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Lord Brennan: My Lords, this is as serious a business as we are ever likely to engage upon. It would be helpful to remember, for a moment, the Writ that summons us to this House at the beginning of each Parliament. The words speak of imminent perils. They require each one of us to treat and give our counsel on such matters, in particular with regard to the safety and defence of our
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kingdom. That Writ requires of us a loyalty that overrides party and requires us to observe the interests of the nationthrough its constitution's fundamental principles and in the balance to be struck in the campaign against terror. We should eschew the phrase "we on these Benches" in this debate.
There are many present who questionas I will, in a momentsome aspects of the Bill, yet who fully support the Government's determination to combat terrorism. That campaign against terrorism has to be achieved on many fronts. I have three questions about matters other than those in the Bill. First, when are we to discuss legislatively the enactment of a crime of "an act preparatory" to engaging in terrorism? The very phrase "an act preparatory" is extremely broad-rangingand should capture in the prosecution process many who were not previously subject to it. When is that to come?
Secondly, on interception: I live in Gloucestershire, near to GCHQ. What is it there for, if not to help us dominate terrorists? Consider the state of the law, as I understand it. With that panoply of technical knowledge and control, one imagines, over many aspects of our lifefaxes, telephone calls, e-mails and so onhow can it be a proper law which says that if, in such an interception process, somebody admits to a terrorist act or to a course of conduct which would be highly probative of a terrorist crime, that it is not admissible in a court of law? I cannot conceive of any interest of national security or justice which explains that state of affairs.
Lastly, I welcome control ordersprovided that they are ordered within a due process of law. So when we question the Government, as many of us do, we do so enthusiastic for stronger powers to combat terrorism.
I sympathise with the Government's task. It is not easy to strike this balance between national security and fundamental principles of justice, but it is not a safe or a convenient analysis first to describe the severity of the risk because then, almost ex hypothesi, any curtailment of justice has to be justified because of the gravity of that threat. So when I ask the questions that I now will about this Bill I do so constructively. First, as regards the use of control orders, it is a most unusual precedent for us to accept that henceforth a Minister can come to Parliament and attain an Act of Parliament about something he might do in the future which might involve a derogation of the Human Rights Act. On the face of it, it deprives this House of debate about the use of such powers at the time they become necessary to be used.
Secondly, if the derogatory powersI can identify only one clear one; the house arrest provision in Clause 1(3)(e)are not to be exercised and yet protection is to be given in the event that they might, how on earth can one justify the position of saying, "You cannot have a similar protection in respect of the powers that we do intend to use"? It seems difficult to follow. The powers that are to be used in Clause 1 are not exhaustive. There are some 14 of them apart from house arrest. Even Franz Kafka would have been challenged in chapter one of The Trial to work out the degree of control that the
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state could organise over his victim without house arrest. Look at the powers. They invade almost every aspect of life. So we have a state of affairs where the person is protected in the case of a power that is not to be used but where the person is not given the same protection in the case of a power that is to be used. Where powers are to be used, the protection is judicial reviewa test of the process, not a test of the merits. What factor of national security or the campaign against terrorism requires that imbalance? I can think of none.
My next point is surely important. If there are to be control orders, they should be ordered inside a due process. Noble Lords will remember that the 2001 Act, which I shall discuss in a moment, was the subject of major debate about the connection between the judicial process and the powers the Government were then given. Why cannot we ask for the following protections in terms of fair process of control orders? First, the advice of the Director of Public Prosecutions that a prosecution is not feasible. What is wrong with such a request? Secondly, there is no problem regarding a judge acting in stead of a Minister because, as was said a moment ago, he is not a politician, nor is he acting on his own caprice or idiosyncratically. The judge applies a legal process which is absent from these non-derogation orders at the moment.
Thirdly, why is there not a single regime? Why is the burden of proof different? Why should it not be the same? Finally, so far as I know, and I am not presently practising criminal law, there is no criminal process in this jurisdiction at the moment that allows this kind of investigatory examination by Minister or judge to take place without the defendant knowing the case against him. The only example I have been given concerns public interest immunity hearings which affect the admissibility of evidence not the merits of the case. If we want a fair process, what is wrong with the questions that I have asked? What damage would it do to national security to introduce those protections into this Bill?
My third and final topic concerns independent oversight. Where there is a tension between the state and the citizenas there will be under this Billwe thought in 2001 that called for independent oversight. In 2001, we thought it necessary to have the independent reviewer playing his part. We thought it necessary for there to be a review by Privy Counsellors. We thought it necessary to put in a special clause giving the courts jurisdiction to determine whether a derogation was justified. We put in a clause saying, "This Bill will come to an end unless we in Parliament say that it should continue". Is any one of those not reasonably applicable to this Bill? Only one of them figures in itthe role of the independent reviewer. There is no mention of Privy Counsellors, no special jurisdiction given to the court and no sunset clause for a review by Parliament. Why is that the case? If it was good enough in 2001 for foreigners to have those protections, why cannot British citizens also enjoy them under this Bill?
I conclude by making two short points. When, as here, the Government seek to safeguard our national security and we question the extent of the powers that they seek to use, each side can appear determined. That should not
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become obduracy either on our part or that of the Government. A Bill of this kind achieves public acceptance and constitutional significance when it represents the consensus of all regarding the proper balance. We were privileged to hear from my noble friend Lady Hayman the exemplar of a speech that sought balance through consensus. All the questions that I have asked can be answered favourably without causing any significant damage to this Bill. I hope that this week and next the Government will work for the consensus which we all wish to achieve.
Lord Forsyth of Drumlean: My Lords, it is a pleasure to follow the noble Lord. I agree with much of what he had to say, particularly in respect of the need to look again at the whole question of using intercept as admissible evidence in cases of the kind that we are considering.
Of course, I accept that there is a special and new threat, not least because we are dealing with people who are prepared to sacrifice their own lives in pursuing their dreadful cause. I put my name down to speak in this debate knowing that there would be a large number of speakers who knew far more than I about this subjectalthough as a former Minister I was responsible for intercept approvals both north and south of the borderbecause I am outraged at the way in which the Executive is handling this matter. The performance in the House of Commons yesterday and last week was quite inexcusable. I refer to one Labour Member's comments on this Bill during its Second Readinga Labour Member who is probably as far to the other side of the political spectrum from me as it is possible to get. He said:
"As we move towards a system of justice that found favour with the South African Government at the time of apartheid and which parallels Burmese justice today . . . the unthinkable, the unimaginable is happening here".
I do not go quite so far as Mr Brian Sedgemore, making his last speech after a very long career in the House of Commons, but I think that the Government ought to take account of the anger that exists in the other place at the way this matter has been handled. There were 165 amendments yesterday and six hours in which to discuss the whole Bill. That is hardly enough time to read the amendments, far less to discuss them. It is a contempt of Parliament to treat it in this way on a matter of such seriousness. Weak governments are created by weak Parliaments. The same Member of Parliament also said:
"Liberty, without which democracy has no meaning, and the rule of law, without which state power cannot be contained, look to Parliament for their protection, but this Parliament, sad to say, is failing the nation badly".[Official Report, Commons, 23/2/05; col. 365.]
The Government, with their huge majority in the other place, saw it reduced to 14 last night. On the "Today" programme, I hear that Ministers are going to make no further concessions. So we are all wasting our time making speeches in this debate, because Ministers have already decided that they are not going to make any further concessions.
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The speed of consideration leaves me mystified. As the noble and learned Lord, Lord Ackner, observed: what is the hurry? Why is there a rush? What is driving this process? Why are they only allowed one day to consider all the remaining stages beyond Second Reading in the other place? Why is this House given two days to do so? Why do we have a Home Secretary who, faced with serious and well intentioned points, responds by saying that he is fed up with being "patronised by lawyers"?
There is another aspect to this. I hesitate to mention it because this House is broadly non-partisan, but there have been flavours of it today. One Member of this House, a Labour Peer who shall remain nameless, said to me "If your lot vote against this and something happens, we are going to blame you". That is the most disgraceful attitude. It is a partisanship which should have no part in measures which concern terrorism and the protection of our country.
I was brought up to believe that when Ministers wish to bring in highly sensitive legislation of this kind, the right thing to do was summon the party leaders under Privy Council terms and talk to them about the issues, finding a way forward that commanded support. It is not to taunt them at Prime Minister's Questions and in other arenas about who is softer, who is harder, who is more committed to defending our country against these very real threats. I agree with the noble Lord, Lord Brennan, who said that this should not be a matter of partisanship, but one for which a consensus and a way forward are sought.
I genuinely have a problem. I have read the Bill, I have read the material, and I am finding it very difficult to understand not just the speed, but also the logic of the position. The Anti-terrorism, Crime and Security Act 2001 set up the committee chaired by my noble friend Lord Newton of Braintree. He recommended that powers to detain foreign nationals be replaced as a matter of urgency, and suggested that we proceed by criminal prosecution instead. That was debated in this House in March 2004.
The joint parliamentary committee agreed with the committee of my noble friend Lord Newton of Braintree, and said that the experience of other countries suggests it must be possible to deal with this by criminal prosecution. That advice was rejected by the Government. The Lords judgment came along and, as I understand it, rejected Part 4, arguing that it was discriminatory in that it only applied to foreign nationals. Most importantly, the second part of that judgment was that the provisions in the legislation were not a proportionate response to the threat we faced.
The Government's response at the time was that detainees would continue to be detained until Parliament decided whether or how to amend the law. If this farce in which we are now engaged is Parliament deciding how to amend the law, then I am a Dutchman.
We are now told that the nature of the threat is such that it is necessary to extend these provisions beyond those that were previously only thought necessary for foreign nationals. Is it a coincidence that, following the
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Lords judgmentthe noble and learned Lord the Lord Chancellor gave me an answer in response to my intervention todaythe Government suddenly realised that British citizens represented a threat? Or are we not being given a straight tale here?
The Government have also said that they could not possibly just extend the existing powers. Am I deceiving myself in seeing on an Order Paper that the Government tabled a statutory instrument in the other place to continue the powers for a further nine months? Indeed, they published an explanatory memorandum. What changed the Government's minds? Why, if they were prepared to table the statutory instrument, is that not possible now? Has the timing of the general election got something to do with this, I wonder? It is hard to reconcile these facts without coming to a nasty conclusion.
We now have a measure which seeks to deprive people of liberty without knowing who made the allegations or, indeed, what the allegations are. Innocence or guilt should be a matter for the courts to determine, not for the Secretary of State. I am mystified by the distinction made by the Home Secretary between derogating and non-derogating orders. Taking powers to stop someone pursuing their livelihood, to stop them meeting their friends, making their homes open to search at any timethese are dilutions and deprivations of liberty.
The Government would be in a much stronger position if we had not had the experience of the dossier on Iraq, or if we had not been told that the 17 people detained in Belmarsh were a threat. Of the 17 people held under Part 4, four have been releasedtwo on the grounds of insufficient evidenceand the control orders, we are told, will not apply to them anyway. So why were they detained for three years? Why are these control orders necessary if they are not going to be applied?
I remember the noble Baroness, Lady Kennedy of The Shaws, in one of our debates when we were seeking rather more modest encroachments on civil liberties, reminding us that when tyranny comes it does not always come wearing jackboots. It can come in an Armani suit, she said.
I say to the Governmentand I give them honest, impartial adviceif they seriously want to tackle terrorism in this country, let them withdraw this Bill. Let them seek agreement from all parties on the way forward. Let them establish a consensus, and let them put the interests of the country first.
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