Crime and Security Bill

My Lords, as the noble and learned Lord, Lord Lloyd of Berwick, has said, this Second Reading debate, coming when it does, gives us an opportunity to reflect, even though it may not do much else. We come towards the conclusion of a Parliament understandably preoccupied with security. The security of the British people is a fundamental human right, for which all of us in both Houses have a primary responsibility. We should, therefore, take this opportunity firmly to underline our appreciation of the tireless and dedicated work on our behalf by Ministers, officials, the police, the armed services, the security services, the UK Border Authority, and all those authorities which carry on our behalf the burden of constant vigilance at local, national and international levels. Theirs is an exacting task. Of course the effectiveness of these agencies and those who serve in them is related to their accountability. It is also deeply related to two other crucial principles. First, just as successful policy-making depends on working with the community and not simply controlling it, so the containment of terrorism and related extremism depends on winning hearts and minds and marginalising the irreconcilable fanatics. This can lead to difficult but crucial decisions by Parliament, like that on which this House so firmly spoke to resist the proposal, which came to be seen not just as wrong on human rights’ grounds but as counterproductive, to extend the permissible period of detention without charge to 42 days. As one operational policeman, whose role was central to work with the Islamic community, put it to me at the time, our priority must be to win the confidence of ethnic communities and have them on our side, not to provoke and alienate them. There has to be a deeply rooted realisation among all involved that human rights are an absolutely critical cornerstone of our security and not just a nice idealistic concept about how society might be. It is no exaggeration to emphasise that, where human rights are central to government, administration and front-line security work, the opportunities for the extremist recruiters to get to work will always be smaller. Where human rights are not central, are abused or have lapsed, the opportunities are greatest. It is essential that those of us with legislative responsibilities and with responsibilities for the calling-to-account of the authorities never forget this. We must always support strong, enlightened leadership in the agencies to which I have referred in making a reality of this. Ever to condone, let alone excuse, abuse of human rights or failure constantly to stand by them is not only to undermine committed leadership but to aid and abet those who seek to undermine our society and to play into the hands of those who threaten us. It is literally treacherous. This weekend, we have had a grim example. The wicked, cruel and indiscriminate bombings on the Moscow underground must be condemned without reservation. But so should the tyranny, disappearances, targeted assassinations, house-burnings, intimidation and torture of the ruthless Kadyrov regime in Chechnya. Apart from being morally reprehensible, those abuses have played directly into the hands of extremist terrorist recruiters. If we take seriously and in a global context our own security here in the United Kingdom, we should leave our Russian friends in no doubt about that. Justice is central to our human rights. That is the principle; Acts and conventions are about implementation. What, through centuries of hard and sometimes bitter struggle, has emerged as central to our concept of quality of justice and its administration? As a layman, perhaps I may put it as I see it. Absolutes must surely include: its transparency—justice being seen to be done; habeas corpus—not just as a restraint on administration but as essential to ensuring transparency and winning hearts and minds; presumption of innocence—as a manifestation of respect for all individuals and their integrity; the principle of no retrospective legislation—people must know the rules and laws of the society in which they are living; total rejection in practice, not simply in sincere rhetoric, of physical coercion and torture in all their forms; and, underlying everything, the crucial principle of proportionality in everything that is done, from investigation to sentencing. In the inextricably interrelated sphere of penal policy, the key imperatives that should govern all that is done seem to me to be decency and rehabilitation. Without those disciplines, we have little prospect of winning the battle for responsible citizenship and building a sustainable, secure society. We also add to our economic woes by maximising the likelihood of reoffending. Just as we should invariably deny the extremists the satisfaction of seeing us provoked into dismantling what makes our society worth having, so we should also never allow the cynical, calculating or sophisticated criminal to drive us into undermining those invaluable principles. After the general election, and in one way or another, Parliament will have to give careful consideration to all this. Do we or do we not stand by the principles to which I have referred? How far are they endangered by erosion as a result of tactical expediency? Is it not exactly when the provocation is greatest that our determination to stand firm on what matters must be the most resolute? Together with the outstanding work of its clerks and advisers, the Joint Committee on Human Rights, on which I was glad to serve for a time, has proved an indispensible praetorian guard of the quality of justice. Under its first two impressive chairmen—the very first was my noble friend Lady Corston, who with great wisdom set it on its influential course—the committee’s reports have provided when necessary a constantly helpful discipline for us in our deliberations. Their work on the Bill before us is no exception. My noble friend referred to a letter in the Library, but I hope that he has had time to study the committee’s 12th report, published on 2 March. The committee positively commends some important provisions now in the Bill, but it still argues persuasively for changes in several respects. When he comes to wind up, I hope that my noble friend will be able to deal with at least its salient observations, covering the retention of DNA profiles, the reporting requirements on stop-and-search forms, the inappropriate use of stop-and-search powers in relation to children, and the proposed domestic violence protection notices. On the retention of DNA samples and profiles, the committee commends in its 2 March report the Government’s acceptance that the breach of the European Convention identified by the Grand Chamber of the European Court of Human Rights in the Marper case must be removed speedily and welcomes the Government’s decision to provide for a full parliamentary debate. This is a serious matter which deserves careful parliamentary scrutiny. In its conclusion, the Grand Chamber had of course found that the blanket retention of DNA samples and profiles of innocent individuals and children on the National DNA Database was disproportionate and in breach of the right to respect for private life guaranteed by Article 8 of the European Convention. The Joint Committee remains concerned that the Government are on record as wanting to ““push the boundary””—the noble Baroness, Lady Hamwee, referred to this—on the Marper judgment to protect the public. In its lifetime, the committee has repeatedly emphasised the responsibility of the Government to protect the public, but it nevertheless underlines that the European Court of Human Rights itself has taken full account of this in arriving at its view of the proportionality of interference with Article 8 rights. After reviewing the matter carefully in its report, the committee concludes: "““So far, the Government has not provided the evidence we require to be satisfied that the proposals in the Bill are proportionate to the interference with individual rights””." What more my noble friend has to say on this in his wind-up speech will be important for future deliberations on the Bill. So also will be his response to the committee’s recommendations on children, including: "““In particular, we recommend that the Government provide justification for its proposed retention periods and publish its analysis of the compatibility of the proposals with the UN Convention on the Rights of the Child””." It is surely significant that the Select Committee on the Constitution specifically goes out of its way to endorse what the Joint Committee on Human Rights has said. Here I digress for a moment to respond to the interesting speech of my noble friend Lord Mackenzie of Framwellgate, who I am sorry is not in his place. He at least had the honesty to put forward a completely radical and different approach. If we are to debate the matter in the future, we cannot dismiss out of hand the concept of DNA records which cover every citizen, but the point is that they do not do so at the moment. There is therefore a divide between those of us who enjoy absolutely the presumption of innocence, with all the reservations to which I referred earlier, and those who have a conditional presumption, because they are on a record on which no one else has their name. In introducing the Bill, my noble friend rightly stressed the paradox of the gap between reality and perception—the right reverend Prelate the Bishop of Lincoln underlined it. It is extraordinary that it is not more widely understood how crime rates have fallen. However, whatever the need for and the merits of the Bill, the greatest threats to our society probably lie in the realms of the flaws and materialist preoccupations of our financial system, in natural and man-made disasters and, whatever the stupidities of occasional academic arrogance, in the continuing challenge of climate change. There is an interesting parallel between the vast damage and suffering that can be wrought by a small number of dedicated terrorist extremists and that which can be caused by a relatively small number of greedy financial barons. If we are to succeed in winning against terrorism and crime, we need a recommitment to the values of social responsibility and mutuality throughout our community at all levels. There is a deep contradiction in a society in which getting to the top of the pile is too often portrayed as the name of the game, irrespective of how it is done, and in which we then tell those who are trampled on or excluded—the casualties at the bottom of the pile—that society’s well being depends on them, and then concentrate almost exclusively our legislation on how they should behave. The strength and transparent credibility is just not there and credibility is essential to the success of our justice system.