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If we and the Government should be perceived as sitting on our hands because we have neither the courage nor the will or wisdom to take proper and legitimate measures against suspected terrorists, I fear that these other native-born extremists may act cruelly and indiscriminately. We have literally thousands of Muslim families living peacefully and contentedly in this country, their adopted home. Their families are as entitled to education, health, housing, employment and ambitions for their children as are the families, like mine and other noble Lords’, who have been here for generations. Do not let us forsake or forget them. They too are as vulnerable to the men of violence as

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we all are. We have a duty to protect them, as well as the second, third and fourth generations of native-born Britishers.

Lord Bach: My Lords, I am sorry to interrupt the noble Lord again, and do so with great reluctance. Yet it is unfair on other noble Lords. I am grateful to him.

5.52 pm

Lord Howarth of Newport: My Lords, during the four years in which I served on the parliamentary Intelligence and Security Committee, the noble Baroness, Lady Manningham-Buller, and her colleagues taught me to understand the nature and severity of the terrorist threat to our country. They also taught me to have a huge admiration for the work of the Security Service and to be deeply grateful to it. Her speech today made a notable impact on the House.

In 1996, Osama bin Laden issued a fatwa:

In 2005, al-Qaeda released a videotape of Mohammad Sidique Khan before the 7/7 bombings, declaring:

We are indeed at war—a new kind of war but an avowed one, avowed on both sides even though we do not like to use this language. Al-Qaeda and related jihadists do not operate in military or political structures that our conventional categories of strategy, tactics and law can finally deal with. They are entirely ruthless towards civilians and the generality of citizens. In 2005 Ayman al-Zawahiri, leader of al-Qaeda in Iraq, stated to the peoples of the West:

Al-Qaeda operates in today’s clandestine market in weapons of mass destruction and their components. It seems overwhelmingly likely that some of them will have bio-weapons. They would use nuclear weapons without compunction if they were to obtain them. My noble friend Lord Robertson and some extremely distinguished co-signatories wrote an article in the Times the other day about the dangers of leakage of nuclear materials out of Russia and other places. However excellent the work of our troops in Iraq and Afghanistan, al-Qaeda is not susceptible to military defeat. The battlefield is everywhere. The most decisive conflicts are on the home front and in the hearts and minds of our fellow citizens.

No end to this war is foreseeable. In this conjunction we need to think anew. We need to rethink our concept of war and associated law, as Philip Bobbitt has argued powerfully in Terror and Consent. In this war the police and the intelligence and security services are in the front line. We need to rethink the balance between security and liberty. That is not a metaphysical absolute but it is contingent. Our responsibility is to uphold the maximum liberty consistent with our people’s security in these new circumstances. A pragmatic judgment has to be made. Islamist terrorism is new. It rapidly adapts and mutates. While we have to hold to our enduring values of liberal democracy and the rule of law, we too must

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adapt and mutate. That is the context in which this Bill has been brought forward and in which we should debate it.

I focus on the issue of 42 days as that is the main point of controversy in the legislation. The Government have asked Parliament for contingency provision for the extension of pre-charge detention beyond 28 days. They are right to invite Parliament and the country to think and to legislate in a time of relative calm—not in haste, else we risk resorting to the kinds of subterfuges and betrayals of liberal values that sadly we have seen in America. Extraordinary rendition and Guantanamo were victories for al-Qaeda. The first duty of government and Parliament is to protect the lives and safety of our people. The powers the Government are proposing to protect lives and safety are properly circumscribed, indeed they are encrusted with safeguards for civil liberties. Let us assume that Ministers as well as parliamentarians—all of us—are committed to civil liberties and are genuinely seeking the right balance between liberty and security.

What are the main objections advanced by critics of this proposal? First, they say there is no evidence that an extension beyond 28 days is needed. Yet we are in a state of war, in the sense I have described. I hasten to emphasise that I am not calling for martial law, but to recalibrate that balance between liberty and security. It has always been accepted that exceptional restraints on liberty may be necessary in a time of war. Past episodes where 14 or 28 days of pre-charge detention have sufficed are not a sure guide to the future. There is no evidence that the power to detain for longer will not be needed. My noble friend Lord West of Spithead spoke of the need for early arrest in terrorist cases and the extraordinary complexity of these investigations. In the normal way, when we are considering burglaries or even murders, we accept that it is better that 100 guilty people should go free than that one innocent person is imprisoned. Terrorism is qualitatively different. Is it better that 100 or 1,000 people may die so that one innocent person is not detained for two more weeks?

Secondly, it is objected that other legal devices and measures are available: threshold charging; the availability of the offence of committing acts preparatory to terrorism; and post-charge questioning. Is there not something casuistical about approving these devices to extend detention while objecting to a straightforward power, tightly safeguarded, to extend pre-charge detention beyond 28 days? I agreed with the noble Lord, Lord Imbert, on that just now. Some say that intercept material should be available as evidence in terrorism trials. My noble friends Lord Robertson and Lady Ramsay alluded to the real difficulties there are about that. Surveillance is not 100 per cent reliable and requires huge resources which may not be available. Control orders are another kind of detention. It is suggested that the Civil Contingencies Act should be invoked but that was not shaped to deal with the issues arising from terrorist investigations. It seems an odd alternative for Liberty to propose, given that under the Civil Contingencies Act detention can be for 58 days and would not be protected by the judicial safeguards written into this Bill. Derogation from the ECHR still leaves Parliament to decide what powers should be conferred.



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It is further objected that 42 days would act as a recruiting sergeant—that poor recruiting sergeant has been marched on to the stage a great many times. It is said that the possibility of 42 days pre-charge detention would so enrage the Muslim community that it would drive Muslims into the arms of al-Qaeda and dry up the flow of intelligence from the community. We have to insist that Muslims who are citizens and residents of this country have the same responsibilities as everyone else. It is racist to suggest otherwise—I know that is not anybody’s intention. It would certainly be prejudicial to race relations and social harmony to suggest that Muslims have a greater propensity to criminality.

We must not shy away from necessary measures because they are unpopular with some. It is, of course, essential to win hearts and minds in the Muslim community in Britain. To do that, we must explain painstakingly and skilfully what this legislation is and ensure that the contents of it are understood, particularly the safeguards, and the reasons for it.

The Bill is full of safeguards, and in no sense will it create an arbitrary power. It is not the Home Secretary who would initiate the activation of the reserve power, but the Director of Public Prosecutions and a chief constable. It is not the Home Secretary but, as now, a judge who, at frequent intervals, would authorise or not authorise the extended detention of an individual.

It is my view that the safeguard of parliamentary approval is inappropriate, and that it is inappropriate to inform the chairmen of certain parliamentary committees without allowing them to share the material with their fellow committee members. We can debate those issues in Committee.

It is no part of our duty as parliamentarians and upholders of liberal democracy to wring our hands over the erosion of civil liberties while denying to the Government, their agencies and the judiciary the powers that may be needed to defend the lives and safety of the citizens whom we serve. The legislation calibrates a minimum prudent strengthening of the democratically legitimated powers of the Executive to secure the safety of our people. It passes the tests that my noble and learned friend Lord Goldsmith offered of necessity and proportionality. It is a proper and practical response to new historic circumstances, and it is fully respectful of civil liberties and democratic values within those circumstances.

6.01 pm

Baroness Falkner of Margravine: My Lords, in her excellent maiden speech, the noble Baroness, Lady Manningham-Buller, said that there should be no political partisanship in questions of national security; I agree. I will go further and say that when one comes from a group that is likely to be most affected by those measures of legislation, we should, nevertheless, try to set aside those aspects to obtain the best legislation for all.

Three of us from those communities are speaking in the debate today. I shall start by reassuring the noble Lord, Lord Howarth of Newport, that neither the noble Lord, Lord Sheikh, nor I, nor the noble Lord, Lord Ahmed, from what I know of him—although

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I do not have his permission to say this—would in any measure try to effect any special pleading for Muslims in dealing with any legislation, whether it is on counterterrorism or not. We come to this House to speak in a non-partisan way, to deal in a non-partisan fashion with the matters that we see on the Order Paper, and to do so in the interests of all in the country, not for our community.

First, I shall consider how we deal with extremism in this country. The noble Lord, Lord West of Spithead, touched on political extremism as the precursor to terrorism, so I shall touch on that too. In the past four years, much has been made of the issue of home-grown terrorists. The implication is that there is something particular to Muslim communities here in Britain; some special characteristics that lead to radicalisation, which in turn results in the violent acts that we saw in 2005 and several attempts since. In taking the perspective of British Muslim exceptionalism, the starting premise is that, if we can therefore employ the right remedies, and if somehow we can change the drinking water in this pool, we will sort out the problem and root out terrorism from among those people. However, no unique features distinguish young British Muslims from those in Canada, the United States, France, Spain, Germany, or indeed Pakistan or Algeria, where people are subjected to equally horrific attacks.

On the whole, while circumstances may vary, a clear picture is emerging that the terrorists are motivated by a powerful ideology. It may be a twisted ideology, but it resonates with those who are prone to violence. Its justification is in terms of righteousness in the face of authoritarian rulers and Western double standards. It juxtapositions modernity with powerlessness; it pitches complexity against literalist clarity. It has its adherents, who use our liberty and freedoms to their advantage. The question for us here in Britain is whether it is something against which we can hermetically seal ourselves through passing more and more laws. In my view, we cannot. The global jihadi movement that al-Qaeda has launched will partly resolve itself as conflict in the Middle East and other Muslim countries abates, and it will lose its pull as new generations come up with new ideas from within Islam itself. Muslim societies are best placed to deal with modernity.

The issue before us is the extent to which we believe that more powers given to the state at the expense of its citizens will indeed keep them safer. There will always be more powers that might help. As one set of laws is passed, anomalies come up. New plots and the trials that follow reveal the existence of new loopholes. We face the possibility that every time we add a fresh bolt to the door, we find that the screw is too short, the hinges are too loose and it might yet be possible that the door will smash open. So we forge bigger and bigger bolts. That is called the politics of fear. That is where we substitute a grown-up debate with citizens about the duty to keep them safe with midnight whispers of barbarians at the gate. In saying that, I do not deny the need for new laws and additional powers to protect us. Some of the provisions in this Bill, which appear to be so potentially far-reaching and so disproportionate in terms of the balance between liberty and security, have caused concern, as we have already heard today in this House.



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I shall turn to the measures that I hope we will be able to look at more carefully in Committee. Several noble Lords have spoken of the clauses on the extension of pre-charge detention to a maximum of 42 days. I will not dwell on that, other than to say that it would signal a dramatic change in the principles of internment and it would have implications well outside our borders. It will be more than just lowering the bar; it will effectively be placing the bar on the floor. There are other measures, too, which appear to be overly broad. In Part 1, my concern is with the powers to gather information and the changes where it would become a criminal offence to obstruct the gathering of information. I will be seeking to question the extent to which language or cultural barriers could inadvertently result in obstruction charges, and to secure safeguards in relation to those who might be subject to its implications. I will also be seeking to probe clauses to do with the taking and holding of fingerprints and non-intimate samples from those subject to control orders. Also of concern are clauses that deal with the sharing of information with foreign agencies.

The provisions in Part 4 deal with notification requirements and foreign travel restrictions. I recognise that some of those measures may well be necessary in light of a particular individual’s offence and the risk of recidivism. The problem with the current drafting of Clauses 51 to 68 is that the clauses would catch all those convicted of a terrorism offence, or an offence with a terrorism connection, if they were given a minimum of a one-year sentence. Those requirements are not based on a risk assessment that is framed to deal with an individual’s circumstances and are therefore capable of being disproportionate when applied so broadly.

I shall turn here to the Home Office’s equality impact assessment on the Bill. It found, unsurprisingly for some of us, that there is a perception among the Muslim community that terrorism legislation targets them as a group rather than as individuals. It is the scope of measures such as those in Part 4 that lends credence to that perception. The requirements are not headline grabbing, but they are well known about in the community. In Committee, I will be seeking to ensure that they are as narrow and specific as they can be, in order that they are targeted at individuals, in light of individual circumstances, rather than at anyone who came into the criminal justice system at a certain point in their life, however wrong they might have been at that point. There would be little scope for rehabilitation if we were to allow the measures to stand as they do currently.

Seven minutes is too short a time to say anything detailed about a Bill of this scope. In ending, all I can add is that we find ourselves in a long-term ideological struggle that is not of our making; all that we can do is deal with it as wisely as we can. I wish, as much as the security services might do, that there was a silver bullet. There is not. In its absence, we will have to secure the most effective and proportionate responses in law. The Bill as it stands does not do that.

6.10 pm

Lord Condon: My Lords, as a former police commissioner I support the aims of the Bill and most

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of its proposals. I certainly respect the views of noble Lords who have spoken with such passion and clarity in support of the extension of detention without charge. However, after much deliberation and consultation with my police friends still involved in the fight against terrorism, I cannot in all conscience support the proposal to extend detention without charge for up to 42 days.

I set out my concerns previously in your Lordships’ House when we debated and rejected proposals for even longer periods of detention without charge. In summary, I thought then and believe now that such proposals, even with the new safeguards, are disproportionate, counterproductive and divisive, as well as an unnecessary distraction from the more important task for all of us of developing a coherent strategy to combat extremism and terrorism.

Two weeks ago, I was on business in the Gulf region, where I spend quite a lot of time. During that period the Saudi Arabian police carried out raids, arrested several hundred suspects and seized copies of an important new book, Governance in the Wilderness, written by al-Qaeda’s chief theoretician, Sheikh Abu-Bakr Naji. Why is that book relevant to our debate today? Because it is the clearest and most contemporary manifesto statement of the jihad against us. We certainly need to understand the changing aims of the movement generically known as al-Qaeda to ensure that our counterterrorism proposals and legislation are relevant and will make things better rather than worse.

Sheikh Abu-Bakr Naji argues that the world struggle against us has been under way since the fall of the Ottoman empire and the abolition of the Islamic caliphate in 1924. He and others like him argue that only after 9/11 did the world wake up and realise that it was witnessing a world war about ideas, lifestyles, philosophies and religions that would be played out for decades if not centuries. He advocates turning the world into a series of wildernesses where only those under jihadi rule enjoy security and everyone else fears for their safety. Their long-term war against us is not about toppling a Government, running a country or restoring the Taliban to control in Afghanistan; it is about creating parallel extremist Islamic societies in all countries with Islamic communities and, through attacks and acts of terrorism, making our daily lives unbearable and unsafe.

This is why the proposal to extend detention without charge is flawed and counterproductive. Sheikh Abu-Bakr Naji argues that to sustain this campaign without end the jihadi movement must be divided into five concentric circles of activity. The first, the largest and most important is traditional Muslims in all countries who, although not personally violent, are prepared to give moral and, if necessary, material support to the militants. Our strategy—our legislation—to combat terrorism must also speak to and resonate with the same concentric circle of good, traditional Muslims in the forthcoming decades or perhaps even centuries of world war for hearts and minds and philosophy.

While al-Qaeda seeks to encourage the Muslim majority to accept and even support violence, we must encourage the same majority to reject violence and the extremist minorities. That is why the 42-day proposal may well be counterproductive and a propaganda gift

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to the extremists, who will group it with Guantanamo Bay, extraordinary rendition and alleged tortures to seek to influence the majority of good, traditional Muslims—and, in particular, young men—to acquiesce in violence or, at worst, to participate in those violent acts.

The 42-day proposal, even with the checks and balances that others have spoken about, undermines our moral authority to win the battle for hearts and minds that the Prime Minister has acknowledged is central to long-term success in countering terrorism. All the wasted time and energy expended on the debate about extending detention without charge is a debilitating, divisive and counterproductive distraction from our real task, which is to put in place a meaningful strategy and legislation to deal with the long-term struggle against extremists and their propensity for terrorist acts throughout the world. It is for that reason, even though I have enormous respect for those who have argued the other way, that I must argue against and will not support the proposal to extend detention without charge to 42 days.

6.16 pm

Baroness Park of Monmouth: My Lords, I have had to do a little rewriting—I hope that I can read it. I listened with great respect to the noble Baroness, Lady Manningham-Buller, who of course knows far more than I do about the workings of the terrorist world today. I respect her concern for our freedoms and our rights as citizens—rights that are shared by those who are under arrest. I have heard those views expressed right across this House, starting with my own Front Bench. I, too, care about human rights. Where we differ is that I believe that, given a ruthless enemy—and we are talking not about Muslims, but about terrorists—we need to be absolutely sure that we have made it possible to charge and identify those people and those who are working with them.

The police sometimes arrest suspects because it would be dangerous to let things run further. I assume that they initially have good reasons for believing that they have arrested someone who is at the least involved in a potential threat to the state. Why else would they take such a major political risk? However, there will be others, too—part of the terrorist diaspora. We surely cannot afford not to try to cut off all the tentacles of the octopus.


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