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Baroness Hayman: My Lords, the noble Lord, Lord Newton, my erstwhile chairman on the review committee on the Anti-terrorism, Crime and Security Act 2001, spoke eloquently. He said that he did not speak for the whole committee, but he expressed
 
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almost exactly my regrets that we are in the situation we are in today. I shall not detain the House by repeating what he said, but it is important we recognise in our debates on the Bill that the issue did not arise simply on 16 December with the Law Lords' judgment. The issues were debated in the House when the 2001 Act was passed.

Ever since, trying to strike the right balance has been a matter of the gravest concern and has deserved attention over a proper period of time because it is not easy to decide exactly where those lines should be drawn. My noble friend Lord Giddens—whom I regret is not in his place—said that he did not want to hear from anyone, "I accept the nature of the terrorist threat, but—". I am afraid that he is going to hear exactly that from me. That is not an ignoble or an illogical position to take.

I accept the nature of the terrorist threat and that the normal judicial process—as I think he described it—will not give us adequate protection. I accept that exceptional measures have to be taken; I just do not accept that the Bill has got them exactly right. In defence of taking that position, I have to say to my colleagues on the Front Bench and to others that it is not an immovable position of the Government that this is the right package. Until the Law Lords' decision, they were arguing cogently that nothing less than full-scale detention in prison would meet the threat posed by those detained; and that the threat was predominantly if not exclusively from foreign nationals and not UK citizens.

So since 2001 we have had nothing in place except the normal criminal law to deal with UK citizens. I remember the response on our report to some of the suggestions about curfews and tagging; their suitability was treated with derision by the Government at the time. I also remember that in the Home Office document that explained why Part 4 was essential and had to be kept, the issue of British citizens was dealt with.

The statement was made that,

I do not wish to make cheap points. I want simply to demonstrate that it is possible to reach different conclusions at different times. Our responsibility is not to be consistent all the time, but to justify our inconsistencies and to give proper scrutiny to the detail of what goes on.

My position is that this is not an absolute choice between either exposing the population to enormous risk or having exactly what was in the first version of the Bill; that is not the situation. We have to make judgments. It has been suggested—I am sure that the evidence from the polls is correct—that the population as a whole supports draconian measures against terrorists or suspected terrorists. I suggest to the
 
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House that that places an additional responsibility on us in respect of civil liberties and getting the balance absolutely right. I do not believe that we have got the balance absolutely right.

I agree with many others who have spoken that since the principle has been conceded about prior judicial involvement on one set of orders, it should be conceded on the set of orders for which we are legislating today. It is a theoretical concession about derogatory orders because we do not have them, but it would not be a theoretical concession for ordinary orders.

I would normally have a great deal of sympathy with comrades who say to me, in the vernacular, "What's so wonderful about the judges?". I have to say that what is so wonderful about the judges is that they are not politicians. There is a profound difference of view about the responsibility of the executive.

I understand and absolutely respect my right honourable friend the Home Secretary's view that he is accountable for national security; but I believe that that accountability is in terms of proposing to Parliament the right legislative framework and putting in place the resources and structure in the security service and the police. That is where our protection and security will come from—through surveillance and detection, not simply by the detention of people who are already involved.

However, there are limits to that responsibility. The limits are in deciding not who should be recommended for control orders but who should have control orders imposed on them. That crosses a line that goes to a judicial function rather than an executive function.

We need to minimise the number of cases where control orders exist. I believe that there will still be some cases, but it is almost taken as given that we cannot change the current prosecution rules. I do not believe that that is correct. I would certainly be willing to engage in debate about how we have a coherent base for trying terrorist crimes which will not be normal judicial procedures. It will not be trial by jury or in open court, and it will not have disclosure of all the evidence under the normal PACE rules, but by considering the new offence that has been suggested and the question of intercept evidence we could provide a way in which to prosecute more people. That will not be easy; I happen to support an investigative judge approach, which will not find favour with everyone who prefers the common law approach. But it is essential that we do it.

Returning to the Bill, I would have supported an extension of Part 4 because I believe that it is important that we legislate with the greatest care and take the greatest number of people that we can with us on this. But I have to accept that the regime for control orders is preferable to Part 4, not least because it is not discriminatory. I have limited support for those who are interested in the civil liberties of these provisions only with regard to British citizens, and not to non-British citizens who have been kept in detention for so long. We must look at the nature of the threat, not the nationality of the person who poses it.
 
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I would support those measures, but only as an interim measure. Contrary to the remark of my noble friend Lord Young of Norwood Green, I do not believe that a report every year is good enough. We are unlikely to get these provisions absolutely right in the timescale of these proceedings. This Bill ought to have a sunset clause within it, and when that sunset clause expires it should be brought into another piece of terrorism legislation, because sadly terrorism will be with us for a long time in the future. That Bill should make it easier to prosecute as well as have control orders.

6.12 p.m.

Lord Lloyd of Berwick: My Lords, as always, it is a pleasure to follow the noble Baroness. Save for one important respect, I agree very much with her remarks.

Five years ago, Parliament passed the Terrorism Act 2000 after full discussion and with all-party support. That is how things should be done—and that Act has served us well. A year later, in the immediate aftermath of 9/11, Parliament passed the Anti-terrorism, Crime and Security Act 2001, containing the now notorious Part 4 powers under which 16 terrorists were detained without trial at Belmarsh. That Act was passed in a very great hurry, and it would have been worse than it is had improvements not been made by this House.

In December 2003, the committee under the chairmanship of the noble Lord, Lord Newton, recommended that Part 4 of the 2001 Act should be repealed and replaced as a matter of urgency. But that was not done while there was still time to do it; for some reason, the Government waited until they were forced into action by the decision of the Law Lords on 16 December; and still they did nothing for two months. They then produced this illiberal Bill and told us that unless it was passed by 14 March the heavens would fall in. I do not believe it.

My starting point is the nature of the present threat. It is clearly very serious but it is not new; it did not start with 9/11. I dealt with the international threat at some length in my 1995 report and it was dealt with at great length by my colleague, Professor Paul Wilkinson. Since 9/11, there have been some 35 terrorist incidents worldwide, only one of which was in Europe—the atrocity in Spain—and none of which was in the United Kingdom. In October 2001, the Government told us that there was no evidence of a specific threat to the United Kingdom; they repeated that view in March 2002. In March 2004, in reply to the Newton committee report, they said that to extend executive detention to British subjects would be a grave step, and that such draconian powers would do much damage to community relations and could not be justified in the circumstances. Those were their words, not mine. Yet here we are, less than a year later, being asked to give the Government just such draconian powers.

What has changed in the past year to justify such a change of view? That is a question that the Home Secretary has repeatedly been asked and has never yet answered. I shall answer it—nothing has changed; the
 
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threat is still the same as it was in March last year and the same as it was in the aftermath of 9/11. All that has changed is the decision that the Law Lords made in December; it is that perfectly correct decision, which the Government now fully accept, that has put the Government and all of us in this very difficult position. The Government were described in the other place as being between a rock and a very hard place; and so they are, but that is entirely their fault for not acting on the recommendation of the Newton report at a much earlier stage.

I shall add one more brief word on the nature of the threat. Last week, Professor Wilkinson, to whom I have already referred, chaired a seminar in the Jubilee Room on the subject of international terrorism. The panel consisted of three professors from St Andrews University and Southampton University and five other experts who specialise in the subject. They all agreed that the threat was very serious and continuing but that it was no different now from what it was in 2001. It has not got worse; indeed, they said that if anything the threat has diminished because of the effect of the war in Afghanistan, which has gravely disrupted the activities of Al'Qaeda worldwide.

I turn from the threat to the proposals in the Bill. I shall assume that the Government will win the vote on their amendment to interpose the decision of a court rather than of a Home Secretary. I accept that the new Bill deals with one ground of the Law Lords' decision; it deals adequately with the question of discrimination. This Bill is not discriminatory. But it entirely fails to deal with the other ground of the Law Lords' decision, which was that the measures proposed in the 2001 Act were not proportionate to the threat to which we were exposed. On that ground, they quashed the order. Exactly the same reasoning will apply to this Bill, if we pass it. Exactly the same fate will therefore befall the Bill.

It is helpful to follow through and see why that is so. Suppose that the Home Secretary comes across a group of suspected terrorists, whom he regards as so dangerous that they must be subjected to immediate house arrest. What does he do? First, he must make a derogation from the terrorists' rights under Article 5. Unless a derogation order is in force, neither he nor the judge has any jurisdiction to make a control order taking away the terrorists' liberty. The Secretary of State, then, applies to the High Court for a control order, as is now suggested, to place the suspected terrorists under house arrest. The High Court is a public authority within the meaning of the Human Rights Act 1998. It would be obliged to apply the provisions of Article (5)(1) of that Act. The judge, looking at that article, would find that terrorists cannot be deprived of their liberty unless they have been convicted by a competent court. Detaining somebody on suspicion is not the same as conviction by a competent court.

The Secretary of State will then say "That does not matter, because we have derogated". However, the judge will then say: "But you must satisfy me that you were entitled to derogate. We must either be in a state of war or face a public emergency which threatens the
 
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life of the nation". The judge would give those words their ordinary meaning; yes, there is a serious threat which may result in great loss of life—and many hundreds of people may be killed. However, can we seriously say that there is a threat to the life of the nation? That is the question which the judge will have to answer if he is going to make a control order. I suggest that he would, very probably, answer that question: "No". Certainly, if I were the judge in those circumstances, I would answer that question in the negative. I agree wholeheartedly with the view expressed in December by the noble and learned Lord, Lord Hoffmann.

Yet suppose the judge takes a different view, holding that—for some reason—he thinks there is such a threat. That decision would be subject to appeal. It would come to the House of Lords and, probably, end up in the European Court of Human Rights. Can one imagine that court deciding that there is an emergency facing this country which is not also facing 46 other nations which are party to the Convention? None of them has found it necessary to make a derogating order. Can one believe that the European Court of Human Rights would decide that we alone are the exception? I do not believe we can accept that. What would happen is that this Bill will fail, in exactly the same way as the previous one.

David Trimble was quite right, in the other place, when he said that these so-called judicial proceedings, which are to find a place in the Bill as a result of the amendment, are a charade. They are not judicial proceedings, as we understand them, at all; they are a sham. Judges are there to make decisions in court. They are not there to apply expertise in what was earlier called risk assessment. To require a judge to make this sort of decision would be to require him to do something in which he is not expert—and which no judge has ever been asked to do before.

I asked the noble and learned Lord the Lord Chancellor whether he had any knowledge of previous occasions when a judge had been asked to make such a decision. He could think of none, except upon an application for bail. Yet bail comes after a charge and before a trial. It is not a decision which may result in a suspected terrorist being confined indefinitely to house arrest. Such a decision is one in which judges ought not to be involved. It is essentially a political decision which would expose judges to a political backlash of just the kind from which it is our duty to protect them. I am deeply opposed to the Bill—for much the same reasons as those given by the noble Lord, Lord Waddington—and I hope that we will, in due course, say so.

6.26 p.m.

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