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Baroness Kennedy of The Shaws: My Lords, I want to go back for a moment to the judgment of the Law Lords. Back in December, they said that detention without trial of non-citizens was contrary to human rights. I want to remind the House how that judgment presented an opportunity to a new Home Secretary to draw a line under the hasty legislation passed immediately after 11 September. It was an opportunity to return to legal principle.

The judgments of our most senior judges rehearsed, clearly and beautifully, the reasons why law matters; how law is there to provide an effective regime for the resolution of difficult issues—even in the heat of terrorism. The judges restated clearly the imperatives of due process and equality before the law. Unfortunately, David Blunkett had abandoned that high ground for the murkier shallows that are usually inhabited by the non- democrat. Then, instead of restoring our established standards and legal precepts, I fear that our new Home Secretary responded like a technocrat: "If the judges complain about our only detaining non-citizens, we shall include everybody in the new scheme. If they say we are using the same system for different kinds of threat—and that this creates unfairness—we will create a whole ladder of illiberality".

I am afraid I have noticed that Home Office practice is now to bring forth new legislation which is absolutely abhorrent and totally disgraceful in its abuse of civil liberties. Then, when there is uproar, they replace it with something which is only slightly less abhorrent and disgraceful—telling us that a major concession has been made, and that we should all sleep easy. The concession being made by the Government should provide this House with no comfort. Sugar-coating the unpalatable—by suggesting that all will be
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well if a judge makes the order—is to forget that it may not feel significantly different whether it is a High Court judge or the Home Secretary who issues the house arrest order, if you still do not know the nature of the allegation or the evidence on which it is based. What we are in fact going to see, in the new process that is being cobbled together, is a debasement of our High Court—whereby it will be turned into a secret commission, hearing evidence in camera.

One of the most serious mistakes a government can make is to turn the judiciary into a fig-leaf for unacceptable practices. Sometimes, judges can be unwittingly collusive in the erosion of the rule of law, by allowing themselves to be co-opted into processes where the genuine balancing of the security of the state and human rights considerations becomes impossible—often because they, too, do not have access to all the information. By taking on the role of a control-order dispenser in camera, the judges would provide a veneer of legitimacy to processes which fall short of international standards of human rights. Let me emphasise that, in saying that, it is not because the judges are not independent. Nor is it to suggest that they are not decent men. The debasement happens because they do not know the other side. They will not know what the suspect would say about the allegations, because the suspect will not know himself what is being said about him. This is why the words of the noble and learned lord, Lord Scott, in that wonderful judgment are so important—because he spoke of the "stuff of nightmares".

Let us remember that SIAC, the special tribunal, was sold to the British people as an administrative process. It was part of the administration of law concerning immigration and deportation, with deportation not being possible for certain people because they may be subject to torture, or the death penalty, if returned to their own homelands. It all seemed all right to many people because it concerned foreigners. When this House complained back then after September 11 when the new powers were sought, it was really as a result of debates here that SIAC was turned into a superior court of record to give its detention powers a veneer of legality. Until the House of Lords ruling we had a parallel system of justice but now—and it is one of the warnings that I increasingly give—the contagion is not kept vacuum packed. Now the contagion is spreading and the High Court is being turned into what inevitably has to be an unacceptable form of tribunal. It will be made to be in the eyes of many a kangaroo court.

We must not allow ourselves to take our eyes from the ball. An egregious erosion of civil liberties is taking place. We are seeing the standard of proof being lowered and the presumption of innocence being chipped away. We are seeing it seeping into other areas of law too. We are told in the first instance that it is about terrorism but we are seeing it creeping into other aspects of our legal system. It is a trend and I warn noble Lords of it.

Almost exactly a year ago David Blunkett gave a lecture in India that was reported here, to the shock of many. However, it also shocked many senior lawyers
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and judges in India too. He said that perhaps the standard of proof would have to be lowered in cases to do with terrorism. Two days later our Prime Minister had that posited to him by the press in his constituency when he was giving a press conference about creating an FBI-type police force. He was asked about the lowering of the standard of proof and he said that it would apply to terrorism but perhaps even to other forms of serious crime. Let us not pretend that this will be kept vacuum sealed and that it will apply only to the "bad guys".

The other trend is the creation of ASBOs. Those were celebrated by many but some of us warned that what we were seeing was again an erosion of standards. People can have an order made against them for anti-social behaviour, which all of us abhor, on very little evidence. But what you then get, because it is an injunctive order, is the power to imprison if someone breaches the order. Now we are seeing ASBOs evolve into these control orders. Let us not be deluded into thinking that somehow the orders constitute less than house arrest or are really rather gentle erosions of liberty because they are rather serious. What we are seeing is a blurring of the civil and criminal law. It is taking us towards a system that is not like the one which we hold dear. Being persuaded that the control order short of house arrest is of little consequence and does not even need judicial control is again a red herring for us. We must not be taken in because, of course, those orders too will invade every aspect of people's lives.

What we are seeing bit by bit is the erosion of civil liberties. It has been happening over a period of years. That is how civil liberties disappear. We are told that it is in our interests. It is the paternalism of government saying, "We are doing this for you". When we hear civil liberties being turned into a term of abuse, we know that we are in trouble. What all of us across this House should be saying is that no government will ever be blamed if there is a terrorist outrage. It is the terrorists who must be blamed. Let us make that clear. This should not be turned into an auction on law and order. There is a choice. Of course, there is the risk of terrorism or the risk of injustice but I for one would rather live with the risk of terrorism because I know so clearly what the serious risks to all of us are of injustice.

We heard the noble Lord, Lord Giddens, speak of the phenomenology of risk. That is the kind of phrase which gets sociologists a bad name. I hope that the phenomenology of risk, like the third way, goes into the dumping ground of history very quickly, as the third way did. I am concerned that, in his risk analysis stolen from management gurus, he did not give us the other side of risk: the risk to our society when you suspend habeas corpus and do away with civil liberties. I ask the noble Lord, Lord Giddens, what are the risks of that? He tells us nothing of the cost to all of us.

Yes, there is another choice. The choice is between living in a lawful society—where civil liberties provide the background hum to the decency of our lives in this country and where our values are the things that we know matter—and becoming a paranoid society,
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where justice is paralysed by fear and which is a breeding ground for distrust, hostility and many other forms of violence.

This is our opportunity to restate our values. I hope that in the days to come, we do just that.

8.40 p.m.

Lord Stoddart of Swindon: My Lords, being the thirty-fourth speaker, I have listened to this debate throughout. I have noticed most of all that the balance of opinion is well against this Bill. I have also noticed that people believe that it is a rushed job, and that it should not be. They believe that it should be given proper consideration. One almost suspects that the Government have brought forward this Bill in haste simply out of a fit of pique at the Law Lords' ruling on Part 4 of the previous terrorism Bill. I hope that is not so.

Rushing the Bill through Parliament is a constitutional outrage. Forcing it through the House of Commons in only two days smacks of autocracy rather than democracy. How on earth can we presume to lecture other countries about democracy when our own Government—a so-called Labour Government—shows such contempt for the democratic process?

This afternoon, I heard the noble Lord, Lord Giddens, attack the liberal Left from the Labour Benches. The liberal Left! I joined the Labour Party because it was a liberal Left party. I understand, of course, that there are members of the Government who joined the illiberal left party. I was never tempted to go along that road.

This shows such contempt for the democratic process. The Home Secretary only added insult to injury yesterday by telling the House of Commons—which discussed only one amendment out of something like 177—that his concessions would not be made in the elected House, but in this House. How insulting can you get?

To get support for the Bill, the Government are generating an atmosphere of fear among the population by conjuring up dubious statistics. We have already heard that the Prime Minister said on "Women's Hour" that there were several hundred people in this country plotting to, or trying to, commit terrorist acts. This claim, incidentally, is denied by a senior security source, which said that the figure was much lower—only about 20 to 30. The same source said that the Prime Minister's remarks were inaccurate, irresponsible and likely to scare people unnecessarily.

It is in that context that this Bill is being brought forward to us. In the House of Commons, the Home Secretary said that control orders would affect only a handful of people. The Government cannot have it both ways. If hundreds of British people are suspected of terrorism, and we are going to deal with only a handful of them, what is happening to the rest? The Government must answer that question.

Why should anyone believe what the Prime Minister says? His action, in joining in the illegal war in Iraq on the basis of that country having weapons of mass
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destruction that could be used in 45 minutes, which was shown to be untrue, has enhanced the terrorist threat to this country. Now he wants to use the tools of dictatorship to deal with what he has in fact helped to create; the perceived threat which, according the security services, is much exaggerated—as we have already heard from other noble Lords. The Prime Minister trumpets that he will always put security before civil liberties; but without respect for civil liberties we have no real security and descend to the level of those petty dictatorships that we all abhor.

The Home Secretary claimed in the House of Commons yesterday, and the noble Lord, Lord Young, claimed in this House today, that an opinion poll in the Daily Telegraph showed majority support for this Bill. But they should be wary of such polls, especially before the contents of the Bill have been thoroughly scrutinised by this House and by others. Noble Lords will recall that during the passage of the draft Regional Assemblies Bill, the Government referred to opinion polls in the north east showing 71 per cent support for their proposals. In the event, at the referendum, the people of the north east on a pretty high turnout rejected the Government's proposals by a margin of three to one. The Government, and others, should be careful of relying on opinion polls to support this offensive and oppressive legislation.

As the Bill received so little scrutiny by the properly elected representatives of the people in the House of Commons, it is now left to this House to give it further and proper scrutiny in only two further days. This oppressive Bill needs far more time than we have been given to be properly assessed and scrutinised. The Committee stage is the day after tomorrow, hardly time to properly read this Second Reading debate, let alone to reflect on it. The list of state powers against the suspect in this Bill is formidable. The requirements demanded of him or her are unprecedented in peace time. They will be expected to give answers to questions without knowing exactly what they are charged with. That is completely against every tenet of decency and justice that we know in this country.

This morning, the Home Secretary declared that there will be no further concessions. In that case, this House will have to put the Bill into a shape which not only deals with any terrorist threat, but which preserves the civil liberties that this country has enjoyed for centuries, and without which we shall be at the mercy of state power. If we jettison those hard-fought-for civil liberties, the terrorists will have won, as the right reverend Prelate said earlier in the debate.

8.49 p.m.

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