Counter-Terrorism Bill

My Lords, I am delighted to follow the noble Lord, Lord Foulkes, who has spoken today with all his usual moderation. I declare an interest as chairman of the council of JUSTICE, an organisation that has sent a briefing paper to many Members of your Lordships’ House. We have enacted four Acts on terrorism in the past eight years: the Terrorism Act 2000; the Anti-terrorism, Crime and Security Act 2001—perhaps that suggests that the Government are sometimes in favour of terrorism and sometimes against it—the Prevention of Terrorism Act 2005; and the Terrorism Act 2006. The last three of those were enacted hurriedly to deal with a crisis: the 2001 Act in response to 9/11; the 2005 Act as a result of the decision of the Law Lords in the Belmarsh case; and the 2006 Act in response to the London bombings. They provided no opportunity for a full and considered review of the law on terrorism, and this Bill, although not enacted in response to any particular crisis, does not provide such a review either. The main issue in the Bill is of course that of 42 days. I shall oppose the extension but today I want to take a wider view of anti-terrorism legislation and look at other issues. For a long time, we have had anti-terrorism legislation in the context of Northern Ireland. By about 1995, concern was beginning to arise about the broader terrorist threats to the United Kingdom and about the use of the UK as a base for terrorism overseas. The noble and learned Lord, Lord Lloyd of Berwick, was appointed to produce a report on anti-terrorism and that resulted in the 2000 Act. The most controversial provision in that Act was the definition of terrorism. It was defined in a way that ignored any justification for the use of violence against an oppressive and undemocratic regime. The African National Congress in the apartheid days would have been a terrorist organisation within the meaning of the Act, although the use of violence by it was limited and not directed to the killing of civilians. Unfortunately, it is not easy to get a wholly satisfactory definition of terrorism. My noble friend Lord Carlile of Berriew tried at the request of the Government but had to concede defeat. There remains the possibility—and I think that we need to consider it again—of coming back with something like the amendment that my noble friend Lady Williams and I tried to put into the 2006 Act, which would require prosecutors, when deciding whether to prosecute, to take into account the nature of the Government against whom the terrorist action was being taken and the nature of that action. However, of all the issues from the existing Acts, I believe that by far the most controversial is that of the control orders under the 2005 Act. That issue kept your Lordships’ House sitting from 11 am on a Thursday morning until 7 pm on the following Friday evening. I dare say that many Members will remember that occasion. I thought then, and I think now, that control orders should be made by a judge and not by the Secretary of State, and that the level of proof required should be the balance of probability, not merely reasonable grounds for suspicion. Even more serious is the concern about the use of the special procedure for the hearing of appeals against consent orders, which allows evidence to be withheld from the appellant and his lawyers. As cases show, there is a real danger of conflict with the right to liberty under Article 5 of the European Convention on Human Rights and the right to a fair trial under Article 6. The procedure is even more damaging to fairness than the use of anonymous witnesses—which we shall deal with starting the day after tomorrow—where the defendant at least knows what is said, even if he does not know who said it. The Joint Committee on Human Rights recommended a number of amendments to make the control order system less objectionable but the Government have failed to adopt any of them. Indeed, they have used this Bill to extend the special procedure to asset-freezing proceedings under Part 5. I hope that amendments will be tabled to remove Part 5 so as to require the Government at least to fully justify the use of the special procedure in that context. It is plain that the special procedure should, in any event, be used as little as possible, whether for control orders, asset-freezing or anything else. Control orders are like a highly toxic medicine which may kill the virus but may kill the body as well. Prosecution in open court, wherever possible, is much better. This requires the use of intercept evidence in trials wherever possible where, in any case, the use of the intercept evidence will not provide a real danger to security. In fact, the Bill modifies, to a very limited extent, the ban on the use of intercept evidence. It does so in asset-freezing proceedings under Clause 73 and in inquiries and inquests under Clauses 80 and 81. However, it does not extend the use of intercept evidence to any proceedings where the matter will be heard in public, and as it will be used only in matters which are secure from the public, I am surprised that the noble Baroness, Lady Ramsay, opposes the clause. I hope that the noble and learned Lord, Lord Lloyd of Berwick, will pursue his campaign to remove the ban on intercept evidence; so far it has been very impressive. Finally, I turn to the issue of inquests held in secret. This goes far beyond anti-terrorism measures and should, as the House of Commons Justice Committee said, preferably be left to the Coroners Bill, which is now long overdue. On this, I agree with my noble friend Lord Lester. I accept that there are perhaps a few cases, although very few, where national security would be at risk if evidence of this kind were available to the public. However, I cannot see that, for example, damage to the relationship between the United Kingdom and other countries is a serious ground for secrecy. Should we have a secret inquest on a Russian émigré in this country if it would upset Russia to disclose that he was murdered by agents of the Kremlin? Surely not. Apart from national security, what ““public interest”” might justify a secret inquest? It should at least be necessary to commit to publish the evidence given to an inquest when circumstances which required secrecy no longer exist, and perhaps in some cases there should even be a right to reopen that inquest. There are several important issues in the Bill, in addition to that of 42 days, and I believe that we need to consider them all.