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I am not opposed to internment, by which I mean the real thing, where we have evidence to tender in a closed court that simply cannot be revealed in open court because it would infringe the security of a valuable source of information or the use of electronic devices, or would endanger security personnel working under cover. That is as opposed to this 42-day compromise, which assumes that, if we keep suspects long enough, we will break them. We might break an innocent person and get a confession, but there is not a defence lawyer in the country who cannot argue successfully that duress, not guilt, was the reason for the confession. The hardened, conditioned, brainwashed terrorist whom I have known for 30 years in Northern Ireland will concentrate on the cracks in the wall or the individual bits of dandruff on the interrogator’s shoulders—whatever—and it will not matter whether it is 28, 42, 56 or 90 days. He will resist and resist and he will win the day.
I am no softie on terrorism. I have probably been instrumental in helping to put away more terrorists in Northern Ireland than anyone else in your Lordships’ House. I learnt at first hand and know what must be done. In Northern Ireland, the Government backed down on the option to have judicially directed and monitored internment when improving high-grade intelligence would have provided sensitive information and allowed vulnerable sources to give their evidence in closed court. Such a process could have been honourably
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Let me forecast to the Government what they will inevitably do when they come under international pressure, as they will if they go down the route of extended detention without trial. They will do what they have done in Northern Ireland. They will abandon those police and intelligence agencies that are currently striving to defend our community against the evil that threatens us. I hope that the Government recognise that this is what the police and intelligence agencies here in Great Britain expect and fear. They have seen the Government’s willingness to accept phrases such as “a force within a force” as something discreditable in relation to the RUC’s Special Branch. What do they think Special Branch and the intelligence agencies really are?
Today’s police and security personnel have seen the Government spend multiples of millions of pounds sterling on inquiries where the actions of security services in the 1970s or 1980s are judged against the comparative normality of 2008 and where the security of the then serving officers is disregarded and their approaching old age is disrupted by what they see as a treacherous attempt to criminalise them. That is the background evidence against which our security services are asked to work today. For example, in Northern Ireland, over £60 million has been spent to date looking at the Hamill, Nelson and Wright cases. Almost £10 million per annum is being spent to maintain a Police Ombudsman’s office with almost 150 staff—one member of staff for every 50 police officers on the ground, or £1,500 per annum per policeman in Northern Ireland to be policed by PONI. Against that craven reaction to terrorist propaganda, how can our current security forces anywhere in the UK have the confidence that they will not be the sacrificial lambs?
If the Government want to prevent and overcome the terrorist threat, they must realise that it cannot be done by intimidation, by creating distrust within society as a whole or by diluting a nation’s hard-won freedoms and rights. It must be done by recreating the confidence that society has lost in the Government’s ability to think ahead of the event, to put a vibrant and well resourced security and intelligence service in place and to give it—and us—the confidence to believe that, in doing what is right, it will not be betrayed or abandoned.
Finally, do the Government believe that, if we have a terrorist outrage, the victims’ families will take comfort from the fact that we can fill our holding centres with suspects? No. They will still ask why the Government expended energy and resources on diluting a nation’s civil rights rather than on implementing a feisty, durable and well resourced anti-terrorist capability.
9.50 pm
Baroness Miller of Chilthorne Domer: My Lords, we have had about as powerful a series of speeches laying out the principle of the Bill as it is possible to have on Second Reading. The debate certainly has, as
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The noble Lord, Lord Brett, asked why now, and why we are going to make such an issue of this Bill, when we have had so many terrorism Bills already. The arguments laid that out very clearly. They laid out that the Bill is presenting us with a fork in the road. We have heard this evening that we have a very clear choice. We can choose whether to go with legislation that is eroding human rights and freedoms as a response to terrorism, or we can take a very different path, the path laid out by the noble Baroness, Lady Kennedy of The Shaws, who talked of the assertion of our values. We believe that other paths can be taken, in the knowledge that there is a far better system of measures in place than when the other terrorism Bills were passed. My noble friend Lord Goodhart, who played such a role in the passing of those other Bills, reminded us that, in general, they were passed in a great hurry and there was not much time to dwell on the issues.
We would credit the Government and the Minister in particular for the measures that are now in place that he talked about in his opening speech, such as the Office for Security and Counter-terrorism, the much-increased cross-departmental action and the much bigger budget spend on critical intelligence; he referred to £1 billion by 2011. We have a Minister who is a specialist with a whole spread of things that he cannot be specific about; but he mentioned his great quiver full of things to help us to counter terrorism. That is a big change since the last terrorism legislation, when those things were not in place, but when we still rejected the disproportionate measures that the Government were calling for then, such as 90 days detention. Surely, with those measures in place, we can reject any extension that is being called for.
There are measures in the Bill on which there was clear consensus this evening, such as post-charge questioning. There are other measures that we will support, although we will question them, such as measures around the gathering of data, data-sharing and the need to examine with whom and why the data is shared. There are other measures that appear to be completely pointless at best and highly damaging at worst. Many contributions dwelt on parliamentary scrutiny being a pointless measure. Just some of the adjectives that I noted came from the noble and learned Lord, Lord Steyn, who called it illusory, the noble and learned Lord, Lord Mayhew, who called it worthless, and the noble Baroness, Lady Park of Monmouth, who was not at all convinced by it. In particular, the noble and learned Lord, Lord Morris of Aberavon, gave a powerful exposé of the unworkable nature of such parliamentary scrutiny. That is the sort of measure
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I am not sure that I have anything to add to the 42-day argument. The noble Lord, Lord Joffe, laid out in his four tests some profound and good arguments on whether 42 days’ detention was necessary. While we do not dispute the complexity of counterterrorism operations and we will agree mechanisms to increase powers to gather and share information, we would want to know what evidence the Government have for proposing 42 days. That issue was returned to time and again by noble Lords this evening.
The evidence we heard on the other side from my noble friends Lord Dholakia and Lady Falkner of Margravine and the noble Lord, Lord Ahmed, who made a powerful contribution, was that the legislation in this form could further split communities when it is the reverse process that is needed. My noble friend Lord Dholakia said that we must never forget that community participation is conditional on how the community views government actions in relation to protection of civil liberties.
I cannot think of a more powerful contribution than that of the noble Lord, Lord Condon, and with all his experience I am sure that the whole House will have taken it deeply to heart. Of course, the contribution of the noble and learned Lord, Lord Goldsmith, was particularly powerful. Given his recent experience of government, I felt that it may have been quite difficult for him to make, but he made it nevertheless—that was brave of him. We also have the contribution of the noble and learned Lord, Lord Falconer of Thoroton. All those give us a great deal of evidence of why we should question deeply and reject 42 days’ detention.
I shall spend a little time on Part 6, dealing with inquests, which has received very little comment. My noble friends Lord Lester and Lord Goodhart referred to it, and the noble and learned Lord, Lord Mayhew of Twysden, mentioned in passing that the Government would be inclined to get rid of the tiresomeness of certain inquests. I look forward to his expansion of that in Committee.
In our discussions on the 42 days, we have been worrying that losing your liberty with no explanation is bad enough; but losing your life with no public explanation is totally unacceptable. I do not need to remind the House that it has been the duty of coroners since 1194,
This Bill allows the Secretary of State to appoint coroners, disallow juries and to intervene in ongoing cases. The introduction of the concept of secret inquests with the Secretary of State, coroner and no jury—and possibly without the dead person’s family being present—flies in the face of the very reasons for inquests.
Mr McNulty said in another place on 13 May that the Government were not talking about absolutely closed proceedings from start to finish, but that is just what the Bill allows for. It allows for it,
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It is doubtful that we should agree to that because we have perfectly adequate PII systems. It allows for special procedures,
I am certain that we should not accept that.
The reasons for the death of a UK citizen cannot be hushed up just because it may embarrass our allies in arms or trading partners. Those on these Benches will never accept that it should.
The Bill allows for special procedures,
This definition is so wide as to deal a body blow to the traditional inquest system. It could cover deaths in custody, deaths in hospitals and deaths in the military. In all those cases, public interest could be claimed when it was simply the case that the truth might undermine public confidence in the system. For example, the Secretary of State could claim that it was in the interests of national security not to expose an Army supply chain that was chaotic.
Without answers, the public cannot renew the confidence that they may have lost in the system because of mysterious or unexplained deaths. Why are major alterations to the inquest system in the Bill? It seems to be an attempt to link changes to inquests with terrorism matters to make them more acceptable. Otherwise, the proposed changes could be in the forthcoming Coroners Bill. They might not be any more acceptable, but at least they would be debated in context. I am sure that Part 6 will get the full attention that it deserves in your Lordships’ House.
All states have an obligation to protect people from terrorism. The perpetrators of terrorist attacks must be brought to justice. We will amend the Bill to ensure that the quality of that justice is undiminished.
10.01 pm
Baroness Hanham: My Lords, this has been an astounding debate, because many views expressed across the House have not complied with what you would call normal party politics. It has been astounding also because it has concentrated almost entirely on the 42-day extension, although there are other matters in the Bill.
My noble friend Lady Neville-Jones clearly set out the line that we have adopted on the issues of 42 days and intercept evidence. I shall concentrate on the Bill’s remaining issues. Before I do so, I say that the Minister faces an unpalatable truth. Two-thirds of the House today have not accepted 42 days and huge concerns will be made evident in Committee not just on the implications of 42 days but on the processes that would set up 42 days. Many noble Lords have expressed concern about the interweaving of the state, the judiciary and the politicians. This must be unpicked very carefully in Committee.
We have heard many remarkable speeches this afternoon. The noble Baroness, Lady Miller, referred to some of them. I thank those on my Benches for their contributions, all of which were extremely apposite. My noble and learned friend Lord Mayhew, with all his experience in dealing with terrorism, made apposite
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We have all listened to the Government, but I am afraid that their approach to counterterrorism still appears to be reactive rather than proactive. In their response to terrorism, they keep on trying to take more judicial powers, impose more restrictions on the general public and seek greater intrusion by the state as a legal normality. As my noble friend Lady Neville-Jones made clear, we do not believe in doing the terrorists’ work for them. As she said, we want strong security, the preservation of liberties and efficient justice.
No one here has denied—as no one here would deny, and certainly I do not—the dangers of the terrorist threats to this country. How could anyone do so in the face of the reality that we have seen? However, although we agree with some of the provisions in the Bill, there are others, in addition to the question of pre-charge detention, about which we have concerns. My noble friend made the case eloquently for the need to protect our great traditions and—a point echoed across the Chamber today—our democratic rights and freedoms. To those I would add the need for an independent judiciary in which the public can have confidence.
In particular, it should come as no surprise that we, too, will be looking closely at Part 6, which is on inquests. The provisions under this part would allow the Secretary of State to appoint a chosen coroner, to select a special coroner and to decide whether an inquest should be held without a jury. It was only after the most heated debate in the other place that a role for the judiciary and the Lord Chief Justice in approving special coroners was proposed, but that still does not answer the known concerns—that coroners’ inquests with specially appointed coroners and no juries will not inspire any confidence among the public and that they are largely counter to the normal open legal proceedings that we understand as proper in this country. In the other place, my honourable friend Dominic Grieve said of the Government:
“I can see that they have a real problem, but the answer that they have come up with is profoundly ... wrong”.—[Official Report, Commons, 10/6/08; col. 249.]
These provisions, or some of them, were intended to be in the long-lost Coroners Bill. That Bill has been promised for years but has not yet been delivered. However, only these provisions are being considered outside the wider coroners’ courts reforms. These few clauses give the Government enormous powers with almost no safeguards. The noble Baroness, Lady Ramsay, offered the Government incisive reasons why Part 6 is not acceptable.
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It is essential that untoward deaths should all be properly investigated, particularly where there are issues of sensitivity surrounding possible state intervention, and that there should be openness throughout all the processes. We appreciate that the Government made some small moves in the other place but we do not believe that these provisions are anything like adequate. My noble friend Lord Kingsland will therefore table amendments in Committee to try to resolve these problems.
Many other provisions in the Bill—even those for which we have some sympathy—have the potential to reduce confidence in our judicial system further. The new powers to collect information and DNA in Part 1, along with the notification requirements in Part 4, seem innocuous enough when looked at in isolation, especially with the Government’s promise to use the powers only in the most extreme cases, but they represent yet another step towards the criminalisation of the innocent. We shall be looking with the utmost care at the safeguards and limitations on these provisions.
Similarly, the impact of new provisions on asset freezing and the rules of court, and the changes to the jurisdiction of terrorist offences, will need to be scrutinised carefully. Provisions such as these have a nasty habit of developing unintended consequences after implementation. Therefore, rather than relying on future legislation to undo bad law, we prefer to get it right the first time.
Much of this legislation has been justified by the Government on the grounds that it is to be used only in the most exceptional cases. However, the concept that we have one justice system for terrorist offences and one for all others causes considerable disquiet. As the noble Baroness, Lady Stern, said, the view of the Joint Committee on Human Rights is that this is not an acceptable situation. It is also rarely true in practice. There has been much discussion in the media recently on the excessive use of draconian powers—justified in Parliament as targeting terrorism—to investigate minor crimes. The Government must be very careful that the precedents that they set for terrorism do not become absorbed into normal practice.
This Government have given in to the temptation of seeking new powers in order to solve old problems far too often in the past. Before allowing these further provisions to be passed, we shall be exploring whether the enormous powers given in previous legislation have been inadequate or whether they have just been ineffectively implemented.
During the passage of the Bill through another place, the debate over 42 days rather overshadowed much of the proceedings—as it has here—on Report. Although useful progress was made in Committee, many of the government concessions and promises on other aspects went unscrutinised at a later stage. We will therefore return to those issues and seek to clarify any remaining uncertainty over the new clauses that the Government have introduced.
This Bill has already generated enormous concern on the 42-day issue alone, as I said. The Government’s obduracy in proceeding with this inchoate proposal in the face of well informed opposition is staggering. The
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It has been a long day of debate. The Government are clearly in no rush to see this Bill on the statute book, as they have timed its arrival here to coincide with the long Recess. However, on our return in October, we will have much detailed work to do and we look forward to that.
10.12 pm
Lord West of Spithead: My Lords, we have had a fascinating and very constructive debate. Noble Lords have spoken passionately and, I have to say, at length about the importance of getting the right balance between national security and individual liberty. Of course, we are only part of the way through the first watch and, as a sailor, I can easily go through the middle and morning, but my Whip has asked me not to give my two-hour response to this. I am afraid, therefore, that it will be impossible to address many of the very good points raised, but there will be lots of opportunities to do that in Committee and on Report. Today’s debate has shown again—I have come to realise this over the past year—is how this place is a formidable defender not just of our liberties but of the protections that we need to ensure that everyone in Britain can enjoy those liberties.
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