Counter-Terrorism Bill

My Lords, like everyone else, I congratulate the noble Baroness, Lady Manningham-Buller, on a memorable, well informed, practical and very influential speech—all in three minutes. If I could emulate that, I would be very surprised. I declare an interest as a member of the Joint Committee on Human Rights, which has scrutinised the Bill and has reported six times this year on counterterrorist proposals. I begin not with the 42-day issue, but with another that we regard as equally important. It has received very little attention, except recently in the other place. I refer to the provisions on coroners’ inquests in Part 6 of the Bill. Even though those provisions have an impact on the right to life and to an effective and independent investigation under Article 6 of the convention, the Explanatory Notes do not explain the basis for the Government’s view that Part 6 is convention-compatible. That is deeply regrettable and I hope that the Minister will deal with it fully in his reply. He has not done so in his opening speech. I commend a close reading of the debate of 10 June in the other place, initiated by our powerful chair, Andrew Dismore MP, with the support of Dominic Grieve QC MP, the new and admirable shadow Home Secretary. As Mr Dismore explained, the convention imposes a positive obligation on the state to provide an adequate and effective investigation where someone has been killed as the result of the use of force, particularly by state agents. The person conducting the investigation must be independent from those implicated in the events, and there must be a sufficient element of public scrutiny to secure accountability, in practice as well as in theory. The inquest must involve the next of kin to the extent necessary to protect their legitimate interests. The procedure proposed by the Bill would empower the Secretary of State to certify that the inquest should be conducted without a jury—and with a special coroner—if, in the Minister’s opinion, it is in the interests of national security, or in the interests of the relationship between the UK and another country, or if it is otherwise in the public interest. The Secretary of State thus seeks sweepingly broad discretionary powers, going well beyond those needed to counter terrorism. The Government’s justification—the need to comply with Article 2 of the convention—is an example of Home Office chutzpah. Independence is essential, and a system based on special appointment of security-cleared coroners by the Minister would inevitably involve serious breaches of convention rights and obligations, because it would be fatal to any appearance of independence. Dominic Grieve MP rightly asked: "““What is the point of suddenly dispensing with juries? … it is possible to have specially vetted juries, to have public interest immunity certificates, and to treat these processes as ordinary hearings ... If … the Government came forward with other ideas and proposals in the context of their planned reforms to the coroner system generally, that would be a sensible approach. Legislating quickly and repenting at leisure is a big mistake ... This House””—" he was referring to the other place— "““has a major responsibility in upholding confidence in the law and the rule of law and in ensuring that deaths are properly investigated, particularly where there are issues of sensitivity surrounding possible state intervention, and it should not have anything to do with a set of proposals that will ultimately bring the Government into disrepute””.—[Official Report, Commons, 10/6/08; col. 249.]" I agree. The Commons Justice Committee called for the proposals to be withdrawn pending more detailed scrutiny and the introduction of the promised Coroners Bill. The Joint Committee agrees with that. We hope that the Government will decide to do so before we have to vote on whether Part 6 should be removed from the Bill. Sunset should come early in October. I shall refer briefly to the issue of 42-day detention because everyone else speaking before me will have said almost all that can be said, as will those who follow. We all have too much experience in this country of the effects of murderous terrorism from within. One lesson of the IRA experience is that excessively repressive responses are counterproductive, and the Government’s attempt to justify seeking new powers of administrative detention is wholly unconvincing. They narrowly escaped defeat in the other place with the aid of nine DUP Members, persuaded by some Faustian bargain to swallow their doubts. The tactics used were squalid, including a deplorable whispering campaign against Liberty and its brave director, Shami Chakrabarti. The outcome of that vote cannot be said to demonstrate strong support in the elected House, even from the governing party’s supporters. The Home Secretary’s argument would not be likely to convince either our courts or the European Court that the 42-day extension would be compatible with the fundamental right to liberty in Article 5 of the convention. Nothing that has been said or written by Ministers explains why 42 days has been chosen, except that it is thrice 14 days. The Home Secretary frankly admitted on 11 June that, apart from evidence of the growing scale and complexity of terrorist plots, "““the only other evidence that it would be possible to provide would be provided on the day when a terror suspect walks free because an investigation cannot be completed. I am not willing to wait until then to legislate””.—[Official Report, Commons, 11/6/08, col. 322.]" That is not evidence and it does not justify what is proposed in the Bill, especially when weighed against the knowledge and experience of the Director of Public Prosecutions, two former Lord Chancellors, the former Lord Chief Justice, the former Attorney-General, the Home Affairs Select Committee, senior police officers and, last but not least, the noble Baroness, Lady Manningham-Buller. The safeguards in the Bill are illusory, cumbersome and self-defeating. Parliament cannot judge the merits of individual cases and pending investigations, and it would not be given evidence on which to base a judgment as to whether the reserve power should be triggered. The procedures envisaged are so bureaucratic that they would defeat the object of speedily and fairly tackling a serious emergency threatening the life of the nation and its people. The Joint Committee includes members of all three parties in both Houses and of the Cross Benches. We concluded unanimously that, "““the case for 42 days detention has not been made, that the availability of alternatives makes it unnecessary, and that it would inevitably breach Article 5””," of the convention. We advocated a framework for making a derogation under Article 5 of the convention if it were necessary to do so. Finally, apart from the human rights and constitutional principles that are at stake, there is a wider and equally important issue concerning the effectiveness of the Bill in reducing the risk of further acts of home-grown terrorism by fanatics pursuing an unholy political jihad against their fellow British citizens. There is a real danger that, by taking further reserve powers now for use in some future, hypothetical situation, the Government will alienate law-abiding, peace-loving British Muslims or weaken their ability to combat political extremism and criminal violence within the younger generation. I worked with Roy Jenkins at the height of the Birmingham and other bombings, and one lesson from the long years of Irish terrorism was that moderation and self-restraint, rather than overkill, were vital weapons in the battle for hearts and minds. The Government have somehow convinced Keith Vaz MP to change his mind, but I doubt whether they have convinced many British Muslims or, I suppose, a majority of your Lordships’ House.