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The Earl of Onslow: My Lords, nullus liber homo capiatur. I will go on in English, since we are not quite such a well educated generation as we were—
The Earl of Onslow: My Lords, I applied that to myself, not just to other noble Lords.
"No free man shall be taken or imprisoned or deprived . . . or outlawed or exiled or in any way ruined, nor will we go and send against him except by the lawful judgment of his peers or by the law of the land".
That is Magna Carta and that is fundamentally what we are talking about—the noblest of liberties. That clause inspired the writers of the American Declaration of Independence, and their constitution; that is what we are fighting for. If we go down the road of extending the locking-up of people without trial, we will qualify our own liberties.
It is not as if the police have been phenomenally competent recently. They had—and the intelligence services had—knowledge of the people who blew up the bombs. There have been recent reports of enormous amounts of stop and search, as a result of powers used under the terrorism legislation. We have had no evidence that the actual powers needed must be extended from 14 days to 90 days. The noble Lord made that absolutely clear.
Let us also bear in mind that horrid, beastly, brutal and disgusting though those attacks on the London Underground were, we are not going through the most ghastly of all terrorist occasions. Northern Ireland in the 1970s was certainly far worse, and they did not see the need for those extra powers then.
We have a wonderful country, with wonderful liberties. We have a super place to live in. Therefore let us guard that with every ounce of our souls, because those liberties and that clause in Magna Carta are so important.
I shall end by quoting Kipling on Magna Carta.
"And still when mob or Monarch lays Too rude a hand on English ways, The whisper wakes, the shudder plays, Across the reeds at Runnymede. And Thames, that knows the moods of kings, And crowds and priests and suchlike things, Rolls deep and dreadful as he brings Their warning down from Runnymede!"
Lord Foulkes of Cumnock: My Lords, I offer sincere congratulations to my noble friend Lord Sewel for a coherent, powerful and, above all, calm, introduction to this debate.
Lord Foulkes of Cumnock: My Lords, I hope it is not wishful thinking on my part to hope that some people who were uncommitted at the start of the debate will have been converted by that powerful argument.
With no disrespect to the noble Earl, Lord Onslow, I think that rather than quoting Kipling, the more appropriate poet to be quoting this evening would be Robert Burns, as the Minister pointed out earlier. I searched through his collected works, but I could find very little about terrorism, so it is difficult to use him in that respect. I do not want to quote too much from the great bard, because I know from experience elsewhere that it causes problems for Hansard reporters. I shall give one quotation, which I use and think about a lot:
That gift was recently given to me through the power of the noble Baroness, Lady Lockwood, when she pointed out in Committee that perhaps my experience elsewhere had made me a little too strident, political and harsh when we were arguing about 90 days.
Lord Foulkes of Cumnock: My Lords, my noble friends are too kind. If I offended anyone on that occasion, I can only apologise. The reason, however, was that I feel passionately about this. I have genuine concern. That, perhaps, carried me away. I address that to my noble friends in particular, and to the noble Baroness, Lady Kennedy of The Shaws, for whom I have great affection despite not always sharing her views.
The noble Baroness and I were concerned about the way in which the CIA played a part in the downfall of democracy in Chile, getting rid of Salvador Allende. I have been concerned about the way in which intelligence agencies gave support to the Contras in Nicaragua. Notwithstanding the impeccable credentials of the noble Baroness, Lady Ramsay of Cartvale, I am not always inclined to take the word of intelligence agencies. I have no reason to be unduly supportive of the police, some people here might recall. I accept what the noble and learned Lord, Lord Lloyd of Berwick, said: that we do not automatically accept what they say; but we have to give some weight to what they say. I share their concern that the terrorism which the Americans faced on 9/11 and we faced here in London last July is of a different order and type from the terrorism that we have seen in the past. Therefore, different powers are needed to fight it. They are trying to undermine not just our freedoms, but our whole way of life.
That is why I have come around to the view that, for a very few—remember, the noble Lord, Lord Carlile of Berriew, said that it would be only one or two suspected terrorists of a particular type—more time is needed, subject always to that seven-day review by the judge. I say to my noble friend Lady Kennedy of The Shaws that each time it is reviewed after seven days, both sides are able to argue the case for continuation of detention or otherwise. That review by a senior judge is the safeguard.
As the noble Baroness, Lady Ramsay of Cartvale, said, we had a very lively debate on the 90 days, with overwhelming support for it. We were right, however, not to move it on that occasion. We had to take account of the decision of the Commons, where it had already been rejected. However, 60 days—which is almost as effective as 90 days as far as the police and other agencies are concerned—was tabled by Janet Anderson in the Commons, but never debated, called or discussed. I know that she would like the opportunity to table it again. I know, from those I have spoken to in the Commons, that the Commons would like an opportunity to discuss it again. I think we should give them the chance to do so.
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5.45 pm
Lord Ramsbotham: My Lords, my concerns, which I share with my noble and learned friend Lord Lloyd of Berwick, are based on personal experience. I do not want to take up too much of your Lordships' time, but I was probably the only Member of this House who was operating on the streets of Belfast in 1974 when internment without trial was in force, and I was commanding my regiment when the late Lord Merlyn-Rees removed internment—largely encouraged, I think, to do so by the military.
I returned to Belfast in 1978, to command the brigade when internment without trial was no longer in force. The conditions in which we carried out our operations in support of the police had utterly changed. The unwillingness of people to share information and the difficulties in working alongside the population—absolutely essential, as other noble Lords have said, when you are dealing with terrorism—had changed out of all recognition because the law was acting within a period of time, and not an indeterminate one. Although 60 or 90 days is not indeterminate, there is no doubt that, in people's minds, those options very much equate to internment without trial.
Other noble Lords have made the case for civil liberties more eloquently than I. I simply add that problems might be faced by security forces other than the police, and that there is a need not to inhibit them in the same way in which our operations were complicated by the presence of internment in Northern Ireland.
Lord Joffe: My Lords, in Committee, the debate on the corresponding section for 90 days was curtailed. I did not therefore have an opportunity to speak. Because of that, and because I think that I can add some new facts for your Lordships' consideration, I ask for your forbearance in talking, perhaps, a few minutes longer than I would normally expect to do on Report.
There were many different, passionate views in Committee as to how the detention provisions of the Bill compared with the infamous 90-day legislation in South Africa. As I practised as a human rights lawyer in South Africa in the 1960s, and as most of my clients had been detained under the 90-day law, I can be of assistance to your Lordships in comparing that law with the detention provisions in this Bill, and in drawing attention to some of the lessons that could be learned from the South African experience.
The 90-day legislation in South Africa was introduced at a time when the government feared that the ruling white population was in grave danger from the terrorists, and the police were under increasing pressure to prevent that danger. Broadly speaking, that was not unlike the position in the United Kingdom today. The legislation followed a series of less extreme rules, eroding the human rights of South African citizens with measures such as bannings and house arrest. Again, this is not unlike what has happened here over the past few years, where a series
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of similar laws—such as control orders, seven days' detention and then 14 days' detention—have eroded human rights.
What is more, the key features of the South African legislation and the Bill are the same. Both allow for detention without trial. Both allow for the interrogation of the detainee through the period of detention. Both place the detainee in the hands of the police, who are authorised to move them from one location to another as they see fit.
In implementing those laws, the South African police, protected by a colluding government and by most members of the judiciary, extracted information and confessions through savage, prolonged and relentless interrogation and denied access to the courts. Some confessed to crimes that they had not committed to be released from solitary detention and interrogation, and testimony from psychiatrists was that some detainees became so disoriented that no reliance could be placed on their statements to the police.
I will not touch on the physical torture of detainees in South Africa as I do not believe that such torture is likely to happen here because of the safeguards in the Bill, and the right of access by detainees to lawyers, audio and video recording of interrogations and the requirement for senior judges to authorise the seven-day detention. There is also the Minister's reassurance that a separate code of practice for detainees will be introduced. While that is a source of comfort, the code will need to be carefully scrutinised because, as is often said, the devil is in the detail.
While those safeguards should protect detainees against physical torture, the pressure of isolation and fear will remain. Experience in South Africa and elsewhere makes it clear that there will inevitably be abuse by some police officers, possibly accentuated by racism, which unfortunately exists to some extent in the police force. The greatest potential for abuse that the safeguards cannot effectively prevent will be the initial detention of innocent detainees.
With regard to the proposed code of practice, will the Minister say whether the families of detainees will have access to them, whether detainees will be kept in solitary confinement and whether the police, after the 28-day original warrant expires, will be entitled to release and then re-arrest detainees for another 28 days, which was the procedure perfected by the South African police?
In addition to the possibility of abuse, another key lesson from the South African experience is demonstrated by the legislation that followed the original 90-day legislation in 1963. In 1965—only two years later—new legislation extended the period of detention from 90 to 180 days. In 1967—only two years later—the law was extended to indefinite detention at the discretion of the commissioner of police. Each time the law was extended, the safeguards, such as they were, were watered down or removed.
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One is tempted to say that this just could not happen in the United Kingdom—
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