have always thought, is it for a judge to decide that a person should be detained other than for a defined period while it is decided whether there is evidence to bring him to trial.

I am deeply worried about the idea of a judge, who is not in possession of all the facts and has not heard the defendant's side of the story, being given unusual powers, whether under the Bill as originally drafted to confirm an order made by the Home Secretary or under the proposed amendment to make the order in the first place. The risk is that it may appear that the judge carrying out this unusual role has been enlisted not to act in a truly judicial capacity, but to put a veneer of respectability on the plans of politicians. That point was touched by my noble and learned friend Lord Mayhew of Twysden in an intervention when the Statement made by the Home Secretary was repeated in this place a few days ago.

I have done my best to study what happened in the other place yesterday. Until we see the amendments, which are promised, we cannot be sure on what basis the judge will decide that a person should be placed under house arrest. But it seems that on an ex parte application he will merely study the material in the hands of the Home Secretary and decide whether there is a prima facie case for an order. If so, it serves to reinforce the point I was earlier making. We certainly do not want this sorry tale to end with the judges being granted wholly unusual powers and appearing to some as tools of the Executive.

Going back to the beginning of the Belmarsh saga, I have to say that I had no objection then—and have no objection now—to immigration powers being used to stop foreign nationals, whom we cannot get rid of, causing mischief. I sincerely hope that another government will once again take control of our borders and few such undesirables will get here in the first place.

But while I am prepared to see people detained under immigration powers, I have the gravest objection to the idea of a British subject losing his liberty other than by
 
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due process of law. The Government clearly thought the same when they had to make grave decisions after the attacks on America on 9/11. They never then sought powers to limit the liberties of British subjects; and I find it incredibly difficult to accept that that happened just because the legislation was rushed and without mature thought, as seemed to be suggested by the noble and learned Lord the Lord Chancellor earlier this afternoon. But, of course if the legislation condemned by the Appellate Committee was defective because it did not receive enough thought immediately after 9/11, that underlines the risk the Government are taking now by rushing through this legislation.

Of course it is true that since 11 September 2001 we have been faced with threats which we did not face a few years ago. I freely admit that in such circumstances measures may be necessary which would not have been appropriate a few years ago. But we should look for measures that fit in with our traditions of liberty. The time may well have come when we have to take powers to detain people for much longer periods while evidence is sought to bring them to trial; when evidence of types not previously used has to be used in order to bring people to justice; when new offences have to be created; and when trials have to take place before a judge alone. But I find it very difficult to support this measure.

5.17 p.m.

Lord Giddens: My Lords, as someone who has studied terrorism intensively over the past few years, I should like to say something about what I take to be the backdrop to this debate.

In my view discussion of terrorism in this country, and, indeed, in some European countries, has been undermined by a failure to draw a distinction between two types of terrorism. The first type of terrorism—for want of a better word—I call "old-style" terrorism. Old-style terrorism is the kind of terrorism that we have been familiar with for many years in this country. It is the terrorism of the IRA, the Basque separatists, the separatists in Sri Lanka, Kashmir and many other countries around the world. Old-style terrorism might have international connections, but it is fundamentally local in character. It is concerned with nationalism and establishing a state in nations that do not have a state.

All episodes of terrorism are horrendous because innocent citizens lose their lives, but the level of violence involved in old-style terrorism is usually relatively low. Old-style terrorists can be negotiated with and, as we know, there have been episodes in the world where those who have been condemned as terrorists have found themselves lauded as the members of a nationalist government later in the day.

I would submit that new-style terrorism is absolutely different from this previous form. The object of the Bill is to grapple with new-style terrorism. New-style terrorism is a creation of globalisation. It is an expression of the massive acceleration of the interdependence of the world in which we now live. New-style terrorism is a child of the global age.
 
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I hope that it will not offend any noble Lord if I say that one can draw a certain parallel between new-style terrorist organisations such as Al'Qaeda and global non-governmental organisations. Al'Qaeda is like a malign global NGO, driven by a sense of mission. It has groups in many different countries and probably about 10,000 activists still in cells around the world affiliated to it. It is a network organisation, as is an NGO.

There are four differences between new and old-style terrorism that are crucial to discussion of the Bill. The first is in respect of its aims. New-style terrorism has aims that are geo-political. Al'Qaeda seeks to achieve nothing short of the rolling back of modernity and the reconstruction of world society. Bin Laden wants a Caliphate that stretches all the way from Pakistan, through the Middle East and North Africa to the southern part of Spain. Such demands are not negotiable in the way that old-style terrorism was.

The second difference is in organisational capacity. New-style terrorism, very much like NGOs, makes use of the whole panoply of modern communication systems to produce action at distance; 9/11 would have been inconceivable without the use of modern technologies—mobile phones, the Internet, computers and so forth. That gives a completely different scope to new-style terrorism in the world today.

The third difference, as noble Lords said earlier, is ruthlessness. Bin Laden has said that he wants to kill millions of Americans. There is no limit to the destructive intent of new-style terrorism, very much in contradiction to the forms of terrorism that we have known before.

The fourth difference is weaponry. We live in a world where, through the Internet, access to destructive weaponry is readily available to anyone who takes the time to learn the procedures involved. Destructive weaponry can be built by people with limited knowledge and facilities. We also know that a large amount of nuclear material has gone missing, a lot of it from the ex-Soviet countries. We do not know where it has gone; we do not know whether it has fallen into the hands of new-style terrorist organisations, but it may have done.

In recent years, there has been a tendency to normalise 9/11. I read an article by the journalist William Pfaff in the Observer this weekend that said, "Well, 3,000 people died in 9/11. That is about the same number as died in the Troubles in Northern Ireland. What is the difference?". The difference is massive. The argument is completely false. 9/11 was aimed at the three main centres of American global power—economic power, political power and military power. If the two planes that hit the twin towers had brought them down more quickly, 50,000 people could have died in New York on that day. If the plane that hit the Pentagon had hit it in another area, the military capacity of the United States could have been at least temporarily paralysed.

From the 9/11 report, we know where the fourth plane was targeted. It was targeted at either the White House or the Capitol. It was brought down only
 
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through the bravery of the passengers. Imagine what could have happened if the plane had hit the White House, largely destroyed the building and killed most of the people in it.

Many people today say, "Well, there has not been another 9/11. It was said to us that a terrorist attack in London was inevitable. There has been no such terrorist attack. Why are you scaring us unnecessarily?". People start to call it the politics of fear and feel that the Bill is somehow driven by an illegitimate politics of fear. It is not; that argument is specious, for two reasons.

The first, if your Lordships will forgive me, I will call the phenomenology of risk, which applies not only to risks of global terrorism but to other risks. In order to manage risk, you must scare people, because you must alert them to the reality of the risk that they face, even if that risk is what one might call a low probability but high consequence risk. You must alert people to the dangers. You must scare them to do that. But if you scare them and action is taken to minimise the risk and reduce its potential impact such that nothing happens over a certain period, people will say, "Why were you scaring us in the first place?".

That is a generic problem for governments and other agencies trying to manage the large-scale risks that we face in the world. To me, it is interesting to notice a certain similarity between the arguments deployed by some on the liberal left in this country to play down the risks associated with new-style terrorism and the argument used by the Bush regime in the United States to deny the reality of global warming.

The second reason why the argument about the politics of fear is specious is because of the consequences of the risks that we face from new-style global terrorism. One should not call it international terrorism, because that sounds as though the terrorists come from abroad. Global terrorism has a completely different structure and is much more menacing and threatening than the form of terrorism that existed before.

Noble Lords will remember that, a few years ago, one of the leaders of the IRA said to the security services, "You might be right 99 per cent of the time, but if you are wrong 1 per cent of the time, we will wreak havoc in your cities". That threat is now much more severe, given the nature of the weaponry that can be deployed. A dirty bomb in London would cause havoc in the city. A dirty bomb is relatively easy to build and detonate. It would not kill a lot of people, but it would kill people and contaminate an area of the city and cause panic in whatever city it was set off in.

Against the background of what are massively elevated risks from those that we faced in the past, even 10 years ago, I do not see how anyone can cogently argue that those risks can be handled by orthodox judicial process. Of course we want to bring terrorists to trial whenever we can and, whenever we can, convict them but, as the Bill states, there are bound to be areas where we cannot directly prosecute but where there is clear and present danger and where that danger, in some circumstances, may be extreme and devastating.
 
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As I understand it, the core of the debate as it will unfold in the two Houses is about what should be the relationship between the government, the Home Secretary and the judiciary. Many people are saying that the judiciary, the judge, should have the prime role in taking the decision. I am not at all convinced of that argument. We are talking about risk assessment where the risk is very serious and where highly destructive consequences could ensue. It seems to me that government must assume ultimate responsibility for managing the outer edge of large-scale terrorist activity. It could not be left simply to a judicial decision.

As the debate unfolds, I ask all noble Lords not to use the argument that they accept the reality of new-style terrorism and new risks, but that we can still sustain our traditional procedures. I do not believe that we can, therefore the Bill is crucial to the country. We must get it right because it is not fanciful to say that hundreds or thousands of UK citizens could lose their lives if we get it wrong and all of us sitting in this House would bear a certain portion of the ultimate responsibility for such a thing—supposing, God forbid, it came to pass.

5.30 p.m.

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