Terrorism Prevention and Investigation Measures Bill

Lord Morgan Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Morgan]

My Lords, like all other speakers I congratulate the Minister on his new responsibility. I hope that the fact that I am the 23rd speaker in an almost empty House does not in any way impugn the sincerity of what I have to say.

The Minister takes office on the basis or against the background of a very unhappy period of British history for civil liberties. We have seen a very dark chapter of our history, and all three main parties were responsible for it. It was the weakest aspect of the domestic policy of the last Labour Government, along externally with the war in Iraq, with which it was of course closely connected. That Government did many splendid things—they passed the Human Rights Act. But they also pursued a policy of control and surveillance which curtailed our liberties and significantly lost electoral support. It is a major reason why many people switched from Labour to the Liberal Democrats at the last election.

I joined the Labour Party in the 1950s, believing that it was a libertarian party. It was led then by Hugh Gaitskell and Nye Bevan, who disagreed about many things but were shoulder to shoulder on civil liberties. I remember reading books by Harold Laski, a great civil libertarian and a long-forgotten figure. His correspondence with Oliver Wendell Holmes is great testament to his strength of view. As a democratic socialist, Harold Laski rejected the tyranny of capitalism and of the state. I wonder quite where the Labour Party is now.

The coalition gave evidence of a fresh approach in this area. Although I do not support the coalition at all, I welcomed the fact that it abolished ID cards, cut down the number of names on databases and promised to repeal the previous legislation on control orders—legislation which along with 23 other Labour Peers, headed by my noble and learned friend Lord Irvine, I voted against back in 2005. I welcome the fact that the coalition took advice from Liberty and Justice and other groups of that kind. The Deputy Prime Minister, Nick Clegg, proposed that the regime of control would come to an end. Sadly, it has not come to an end at all, and I totally agree with the views expressed by the noble and learned Lord, Lord Lloyd. The Conservatives have pushed on with a measure that is in essentials very similar to its unfortunate predecessor, and in the party conference we have heard blood-curdling threats to the Human Rights Act in some rather bizarre comments from the Home Secretary. I think back with some fondness to remarks in this area made by the late Lord Kingsland, who was a friend of mine. I am afraid that the Liberal Democrats have reversed their policy on this, as on so many other issues. This is a regrettable story. It is not surprising that Lord Bingham, in his wonderful book on the rule of law, cites the former chief justice of South Africa, who compares restrictions of this kind to the house arrests and other disagreeable features of the regime under apartheid in that country.

The Bill deals with a very serious situation. I happily and readily concede that improvements have been made. I certainly welcome the diminution of detention without trial, which was a great tarnishing of our reputation previously. But as one or two other noble Lords have said, it stands outside the criminal justice system and, in fundamental respects, flouts the rule of law. It does not, I believe, with all respect to the noble Lord, Lord Howard, strike a balance; I do not see a balance here. It creates a system in which decisions about the deprivation of liberty reside not with law or legal authorities but with the Executive. To that extent, in my view, it distorts the workings and balance of our constitution. Fundamental restrictions on liberty are decided not by judges or the police, but by the instruments of the state, without any charge being formulated in so doing. Further, it is based on a subjective proof. We are told it is now based on the reasonable belief of the Home Secretary, which is said to be an improvement—and perhaps semantically it is—but I think it is a distinction without a real difference. We have a system imposed, therefore, that is based on raison d’état, which has had a grim history in the history of mankind and was wonderfully challenged by one of our greatest figures, Sir Winston Churchill, who described it as,

“in the highest degree odious”.

He said that in the course of the Second World War, when we had a few threats to security in this country.

The controls of the court over the actions of the Executive in this respect are somewhat strengthened, but only in a very general way. The judiciary are given broad supervision over whether the Government have or have not acted properly, but there is no real way for the courts to examine in detail what is happening or what the basis of a Minister’s belief is. In this sense, the Home Secretary is placed above and beyond the law.

A fact that I find particularly detestable is that the whole process is secret. The individual detained, perhaps for a long period and very likely released without charge at the end of it, will not be able to find out in detail the case against him or her. They will not be able to communicate properly with their legal representative; the special advocate cannot take instructions from a client. So you have a situation in which these people—who are innocent under the law, have committed no offence and are charged with nothing—will not have the same rights as criminal defendants, who are charged but are told in detail about the evidence against them and can communicate with their legal representatives.

The restrictions against them will be extremely severe and punitive. The old phrase was “the punishment should fit the crime”; now we have the punishment before the crime. This, it seems to me, is an abuse of justice. These people cannot have anything like a normal life; they cannot go out properly, meet other people, conduct a normal existence. They are treated like convicted criminals, yet they are not criminals. They have had no trial, they have been charged with no offence, they have not been prosecuted. It does seem to me an abuse of government that this should happen, and now we are going to have it made an extended process of our procedures. I am very glad to hear there is going to be a two-year time limit, but it remains shrouded in secrecy and subject to minimal judicial and legal control. I certainly support the views of those who have said there should be an annual review of how these very draconian, illiberal and severe restrictions should be imposed.

It is said, of course—and correctly so—that these are extraordinary measures to deal with extraordinary threats. None of us needs reminding of the terrible experiences there have been in relation to terrorism, but it is important to say that this opposition is not just a matter of woolly-minded principle, Guardian readers having their head or the civil liberties lobby behaving in a self-indulgent way. The fact is, as other speakers—notably the noble Lord, Lord Macdonald—have said, such measures actually make it more difficult to protect the public and to obtain evidence. There is evidence, notably intercept evidence, that is currently not being used. We already have perfectly workable systems of police operations, such as police bail, which operate in normal criminal cases. They are not operating here and one can only conclude that institutional convenience is being placed above what seems to me the sacred cause of human liberty. I find this all deeply tragic.

My wife and I attended a meeting convened by a Conservative MP—I forget her name, I am afraid —a few weeks ago about Magna Carta and how we were to celebrate it in 2015. Well, we do celebrate it. President Obama celebrated it in his great speech here. He celebrated the Petition of Right and the role of habeas corpus in our affairs as he celebrated views that were reaffirmed by that great man, Sir Edward Coke, in the 17th century. How ironic that we are commemorating Magna Carta by trampling on the fundamental freedoms of free-born British citizens.