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Lord Soley: My Lords, it may be something of an understatement to describe the previous speech as intriguing, but I shall leave it to the Minister as I do not have an answer to those questions.
For many years I have not been alone in struggling with the difficult question of how to confront and defeat terrorism, while at the same time defend our civil liberties and protect the rights of minorities who get caught in the net and become easy recruits for terrorism, wherever it may be. I am not alone in having been through that, and all of us from time to time have adjusted our positions.
An important message to give to people outside is that the Bill is not internment, which locked up thousands of people without a release date being set, judicial input, or the police or security services having to record the interviews either by audio or visual means. Exactly the same applies to the Prevention of Terrorism Act as it was in the 1980s and early 1990s. Then, up to 6,000 people a year were being detained for seven days without access even to a solicitor, never mind a judge, and were being held without access to the audio or visual tapes that are now kept by the police. Incidentally, that is where some of the wrongful convictions to which the noble Lord, Lord Hurd, referred came from. Indeed, one of them was of a person known to me in the Guildford case when I was a probation officer. She was held under that provision and released. The fascinating thing about her was that she was held for seven days without access to a solicitor. At the beginning of those seven days, she was denying that she had committed the offence; at the end, she was admitting it. That is not because she was brutally treated; as she would concede and has said since, she was a confused and mixed-up young girl on drugs and was therefore easily caught in that sort of net.
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The other thing that it is important to understand is that we began to get more sophisticated in our handling of the Prevention of Terrorism Act, in particular, but also internment. I was never in my career the chairman of the 1922 Committee, so I cannot be too sure of my facts here, but I suspect that both the noble and learned Lord, Lord Mayhew, who will speak next and, possibly, the noble Lord, Lord Hurd, knew that the numbers that we were pulling in under the Prevention of Terrorism Act and internment were providing easy recruits for the paramilitaries. At its height, the use of exclusion orders under the Prevention of Terrorism Act totalled about 250 people a year excluded from one part of the United Kingdom to another. In my view, later supported by the noble Viscount, Lord Colville, in his report on the Prevention of Terrorism Act, that constituted internal exile—something that we had not had since the days of Henry VIII.
So we must watch our language: things have changed dramatically for the better. That is why many of us have been able to consider things differently now. I am sad to have to say this, but I say to the noble Lord, Lord McNally, that he is very unwise to have adduced the position of the Liberal Party, because throughout the 1980s, when the party wanted to position itself to the Right of the Labour Party politically, it supported both those Acts without any of the safeguards that we now have. Now that, for what I regard as rather daft political reasons, the party wants to position itself to the Left of us, they are opposed to the Bill. That is a classic case of what people expect in this country: the Tory Party to drive on the Right, the Labour Party to drive on the Left and the Liberals again saying that it is entirely an optional matter which side of the road to drive on, it depends on the weather. That is not a very sensible stance.
As the noble Lord, Lord Carlile, for whose comments I shall wait with some interest, said, and in my view thanks to the final few years of the Conservative Government under John Major and to the present Government, Britain now has more protection for defendants than most other countries. I say to the noble Baroness, Lady Williams, that the United States is about the worst model that we can follow. At present, the United States tries to catch people outside its jurisdiction and hold them out there. That is unacceptable.
Baroness Williams of Crosby: My Lords, will the noble Lord give way?
Lord Soley: My Lords, I am not sure whether I get injury time here, but I shall give way nevertheless.
Baroness Williams of Crosby: My Lords, it is a very quick point. Does the noble Lord agree that I was talking specifically about dissemination of
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publications and universities? I agree with every word that he said about how the United States treats people outside its country.
Lord Soley: My Lords, I understand that, but some of the people whom it is trying to hold outside are people whom it thinks are disseminating information, so the matter is not as clear-cut as it seems. However, I understand and accept the point that the noble Baroness makes.
For rather different reasons than have been given by others in this debate, I agree that the issue of glorification is difficult. I think that most of us know the intense feeling about some statements made by some people in one particular mosque in north London. That provokes people massively, to the extent that two mosques in my constituency when I was still a Member of the Commons also complained bitterly about what was being said in that mosque and wanted action taken against it, even before the terrorist attacks.
The danger in addressing that is the Government have drawn up this glorification provision, which will not be used very much. As I think that my noble friend Lady Scotland will tell us when she replies, prosecution depends on either the Director of Public Prosecutions or the Attorney-General or both deciding to go ahead. So the chance of a librarian being charged under that is very slight. The danger is that we will not use the provision and people will still feel that things are being said outside that are unacceptable and unforgivable. Another part of me feels that I would rather have those people out in the open where I can see them. I rather suspect that the security services might. As the noble Lord, Lord Hurd, said, they are often just loud mouths, but those who go to listen to them may be a bit more involved, so it can be useful to know them. I also want to address the issue of 28 days briefly but in a wider context because I suspect that we now have the worst of all worlds—again, I shall listen to the noble Lord, Lord Carlile, with interest. It is probably true to say that 28 days is not enough if we are to go down that road. In seven days, a person will often have confessed. If they have not confessed in seven to 10 days, they are unlikely to. The reason for a longer period is not so much about questioning as about searching computer databases and, above all, obtaining information from overseas. I end with this final suggestion to the Government. I do not think that we can solve the problem in one fell swoop, we must keep working at it.
I think that the time has come to recognise that what we started with control orders in this country and now with the Bill is to take a significant step down the road used in several European countries of holding people while investigating under the investigating magistrate system. In the Bill and with control orders, we put a judge in charge—which is absolutely right—who is then to question people on a weekly basis to ask how the process is going and whether we still need to hold a person. He can hear the person in their own defence. That is not dissimilar to what is done in continental Europe. I do not recommend that we go down the
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French road, where they hold people for up to four years. That is appalling. But there may be a way forward here in the longer term—not in the Bill, I accept—by recognising that we have adopted part of the continental system for this narrow area of terrorism and adapted it to our needs. I am not sure that, in the long run, it would not be better if we tried to reach a balance and recognise that we are doing that and that we do so only for terrorism and no other offence. I do not suggest the importation of continental law into Britain, but the case for doing that for terrorism is very strong.
Sadly, we will not be able to leave these debates behind us for some years yet, I suspect, but it is important that we never give up focusing on the difficult balance between the three aspects of civil liberties, the rights of minorities and the need to defeat terrorism. If we get those right, I suggest that we start to consider in a more strategic, long-term way bringing an aspect of continental law into our law in a way that is unique to this country—and we are quite good at that—to get over some of the hurdles that we have all faced in the past.
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Lord Mayhew of Twysden: My Lords, if he will forgive me, I shall not follow the noble Lord, Lord Soley, in his examination of respective party attitudes toward the problem of dealing with terrorism in a free society. That is, in part, because we are where we are. It is a very unpleasant place and a new one in which to find ourselves. Everyone who had spoken in this debate has recognised that we face a new situation today. For example, never in Northern Ireland did we have to face the circumstance of someone not only prepared but determined to blow himself up, with all the consequences of that for making it difficult to keep someone under surveillance and for people to protect the public. Those are too well known for me to need to recite them again now.
So of course the Government are absolutely entitled—indeed, it is their duty—to review their legislative array, our legislative array, to see how best they can ensure, among other things, that people are kept safe. That is the first duty of any government.
It is of course right—as a number of your Lordships have made clear—that the rights of victims and potential victims need to be supported just as much as the rights of those who are suspects and who are subject to criminal justice procedures.
The excellent debates in the other place and those that we have had so far in this House, have focused naturally upon the balance that has to be struck. We know what that balance is: the balance between preserving liberties long fought for and the right on the other hand to take all practical steps to protect people. If there is any common ground that has come out of the debates—both here and in the other place—it is this: that while this is no time to be "tenderly fastidious", it is also no time to succumb to tunnel vision, seeing only one side of the argument and not both.
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I hope to touch upon four issues which can be sensibly tested against that formulation. The first is the question of detention without charge—the 90 days issue; the second is encouragement of terrorism; the third is the extra-territorial jurisdiction that this Bill gives to us; and the fourth, if I have time, is the question of attendance at a place of terrorist training for which, according to Clause 8, no defence at all is afforded.
With regard to the 90 days issue I agree entirely with what was said by the noble and learned Lord, Lord Morris of Aberavon. That speech will repay careful reading in Hansard—it reflected very fairly the painful and contrasting considerations that fall to all of us in dealing with this matter. I would not have ruled out 40 days had there been an absolutely compelling case made clearly and with particularity by the police.
I joined other Members of your Lordships' House and of the other place at a meeting in Portcullis House addressed by Mr Hayman with the utmost frankness and in a manner inspiring the utmost confidence in his integrity. But I did not come away from that meeting with the feeling that 90 days had been calculated as being a period vital to the protection of our fellow countrymen. It was obviously his first and best preference but no more than that. I would need to be more persuaded than I am of the case for 90 days. I find myself in the same position as the noble and learned Lord, Lord Morris, in that regard. Equally I would not need much persuasion to hold that more than 28 days was legitimate in these circumstances and I do not think that would be to be tenderly fastidious.
As to encouragement, there remains in the Bill—which although is much improved—something which in this context savours a tunnel vision. That is the scope of the offence of encouragement of terrorism which is as the head of the Bill, in Clause 1. This offence is copiously drafted in no fewer than 64 lines of text and it attracts imprisonment of up to seven years. Yet as drafted, there can be a conviction without any proof of a culpable mental element having been present. This was touched upon by the noble Lord, Lord Thomas of Gresford.
I have no quarrel at all with the provision that it can be committed if the defendant is "reckless", provided that that word is properly understood—the definition can be found in Clause 1(2). It is the subsequent definition in Clause 1(3) of what is reckless that does the mischief. It adopts the test that was recently and specifically disapproved unanimously by the Judicial Committee of your Lordships' House in the case of Regina v G in 2004—a case concerning the Criminal Damage Act 1971. What appears in this Bill is not the subjective test of a defendant's state of mind which simple fairness surely requires for any serious offence carrying out a substantial period of imprisonment as a possibility before he is found to have been reckless, but instead the test is objective—importing the concept of what he could not reasonably have failed to be aware. I would respectfully suggest that that goes plum against most people's ideas of fairness.
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As such it offends—as the noble and learned Lord, Lord Bingham, a senior Law Lord pointed out—against the salutary principle,
"that conviction of serious crime should depend on proof that . . . [the defendant's] state of mind when . . . acting was culpable".
The third issue is extra-territoriality—that is the extra-territorial scope of many of the offences created by the Bill. It has been said that a lack of distinction between committing a terrorist act against some tyrannical regime and doing it against a democracy will be fine. It is all going to be all right because the prosecution must be consented to by the DPP and he cannot do that unless he is permitted to do so by the Attorney-General. That is to bring the Attorney-General very dangerously into a strongly controversial political field. He is of course the guardian of the public interest in our constitutional arrangements, but that is not part of his job and if he is required to do it, it will make what is properly his job much more difficult to do.
Lastly, for attendance at a place of terrorist training, there is no defence. It is ridiculous, in my respectful submission, if there is no defence for an act that has a 10-year custodial sentence attached to it. Under the Bill, if someone is there he is guilty. But what about, for example, the investigative journalist?
There is a great deal to applaud in this Bill and it has been applauded very widely. But there is much to be improved and I look forward to a constructive Committee stage in your Lordships' House.
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