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Lord Dubs: My Lords, by any standards, the terrorist threat being what it is, the dilemma facing our Government, and indeed any democratic government, is a nightmare. My noble friend Lord Giddens described that clearly. However, I also join my noble friend Baroness Hayman in saying there has to be a "but". It is not simply a matter of saying "there is a dilemma, and therefore anything goes that the Government want to happen". It is right that we should be critical in a constructive way about what is before us.

I am concerned by the speed with which the legislation is going through, more in the other place than in this House. I understand, though, that the Home Secretary's concern is that, if we were to delay and try and renew Part 4 first, there might be an appeal to the European Court of Human Rights on behalf of the people in Belmarsh. If that succeeded, the Government would have to release people without any other measures in place. I do not know about the timing, but I understand that that is the view.

I welcome the Government's clear commitment to prosecution as the preferred option. However, I am critical of them, although I am unhappy to be so because of the dilemma they face. I note that the Government are examining the option of deporting people who are not British citizens to their countries of origin. The Government would, of course, have to get assurances that there would be fair trials, no death penalties and no torture or inhuman treatment, and that their well-being would be independently monitored.

Of course there is a balance between civil liberties and security, but there is another issue that has not been mentioned much in today's debate—the question of hearts and minds. Those of us who have followed Northern Ireland in some detail will know that that question is fundamental to dealing with terrorism. If we behave in such a way that we put security above all else in terms of this type of legislation, we are missing the opportunity to try and win over hearts and minds, because we may be alienating people who will then become enemies of our society. The thought that there are young Muslim men in our society who feel alienated from this country is surely an enormous challenge to us. I hope that any measures we take in this Bill will not weaken our effort to win over young men who might otherwise find their allegiances elsewhere. We are talking about a minority, but we must bear in mind the importance of dealing with hearts and minds, as well as with criminal law.

When I was in Northern Ireland, in common with many other Ministers who have served there, I had at that time to sign extension orders. These were orders that held people in detention; not for very long—
 
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sometimes for 48 hours, sometimes for 72—while further examination could be made, usually of ballistic or forensic evidence. However, it seemed odd to me even then that a Minister should sign such orders. Not too long after that, the responsibility was rightly and properly given to judges. Not that I ever quarrelled with any of the extension orders—they seemed well presented and clearly put forward, and so I signed them without too many qualms. I still felt, though, that doing so was a function not for Ministers but for judges.

The reason why it is right that judges have a key part to play in all the control orders is twofold. One is, as my noble friend Lady Hayman said, that they are independent of Ministers. The other is that they represent a process that is independent of government. We have to set some store by that, even if there are concerns about the way judges might operate, as the noble and learned Lord, Lord Donaldson, said in his speech this evening.

We all have to be concerned about the control orders, because they do not represent a fair trial, there is no presumption of innocence, they represent lengthy detention, and they can be onerous. I agree that a curfew, tagging and even house arrest, if it is introduced, are all better than a high-security prison, but nevertheless still represent severe punishments.

One of my concerns about control orders is how they can ever be brought to an end. If there is an argument for putting people under such orders, and if there is no judicial process that says they should be applied, how can we then undo the process and say "That's all right, we can let you go"? That would be difficult. Under the circumstances in the Bill the orders can be renewed, but we all know that renewal is not such a difficult thing to stop, and indeed Parliament would not have the evidence on which to stop it. Is there an end to the process? What can happen? Although control orders themselves are not as serious as being put in a high-security prison, they can be very easy to break. Contact with an individual with whom the person under the order should not have contact could represent a breach, and then the full force of the criminal law could be made to apply.

I followed with interest the argument about intercept evidence. I have been involved in discussions about this for many years. The Home Secretary is currently minded not to allow such evidence in court, but he has made it clearer that he will go on looking at the issue. Even considering it today, though, other countries use intercept evidence without the adverse consequences we are told might apply here. Many eminent people in this country support its use. The noble and learned Lord, Lord Lloyd, did so in his 1996 review, as have done the noble Lord, Lord Carlile; the Newton committee; the new Metropolitan Police Commissioner, Sir Ian Blair; some of the previous heads of our security services; Javier Solana, the EU high representative on common foreign and security policy; and non-governmental organisations such as Liberty and Justice.

I understand the difficulties. There are times when the use of such evidence might give too much away to terrorists and weaken the security services. On the other
 
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hand, no one is saying that intercept evidence should be used on every occasion. If it is used judiciously, where it is appropriate and the consequences on the security services would not be as adverse as some people think, there is an argument for intercept evidence. It would strengthen the judicial process, and I hope the Government will consider soon whether they can use such evidence. I repeat, other countries with similar systems to ours, such as the United States, use such evidence, and I cannot understand why we are saying no at present.

Some people have said that the continental system of investigative magistrates makes it easier to use intercept evidence. Frankly, if it were necessary for a fair trial to move terrorist offences to such a system, I would not be averse to that. In a reply in yesterday's Hansard, I notice, the Home Secretary said that he would look at that in the fullness of time. It would not be a high price to pay to depart from our traditional judicial system for terrorist offences. After all, we are already departing from it in many ways in this Bill, and in the previous legislation.

I have two other points to raise. I share the concern that the definition of terrorism in Clause 1(8) is very wide. Clause 1(8)(c) and (d) are very wide indeed. Paragraph (c) says:

"conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so"—

which is not easy to prove—and paragraph (d) says:

"conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity".

The person whose conduct is in question may be fairly remote from any terrorism, but he could still be caught by this definition, so one would urge care.

I worry about one other aspect of the Bill. The Bill extends to Northern Ireland. There is a terrorist threat in Northern Ireland and I hope it is a relatively small threat compared with the threat in the past. Nevertheless, I believe that if one were to apply the measures in the Bill to Northern Ireland, the consequences would be very adverse. I believe that it would stir up all the old antagonisms that we had managed to lessen. By no means am I saying that all is well in Northern Ireland, but we would not want to do anything to worsen the situation. I feel that to apply some of these measures in Northern Ireland would not help the situation and indeed it would be distinctly counterproductive.

I believe, as others have said today, that this Bill is not the end of the process. I believe that it is a stage in the process and I would not be surprised if we were to see further legislation soon after the Queen's Speech. I very much hope that when that legislation is brought forward we shall be able to consider it in more detail and in a more relaxed manner than this legislation which is being hurried in its presentation before Parliament.
 
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7.31 p.m.

Lord Kalms: My Lords, a government with good intent but with bad or incompetent ideas is a dangerous combination. Can there be a better illustration than this Prevention of Terrorism Bill? The alarm bells are ringing. This Bill is all about law, but it is far too important to leave exclusively to lawyers. It is about the judiciary, but the judges must not write the script. It is about the process of policing, yet the authority granted the powers of the Act must itself be closely challenged, as must the advice of the intelligence organisations.

Neither must this Bill be allowed to be the exclusive prerogative of politicians. It must pass the citizens' test with its threats to remove and challenge their fundamental and historical rights. This Bill is about the inalienable rights of all citizens to decide how the threat of terrorism is determined. This is the moment each of us must consider in depth the options being presented.

The reasons behind the Bill are well stated, but the solutions are the prescription of the Government and they have strayed far into uncharted territory. This Bill, this reduction in human rights, this rejection of habeas corpus, this intrusion into the very basic values we all cherish is not the prerogative of a three-line Whip. Neither is it the prerogative of a new Home Secretary, clearly floundering in his new powers. But, above all, it is not to be the gift of a Prime Minister whose judgment system has already led us into other horrendously dangerous territory.

It is a sad and regretful comment. One wants to stand behind a Prime Minister, of whatever party, in a time of national anxiety, but today this is not possible. The issue of terrorism is undoubtedly haunting. It is a growing nightmare; one that will probably not go away for decades and one which will overwhelm the body politic antibodies that, up to now, seemed set to secure our safety.

This is not the time or occasion to look into the history of terrorism or the causes. We are focused today on attempting to deal with the realities, and the proposal by the Government to take upon themselves such unprecedented powers where the cure can be, in a philosophical sense, as bad, indeed worse, than the disease.

In the area of ethics one often faces complex dilemmas between choices, where the logic of either case can be strong and robust, and finding a way between two powerful competing arguments is intellectually stretching. Sometimes in a balanced argument where the pros and cons are equally unacceptable, the solution of the argument lies in deciding on a choice of the greater good versus the lesser evil. In other words, one is aware of the consequences of the selected decision not being perfect but perhaps being better than the alternative, and certainly better than being inactive.

That is the dilemma that we face. But it seems that by using the criterion of the greater good versus the lesser evil, we have inverted the argument. I argue and submit that the retention of the fundamental rights in the process of habeas corpus, the freedom of individuals not to be incarcerated without the full flow of justice, is the greater good versus the lesser evil of
 
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terrorism. If one starts from that premise one then has to tackle the lesser evil and give it an adequate description. Terrorism is pure evil. It is unadulterated evil. It is evil from every angle and perspective. Yet it is only in relation to the consequences of subverting habeas corpus that we can put an alternative argument on its feet.

Many of us in our careers have faced complex problems—not, of course, of this nature and magnitude but in their own way complex—and solutions had to be found. The process starts in identifying robust and philosophical markers and pinpointing the existing solid foundations within the complex argument: the issues that are inviolable and the lines that cannot be crossed. The scope can be wide but it is never unlimited.

It is in this area where I feel that the Government have not kept within any acceptable criteria. The Government have not restricted their thinking within the bounds of possibility and acceptability. The argument must be faced that to destroy terrorism or to contain it cannot equate to vitiating habeas corpus and the basic rights that exist in this country. Reading the Bill and listening intently to the debate in the other place, it was quite clear that the Government, their advisers and their legal drafters have merely followed a process of analysis, seemingly succumbed to professional pressures, and ignored the outcome and its dangerous precedents.

I am without the skills of a lawyer, a judge and a policeman, yet within my own skill range I firmly believe that a solution is totally within our grasp without for one moment ignoring the crisis that the Home Secretary and the Government tell us we have to face. Of course, the police must have full and fast powers. Equally, the Home Secretary must have powerful authority. Of course, the process of finding and restraining terrorists must be as broad as is needed. But within these criteria there must be a glass ceiling—a limitation—and it seems to me as an objective citizen that this can and must be achieved without draconian or unacceptable levels of constitutional change.

There have been many suggestions put forward which will solve this issue. Tonight the noble Lord, Lord Brennan, set a trend with some excellent thoughts and yet for political dogma they are being rejected. Obstinacy seems to be an inherent feature of the Prime Minister's political philosophy. It is said that the Home Secretary is a democrat and that the Bill is safe in his hands. Yet, listening to him propounding this Bill, it is impossible to identify or find evidence of his personal philosophy. The Bill attacks the very foundation of the liberal western civilisation that makes life worth living and provides the basic safeguards that can so easily be subsumed in a world of violence, dictatorship and political autocracy.

We can all remember the nightmare of dictatorships, the long suspension of human rights, which happens even now in many countries, yet here, in this very core country, where society has put law above all, human rights above all other rights, personal freedom exceeding all other restraints, we are introducing a Bill that challenges and indeed suspends those fundamental rights.
 
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This is not a battle between this place and the other place. This is not a political argument. This is not an economic argument. This is not a social argument. This is only a defence of the most sacred values we have. Here we have a new man in office, who is instantly taking upon himself supreme powers. Who knows where that may lead?

Glancing back over the history of the previous Home Secretary: here was a man who when he took office we believed was gifted with an enlightened attitude. Yet he ended his appointment with an outlook far remote from what we envisaged. He was of course the progenitor of this Bill.

This Bill could be renamed "The Slippery Slope Bill". It is true that we have had on occasions legislation temporarily suspending habeas corpus for short and specific needs, but this Bill goes dramatically past anything ever previously conceived and opens the door to a nightmare of possibilities. It can only be argued with the safe knowledge that with single-minded focus we can find equally effective methods of dealing with terrorism without destroying all that we hold valuable.

The state has enormous powers, vast authority and full support of the citizens to defy the evil of terrorism, without digging down into our own very foundations and removing a cornerstone of our civilised edifice.

There is a price to pay for eternal vigilance, but where the law ends, tyranny begins.

7.41 p.m.

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