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Noble Lords: Hear, hear!
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6.47 p.m.

Lord Phillips of Sudbury: My Lords, we all accept that this is a hugely difficult measure with which to contend. When Mr Blair says that the first human right is the right to one's physical security, one must admit that he would probably win a public opinion poll on that, as the noble Lord, Lord Young of Norwood Green, correctly said. What matters is how we act on that assertion. Public reaction in terms of fear is not always—and not in this case—a primary consideration which should engage us.

Occasionally, it is the job of parliamentarians to legislate in a way which will, temporarily at least, displease the public. I cannot resist quoting from John Stuart Mill's 1959 essay "On Liberty", in which he said:

Nothing that we do or say or legislate can assure the public of safety in relation to the sort of terrorism that we are dealing with here. There is no sure answer.

I want to concentrate on hearts and minds, and the impact that this Bill will have—not just on terrorists or would-be terrorists, but on would-be informers. It is worth remembering the situation in Northern Ireland at the height of the IRA crisis. Then, the IRA was protected by its community. Compare that with the events of this week, with many Catholics in Northern Ireland rising up against the IRA's conduct, now absolutely unacceptable. What has changed? Their long-standing grievances have largely been attended to.

As so many in this House said in our great Iraq debate before we went to war, terrorism is rooted in sentiment. In shaping sentiment, the attitudes and actions of the state are apt to be formative, or at least highly influential, with those inclined to terrorism or its support. Thus I believe that framing anti-terrorist laws in a way that is manifestly fair, which minimises wrongful detention, which minimises martyrs and which belies extremist myths is likely to win hearts and minds.

In any event, the terrorist mentality is often fluid and relative; it ebbs and flows. Whether someone actually gets to the point of doing something dreadful depends on many influences. I get the impression from the shoe bomber case reported this week that the young man concerned could have been pushed into more decisiveness and could have acted much earlier, with devastating consequences. Who knows what held him back? It may well have been the protestations of someone in his community or family whom he was close to, who in turn was benignly influenced by their perception of how we, the host community, are dealing with these intractable problems. Who knows how many violent acts have been indirectly frustrated by our libertarian ethos?

What my noble friends Lord Thomas of Gresford and Lord Goodhart and others have said about the powers to make non-derogating control orders is plum right. If one were to take the worst case, in libertarian terms, of Clause 1—and that is never a bad thing to
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do—one might find this with regard to freedom of speech, which has not been mentioned. First, the rights on the part of the Secretary of State are couched in a way that is more appropriate for civil law than criminal law, yet the nature of the powers, unlimited as they are—as my noble friend Lord Goodhart mentioned—is certainly criminal in impact and feel.

Sir Nigel Rodley, the distinguished human rights lawyer and chairman of the Human Rights Centre at Essex University, pointed out that the Strasbourg court, and probably our own courts, will so find on the basis of what is called "autonomous meaning". Where will the Bill stand then? For the Secretary of State can act on suspicion; he can act in anticipation of any terrorist activity; he can act without evidence of criminal intent, and worse, there need be no terrorist activity at all for the full force of a control order to be invoked. It is sufficient that there is, or is the prospect of, "terrorism-related activity". That is defined in Clause 1(8) in the broadest possible terms and catches, for example, conduct that gives encouragement to or facilitates acts of terrorism. As far as I can see, that conduct need not be knowing or intentional in giving such encouragement or facilitation. I refer to what the noble Lord, Lord Brennan, said.

Finally, that encouragement need not be of a specific act of terrorism, but of terrorism generally. The noble and learned Lord, Lord Mayhew, mentioned Liversidge v Anderson 1941. Those powers are considerably wider than even the Defence (General) Regulations 1939, which was the legislation around which that case revolved. The writings of a journalist who was passionately critical of, for example, government policy vis-à-vis the Iraq invasion and the Middle East could be stamped on under the Bill. He or she would thereby on one view be constrained under Clause 1(3)(d) in that their association and communications could be restricted, and under Clause 1(3)(c) in that their work and occupation or business could be restricted. It may be argued that a judge would never agree, or that the Human Rights Act or the European convention would come to the aid of the journalist concerned, but the rights of judges under this Bill are strictly constrained to judicial review limits and by the provisions that I have referred to and others. What is more, Article 10 of the European Convention on Human Rights is notoriously difficult to interpret, given that it expressly allows without derogation restrictions on freedom of expression,

Some of your Lordships may remember the case of Purcell in 1989, where the Government were upheld in preventing TV interviews with members of the IRA and Sinn Fein, and the subsequent case where Gerry Adams failed before the Strasbourg court to get the order lifted that prevented him taking his seat in the House of Commons. I repeat that we are all groping in seeking a balance between public safety and individual liberty. For the reasons that I have advanced I, and many of your Lordships who have spoken, err on the side of manifest fairness and proportionality. That is the best long-term defence against the evils with which we are contending.
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I agree with the famous judgment of Lord Atkin in the Liversidge v Anderson case. That was based on the 1939 regulations, where noble Lords will be interested to know that there was a requirement for a monthly report to Parliament for the exercise by the Home Secretary of his rights under the regulations. I read from the famous Section 18B of the regulations, about the chairman of the advisory committee that reviewed orders made by the Home Secretary:

We were rather more forward then than we are now. Lord Atkin closed with those famous words:

this was in the year in which this very Parliament was bombed by the Luftwaffe—

And so say I.

6.57 p.m.

Baroness Goudie: My Lords, an appalling terrorist outrage happens and inevitably the question is asked, "Could the government have done more to prevent it?". The answer is "Yes, if the government had reasonable grounds for suspicion and had acted on those suspicions sufficiently effectively".

The approach that advocates prosecution or nothing is fundamentally flawed in the case of terrorism, or potential terrorism. Because of the nature of those crimes and of the individuals involved in those crimes, a precautionary strategy cannot be sensibly so narrowly confined. There are a number of reasons why prosecutions on their own are inadequate. First, they relate only to what has already happened. Secondly, they relate only to what can be proved to a very high standard and beyond reasonable doubt. Thirdly, they relate to what can be proved by admissible evidence. Fourthly, evidence often cannot be used because of a legitimate fear of endangering sources and techniques.

There is another reason. An international terrorist now present in our country may have previously committed terrorist offences elsewhere in the world. It will be argued that our courts lack jurisdiction to bring that person to trial in this country. In this situation, the government are placed in a bind. They have every justification for deportation or for refusal of admission, but every country in the world, save one, refuses to accept the individual concerned. For the same good reasons, we do not want him. The one country that will have him is his country of origin. Indeed, it may positively want him for serious crimes that he has allegedly committed there. We cannot send him back because of doubts over the nature of the regime.
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That may be reason for not extraditing or deporting him, but it is not a reason for allowing him to remain here and be able to escape any sanction, even if the evidence could be made available to us, for example with the assistance of video links. Even if our courts and jurisdiction try him, it would often be impossible to obtain the necessary evidence from overseas. The practicalities of prosecution cannot be ignored. The case for having precautionary measures that fall short of prosecution and punishment, but are subject to judicial review, is overwhelming. The Bill has an entirely legitimate and balanced aim. Those who seek to obstruct it should have open in front of them the most recent report of the independent reviewer, the noble Lord, Lord Carlile of Berriew, QC, especially at paragraphs 57 and 59, and ask themselves the following questions. First, do they accept that in each of the cases he has seen over the past three years it was clear that the person was properly suspected, on strong grounds, of being a member or supporter of, or assisting, an international terrorist group? I do. Secondly, do they accept that there remain in the United Kingdom individuals and groups who pose at present a real threat to the safety of the public here and abroad? I do. Thirdly, do they accept that the public safety context includes the unavoidable premise that it may be difficult to predict likely methods or targets of terrorist attacks? I do. Fourthly, do they accept that the risk of chemical or biological attack is completely realistic and the consequences potentially horrible? I do. Fifthly, do they accept that in this extremely dangerous context in which new groups can appear suddenly, public protection against international terrorism must be flexible? I do.

If anyone disputes any of those conclusions of the independent reviewer, we shall be interested to learn the basis on which they do so. If they accept the conclusions, they must then ask themselves the question whether prosecution alone, with all its limitations, is the adequate response. The answer to that question is manifestly no.

Other controls are needed and they are needed now. That is why I say that the approach which advocates prosecution or nothing is fundamentally flawed. I believe that it is time to pay attention to the threats and dangers we are facing.

7.2 p.m.

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