My Lords, I should like to follow the noble Lord, Lord Judd, in what one might call a very short interval for non-lawyers to speak. He has pointed to some crucial considerations that need to be borne in mind. I will turn for a moment to Amendments 58 and 59, which are crucial to a fair outcome of this complicated debate. In doing so let me say that I strongly agree with those who have argued for gisting as a way of moving a bit closer towards a just outcome for those who cannot be openly represented and, indeed, cannot instruct their representatives how to behave. It helps the people concerned feel that some sort of justice has been done.
We heard in the words of the noble Lord, Lord Hodgson of Astley Abbotts, the attempt to define national security in a way that would narrow down the implications to what was really of crucial importance to the nation. The response from my noble and learned friend on the Front Bench showed how difficult it is to make a definition of that kind. However hard we try there are always ways in which it is, as he said, either too narrow or too broad.
In Amendment 58, tabled by my noble friends Lord Thomas and Lady Hamwee, and Amendment 59, tabled by the noble Lord, Lord Pannick, and my noble friend Lord Lester, we have a way of getting back to a balance between what is represented by the need for security and what is represented by, in the words of the noble Lord, Lord Judd, the principle of justice upon which the whole of the British legal tradition has been based. That is exactly right. We have heard a paean of praise to our judges, saying that they are very capable of making difficult balanced judgments of this kind. The attempt to give back to them the decision about what that balance is is one that we can reasonably feel is in competent hands, where justice is likely to be the outcome.
What happens if one does not have Amendments 58 and 59 in this Bill? We have neglected this, or perhaps we had an earlier brief discussion about this at the beginning of the day’s proceedings but we have moved a long way since. What happens if one regards national security as having such a primary place that one forgets the interests of justice almost altogether? An example of it is the attitude of the general public, where they believe themselves to be put in a position of extreme difficulty and inconvenience because of a ludicrous pursuit of security. The noble Lord, Lord Deben, gave us an example of that.
Let me give another one, the way in which the concepts of health and safety are now held in almost universal ridicule by the population of this country. They were an attempt to go too far, to intervene too much, to interfere all the way through, in the ordinary rights and liberties of citizens. When you are told that you have to cut down a chestnut tree for fear of a conker falling on somebody’s head, or when you are
told that you cannot allow young boys to try climbing a tree, you get to the point where the general public feel that this is a ludicrous overstatement of so-called security and safety, and they become disinclined to take any notice. That is a trivial example.
There are more serious examples. My political memory goes back quite a long way. In our history we have cases all too often forgotten, where security has trumped fairness and justice and left behind a real weakness in our democracy. Perhaps the supreme example of that was the decision to introduce the principle of internment into Northern Ireland’s politics. Just before this I was the Minister of State for Northern Ireland. It meant two things quite quickly. The first was a strong sense of a breach with what has been a long tradition of this country, at least as far as its internal justice is concerned. Secondly—and I will never forget the words used—this became a recruiting sergeant for terrorism. Even Lord Whitelaw, at that time Secretary of State, noticed how counterproductive internment was and how it led to more and more young Irish men and women letting themselves be recruited—signing up—for the production of terrorism. Internment was brought in in 1971 and was eventually dropped. Only after it was dropped was the path open to the Good Friday settlement and to what today is, if not a perfect, at least a much better outcome of the situation in Northern Ireland.