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Baroness Park of Monmouth: My Lords, does the noble Lord agree that there is a difference between the views of Sir Swinton Thomas and the noble Lord, Lord Carlile, who are privy to all the issues, and, I am sorry to say, the view of all of us? Secondly, does the noble Lord agree that what Sir Ian Blair, the Metropolitan Police Commissioner, said referred to criminal cases? Our point is that it might work for criminal cases, but once you start on that slippery path, it will go on to the rest.

Lord Brennan: My Lords, I naturally respect the noble Baroness's views, but I do not recollect from Sir Ian's speech that he made that distinction. Whether he did or did not, he merely provokes the opportunity for debate. On the status of the Interception Commissioner, the noble Lord, Lord Carlile, and those who are privy to information that influences their views, I am afraid that I take a very simplistic parliamentary view. Within proper constraints of security of information, it is ultimately for Parliament to decide those matters and not those who my noble friend Lord Robertson called the unique and very tight intelligence community—brave, sophisticated and vital as it is.

Finally, the question of whether Parliament should debate this issue arises. If those who have spoken in favour of the present system are right, they may prove to be right in subsequent debates. If change is to be made, I am sure that the House would consider it with great prudence and considerable reserve. But, at the very least, if we are to accept that the rules of the game have changed and if we are to acknowledge that the campaign against terrorism demands action by all, above all it demands at least consideration by this Parliament.
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12.14 pm

Lord Lyell of Markyate: My Lords, I am very glad to follow the noble Lord, Lord Brennan, who has reminded the House that we are dealing with an extraordinarily difficult issue on which there are very respectable views on both sides of the argument. I grew up in parliamentary terms starting in 1979 as Parliamentary Private Secretary to Sir Michael Havers when he was Attorney-General. Very slowly, I was let into some small part of the secret world in which others in this House have moved much more widely. I think, of course, of my noble friend Lady Park and the noble Baroness, Lady Ramsay, with enormous respect in that regard. I express my thanks to the noble and learned Lord, Lord Lloyd of Berwick, for initiating this extremely important debate. I approach his Bill with great caution, but I approach it in very much the same way as the noble Lord, Lord Brennan. This is an area where genuine inquiry is justified—inquiry in a very careful and, if necessary, secret way. But it is a matter for sincere discussion.

I have grown up as a lawyer with most of the great lawyers sitting in the Chamber. I have been led by them. I have been in long cases with or against them. I have a very high regard for Sir Swinton Thomas. I am also a member of the Inner Temple. When I find that there are differences of view between him and the noble and learned Lords, Lord Ackner and Lord Lloyd, I realise that we are in very sophisticated country. When I became Solicitor General and, ultimately, Attorney-General, I was allowed a rather more penetrating look into small portions of this world.

If you regard the whole security services world and the whole criminal justice world as a cake, there are some who see slices of it, but I suspect that the noble Baroness, Lady Ramsay, and my noble friend Lady Park, have seen perhaps a very large part of the cake. But I doubt if there is anyone in the world who sees the whole cake. The need-to-know principle applies as one of the ways of protecting it. But that does not mean that Parliament should not be entitled, in a careful and sensible way, to investigate.

I worked closely when he was a prosecutor, and briefly when he became Director of Public Prosecutions, with Sir David Calvert-Smith, who is a lawyer of the highest integrity and intelligence. He believes that in some cases—it is always only to be some cases—this might be of genuine assistance, without causing disproportionate damage and, I hope, without causing any damage whatever to the security services. The fact that Sir David believes it so sincerely, that Sir Ian Blair believes it and that the Newton committee regard it as a strong case means that we have a very real argument for moving cautiously forward, giving this Bill its Second Reading and getting it into a Select Committee.

I do not express any opinion beyond that stage on whether, ultimately, I would vote for or against the Bill. I would certainly require the very strongest safeguards, but I do not take the view, which the noble Lord, Lord Brennan, put well, that because you look
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at some aspects and dare to peep through the door, the door will necessarily swing open. As he rightly said, we see some communications, but we do not see all communications, and we never should. I know a good deal about the problem of disclosure. During my period on watch as Attorney-General, the issue of public interest immunity certificates was rightly put under strong scrutiny in a wide variety of areas. It is not easy, particularly when you have to have accredited counsel who are not acting for the defendant, but who are coming in as intermediaries to try to see fair play. Because they are security cleared they can see more material than could possibly be properly disclosed to defence counsel or defence solicitors who, by the nature of their role, would have to reveal it to their client. They, certainly, could not necessarily be relied on not to reveal it because they would feel a very strong conflict of interest. So we have to be very careful.

But what are we balancing all this against? It is particularly relevant that this debate is being held on the Friday before we debate the Terrorism Bill on Monday. We are considering this against the backdrop of a world in which—going back four years to the Anti-terrorism, Crime and Security Act 2001, the measure struck down by the Law Lords resulting in the release of the 23 accused from Belmarsh prison—we have actually detained people without trial in this country, in some cases for just over two years, something we had not done since the days of the Star Chamber.

We have also had a very serious debate about detaining people for 90 days pending charge. A number of our citizens are under control orders. We have to think about placing restrictions on the liberty of the subject in order to protect the people of our nation as a whole in a way that we have not had to consider before. This Bill, which may play a small but significant part in bringing to justice those most likely to be drug runners and what might be thought of as ordinary criminals, but possibly also those in the terrorist world, may help us to be more proportionate in how we take away liberty without any form of trial at all.

I conclude by making a simple point. While it is obvious that noble Lords who have worked in the security services feel passionately about this, and while Sir Swinton Thomas obviously feels passionately that we dare not open the door at all, we should give the Bill a Second Reading and move for it to be brought before a Select Committee. We should then think very carefully about what we learn from that committee as to whether we allow it to go further. The Government certainly have control of the Bill. It would be difficult for this measure ever to become law unless the Government are convinced, because it would certainly be defeated in another place. However, this is a serious debate and I hope that it will be allowed to continue.

12.22 pm

Lord Judd: My Lords, I am happy to follow the noble and learned Lord, Lord Lyell, because I am very sympathetic to many of the arguments he has put
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forward. Perhaps I may say at the outset that I am immensely grateful to the noble and learned Lord, Lord Lloyd of Berwick, for having given the House the opportunity to consider this matter. I hope that my personal and much respected friend, my noble friend Lady Ramsay, will forgive me if I say that I envy her the absolute and unqualified certainty of her conviction in these matters.

Baroness Ramsay of Cartvale: My Lords, I am grateful to my noble friend for giving way. Since he has mentioned my name, does he not think that perhaps the strength of my conviction comes from over 22 years in government service? I have a great deal of experience which has led me to be absolutely certain about this issue.

Lord Judd: My Lords, of course I take the intervention of my noble friend in the spirit in which it is made. It is characteristic of her personal warmth and sensitivity. But I remain of the position on which the noble and learned Lord, Lord Lyell, has argued. These are incredibly complex matters and I have no hesitation in saying that I anguish about them. I have to consider the points made on both sides of the argument. They have been made with force and must be taken seriously. But what I am trying to do, and here I think that I represent the position of many others, is find the right way forward. What I admire in the proposition that has been put before us by the noble and learned Lord, Lord Lloyd of Berwick, is that it would give us the opportunity to consider the issue dispassionately and in more depth. In that way we would become even more convinced that any policy we pursue has been thoroughly examined rather than just accepted on the say-so of those who undoubtedly carry the weight of heavy responsibility.

That is the first point I wanted to make. In July I was encouraged when, in the midst of those terrible events and the pressures that flowed from them, the Prime Minister expressed his personal readiness to examine the issue and made clear his belief that the case was not open and shut, rather that it was one which could do with examination. He has candidly put forward his position, as things stand, as one that rests on the advice of the police and the security services. Of course that puts a terrific responsibility on them and I take second place to no one in my admiration for the quality and dedication of those in the police and security services, as well as for much of the very fine work which they do to protect our society. But as an unqualified adherent to parliamentary democracy, I believe that the sovereignty of Parliament cannot be overlooked in these matters. In the end, for policies in crucially important areas, the view and responsibility of Parliament is crucial. Therefore the idea of a Select Committee is excellent.

We have heard the arguments—they cannot be underestimated—about the need to protect the integrity of security systems, of sources and, indeed, the safety and well-being of those who work in the security services. All those issues have to be taken very
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seriously indeed. A Select Committee of the kind proposed should be able to take the arguments fully into account. However, what is so persuasive in the proposal of the noble and learned Lord is his emphasis and, indeed, re-emphasis of the point that any action taken would be on the initiative of the prosecution and that the intervention of the Secretary of State to protect the matters about which my noble friend Lady Ramsay and the noble Baroness, Lady Park, are so concerned would remain as real as ever.

I have found the exchanges this morning between the noble and learned Lords, Lord Lloyd and Lord Ackner, a little disturbing. They reveal to me as a layman that among these august centres of expertise and legal knowledge, on crucial matters there can be a difference of interpretation. If anything in the debate has brought home to me the importance of further and wise consideration—such as in the context of a Select Committee, for example—it is what has been illustrated to us this morning. Two noble and learned Lords whom we deeply respect—

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