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Lord Clinton-Davis: My Lords, there can be little doubt that the Home Secretary has an unenviable task. Whatever he does he will be in the firing line. If he refuses to make any more concessions concerning the Bill he would be blamed for the failure of the Bill in this House. If he were to make too many concessions and the terrorists were to resort to the extremities which are envisaged he would be held culpable.
I have known Charles Clarke for a very long time. We have not always agreed with each other, but we have been friends. I believe that he is a man of integrity. At no time has he shirked the responsibilities that have fallen upon him. I refuse to believe some of the wilder calumnies that are circulating about him. But he is confronted by a hideous dilemma.
So what shall we do now? How best can we help the Home Secretary to arrive at the best possible conclusions? How should we attain a balance between the promotion of civil liberties and the protection of the public—an enormously difficult task?
Terrorism and terrorists have changed in recent times. Yet the possibility of doing away with major protections, which have been hard-won over centuries, should also give us pause for thought. I think it is quite reasonable to contend that there should be swifter recourse to the High Courts. But, on the other hand, judges are not infallible. They try their best but they do not always succeed. When I was an articled clerk—a long time ago—many judges, particularly those at London Sessions, were impossible. They have changed but they still make mistakes.
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We know from recent history that people have been detained in prison when they should have been released, because their detention has been held as wrong or there were serious doubts about convictions. It is right to say that kind of thing because a great deal of trust has been placed in the judges. But do we have any alternatives? Subject to one caveat, which I shall raise, I believe that resort to the judicial process is on the whole to be preferred. I do not think that any distinction should be drawn between derogation and non-derogation orders. All should be the subject of judicial scrutiny, which should be done at a very early stage. That is my view.
As much of the process as possible should also be put before the judge. He should not be left in the dark about anything. He should be informed of the situation. The best way of doing that is to arrive at a position in open court as far as is possible. I would also say that a defendant is entitled to know what the case is against him or her. It is outrageous that it should be suggested that the defendant should in some way be left groping in the dark. That is not possible.
I agree with the Prevention of Terrorism Bill: Preliminary Report. Paragraph 11 states:
"The degree of judicial involvement provided for in the Bill . . . is unlikely . . . to be compatible with the Convention requirement that deprivations of liberty must be 'in accordance with a procedure prescribed by law' in Article 5 of the Convention. Other than in the exceptional circumstances enumerated in Article 5(1)(a)-(f), deprivations of an individual's liberty require prior"—
"judicial authorisation if they are to be in accordance with a procedure prescribed by law. Such prior judicial authorisation is regarded by the Court of Human Rights as an inherent feature of the rule of law, which requires safeguards against arbitrary detention".
I referred earlier to a caveat. The caveat is this: we should aim at a consensus with the Conservatives, the Liberal Democrats and others, and it should be done now. It should not be regarded as a kind of political badminton game. It is much too important for that because it involves people's freedom. Equally, it should be agreed that if circumstances change, if the procedure of applying earlier to a judge is found on all available evidence to be wanting, we should resort to the more draconian measures. I hope that will not arise and it should be regarded as a doctrine of last resort. But if we have to do it, so be it.
However, we are entitled to assume that we can make progress as far as reforming this Bill is concerned. We are talking about a doctrine of last resort. I realise that this course is not favoured by some. The article written by Clare Dyer in the Guardian yesterday is a prime example of what I mean. I respectfully submit that she refuses to concede the dramatic change in terrorism to which several other speakers have alluded.
For that reason, and somewhat reluctantly, I prefer the civil standard of proof—the balance of probabilities—as sufficient to establish involvement in terrorism. That will also apply to bans on the use of computers or telephones, confiscation of passports and the other issues mentioned in the Bill.
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Where I do think it is right to complain in this quagmire of problems is that information extracted by torture, albeit when the torture occurs outside the United Kingdom, should be admissible. That is appalling. It would be grossly unjust to admit such evidence. Indeed, it would be inimical to a fair trial. Moreover, as MPs and Peers on the Joint Committee on Human Rights have asserted, that procedure could well offend Article 6 of the European Convention on Human Rights and is likely to be challenged in the courts.
It is incumbent on us to come to a conclusion about the Bill, and we should do so swiftly. Surely, we cannot agree to the proposition that we should accept detention at Belmarsh for the time being when, demonstrably, in the eyes of the senior judges of this country, that offends the law. I submit that that is unacceptable and ought to be rejected.
Also, there should be a sunset clause. We should consider the situation again in a year's time, when we have seen the progress, or lack of it, of the Bill. We should have an opportunity to return to this important issue at our leisure.
Finally, if the Government invoke control orders, they should do so only at the very end of the process. To do otherwise would fatally flaw the procedure that we are now contemplating. Having said all that, if I could do so now I would vote against the Bill because I think that it is bad: bad in law; bad in political process; bad in so many areas. It should be rejected and the philosophy behind it should also be rejected.
However, I remain an optimist. I believe that it is possible to come to a conclusion that is satisfactory to the parties that I mentioned. But that means that we must all be prepared to make some concessions.
7.54 p.m.
Lord Garden: My Lords, many noble Lords have today spoken in defence of the rule of law, due process and the protection of individual liberties. They are much better qualified than me to talk about the legal aspects of the Bill, but I support them from the bottom of my heart as your Lordships try to put the lid back on these moves towards a more repressive and authoritarian state.
I want to focus on a different aspect, which is to question whether the proposals in the Bill represent a safe and sensible strategy to reduce the overall threat from terrorism. I have read with great interest the background briefing papers provided by the Government. Paper 1 of that background briefing explains why the current threat from international terrorism is different. Several noble Lords have made that case. I agree that the global reach, the techniques, the ambition and the lack of restraint, including the willingness to die, marks this as a particularly difficult form of terrorism to counter.
However, to complete the picture, we should also examine those aspects of the current threat that have parallels with previous challenges that we have had to meet. Terrorism as a technique was not invented by Osama bin Laden. The world has a long history of different threats from terrorism: some severe, some
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constrained, some state-sponsored, some from fanatical cults. Different governments at different times have tried various strategies to reduce the immediate threat—which is what we have been talking about today—to their citizens but at the same time to address the long-term elimination of the terrorist organisation, which we have not talked about very much. It is a two-pronged approach and one attack on the immediate threat can have an adverse effect on the long-term strategy.
All terrorist organisations need supporters and recruits. One might argue that that is particularly the case for those that expect their adherents to die during this single act of terror. They need to replenish and have new recruits.
Past terrorist leaders operating in regional terror campaigns have realised that to stimulate those recruits and get general support in the population, they must stimulate repressive measures by the authorities. All the terrorists textbooks tell you that. Che Guevara, who also hoped to destroy the United States and expected his people to die for the cause, understood that. He wrote of the need to engender,
"intransigent hatred for the enemy that takes one beyond the natural limitations of the human being".
Che Guevara saw it as impossible to recruit to the cause where a democratic government maintained the appearance of constitutional legality. He needed repression. Repression and the sense of injustice foster support both in proactive recruiting and also among the general section of the population that becomes repressed.
Closer to home, several noble Lords have talked with knowledge of the experience of internment in Northern Ireland in the early 1970s. We learnt a lesson there: we could go for the apparent short-term gain, the tactical advantage, that could lead us to long-term strategic failure. It is no good suggesting that we will not make the same mistakes again: those of arresting innocent people on inadequate intelligence. Support for the terrorist groups grows through every injustice. There is no lack of examples around the world of how arbitrary detention has made the terrorist problem more intractable.
The question is whether the Al'Qaeda network is so different that the lessons of the past no longer apply. Here, I look to the analysis of Jason Burke in his book on Al'Qaeda. He knows the movement well from looking at it throughout the world. He concludes:
He describes the process by which they are made as having three stages. The first is the feeling that something is wrong and needs to be set right. It can be a perceived or real injustice. The second is a feeling that the problem cannot be solved by the society's political or legal framework. The third stage is the ideological change to accepting the use of violence. He argues that if we are to divert recruits from Al'Qaeda terrorism, we need to break into that three-stage process.
So the counter-terrorism techniques of the past are still relevant to the threat that we face today. If we remove the democratic safeguards of the legal process,
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we risk the growing perception of injustice. Do any of us doubt who will be the targets for the Home Secretary's control orders? It will be the Muslim community in Britain, whether they be foreigners or UK nationals. How will that play among our Muslim communities, their families and friends? Do we see the recruiting call for terrorists increasing or decreasing? How will the measures play further afield, around the world? If anyone doubts that the world is looking at us as we do this, I shall read to the House an e-mail that I received from a very unlikely source this week. A Right-wing American journalist, a former Republican senior official, wrote to me and said:
"This goes light years beyond what we did in the Patriot Act. Are you guys tearing up Magna Carta?".
If that is what the American Right thinks, it is easy to imagine how this plays in Osama bin Laden's recruiting campaign.
I therefore fear that the long-term strategic effect of suspension of due legal process will be to increase terrorist recruiting in the UK and abroad. However, I need also to address the question of whether the near-term threat is so great that such oppressive measures must be introduced despite their long-term disadvantages, that the need for immediate protection overrides the long-term disadvantage. In doing that, I note that we did not think that this kind of legislation was necessary throughout the four decades when we were threatened by the Soviet Union, with the real possibility that we would extinguish the life of this nation and that millions of people would be annihilated. We did not seem to need this kind of legislation then. Nor did we need it when the Prime Minister of the day might have been killed in the bombing in Brighton. We have managed without it until now.
We can all construct scenarios that terrify: the suicide bomber coupled with biological, chemical or nuclear capabilities. We have to ask whether the Bill would reduce that threat perceptibly. Can we construct appropriate judicial processes which are soundly based and address my long-term strategic concerns?
The experience of the past shows the imperfection of using untested intelligence as the basis for detention. Many noble Lords have referred to the intelligence about weapons of mass destruction in Iraq as an indicator that, even when we have a narrow target, we cannot be sure of getting the right intelligence. It appears likely that some of the intelligence that would be used in the new procedures would have been gained in other countries using procedures that, under any definition, amount to torture. Such information is notoriously unreliable. People who are being tortured will say anything and implicate anybody to stop the pain. We should add to that the desire of any terror organisation to increase repression, to make us more and more frightened, and to force us to take measures. We should imagine misinformation as the tool of the terrorist organisation; feeding it into intelligence and informing on innocent parties to get them detained would become the normal process. We will find an increasing number of people detained under the
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orders, all with an increasing sense of injustice. Their friends and families also will have that sense of injustice. We abandon due process at our peril.
It is the responsibility of any government to protect their citizens, but that is the protection of their way of life. We have been extraordinarily fortunate in these islands to have enjoyed liberty for so long, but in order for us to enjoy that liberty, our predecessors have had to be prepared to give their lives in the defence of liberty. We cannot be the generation that says that our lives are so important that we will trade liberty for survival.
In their background briefing, the Government state that the aim of Al'Qaeda is,
If we pass this legislation as written, we shall be doing the terrorists' work for them.
8.4 p.m.
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