Terrorism Prevention and Investigation Measures Bill

My Lords, I have attached my name to the amendments and shall speak briefly about them. I am not a lawyer; there are distinguished and learned lawyers in this House. To me it is a simple matter of justice. That is why I support the amendments. That is why I am in the Labour Party. The Labour Party I thought of believes in justice. That is why I am still a member of it, and I look forward to the Labour Party reflecting that outlook in our discussions and votes on this measure. It just seems to me profoundly unjust that someone who is innocent under the law, who is shown to have committed no offence, should be treated procedurally and in his mode of life in this way. It is basically unjust. I call in aid one of the great figures in our history, Sir Winston Churchill. He was Prime Minister in 1943 when there were a few pressures on national security. It was not a very secure time in our history; cities were being bombed and people were worried about espionage. Yet Churchill turned his attention to one unpopular individual—a man in many ways regrettable in his outlook—and suggested successfully to the Home Secretary that this man be released, because, in Churchill’s famous phrase, to keep someone under the edict of the state, charged with no offence and in confinement, not knowing the charges and not having been charged with anything, was ““in the highest degree odious””. In my view the measures in this Bill, which sadly replicate so many of the measures in the previous Bill, which I voted against along with a number of other noble Lords on this side, are in the highest degree odious. I have two points, which have been explained with legal learning that is not at my command by the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd. First, it is quite wrong that legal decisions affecting someone’s liberty should be imposed not by the judiciary but by the Executive. These are Executive-imposed restrictions on the daily lives of innocent people who have committed no offence. They are confined through the fiat of the Home Office, not through the courts. The early amendments tabled by my noble and learned friend Lord Lloyd propose that this be done by the courts. We should have a judicial view; it should be brought within the rule of law and within the criminal justice system. I am not a lawyer but I am an historian and I think that this proposal is quite contrary to the way in which our constitution works. It is unconstitutional. We have had the separation of the judiciary from the Executive since it was set down in cold print in the Act of Settlement 1701. This is quite at variance with that. It should not be done by a self-interested member of the Executive. Secondly, this should be done according to a proper burden of proof, which the noble and learned Lord, Lord Lloyd, has wisely suggested is as recognised in our civil justice system. What we have here is a burden of proof that can be challenged only very indirectly and very marginally by the courts and the forces of law in this land. What is it based on? It is based on the Executive saying, ““This is something that we reasonably believe””. It is perhaps a slight improvement on its predecessor, but as I said in my earlier speech, it is a distinction without a difference. It is not adequate. We should have precisely the same proper judicial test for innocent people of this kind, as we have for people who are shown to have committed serious offences under the criminal justice system. Many points will arise later about the defencelessness and inability of people charged under control orders to communicate with lawyers, which adds to the offence. This is an unjust measure. It offends against the traditions of our common law; it offends against the evolutionary history of our constitution; it offends against the doctrine of human rights; it offends against the basic principles of justice in this proud country. I support the amendment.