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Lord Haskins: My Lords, I have been struggling to find the new factors that are driving us to require the Bill. The only new element that I can see is the arrival of the suicide bomber. He had not been on the screen before. I understand the dilemma the Government have in dealing with the problem of the suicide bomber, although whether this legislation is the most appropriate method to deal with it is another issue.
I am very unconvinced by the argument of the noble Lord, Lord Giddens, that the global and technical nature of so-called "new terrorism" justifies these massive changes in our laws on civil liberties. I was a bit shocked when he made an obscure analogy with global NGOs. I am not sure what he meant by that. These problems must be, and can be, dealt with by greater co-operation between security forces across
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Europe and internationally without new national legislation. That is the best way to deal with them. National legislation does not deal with that problem.
I am trying to reconcile the Prime Minister's observation on "Woman's Hour"which everybody seems to have heard, except methat there are hundreds of terrorists operating in Britain with the Government's assurance that these new powers will be used sparingly. Does that mean that most of these terrorists are old-style terrorists who can be dealt with under existing law and that only a handful are new-style terrorists?
I am also not very impressed by the support of the noble Lord, Lord Giddens, for scaring the public in order to get something to happen. History shows that politicians who use scare stories to make their point have been notoriously unconcerned about civil liberties, which are usually put at risk as a result. There are some very nasty historical experiences there. Fortunately, the British do not scare easily.
My concerns about the Bill are therefore that there is a danger of making martyrs out of villains, which is always the case when one takes an undemocratic approach to a problem; the consequences of another Birmingham Six mistake during the process, which blows the whole thing out of the water; a huge reliance on the somewhat inconsistent intelligence provided by our security forces that is not being subjected to adequate judicial scrutiny; and, above all, as an ex-chairman of the Better Regulation Task Force, I worry about complicated, significant, historic legislation being introduced on the hoof, at great speed.
We are clearly going to have a Bill. I make two suggestions: first, a judge should examine the process for both the non-derogating as well as the derogating orders to assure us at least that the process is being adhered to. Secondly, the provisions for the review of the Bill should be strengthened. Should not a Bill of this magnitude be subject to an annual review by Parliament rather than by the Secretary of State and be annually reviewed by Parliament, as was the case with Northern Ireland anti-terrorist lawsin other words, should it not have a sunset clause?
Viscount Brookeborough: My Lords, I hesitate to speak without experience of the judiciary or another such profession. However, I have lived in Northern Ireland for a long time and we have had our own type of terrorism, so I shall be slightly more practical.
I recognise the seriousness of the threat, as everyone else does, but I fear that the Bill in its present form is a panic reaction and double jumping to an extreme. As we have heard from many noble Lords this afternoon, it has serious flaws. I cannot understand why the Government are not looking at a change in the law in the admissibility of evidence gained by intercept in certain cases.
Before considering that last issue, I would like to look at some of the limitations in the use of control orders. As a lay person it seems important to question
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whether there can be a satisfactory legal or moral conclusion to the detention that we are discussing. The noble Lord, Lord Dubs, mentioned that point. The current threat is medium or long-term; maybe even longer than the 30 years of Northern Ireland troubles. Unless that threat disappears, where are we going to go from here?
The likelihood is that there will be an increasing number of such orders. Perversely, if our security services and police have deterred or discovered every single planned incident, the general support for measures such as control orders will decrease and civil liberty groups and human rights authority will start to question more strongly the actions that we have taken. The climate is unlikely to improve in the long run.
In addition, those suspects will be interviewed and we know that many will have had training in counter-interrogation techniques. In practice, without our ability to charge, convict and lock them up in a secure place, those people will be able to communicate with their friends outside, as the IRA did during internment.
Interrogation in those conditions proves to be a battle of wits. The interrogator aims to find out what the suspect knows. The suspects will be trying as hard to find out what the security services do not know. They will find some way to communicate that to their network outside, which will have a large number of potential targets planned and will then know which ones are still safe to run with. That is a limitation of detention in what I perceive to be insecure surroundings, as detailed in the Bill.
I accept, as the noble Lord, Lord Dubs, said, that Northern Ireland is slightly special, but can your Lordships imagine putting a hardened IRA terrorist under house arrest in the middle of the Bogside or, for instance, a Loyalist one in the Shankill Road? There are problems with it.
An increasing problem with the duration of the threat, the inadmissibility of the intercept evidence and the inability to convict is the judgment of when to lift suspects. That is a big practical problem during what is obviously a planning phase for a terrorist operation. If they were not planning, we would not have the information and therefore we would not even want them, so we must presume that.
Let me give your Lordships an example of an incident. In Loughgall in March 1987, the security forces had information and evidenceperhaps inadmissible intercept evidence; I am not to know. I suspect that although they believed it to be accurate, they would not have been able to lift and hold the suspects prior to the event. Therefore in order to arrest and convict they needed to allow the terrorists to go further down the line and launch the attack. Because they would not surrender, it became a bloody shoot-out, in which eight terrorists and one innocent person died. At the time, there was a tremendous outcry from civil liberty groups and questions about how the lives of these terroristsand an innocent lifecould have been saved by earlier arrest. That may have been impossible due to the inadmissibility of the evidence.
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It is possible that similar pressures to those will occur in today's circumstances in this country; there will definitely be pressure within organisations to let whatever is happening go on until the security services are quite sure that when they have something, they have it to hold, or something on which they can issue a control order. However, in the circumstances here, the penalty for possible misjudgments could be catastrophic, taking into account the current modus operandi of terrorists such as Al'Qaeda.
There is another problem at this stage: evidence gained by intercept is always in "terrorist code", for want of a better way of putting it. It will rarely be 100 per cent indicative of the target. What if the interpretation of the evidence is wrong, the defence forces are in Canary Wharf when the bomb is in the City and the incident takes place there? Luckily, with Loughgall, the right target was evacuated and all was well. Just rememberwe need to be right every time and the terrorist has to be lucky only once.
Should the evidence gained by intercept be admissible in the circumstances in which we find ourselves? It would be immensely beneficial. The Government's response to such a suggestion is, "No, the police and security services do not wish that to happen". That is correct, but it is as a result of the Government's inability to produce the circumstances for which they, the police and security services, could agree with the admissibility of such evidence. But I have little more to say on that matter, as the noble Lord, Lord Dubs, covered the American side of things, and many other aspects.
The problem is always stated as being the admissibility of evidence, but we could look at it another way and say, "That is not the problemit is much more a problem of how we control disclosure and, to be more accurate, the withholding of disclosure". That is the issue; if we get that issue right, the admissibility of evidence might come about.
If we have reservationsor if the judiciary especially have reservationsabout using evidence and withholding disclosure, I find it interesting to note that we have obtained a conviction in our courts using such evidence obtained abroad in a jurisdiction where withholding disclosure is legal. The example that I cite is the Real IRA trial on the Woolwich case in 2002, when O'Farrell, Rafferty and McDonald were convicted of gun-running in Europe. They were extradited on evidence that would not have been admissible here and that evidence was used in the file for the case.
So it is entirely within the Government's power to solve the problems of enabling intercept evidence to be admissible. Perhaps the most important benefit would be that it would show in court the seriousness of what we are up against and add credibility to the understanding of the use of control orders when we lack such evidence in order to convict.
I have a few questions for the Minister. First, with reference to Clause 1, chief constables are required by legislation only to provide evidence to the DPP and the Crown Prosecution Service. They may give briefings to
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politicians, but there is nothing about compulsion to give them evidence. In Great Britain, the security services lead in the fight against terrorism; in Northern Ireland, the chief constable is in that position until 2007, as I believe we heard the other day. Currently, those two offices only brief politicians; they do not pass evidence to them. Where is the mechanism in the Bill to enable the Secretary of State to have reasonable grounds for suspecting?
Secondly, in Clause 1, I see that there is a reference to the Secretary of State. I should be interested to know exactly to whom that refers, in person or in office. In the case of Northern Ireland, is it the Secretary of State for Northern Ireland? If it is not, do that person's powers extend to Northern Ireland? If so, where does it say so in the Bill?
Thirdly, why are the penalties in Clause 6(4)(b) and (c) different in Scotland and Northern Ireland for the same offence, within what is in fact one jurisdiction for the United Kingdom? It would seem as if England is being discriminated against, because it is a lighter sentence elsewhere. Is this a breach of human rights legislation? As everything else has been said, I shall finish on that noteexcept to say that I look forward to the amendments on this Bill.
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