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Debate on Second Reading of the Prevention of Terrorism Bill
23rd February 2005
The Home Secretary, Charles Clarke, presented the Bill in broad terms, arguing why it was necessary due to the unique nature of the terrorist threat faced:
“The core of the case for this legislation is that this country faces substantial and real threats to the freedoms of institutions and people in our society that are qualitatively different since 11 September 2001. Despite this country's long experience over decades of terrorism of different kinds in relation to Ireland and anti-colonial struggles of various descriptions, the nature of the threat that we now face is of a qualitatively different order and, in my opinion, requires qualitatively different measures.”
It was clear from the debate that the government is of the view that the threat posed by al-Qaeda is qualitatively different and more serious than any previous terrorist threat. Peter Lilley then asked if the government would only use the new powers against terrorists involved in international terrorism associated with al-Qaeda, to which the Home Secretary responded:
“The derogation powers in the Bill require the Secretary of State to put before both Houses of Parliament an assertion or order stating that there is a threat to the nation from international terrorism. Such a derogation could not be made unless both Houses were convinced of the merit of that case. I can tell the right hon. Gentleman and the House that the Government would propose such a derogation only against international terrorism with the characteristics that I have just described.”
Jeremy Corbyn and others sought assurances that prosecution was envisaged as the primary method of pursuing suspected terrorists, rather than control orders:
“If the Home Secretary has an enormous body of evidence against individuals who are about to prepare a monstrous attack, surely it is up to him to bring a prosecution against them in the courts in the normal way. The concern of many people both inside and outside the House is that he is seeking powers for Executive control and detention that are outwith all our democratic traditions.”
David Trimble took the view that the government should not restrict its actions against terrorists to international threats:
“I thank the Home Secretary for his generosity, and urge him to reconsider the limitation that he put on the actions that he could take. Surely, the issue is whether there is something that poses a threat to the life of the nation and whether there is an emergency. That emergency and threat could come from a range of sources, and he should not fetter himself too much at this stage.”
In response, Mr. Clarke said:
“I agree completely with the right hon. Gentleman, who states the case correctly. In my answer to the right hon. Member for Hitchin and Harpenden (Mr. Lilley), I said that at the moment the state of emergency or threat to the life of the nation that would require a derogation is focused on international terrorism from al-Qaeda and related organisations. However, I completely accept the point made by the right hon. Member for Upper Bann (Mr. Trimble) that in theory and practice it is perfectly possible that terrorist threats of other kinds might arise.”
Lembit Öpik then said:
“I have listened with great interest to the Minister, but he seems to be in danger of generating a league table of terrorism in which paramilitary killings in Northern Ireland are not regarded as just as bad as killings by al-Qaeda. I am sure that he does not intend to give that impression, but why does he think that it is right for the Government to attempt to dispel the motives for terrorism in Northern Ireland when, by contrast, he is intent on using the oppression of the opportunity to terrorise as the sole method for acting against international terrorism?”
Charles Clarke:
“I would not dream of doing that, and the suggestion of league tables in this area is deeply offensive. My argument, which has been widely made, is that 9/11 changed things, the existence of al-Qaeda and its related organisations changed things and, therefore, it is incumbent on the Government and the House to address that change.”
Dr. Julian Lewis further expressed concern about what is so different now about the terrorist threat faced that these new measures are required:
“The Home Secretary rightly paid tribute to the security services' successful prevention of attack. It was adequate to use judges in special courts at the height of the IRA offensive when it was involved in wide-scale attacks, so why is it not adequate to use judges in special courts, instead of politicians, at a time when, thank goodness, attacks have not yet been successfully carried out?”
In response, Mr. Clarke said:
“There are different solutions and judges in special courts is one solution that could be considered. However, that does not address the central objection of those who criticise the legislation. The fact is that there is evidence of activity that cannot be put before a court, of whatever type. That is the fundamental issue.”
Robin Cook also took the view that the power to impose restrictions such as those envisaged by the Bill should be given to the judiciary and not to the executive:
“My right hon. Friend gave an important response to the intervention from the hon. Member for Somerton and Frome (Mr. Heath). Does he understand that he would meet the anxieties of many Labour Members who cannot support the Bill as drafted if he would take the next logical step and allow the courts to make the decision in the first instance, rather than second-guessing his decision? The sticking point is that the decision on whether to deprive a citizen of liberty should be judicial and not political.”
Mr. Clarke:
“I certainly understand very well my right hon. Friend's concern, which, it has to be said, is shared by other Members in all parts of the House. In their view, there needs to be judicial involvement at the earliest practical opportunity in the control order process, particularly if it results in someone being deprived of their liberty. I can assure the House that I will continue to give careful consideration to this issue, which has been raised with me by a number of colleagues, and we will of course debate it in detail in Committee on Monday. However, I must be certain that nothing is done to undermine my responsibility or ability as Home Secretary to safeguard the security of the country. That said, I recognise the point that has been made.”
Mr. Clarke also conceded that:
“Before making, renewing or remaking any control order, I shall ask the police whether there are realistic prospects of bringing criminal charges against the individual concerned, and I shall seek the confirmation of the police that further investigations will be carried out during the period when the order is enforced in order to pursue prosecution as the preferred route.”
David Trimble raised the practical issue of implementation of control orders and the police resources that would be required:
“I am concerned about a practical matter with regard to control orders. A whole range of activities is set out in clause 1. How will they be enforced as a matter of practice, not in theory? How can they be enforced without massive use of police resources and huge disruption for local communities?”
Mr. Clarke:
“The resources issue is serious, as the right hon. Gentleman says, and one of the reasons that there has been a significant increase in resources for the security services in the comprehensive spending review is to try to ensure that we have those means. There is first the legal question and then the question of resources that he raises. We are making resources available to deal with the matter.”
Claire Ward raised human rights concerns about the impact of control orders:
“My right hon. Friend will recall that I asked him yesterday about the impact of a home detention order on members of the household. May I give him another opportunity to clarify his position on that? Will it be the responsibility of the Home Secretary and of the judge assessing the order to take into consideration the human rights of other members of the household and the impact on them? What legal redress, within the same time scale as the legal redress that my right hon. Friend is setting out, would be available to other members of the household, including minors?”
Mr. Clarke:
“The short answer to that question is yes. It would be the Home Secretary's obligation to take into account the factors that my hon. Friend set out. The main legal redress would be through the appeal regime established against the control orders. Others in the household, or others around, could have that recourse to appeal their situation. I well understand my hon. Friend's particular concern, but it will be dealt with under the measure.”
Simon Thomas and others were concerned about why it was that so-called derogating control orders would not be sought at the current time and yet there is provision for them in the Bill:
“With regard to control orders and their ultimate use for administrative detention, the Home Secretary made it clear yesterday that, under the current advice he was receiving, he would not seek to derogate from the charter of human rights and that the current security situation did not demand the imposition of such orders in this country now. So, as a consensus seems to be emerging in the House about the use of control orders below administrative detention, why is it not possible for the Bill's provisions to go up to but not include that, so that we can have a proper debate about control orders without administrative detention? That would give the Home Secretary an opportunity to reconsider and all of us would have more time to consider the exact judicial role in respect of administrative detention. Surely, that would be a much better way to approach the issue.”
Mr. Clarke:
“There are two answers to that question—one of principle and one of practice. I think it is right in principle that, if there is to be a derogation, the subject of that derogation, both in terms of the threat and the strict requirement for deprivation of liberty to meet that threat—the two legs of a derogation case—should be debated in this House and the other House. There should be specific discussion of that question and every Member of this and the other House should make their decision on that issue. That is a superior way of legislating on these difficult matters, rather than the general confusion of another piece of legislation going through.
There is also an important practical question. The fact is that terrorists are moving rapidly and it may be necessary to move rapidly to deal with them. I need only cite the most recent example in Europe. The Madrid atrocity took place during the Spanish general election campaign and such things are always possibilities in this country, too. In those circumstances, we must be able to take the steps necessary to stop such things happening.”
Sarah Teather:
“Does the Home Secretary accept that detention without trial was one of the most controversial and hated aspects of the troubles in Northern Ireland and consequently one of the most effective recruitment routes for terrorist organisations? What are the implications of the Bill for terrorist recruitment in this country?”
Mr. Clarke:
“I do not accept the language that the hon. Lady used, but I accept that there are serious issues about the use of internment in the case that she mentioned. That is why such powers should not be used except in exceptional circumstances and after full consideration, which is precisely what I propose.”
Sally Keeble:
“Can my right hon. Friend give some explanation of the enormous range of provisions for types of control order set out in subsections (3)(a) to (o) of clause 1? Many of those activities look similar to things that I saw happening to friends in South Africa, which will make it extremely hard to vote for the measure. Will he also explain which of them require derogation and how that provision will work?”
Mr. Clarke:
I will deal with the second point first. The derogation arises either when there is an individual measure or a combination of measures that add up to a deprivation of liberty. It will arise when an individual or a set of measures are being considered in those circumstances. Although I respect my hon. Friend's personal experience, I do not accept her comparison, because when we reach the point of deprivation of liberty a whole set of other issues comes into play, so we need a separate legal regime.”
Alistair Carmichael:
“I agree with the Home Secretary that judicial protection is important, but does he accept that that is somewhat undermined by paragraph 8 of the schedule to the Bill, which provides that, if an order is quashed, the Home Secretary may make the same order again while relying on the same evidence?
Mr. Clarke:
“Not at all. The role of the court is still clearly established.”
Robert Marshall-Andrews:
“Following on from the point about South Africa that my hon. Friend the Member for Northampton, North (Ms Keeble) has made several times, the High Court's jurisdiction on judicial review extends only to law and procedures, as my right hon. Friend is well aware. Will he state unequivocally that the only review of all the matters to which clause 1 refers—restriction on movement, restriction on work, restriction on association and so on; they are similar to the pass laws in many ways—will be on matters of law and procedure, and that the court will be enjoined that it cannot interfere on matters of fact? Is that right, because it certainly seems to be what appears in the Bill?”
Mr. Clarke:
“I do not think that it is right. We are setting out two different processes, depending on whether derogation applies or not—whether or not there is deprivation of liberty. My hon. and learned Friend is right about non-derogating issues, but not derogating issues.”
Clive Betts:
“May I return to the judicial process for non-derogated orders? Is it not correct that, when judges consider a case, they will not look at it afresh and reach their own decisions based on the evidence, but decide whether the Home Secretary has behaved reasonably by coming to the view that he has reasonable grounds for suspicion? Surely that is an extremely low-level test for taking fairly fundamental rights away from British citizens?”
Mr. Clarke:
“My hon. Friend is right in what he says, but it is not a low-level test: it is a serious test of a serious, difficult matter. It is an important point for him to make, and I understand why he makes it, but I do not think that it is a low-level test.”
Crispin Blunt:
“To follow up the point made by the hon. Member for Sheffield, Attercliffe (Mr. Betts), surely the test on the Home Secretary, if we are to accept the Bill, should not be that he should be satisfied on the balance of probabilities but beyond reasonable doubt. He is making a test based on no evidence from the defence at all, solely on the case being put to him by the authorities. Why is that test, in those circumstances, not beyond reasonable doubt before he seeks to deprive British citizens of their liberty under a derogating order?”
David Davis (for the Conservatives) put forward a motion that:
"this House declines to give a Second Reading to the Prevention of Terrorism Bill, because it contains excessive powers in relation to requirements on a person to remain at a particular place when such powers are not presently necessary; gives to the Executive powers that should be exercised by the judiciary; allows decisions to be made on an insufficient standard of proof; fails to address the need to bring terrorists to trial on the basis of all evidence available; and thus wrongly infringes the right to liberty of the individual." [this motion was ultimately defeated by 316 votes to 216]
David Davis then laid out his concerns about the Bill:
“The most substantive concern about the procedure, and it is not the only concern, that the Home Secretary mentioned half a dozen times in his opening remarks is that it is proposed that a British citizen will face the loss of liberty on the decision of the Home Secretary, on suspicion alone and on evidence that the accused never sees. Why should that decision be made by a politician and not by a judge? Earlier today, the Prime Minister suggested that that will allow for speed, but in the most risky case a terrorist can be locked up for 14 days. The previous Conservative Government initiated that law and this Government have extended it. That period is far longer than is necessary for a judge to make a decision, even under the review procedure proposed by the Home Secretary.
There are good reasons why the Home Secretary should not take such decisions. Imagine the pressures on any politician, and on the Home Secretary in particular, after a terrorist outrage. Imagine the temptation to be better safe than sorry and to put away everybody, which are precisely the circumstances in which a miscarriage of justice will occur.”
“Yesterday, the Home Secretary unequivocally stated in his response to the hon. Member for Winchester (Mr. Oaten) that he should take those decisions rather than a judge because of the principle of Ministers' accountability. Within minutes, another Member asked him to comment on a particular case. The Home Secretary replied that he is unable to comment on individual cases, at which point the principle of Ministers' accountability unravels. The nature of the decision is that it is taken on secret grounds, which he cannot share with the House, and that he is unable to comment on the individual case itself. His principle is one of false accountability. Real accountability requires the House to be able to question and the Minister to be able to answer, and that level of accountability cannot exist on this issue.”
“That brings me again to the nature of the evidence. The former Foreign Secretary, the right hon. Member for Livingston (Mr. Cook), has expressed doubts about resting such serious action on unchallenged intelligence data because of the inherently unreliable nature of the information. He has a significant point, which was made even more firmly by the Father of the House.
As the Father of the House says, in previous years I have had various dealings with the agencies. It has become apparent to me that no matter how professional the agencies are—clearly there have been unprofessional actions on their part—they are always entirely dependent on the accuracy of their sources. These sources are not James Bond with a Minox camera. Generally, they are associates of the target and are motivated by many things—money, greed, envy, malice, hatred and, sometimes, a wish to remove a rival. We are not talking about the most impartial of sources, leaving aside the gross error that the Father of the House mentioned. It is on the basis of suspicion, based on evidence such as that, that the Home Secretary wants to take for himself the powers to constrain the liberty of British subjects.”
Brian Sedgemore (who will shortly be retiring) gave an empassioned speech lambasting the Bill and the government for introducing it, ending with:
“It is a foul calumny that we do today. Not since the Act of Settlement 1701 has Parliament usurped the powers of the judiciary and allowed the Executive to lock up people without trial in times of peace. May the Government be damned for it.”
Mark Oaten (for the Lib Dems) outlined his concern about the Bill:
“The main area of fundamental disagreement is the point at which the judicial process kicks in. The Home Secretary believes and insists that it should be after the event; we believe that it should be at the beginning of the process. There is a big gulf between us and it is difficult to see how we can find a way forward as the Bill proceeds through Parliament. It is an important principle—not just a matter of having a timeline and deciding when things should happen—because a politician is being given the ability to restrict the liberties enjoyed in this country solely on the balance of probabilities. That represents a break with years of our history and the Liberal Democrats are extremely uncomfortable with it.”
“As the Bill proceeds, we must carefully examine the different standards of proof that apply, particularly when we are talking about depriving individuals of their liberty. The highest standards must apply when we are contemplating house arrest or detention, but I disagree with the idea that it is acceptable to have reduced standards of proof for some lower-level control orders. Fundamental issues about liberty may still be at stake when recourses other than house arrest—curfew and tagging, for example—are adopted. Liberties are deprived in those cases, too, so we would require a great deal of convincing that lower standards of proof were acceptable.”
“The same applies to the issue of whether evidence can be heard. The right hon. Member for Southampton, Itchen (Mr. Denham), the Chairman of the Home Affairs Committee, intervened on the shadow Home Secretary to ask about the effect of these issues on the operation of control orders. I accept that, in some circumstances, it is not possible to bring in all the evidence, but we want a sensible debate with the Government about ensuring that as much evidence as possible and the highest possible standards of proof are used in these cases.
My second point in respect of derogation is that we are not convinced that some of the lesser issues covered by control orders would not also require some form of derogation. When the Home Secretary made his statement yesterday, I asked what legal advice he had received on that question. It would be helpful if that advice could be published within the next 48 hours, for example, so that we can see what assessment has been made as to whether the various control orders require a derogation.”
Peter Lilley:
“… the police and secret services will always think that they know things that they cannot prove and will want to seek to avoid having to prove what they just suspect. Unfortunately, sometimes their suspicions turn out to be false, and they can turn out to be false on quite a large scale, not just on individual occasions. We should remember when taking these powers that the House granted a previous Government the power to introduce internment without trial in Northern Ireland.
We should remember how that turned out. I quote from a note from the Library, which in turn quotes a book by Paul Wilkinson, which said:
"Internment or detention without trial, was introduced in 1972"
because it "was argued that the normal judicial processes had proved incapable of providing essential protection for society. The police were hamstrung in their efforts to bring known terrorists to trial, and to have them convicted."
But, as it turned out, "many of those netted by the security forces had little or nothing to do with involvement in IRA terrorism."
We know the consequences of that. They were threefold: it was not just, first, that individuals were wrongly interned and thereby often radicalised; it was that the guilty were left free to go on carrying out their terrorism; and the community was alienated and often shifted to supporting the very terrorists with which it had previously had no connection. That is why an early action of this Labour Government was to repeal from the statute book the power to introduce internment without trial.
What the then Minister, Lord Dubs, said at the time was:
"The Government have long held the view that internment does not represent an effective counter-terrorism measure . . . Quite apart from any judgment about its appropriateness in principle, the fact is that internment has not worked in practice. Indeed many would say that it was a disaster when last used in the 1970s. There is nothing to suggest that it would be . . . more effective in the future . . . We cannot envisage any circumstances in which we would seek to deprive an individual of his or her liberty without trial and without the normal safeguards that the law provides for the protection of suspects. Such action would surely run counter to the rule of law as it is understood internationally."—[Official Report, House of Lords, 12 January 1998; Vol. 584, c. 889–90.]
In fact, obliging the security forces to find convincing proof, rather than relying on suspicion, will enhance the security of the country, as well as protecting the liberty of the individual.”
Mr. Trimble responded:
“I do not wish to get into an argument with the right hon. Gentleman about precisely what happened in 1971 in Northern Ireland, but I should like to point out that, even if he takes the view that such measures failed then, he must put into the balance the fact that they were used successfully in the 1920s, 1940s and 1950s in both Northern Ireland and the Republic of Ireland, and of course in England and Wales during the first and second world wars. For that reason, he should not take up an absolute position against this reserve power, which might be necessary.”
Mr. Lilley:
“I thought that I made it clear that I was not taking up an absolute position against that power. I do accept that there may be a need for curtailment of liberties, but it is up to the Government to persuade us of that in proper and, if necessary, prolonged debate in the House, by investigating the evidence and experience of what has happened in the past and justifying, on the basis of that evidence and experience, what they propose to do in future. One thing that we cannot doubt is that many innocent people were rounded up on the say-so of the police and security authorities, who told Ministers that they knew who was doing it, that they could lock them up, but that they just could not prove it. It is important to remember that.”
Sir Patrick Cormack:
“Is not the fundamental problem that whereas it is absolutely right to say that it is far better for a guilty person to go free than for an innocent one to be punished, when we are dealing with not only homicidal but suicidal terrorists, surely we must set the greater good and the greater safety of the greater number as the first priority?”
Mr. Lilley:
“Indeed, but we should be cautious about doing that in ways that could tip more people into joining the very terrorist organisations that we fear. We should find ways that try to assess each individual, preferably before someone who is independent rather than political, rather than just taking the say-so of the security forces that they know best.”
“… the security forces will always want to keep the processes that they use under wraps. They sometimes want to do that for the good reason that terrorists do not know about these processes and they want to keep them secret so that they can continue to be used without the terrorists realising it. It is probably a little known fact in the House that I was acting Home Secretary for one weekend when my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) was abroad.
It was a bank holiday weekend, so it was quite a long one. I found myself being invited to sign documents and permissions to do all sorts of interesting things. It was right for some of them to be kept secret, even though some processes were quite simple, as the IRA probably did not realise that they were being carried out. However, one felt that other processes were being kept secret simply to retain the mystique of the organisations, because they like having secrets and being able to say, "We can tell you, Minister, but you mustn't tell anyone else."
Departments have an interest in emphasising the importance of what they do, so the secret services and the police likewise have no incentive to understate the threats and risks—both general and specific—that the country faces. That is not to deny that we might face an enormous risk, as I said earlier, but we should want to assess and deliberate on each individual case with scepticism and put it to an independent legal test.”
Chris Smith:
“The fundamental point relates to that balance between public safety and individual liberty and justice. Let us never forget that the greatest victory that terrorism can have is if it forces us to abandon the very principles of liberty, democracy and the right to justice which we are all seeking to defend against terrorism. These principles should be abandoned only in the face of the utmost and urgent necessity, when the case is utterly compelling, when there is imminent proven danger and when there is absolutely no alternative to taking that action.”
Mark Fisher:
“Does my right hon. Friend agree that exactly the same situation arose in Northern Ireland in relation to admissible evidence, and that that was dealt with over a number of years? Indeed, the right hon. Member for Wokingham (Mr. Redwood) will know better than anyone in this place that it was dealt with without recourse to the powers that we are considering today.”
Mr. Smith:
“My hon. Friend is, of course, right. One can observe that the situation in Northern Ireland was dealt with rather successfully because a range of different approaches were taken to the issue, which, taken as a whole, provided an appropriate response.
“… I remain concerned by the nature and process of judicial authorisation for control orders. I welcome the Home Secretary's acceptance that some judicial participation in the process is required, although what he is proposing in the Bill is limited and would occur only after the event. Imposing a control order first by political decree, and then only subsequently giving limited judicial consideration to it, runs the risk of unbalancing the whole process, because once an order is in place it is much more difficult to overturn and the burden of proof shifts with the status quo. The decision should be justified properly to a judge, even in some summary form, from the outset. I accept, of course, the issues that might arise over the speed of decision making, but I hope that, with a serious willingness to find a consensual way forward, it would be possible to derive a better system, perhaps by having a system of accredited judges on call for initial and rapid interim consideration of proposals made by the Home Secretary.”
Boris Johnson:
“It is a great shame that we cannot be told more about the al-Qaeda plots that have been foiled over the past few years. But it is worth pointing out that we have all lived through decades of IRA terrorism, and more British people died annually at the hands of the IRA in the '80s and during much of the '90s than have died since 11 September 2001 at the hands of al-Qaeda. We abandoned detention without trial in 1972 because Operation Motorman, in its attempt to suppress the IRA, proved to be such a failure. Why, therefore, are we reintroducing it now, when I do not believe that we face anything like a warlike threat?”
Richard Shepherd:
“The degree of judicial involvement provided for in the Bill in relation to derogating control orders is unlikely, in my view, to be compatible with the requirements of the European convention on human rights—in particular, with the requirement in article 5 that any deprivations of liberty must be "in accordance with a procedure prescribed by law".
Other than in the exceptional circumstances enumerated in article 5(l)(a) to (f), deprivations of an individual's liberty require prior judicial authorisation if they are to be in accordance with a procedure prescribed by law. Such prior judicial authorisation is regarded by the European Court of Human Rights as an inherent feature of the rule of law, which requires safeguards against arbitrary detention. The House is familiar with all that, because it has watched over these practices through the centuries.”
Graham Allen:
“Like many colleagues on all sides of the House, I start from the premise that no Executive authority or Government Minister—even one whom I know and trust—should ever be given the ability to commit an individual to indefinite detention. The right to a fair trial and proper judicial process is a sacred part of our democracy. In a democracy, that right must only ever be suspended with the consent of the judicial process.”
Malcolm Bruce:
“… I am the rapporteur on political prisoners in Europe, and there is a point at issue that we should recognise. We are rightly concerned about what we are doing for British citizens and residents, and obviously that is what this Parliament is fundamentally about. However, we are also part of an international community and we should consider how this Bill looks from outside. In keeping with the intervention of the hon. Member for Aldridge-Brownhills (Mr. Shepherd), how does it look when a country such as the UK feels the need to take these powers when other countries do not? What kind of example does that set?
I have twice had to visit Azerbaijan—I will visit it again next month—to try to secure the release of political prisoners whose imprisonment has been identified by the Council of Europe as incompatible with its obligations. I have also reported on the developing situation of political prisoners in Russia, and I refer to the case of Svetlana Bakhmina to highlight the abuse of power. She is a lawyer and Russian citizen who left this country after a meeting in London and was arrested within 24 hours of returning to Moscow. She was taken into custody, while her young children were left abandoned, and she was subjected to physical force that put her in hospital. Two months later, she is still being detained by the security forces without any charge or evidence being brought. We must remonstrate with the Russians and point out that that is not the way for countries that are signatories to the European convention on human rights to behave. How will it look if we pass this Bill and lock up people without providing the proper process of judicial balance and evidence and the right to have their case tested? I do not believe that we will have the authority or credibility to argue that case. Such behaviour will seriously undermine what we stand for.”
“If somebody is put into detention without trial by a Minister, we cannot avoid that person being described as a political prisoner.”
Elfyn Lwyd:
“Today, though, we are dealing with a far more serious matter—a far-reaching matter. The Bill will enable the Home Secretary to impose sweeping and far-reaching infringements of liberty on the basis of mere suspicion—albeit reasonable—that an individual is or has been involved in terrorism or terrorism-related activity. What evidence will the Home Secretary have to present to prove that suspicion? It will be evidence produced by the intelligence services. One of the salutary lessons of the Iraq war is that intelligence briefing alone, and its subsequent interpretation by politicians, often lead us to very wrong conclusions. Mere suspicion has never had any standing in any legal proceedings hitherto. "Reasonable" will be subjective, and will hardly constitute a safeguard in the circumstances.
Clause 2 allows the Home Secretary to derogate from article 5 of the Human Rights Convention if he is satisfied, merely "on the balance of probabilities", that a person has been involved in such activity. In other words, the civil burden yet again makes it easier for the Executive to ride roughshod over the individual. If it were ever justified to deprive an individual of his or her liberty in that way, the standard of proof should be far higher. In this instance, the Executive are exercising powers hitherto exclusive to the judiciary, who have always in criminal cases been subject to the higher and safer standard of beyond reasonable doubt. That is a major concern.
An appeal on a question of law is normally about whether a reasonable authority would have come to the conclusion on the evidence before it—the Wednesbury principles. How can a proposed appellant mount an appeal when there has been no hearing of the evidence and no chance to test the evidence? Indeed under this Bill the Executive would be entitled to withhold all the evidence from the controlled person or the appellant. Therefore, that avenue of appeal is an utter sham and in practice means nothing. It does not add up to a row of beans.
I am desperately unhappy that the rules of court may make provision allowing control order proceedings or relevant appeal proceedings to take place without the full particulars of the reasons being given, and allowing proceedings to be conducted in the absence of the person being controlled. Those are anathema to anyone who knows anything about the judicial system under which we live and operate.
Tucked away in paragraph 4 of the schedule is the right of the Home Secretary to prohibit disclosure of evidence to the party concerned and his or her representative. There may be circumstances, I suppose, where that could be necessary, but I am worried that it will become a standard and widespread practice. Paragraph 6 gives the Executive the right to prevent a person from being legally represented. Once again, that is contrary to anything that anyone would consider as fair jurisdiction and, indeed, it breaches the equality of arms principle in the convention on human rights. That is most worrying, and no doubt the so-called rules of court will be framed in order to make life very difficult for the individual.
Those essential fundamentals of a fair trial are all missing from this Bill. It is a bad Bill and a dangerous one. It has no place in our democracy or in our constitution. It will make bad law and I am afraid that it may well make matters worse and fuel the flames that it attempts to extinguish.”
David Trimble
“There is also the question—I believe that Lord Carlile picks it up in his report as well—of whether to use non-jury courts, along the lines of those used in Northern Ireland. That is a good idea. The so-called Diplock courts in Northern Ireland were a success, although they were not perfect—I was involved in one case where there was a clear miscarriage of justice. However, I think that there have been fewer miscarriages of justice in Diplock courts than in jury trials in this jurisdiction. Therefore, I recommend that, although I have to say that I think that Lord Carlile made a mistake by suggesting that there would be three-judge courts rather than single-judge courts. That is too extensive a point to deal with now, but there is an awful lot to be said for placing the clear, undivided responsibility on a person who then has to produce his reasons for scrutiny. Once there is more than one person, there is the opportunity to hide behind, and rely on, other people's judgment. Moving beyond one judge is a mistake.”
The Minister for Crime Reduction, Policing and Community Safety (Hazel Blears) responded to some of the comments made at the end of the debate. She did not, however, address the substance of most of the comments/criticisms, but rather just said she was grateful for those comments that she considered constructive.
“So what should Government do? The theories of rights look pretty feeble in the face of the suicide bomber or the suicide hijacker. Edmund Burke and Tom Paine had no concept of the threat that we face from terrorist foes, so our deliberations must reflect the realities, not the theories. No Government faced with the scale of threat that we currently face could fail to act and still expect the support of the public. We must defend the freedoms of the overwhelming majority, who want to live in peace and security, and tackle the tiny minority who are prepared to kill themselves in order to destroy our way of life. I remain convinced that on this fundamental issue we have struck the right balance.”
For Peace Justice & Human Rights
