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Lord Ahmed: My Lords, our law rightly gives security and intelligence services powerful instruments with which to carry out their duties. Suspects can be arrested and questioned on the basis of intelligence information. Phone calls can be tapped, every detail of an individual's life can be examined and suspected terrorists can be detained for up to 14 days.
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Your Lordships will be aware that many of the people stopped, searched and arrested under the current anti-terrorist legislation are mostly from the Muslim community. Since 9/11 more than 1,000 have been arrested under the anti-terrorism laws. Seventeen were found guilty and among those six were Irish, two were Sikhs, five Muslims and the remainder unknown. Yet the common perception is that these are all Muslims who want to destroy our democracy and our way of life. In the mean time, my community has been isolated, Islamophobia has increased, and there is a popular belief that allegations about Muslims must be true.
One of the toughest anti-terrorism measures implemented by the former Home Secretary allowed for foreign terrorist suspects to be held in Belmarsh without trial or any evidence against them. Today, under the new Bill, the Government wish to detain suspects under house arrest indefinitely simply on the basis of intelligence without the need of any evidence or scrutiny of a trial.
I understand from the interviews of former Ambassador Murray that we are now using evidence which may be extracted by torture in another country as in Uzbekistan for example. If this is the same intelligence that led us to the war in Iraq, or the legal advice on the issue, then how much legitimacy should we afford it? Even if the decision is validated by a judge in the early process, the accused will not be able to examine the evidence against him. There is no provision for balancing the evidence. I understand that judicial review will not allow examination of the evidence but will review only the procedures.
I believe that the rule of law is an indispensable component of a free society. The Bill will become a collective punishment for the families involved as deprivation of mobile phones, computers and other restrictions will become enforceable for the entire household rather than an individual.
For the Muslim community, the current anti-terrorism laws have turned into a witch hunt of sorts, and this new Bill will not only make their homes a place of punishment but, as the noble Baroness, Lady Kennedy, rightly pointed out in a recent article:
"The idea that a detainee's flat on the 16th floor of a tower block in the East End of London in a Muslim stronghold might become the focus of community demonstrations does not seem to have occurred to Mr. Clarke".
The fact that the Home Secretary claims he will use this power of detention in reserve does not do much to clear away my misgivings. Even worse is the comment by our Prime Minister that there can be no greater civil liberty than to live free from terrorist attacks. This in itself is a contradiction because no one can live "free" when our civil liberties are curtailed, as they will be under the Prevention of Terrorism Bill. Not only would the Bill undermine basic human rights and the law, it would also cause further damage to the Muslim community in this country.
In addition, the Bill does not allow for any separation between Executive and state. Under the new Bill the Executive has the right to make sweeping "control
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orders" or impose restrictions on fundamental freedoms guaranteed by domestic and international laws in the UK. The Executive is effectively allowed to circumvent the police, prosecuting authorities and the judiciary. The effective system of checks and balances would therefore cease to exist.
What we should be doing is ensuring that people are detained only pending a criminal charge. The right to detain for 14 days allows time thoroughly to investigate the individuals suspected of terrorism and if there is evidence, they should be put on trial. If the evidence is insufficient, they should be put under surveillance. It is a mistake to believe that judges authorizing house arrest will provide legitimacy to a Bill that falls short of international and European standards of human rights as it still provides for deprivation of liberty without charge or trial. Any concessions offered by the Government should not fall short of charging people with an offence, granting them the right to be tried by an impartial and independent court, with full access to the evidence against them.
"exceptional circumstances demanded exceptional responses. Terrorism must be countered and the government has every right to take the necessary steps. Lack of appropriate legislation would render this nation virtually defenseless against terrorist attacks, but threatening individual liberty and failing to protect citizens from imprisonment without trial, is an even greater danger to this country".
Lord Neill of Bladen: My Lords, it is an extraordinary feature of what is happening here today that we are having a Second Reading of a government Bill that, tomorrow morning, will be radically altered by a series of government amendments. The terms of those are unknown to me; I have had some indication by listening to the noble and learned Lord the Lord Chancellor. We are having a Second Reading on something that is about to change. The change is highly material to the one point that I want to make at this late hour, being No. 35 in the batting orderif you can have that many batsmen.
My point concerns the role of the judges. I shall make one preliminary observation before I come to that. The judges have been carefully referred to by previous participants in the debate. I was first put on to this line of thought by the noble and learned Lord, Lord Mayhew of Twysden, who last week raised the flag on which were the words, "Beware! Take care of the role of the judges". My preliminary observation is about a fundamental flaw in the Bill, in the attempt to draw a sharp distinction between a derogating control order and a non-derogating control order. It is not an original point, obviously; it has been made by many.
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convention. You are given an adjectival description of what is to be a derogating control order. You then look to get a bit of guidance from Clause 1(3), which lists the types of control orders that can be made. One of themit was mentioned earlieris in paragraph (c), which is a restriction in respect of work. Let us suppose that a suspect worked on the Internet or something like that, and the restriction is that he must cease all work that he currently carries out as an employee, and must not carry it out at home in another occupation linked with his place of work. He is also required to surrender his passport under paragraph (i) in the long list.
Would you say that that man's liberty has in some way been controlled so that those restrictions are incompatible with his unfettered right to liberty under Article 5? That is simply one illustration that you can give; many more arise out of the 15 examples in Clause 1(3). The whole of that definitional frameworkthe idea of creating two separate regimesseems not to have been thought through and to be fatally flawed.
Perhaps we need to remind ourselves that judges are a very precious element in society. The integrity of the judiciary and their role must be preserved by all possible means. It sometimes occurs to me that we run great risks in the way we use our judiciary to conduct inquiries in politically sensitive areas. In Australia, for example, although it is not necessarily a universal truth, judges are usually not used at all for public inquiries because of the danger that the judge may be seen to be a creature of the executive, whitewashing what they have done and giving a bad impression of the judiciary.
I came across another extraordinary example the other day. It is a case I happen to have some connection with, and I had better be careful what I say because of the degree of secrecy attached to it. A judge was asked by an emanation of government to conduct an inquiry, and was referred by the party objecting to producing documents to a statute which, the judge was persuaded, made it impossible for him to make an order for them to be produced. The other party to the proceedings was not allowed to know the name of the statute under which the judge was making that order. I began to think that Kafka's The Trial was a pretty liberal description of transparency at a proceeding where everyone understood what was going on. We have to be careful.
There are three possible roles for judges. Under the Bill as drafted, there is a full appeal process for a derogating control order. As I understand it, that is the terminology in Clause 2. The judge is to look at that on appeal on an order from the Minister and decide whether, in the various respects set out in subsection (2)(1), the Minister got it right. That is pretty strong, because he is reviewing whether the Minister rightly considered that the imposition of the obligation was
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necessary for the purposes connected with protecting members of the public from risks arising out of a particular emergency. He has also got to be satisfied on that appeal that the person under suspicion is, or has been, involved in terrorism-related activities. What material will be placed in front of the judge so that, as a judicial function, he can decide whether the evidence stands up and he is being told everything relevant to the sources, and whether he is getting the full picture? It seems that under Clause 2, a full appeal process is involved.
Regarding a non-derogating control order, we are told by subsection (7)(7) that that is only a judicial review test. Attention has been drawn to an unfortunate provision in Schedule 4(3)(c) to the Act, which says that
"Rules of court made in exercise of the relevant powers must secure . . . that the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
So if it is adverse material, as was said earlier, it is completely contrary to conceal material that would point the other way, and might be in favour of the person who is the subject of the control order.
They are the two procedures under the Bill before us: a full appeal for derogating control orders, and judicial review for non-derogating orders. Coming around the cornerpresumably we will see this tomorrowis a third role, which is the judge as the maker of the original order. The noble and learned Lord, Lord Donaldson, touched upon that point. One feels at a disadvantage in having a Second Reading on a Bill that is going to change, because we do not know whether to write in "the judge" in subsection (1)(1), as the noble Lord suggested, so that the judge,
I am making the plea that we should move very carefully. More time is requiredI am repeating what others have saidto consider the matter. The old Act should be renewed or kept alive to give us proper time. There should be discussions between the parties, and wise counsel should be given a chance. We should then look at the Bill and if it involves judges, they should be involved in a way in which we can feel sure that they are acting in a true judicial role, with full materials in front of them, with no concealment and no disadvantage for the person against whom the order is sought. Something will have to be done to try to ensure that the scales are not loaded against such a person.
Some of your Lordships may recall that Professor Simpson wrote a book with the unusual title In the Highest Degree Odious. Those words were in fact a quotation from Winston Churchill's description of Regulation 18B in what is known as World War II. Those are warning words and a route down which we should not go. For the moment I regard the current
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Bill as amply meeting the adjectival description by Mr Churchill. What he would have said about it, one can only imagine.
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