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Lord Mayhew of Twysden: My Lords, I am afraid that I cannot agree with the conclusion of the noble Lord, Lord Giddens, who has just sat down. I hope briefly to explain why. It is important to remember that throughout our modern history what might be called our sea defences against unfair executive power have been serially attacked by the threat, at any rate, of erosion.

I do not think that that is an unjust metaphor: the executive, like the sea, will always come back. The executive has always had seductive and plausible reasons for each attempted inroad. Sometimes it has made a breach. We are all familiar with the famous case of Liversidge v Anderson in the pressures of the last war when the majority of the Appellate Committee in this House effectively and regrettably held that, with Cicero, amid the clash of arms the laws are silent.

That decision and the criticism that it engendered gave rise to the process of judicial review—the ingenious and wonderful creation of the independent judiciary, which has been developed to this day. But its true character needs to be understood. I very much agree with the noble Lord, Lord Plant, who said that whatever is provided for in this Bill, even as it is now proposed to be amended, it is not judicial review.

In the case of this Bill, we are told by the Government that the danger is presented by international terrorism—I entirely take the point made by the noble Lord, Lord Giddens, about the new character that it presents to us—the dangers are such that procedures quite contrary to our principles of liberty and justice are demanded, if the rights of the greater number are to be
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preserved. They tell us that the heads of the various agencies that protect us are of one mind—those powers are needed.

I do not doubt that we are told that by the heads of the agencies, which needs, of course, to be given great weight. But should it be given decisive weight, as I rather think that the Government are giving it? I think not. It is no disrespect to those very admirable agencies, including the police, to say that there will be a natural tendency for them to wish to make their difficult and often dangerous jobs easier and less dangerous, as they suppose, and the lives of their opponents more difficult. Again, the speech made by the noble Lord, Lord Plant, like many others, needs to be read with care in that connection.

Those people are at the sharp end, and very glad of them we should be and are, but provisions that permit such wide incursions into liberty as these need to be examined by other minds as well, not least because the provisions could very well enhance, albeit at one remove, the dangers that we are told we face. Here I agree, again, with the right reverend Prelate the Bishop of Worcester.

For example, we resorted in the 1970s, as has often been mentioned today, to detention in Northern Ireland. The arguments for it were respectable and not unlike those that we hear today. But when implemented—I know that they were implemented incompetently—its character gave great comfort and assistance to our enemies and their friends. It was very wisely abandoned by the noble Lord, Lord Merlyn-Rees, the subsequent Secretary of State.

When this Bill comes under dispassionate examination, one is almost blinded by warning signals. Time is very tight, so I commend to the Government and your Lordships only the speech made in another place by Mrs Barbara Follett, the Labour Member for Stevenage, at Second Reading. She said in another place that the provisions of this Bill for restrictions even under a non-derogation order,

to the pass laws in apartheid South Africa. That is a pretty unsavoury comparator.

Mrs Follett ought to know for she lived in South Africa under the apartheid regime. She said that the General Law Amendment Act, on introduction in 1963, allowed people to be detained without trial, initially for 12 days. Two years later, it had been extended to 90 days. A bit later, it was extended to 180 days. Finally, it became indefinite, by amendment. That is what tends to happen when a wedge is driven by the executive—any executive—into the principle of liberty. The noble and gallant Lord, Lord Craig of Radley, asked, very pertinently, who will be brave enough to say that we no longer need it. That is an important consideration.

Mrs Follett went on to say that in 1971 her first husband, who advocated votes for the blacks, was, without trial, put under an instrument called, by chance, a "control order" because the state believed that he was a threat to its security. She said that he
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probably was. It provided for his house arrest and it prevented him working and earning his living for five years. His experience of that legislation ended shortly before the expiry of that period when, by whatever person and for whatever reason, he was shot dead in the presence of his daughters.

It is fair to add that Mrs Follett said that she recognised the case for a control order, but that the Home Secretary should get a judge to implement the orders in the Bill and to consider how far to use intelligence evidence in court. Whatever the Home Secretary's intention about adding to the judicial jurisdiction, he does not propose to do that, so far, at any rate.

I have a few concluding points to make briefly about those matters. First, no matter that a judge has a role in derogating orders, the procedure embeds an undemocratic principle in our law—as it happens, another phrase of Mrs Follett's. The judge has to consider whether the matters relied on by the Secretary of State to justify the making of his order were capable, if not disproved, of constituting reasonable grounds for him to make the order he did: look at Clause 2(2). But the controlled person—I might almost call him the victim—is not allowed to disprove them because matters are not fully disclosed to him. The facts are not disclosed to him, and it is that which is so unfair.

Unless upon full deliberation we can find another way, I consider that this is no way for us to proceed. This is not judicial review and, in any event, it is a most undesirable role for judges, since it will properly be seen as quasi-executive, at least, in its character.

At least one component of another way is already available: that is, to make intercept evidence admissible in court. The noble and learned Lord the Lord Chancellor said that there would only be a tiny number of cases in which that would have any effect. I do not regard a tiny number of cases as fit to be ignored when the liberty of the individual is concerned, so let us look at that. In any event, I think that the origin of the exclusion of intercept evidence was a desire, many years ago, to palliate the sense, in some fastidious quarters, that eavesdropping was always bad form. We can no longer afford such delicacy.

There may be other ways, but there may not be. In that case, let us proceed accordingly. But there may be other ways in which, upon full deliberation, we can, by agreement, hit upon some acceptable, fair judicial procedure to build in to the protection of the state against current dangers. But full deliberation is precisely what we have been denied, giving rise to the astonishing scenes in another place last night. The excuses for not taking power to renew, for a few months, Part 4 of the ATCS Act 2001 do not stand up for a minute. I hope that the noble Baroness, Lady Scotland, will recite them when she winds up.

The ECHR provides for a reasonable time to be available for a state to get its house in order after an adverse ruling and that is the course that the Government should take in maintaining the sea walls. They should stop trying to ram through Parliament a bad law that will give rise to worse cases. In the mean
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time, I say to the noble Lord who raised the question that I shall resolutely bear my share of any responsibility for any attack—God forbid—that may occur.

5.55 p.m.

Baroness Falkner of Margravine: My Lords, I am a member of the Joint Committee on Human Rights and I completely concur with the findings in its preliminary report that was published last week.

The events of the past few days have placed a real burden on Members of this House in terms of our role in defending the civil liberties of our fellow citizens and/or being complicit in not taking the terrorist threat seriously enough in our resistance to the measures in the Bill.

As a relative newcomer in these matters, I find this task daunting. The fact that the community from which I come—the Muslim community—is the one most likely to be affected by this legislation makes this task more complicated. But, to me, the overall principles are clear: we cannot hope to secure the well-being of the majority by riding roughshod over the rights of the minority.

Let me say from the outset that the minority in question—those, on the whole, from the Muslim community, as the Government have themselves identified in the background briefing papers—is aware of the responsibility it has in this matter. Many of us have been reflecting on these matters since 9/11. That we have failed to combat extremism in our midst is a matter for deep self-reflection. That we fail many of our young people educationally and economically is a matter for regret, not least because of the opportunities lost. That we have failed some of them in terms of their moral outlook and their perception of justice and of their place in the wider human family is something that we cannot explain. It will be some time before we arrive at the reasons why that has happened.

It is absolutely clear that while a small number of extremist Muslims, or non-Muslims, may pose a terrorist threat, the powers contained in the Bill will have the potential disproportionately to affect all of us in the Muslim community, as well as every other British citizen. A diminution of human rights, the loss of hard-won civil liberties and the egregious assault on due process in the Bill cannot be the right way to deal with that other wrong. The general approach of the Home Secretary in not establishing a process whereby those involved in terrorism-related activity are charged and tried in a court of law following established legal principles is to be regretted. We therefore find ourselves in a position where we have no choice but to try to improve a Bill that should have no place in our constitutional framework.

Given the time limitations, at this stage I shall confine my remarks on the Bill to three areas. The first is the procedures in cases where deprivation of liberty is found necessary. How can it be considered just that those accused of these offences are not told of the allegations against them at any stage of the legal process? We have seen SIAC special advocates resign rather than continue with the sham that this process represents any sort of fair trial.
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The Joint Committee on Human Rights addressed this in its preliminary report on the Bill. It found that it seemed unlikely that the use of a special advocate procedure, in which the individual does not see the material on the basis of which the order against him is made, would be compatible with the right to a fair trial, as set out in Article 6 of the ECHR.

My second concern is the differential and low standard of proof, as set out in Clause 1, for making control orders. It is sufficient for the Secretary of State to have reasonable grounds for suspicion in terms of the range of non-derogating orders.

Those orders can ultimately, in extremis, result in restrictions on liberty through curfews, infringe other rights such as freedom of movement, or cause loss of employment, and it cannot be right for them to be subject to such a low threshold. I urge the Government to use the same standard as that proposed for derogating orders and to apply the normal evidential rules. They work, as we have seen in the trial of Saajid Badat, which is currently ongoing.

My final concern is the process of scrutiny of the legislation. When the noble Baroness, Lady Scotland, repeated the Statement by the Home Secretary in this House on 26 January, we were told that the Bill, which is being debated in such haste, had become necessary because the Home Secretary wished to conform to the Law Lords' ruling of 16 December 2004, where Part 4 powers were found to be disproportionate and discriminatory.

So, the Home Office explained, the reason that the Bill was being rushed through in such haste was because that legislation was to expire on 13 March. We are now told that the Bill is fundamental to countering the threat of terrorism to make our country safer than it is; to prevent us, as far as possible, from a possible terrorist attack with its potential huge loss of life.

We also hear from the Benches opposite that the consequences of not passing the Bill could be catastrophic. That is the implication of what was said by the noble Lords, Lord Giddens and Lord Young, in attending to charges of the politics of fear. I wonder whether the Minister concurs with those sentiments and, if so, will she tell us when she winds up what might happen if we passed this Bill and yet saw a terrorist outrage?

Finally, if the threat to the life of the nation is so grave, we might be prepared to accept the argument in good faith as we have no other basis of judging. But should not the Government be making the time available for us to deliberate properly; to scrutinise thoroughly; and, above all, to do justice to our forebears in this country who have made such sacrifices for these liberties, which are under so much threat today?

6.2 p.m.

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