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Lord Mayhew of Twysden: The noble and learned Lord, Lord Lloyd, was kind enough to mention that when the Statement was made on 22 February I drew attention to the danger that I saw in the constitutional standing of the judges if the Bill was to proceed, conferring on the judges the jurisdiction to make an order in the case of derogating orders. From everything that I have heard and considered since, the danger seems substantial.
It is extremely important that we pay attention to the issue, although it may seem ancillary. It has attracted far more influential and respectable support than mine. I simply wish to add that because today judges in the exercise of the jurisdiction of judicial review are drawn into matters of political sensitivity without in the slightest degree being required to make political judgments, it is all the more important that their standing in the public eye should be preserved as impartial and non-partisan in political or any other terms.
That is why I support Amendment No. 6 in the name of the noble and learned Lord, Lord Donaldson. It has the clever and elegant virtue of preserving the judge's proper function; namely, to consider whether the procedural matters that Parliament has laid down have been complied with, so that leave may be given to the Secretary of State to make the order, thus preserving the judge from being seen to make an executive order, especially one that leads to detention.
Baroness Kennedy of The Shaws: I want to reiterate something I said at Second Reading. I agree with the noble and learned Lord, Lord Lloyd. Some members of opposition parties in seeking to be conciliatory and not to look as though they were being soft on the issue came up with the idea of having the judges replace the Secretary of State. It has the serious risk of tainting our judiciary. I strongly urge that the Committee does not go down that route.
The independence of the judiciary is something to be protected; it is precious to us. I foresee that this is a form of co-option. With the best will, judges will end
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up being undermined in the public eye if they end up playing that role. We find it unacceptable if performed by a politician and it will become unacceptable if it is performed also by a judge.
We must go back to the argument that somehow something incredibly different is taking place here. Intelligence has always been a starting point in terrorist cases. In many of the Irish Troubles cases in which I was involved, the starting point would be intelligence that said someone was involved in an active service unit, they had disappeared from their home, it looked as though they were going to Britain and would be likely to be involved in a bombing campaign.
At that point the police would go into overdrive with the security services as back-up. There would be intensive surveillance of the person, looking at who they were meeting and greeting and who they were with. That would be followed up ultimately with arrest and interrogation but also the forensic work carried out to gather evidence.
Noble Lords on these Benches have said that this issue is about globalisation and that it is on a different level: so too is our policing and intelligence. The very things used by terrorists internationally—mobile phones, computers, e-mail and so on—are an invaluable resource to the police in obtaining evidence against those people. If we were told, based on the information of an informant, that someone was involved with Al'Qaeda and might be planning activity in Britain that would endanger people's lives, we would immediately arrest that person.
But if we found that we could not come up with any other evidence to support that intelligence, it could be that that intelligence was duff; that it was not good intelligence. I have heard it said by former Cabinet Ministers, from the noble and learned Lord, Lord Howe, through to many others, that intelligence is straws in the wind, and that is how we approach it.
The problem is that I can sympathise with those who are policing: you keep someone in custody for up to 14 days during which time you seek to gather evidence and contact police in other countries. If after 14 days of carrying out all that intensive work with the great resources we have in our policing you come up with nothing else, under the current legislation—the Terrorism Act 2000—you are unable to detain suspects beyond that period. I can understand the frustration at that point and that you might want some other order to come into place then, but it has to be time limited.
What should come into place at that point is surveillance: you neutralise the person if you still suspect that they might be involved in something, but you do not by official sanctioning invade that person's liberty. Those problems are being faced by countries around the world. Some of them are undemocratic and lock people up—we see it happening in places that we would not respect or admire—but other places with decent systems do precisely that.
I sat on an international task force on terrorism set up by the International Bar Association which had a number of leading judges from around the world. It was headed by Justice Goldstone from the Constitutional
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Court of South Africa. At the end the acceptance of the idea that when we take away people's liberty it becomes punishment was clear. Unless it is for a limited period of time, it turns into punishment. The only people who should punish should be the judges after a trial process.
That is what the noble and learned Lord, Lord Lloyd, is saying. We hold dear the fact that we cannot punish people unless we have a due process and the high standard of proof that has been part of our tradition. That is for good reason, because otherwise we surrender liberties that are really important.
People suggested at Second Reading that we are being supine and are expected to do nothing apart from put people on trial. No—you can neutralise people by the use of very good surveillance and by other means but you should not be taking people's liberty away without a due process. That is why this whole process is wrong and what the Secretary of State is seeking is unacceptable.
Lord Judd: Before my noble friend sits down, will she respond to one point? I find her argument extremely persuasive. But does she agree that we are in danger in our deliberations of looking at this from a very legalistic point of view? As the noble Lord, Lord Carlile of Berriew, has reminded us, we are dealing with a very sinister and dangerous threat. To be able to deal with that effectively, the battle for hearts and minds is crucial. What has always been central to the layman in our legal system—and I speak as a layman—is that justice is seen to be done. That is why due process and the balance of probabilities are so important.
We cannot simply look at this from the perspective of noble Lords in this House. We have to look at it from the perspective of a young member of the Islamic community in Bradford, subject to a lot of pressure and manipulation, who needs to be able to turn to a clear, convincing illustration that justice is being pursued as we have always understood it to be pursued in this country. Does my noble friend agree that that relates to her argument?
Baroness Kennedy of The Shaws: I think that we would all agree on that. I chaired a meeting only recently of the Islamic Human Rights Commission, which was packed with young members of the Muslim community who feel that they are being targeted. Whatever good words are said on Front Benches about this not being a direct assault upon certain communities, that is how it is being perceived and felt. It is perceptions of injustice that lead to terrorism and support for terrorism.
I accept entirely that there are problems with an organisation such as Al'Qaeda, as the noble Lord, Lord Carlile, said, which is not like other organisations with a command structure. Conspiracy charges can be difficult because an isolated young man in Slough could decide that he will take part in a suicide bombing without reference to any other leadership but simply because he agrees with bin Laden. However, the way to deal with
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that is to introduce the charge of acts preparatory, as the noble and learned Lord, Lord Lloyd, suggested. There are other methods for dealing with this within the structure that we know and respect and which are tried and true. That is where, I am afraid, the Government are getting this wrong. They are not sticking to the principles that we know work.
Lord Bassam of Brighton: My Lords, I beg to move that debate on Amendment No. 2 be adjourned.
Moved accordingly, and, on Question, Motion agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that the House be resumed. In moving the Motion, I suggest that the Committee stage begin again not before 2.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
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