Counter-Terrorism Bill

My Lords, I cannot resist saying how delicious it is to have the noble and learned Lords, Lord Falconer and Lord Goldsmith, on the side of civil liberties. I also welcome the noble Baroness, Lady Manningham-Buller, to this House and congratulate her on her maiden speech. I have long admired her. I think that her view on 42 days will be very influential, not least because her experience is not outdated but recent. The government decision to seek the power to detain suspects without charge for 42 days in terrorist cases speaks to the worst of what has been happening to our political system. This is a policy brought into being not out of necessity, urgency or national emergency but for no other purpose than to back-foot political opponents. This is the politics of polling, focus groups and populism where the question asked is, ““In which policy area do the public think that we are doing well? Let’s capitalise on it, give them some more tough action which will then be opposed by the other parties. We can then claim that the public are safe in our hands, not theirs””. I am afraid that these are the shallow waters of political triangulation where you look to see how some meagre political advantage can be gained over the other guy, whatever the cost. It is where politics is reduced to gamesmanship. It really is politics at its ugliest and, in this particular case, shameful because it is about the sacrifice of liberty. This debasement of politics is something we should be concerned about. Then there was the ignominious business of securing votes by fair means and foul, where a Labour MP in the House of Commons described the 10 days of bone-crunching pressure on potential rebels. Is it any wonder that the pall of disillusionment hangs about us everywhere and that people no longer join political parties and turn out in fewer numbers at elections? This is not an academic debate for me. I am a barrister with many years of experience in the criminal courts and have handled many of the most serious terrorist trials in this country from the Guildford Four appeal to the Brighton bombing trial, from the Balcombe Street siege to the bombing of the Israeli embassy. I have been engaged in the current range of trials involving jihadist terrorism, including the long Crevice trial—referred to by a number of speakers—which ended last year, and the British end of the case linked to suicide bombings in Tel Aviv where family members here were prosecuted. I am currently acting in Operation Overt, the liquid bomb case, alleging a conspiracy to blow up transatlantic planes. I know the difficulties in these cases and the difficulties the police are facing in investigating terrorism. I share the repugnance felt by everyone about acts of terrorism. However, because of my experience I also know how, in periods of heightened tension in the face of abhorrent crime, power can be abused and innocent people wrongly convicted. I also know that when large-scale arrests take place, innocent people—merely friends or family members—can be caught up in the sweep. One has to bear that in mind when thinking about the need for protection. As a result, I still believe profoundly that the answer is not to retreat from the principles that underpin our common law. The best answer to terrorism is a louder assertion of the values that are embedded in our system and of which we should be proud. As we know, large parts of the world have adopted them. The message that we should be stating clearly is that you cannot preserve liberty by reducing it. Detaining people without charge so that there can be a trawl for evidence is anathema to the rule of law. If the police do not have the evidence to charge within a very strictly allotted period, suspects should be released; otherwise the risk of abuse or mistakes are high. People seem to misunderstand the fact that the police can carry on with their inquiries—disembowling computers, finding out about contacts through telecommunications and so on—after someone is either released or has been charged. The public are sometimes under the impression that if someone has to be released, or if someone is charged, somehow nothing happens thereafter. There is a notion that if someone is released, the police have to throw in their hand. The police frequently arrest people, release them after questioning, only to re-arrest at a later date when something incriminating comes to light. Others have mentioned something so powerfully important that nobody seemed to take it on board when we had the debate about 90 days’ detention; that is, that there is now an interim stage when it comes to the testing that the Crown prosecutors put in place. There is a threshold test which allows prosecutors to say, ““We have reasonable suspicion here, but we feel that we need more time in order to have experts look at evidence or go through computers””. They will do that before the full code test that exists within the codes that the conduct of prosecutions dictate. At times, this debate has descended into the realm of the absurd. I heard the noble Lord, Lord Carlile, the independent reviewer of terrorism, speak on the radio of the man who drove the incendiary vehicle into Glasgow airport to cause a terrorist outrage and who ended up, after arrest, in hospital, in a coma with severe burns and who eventually died. The noble Lord said that that would have presented the police with problems because he would still have been medically unfit beyond 28 days. Anyone listening might have thought this criminal would have got off scot free because we did not have 42 days pre-charge detention. In fact, half the nation saw the man drive the vehicle into the airport on the news. There were hundreds of witnesses to his actions and he was caught at the scene. Sometimes I hardly recognise the facts of the cases in which I have been involved when they are described by Ministers, or politicians in the other place, who claim that cases are almost foiled by the absence of extended powers. I have heard this said about both the operations that have led to the cases in which I have been involved—Operation Crevice and Operation Overt; it was suggested that the police were up against the buffers but was just not true. We must remember that law depends upon principles. Those principles did not come out of nowhere; they were forged in the fires of human experience. Yet we seem to be losing our collective memory over why civil liberties matter. I have often commented on the fact that so often it is Jewish lawyers who take up civil liberty cases in the courts. That is because Jewish lawyers so often know why civil liberties matter so much. Irish Catholics often know why civil liberties matter so much. Trade unionists used to know. Young black men, who experienced the sus law cases, knew too, just as Muslims nowadays know. But in our brave new world the urgently evanescent—tomorrow’s headline, the next poll or the next vote—seems to be all that matters. Knowledge of the abuses of the past and the historic battles for rights and liberty are rarely explained to our children and yet knowledge is what gives us the power to say ““no”” and the ability to give reasons for the rejection when Governments pass oppressive laws. If we do not understand our own history we are much more likely to be taken in by new-fangled dogmas and law. Almost all terrorist trials start with intelligence but I do not want to see a situation where intelligence becomes the basis on which people are kept in custody week-in, week-out, only eventually to be released because it was a trawling exercise. The Government have piled on safeguards but others have mentioned just how facile and illusory they are. Finally, I appreciate the difficult conundrums Governments face in trying to find the right balance between security and liberty. Only last week I gave the Sir Isaiah Berlin memorial lecture. I gave it at Hampstead Synagogue although I am not a Jew. I went back to his work on positive and negative liberty. Berlin was all too clear about the difficulty in finding the appropriate balance between different rights. But his words should be sacred in our hearts. He said: "““These collisions of values are of the essence of what they are and what we are””." The torch of resistance has now passed to this House, whose powerful defence of freedom in recent years has more than justified our existence as a second Chamber. It fills me with pride when I think of the hard battles that we have fought together on justice and liberty. I trust that all of you, my esteemed colleagues on all Benches around this House, will again show our mettle and reject this erosion of liberty.