Counter-Terrorism and Security Bill

Lord Lloyd of Berwick Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, I hope that I may be forgiven if I start with a very brief personal explanation. I had an operation on my spine on Thursday of last week but I had already put down my name to take part in this debate because counterterrorism is a subject in which I have taken a very close interest over the past 40 years. I was the first ever Interception of Communications Commissioner, appointed in 1985, and I was the author of the report on counterterrorism legislation in 1995 on which the 2000 Act was based. I think I can say that I have taken part in every debate on counterterrorism from that day to this and I can probably also say that this will almost certainly be my swan song. But I did at least want to take part in the debate today. Of course, my views on the Bill may be right or wrong, but at least I am speaking from fairly long experience.

In my view, the powers to seize passports and to exclude British citizens from returning to the United Kingdom are so objectionable in principle that they should be resisted on that ground. I agree with everything that has been said by Liberty in its excellent report on this subject. I also agree with Liberty that these new powers, if exercised, would do absolutely nothing in practice to make us any safer. Why do I say that? The reason is quite simple. We are concerned with some 500 individuals of interest to the police who have travelled to Syria in recent years, of whom about half are said to have returned. So 250 of them are still there. We are told that these powers are essential to prevent these 250 from returning. But the figure of 250 must surely be put in context to see what, if any, harm or difference it would make if they did return, if they wanted to.

We know from what Dame Elizabeth Manningham-Buller told us in 2006 that we had about 20 terrorists in this country at the turn of this century. By 2006 that number had increased to about 1,500, of whom 1,000 had already attended—this is of great importance—terrorist training camps in Pakistan. Those known to be here must surely have presented exactly the same sort of threat over the years as would be presented if the 250 were now returned from Syria. Yet this risk has been successfully contained to a quite extraordinary extent over the years by the vigilance of our police and the Security Service. In the 15 years since 2000, there has been but a single atrocity—the London bombings on 7 July 2005 in which 52 people lost their lives. Whatever else can be said, the risk has been successfully contained over the years under the law as it currently exists, despite the fact that there are 1,500 suspected terrorists already present in this country. To what extent will that existing risk be increased by allowing a further small group of suspects to return from Syria? That surely is the crucial question which so far as I know has never been asked and certainly has not been answered. The only possible answer that one can give is that we obviously do not know for certain what extra risk they will cause, but the overwhelming probability must be that they will not increase the risk in any way, having regard to the suspected terrorists already present in this country. I suggest that the risk might well be negligible. It is certainly very small indeed. Unless it can be shown—it has not been shown—that by allowing in the extra 250 people, if they choose to come, we shall be increasing the risk to a significant extent, the need for this Bill has simply not been made out. The question then becomes a rather different one. Assuming that to be so, to what extent, if we pass this Bill, will it do us harm? That is the question to which I now come.

There are currently in this country about 2.5 million Muslims, of whom about 100,000 are thought to be potential sympathisers to the terrorist cause. Everybody agrees that we will find a long-term solution to the terrorist problem only by keeping the majority of Muslims in this country on our side and doing what we can to bring about an ideological shift of attitude among those 100,000 Muslims. That will take a long time—probably a generation or more. As the noble Lord, Lord Condon, once said, in a speech that I shall never forget, you do not bring about ideological changes of that kind by putting people behind iron bars. Surely the crucial question is whether the legislation as now proposed will help to bring about the change that we need or only serve to make matters worse. I am afraid that the answer to that is only too clear. The sort of legislation that we are now being asked to pass can only make matters worse. One can see that by looking at the past.

We will be making the same sort of mistake if we pass this legislation as we have made so often in the past. We made it first, as I remember very well, when we passed the notorious Part 4 of the 2001 Act. Under that provision, terrorists could be detained without trial. Eventually, too late—it should have happened much sooner—that legislation was struck down by the House of Lords. We made the same mistake again after that legislation had been struck down by bringing in the idea of control orders. There only ever were 48 of those orders, but they were thought to have been even more divisive than what had gone before. They too, in the end, bit the dust. The same applied to TPIMs and all the other repressive legislation with which we are familiar.

Nobody will ever know exactly how much harm all that repressive legislation has done, but it must surely be obvious that the damage to community relations has been very great indeed. The truth is that we have spent much too much time and energy in what is called the Pursue aspect of our so-called respect approach and nothing like enough time on the Prevent aspect. Of course, it is the Prevent aspect that is by far the more important if we are ever to find a long-term solution to the problem. That was the very point made recently by the Intelligence and Security Committee in its report on the Rigby murder—that we should spend much more time on Prevent and much less time on pursuing these matters. How much better it would have been if, after the London bombings, instead of passing the unnecessary legislation that we did, we had taken the same attitude that the French have so magnificently done to the recent atrocity in their country. But we did not take that approach, and we are now being asked to make exactly the same mistake as we have made so often in the past.

Given this history, one would have imagined that the Prime Minister would have hesitated a little longer before making his announcement on 2 September, within two days of the threat having been raised from substantial to severe. Sadly, that was not the case and we now have this Bill before us. On any view, so repressive a Bill should be subject to something more than the fast-track procedure. It will be undermining fundamental liberties in important respects and therefore deserves very careful scrutiny. But what does the Prime Minister do? He says that it will be subject to the fast-track procedure. I cannot think of any Bill less suitable for the fast-track procedure than this one. The reasons given in the Explanatory Notes seem to be wholly inadequate. I can think of no good reason why the Bill should not wait until after the next general election but that, apparently, is not to be. It makes one wonder what possible purpose the Prime Minister could have had in wanting to bring it forward so urgently. One can only think of reasons which one must instantly reject: that he needed to give the Commons something to do to fill the time up to the beginning of the election, or reasons even more cynical than that. I can think of no good reason for giving this Bill the fast-track procedure and, if we do nothing else, we must surely resist that.

That brings me to my last point. In some ways, it may seem a peripheral one, but it throws a good deal of light on the Government’s attitude to these matters. The current Independent Reviewer of Terrorism Legislation is, as we know, David Anderson QC. I held the same post myself many years ago and there have been many reviewers between then and now. The noble Lord, Lord Carlile, was one and I am glad to see him in his place. I think we would all agree that Mr Anderson has been an outstanding success. He spends about 15 days a month working as a reviewer when he could otherwise be working as a QC. He tells us that, in order to do the job, he needs to be solely responsible for the output; otherwise he would not feel he was being truly independent. As he says, it enables him to meet Ministers, parliamentarians and the media and give them the benefit of his views. Yet what do the Government now propose? They propose to replace this man, who is doing such an excellent job, with a committee called, I think, the Privacy and Civil Liberties Board.

We all know that Governments can do silly things from time to time, but I simply cannot imagine anything sillier than that. How can a committee do the sort of job that Mr Anderson has done so well? Fortunately, the Government have had second thoughts and it is now proposed that Mr Anderson should become the chairman of this grand-sounding board. However, that is not what Mr Anderson happens to want. He was asked what he wanted and he said that he needed some further straightforward support—that is, he wanted someone to help him in the same way as a junior helps a QC. In his view, that is the best way in which he can do his job. Why on earth do we not give Mr Anderson what he wants rather than what somebody else may think he wants? I hope that we shall see the back of Clause 36 very soon.

What is the way ahead? We should beg Mr Anderson on our knees to complete the job that he has already started, which he is not expected to complete until next May, and which covers many of the matters that are covered by the Bill. We should then make sure that the Government take the Bill away and bring it back in May, with all the improvements that I know—I think we all know this—Mr Anderson will have made to it in the mean time. To force the Bill through now under the fast-track procedure seems to me the height of folly.