Counter-Terrorism Bill

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: "““The ruling to kill the Americans and their allies—civilian and military—is an individual duty for every Muslim who can do it in any country””." In 2005, al-Qaeda released a videotape of Mohammad Sidique Khan before the 7/7 bombings, declaring: "““We are at war and I am a soldier””." 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: "““Your democratically elected governments continuously make war and your support of them makes you directly responsible””." 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 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. Those 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. 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 test 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.