Counter-Terrorism Bill

My Lords, I have not spoken in a general debate since I made my maiden speech in May 1995. Rightly or wrongly, I have taken the view that I ought not to take part in general debates while I was a serving Law Lord, or eligible to sit as a Law Lord after my retirement from judicial office. Since August last year, any such impediment came to an end. Given the importance of the subject of this debate I should like to make a few, very brief, observations. It may be the case that from time to time it is appropriate for this House to defer to the views of the House of Commons. But the Bill before the House is demonstrably not such a case. If it is not appropriate and legitimate for this House on issues of high constitutional principle, fundamental civil liberties and Magna Carta itself to reach an independent conclusion, the usefulness of our bicameral parliamentary system would be placed in doubt. If I may slightly paraphrase words in the House of Commons almost 100 years ago by another Home Secretary, Winston Churchill, a calm and dispassionate recognition of the rights of the accused are the symbols which mark and measure the stored-up strength of a nation. That approach is as valid today as it was then. It is undoubtedly right that the first duty of a Government is to protect citizens from harm. That is particularly so in this era of terrorism, but it does not excuse the endless excesses and acts of lawlessness committed in the name of the war on terror. The context is very relevant to today's debate. Emblematic of such repressive policies is Guantanamo Bay. At the very start of the lawless regime established on that island, our Government, through the then Defence Secretary, said on 15 January 2002 that: "““There is no doubting the legality in the way these combatants””," at Guantanamo Bay, "““have been imprisoned. There is no doubting the legality of the right of the US .... to remove them for trial””," to Guantanamo Bay. Now the tide may be turning. A few days ago in Boumediene v Bush, a majority of the US Supreme Court decided that prisoners at Guantanamo Bay were entitled to habeas corpus—they have a constitutional right to take their cases to civil courts on the US mainland. The words of Justice Anthony Kennedy, a conservative member of the US Supreme Court, are worth citing. He said: "““Security subsists … in fidelity to freedom's first principles … The laws and constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled and in our system they are reconciled within the framework of the law””." One wonders how long our Prime Minister can still insist that our Government stand shoulder to shoulder with the outgoing President Bush in regard to his discredited policies on the war on terror. Turning directly to the 42-day detention provision in the Bill, I suggest that a solid case for extending the 28-day limit on pre-charge detention has not been established. Fundamental civil rights should not be whittled away by alarmist speculations. If the Government's reasoning were to prevail, one wonders what repressive policies would be truly beyond the pale. I am mystified by the purpose of the Government in embarking on this wholly unnecessary legislation. I asked myself whether it was for a tawdry political objective to wrong-foot political opponents, but I would not readily accept that because it would mean that the Government, instead of pursuing the public interest, were guilty of an abuse of power. I continue to be mystified about the Government's motivation in bringing forward this senseless legislation. But there is a second and wholly separate reason why the 42-day provision in the Bill deserves to be rejected by this House. The so-called protections in the Bill are illusory and constitutionally illiterate. While the Bill makes provision for judicial oversight it is meaningless, because before a person is charged there is no evidence for a court to test. More importantly, the supposed parliamentary oversight is non-existent because Parliament cannot in our system examine individual cases. The attempt to create a provision for compensation possibly amounting to £3,000 per day is truly absurd. For very good reasons a provision for compensation is, as a matter of legal principle, limited to wrongful arrest and/or false imprisonment—that is, cases where there is malice on the part of the police. Surely, objectively considered, the Bill can be seen to be an attempt to lead the public to think that it is a serious attempt to improve security. It is nothing of the kind. It is also a wholly unworkable piece of legislation, which must in practice be a dead letter.