Justice and Security Bill [HL]

Lord Reid of Cardowan Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Reid of Cardowan]

My Lords, it is always a pleasure to follow the noble Baroness. I am sorry to start by correcting her, but the Labour Benches are not empty, nor bereft of any representative of the previous Government. As a former Home Secretary, I am one such representative. Unfortunately, the other Home Secretaries—Mr Clarke, Mr Straw, Mr Blunkett and Ms Smith—cannot be here because they are not Members of this House, which may account for their absence.

I may be a lone voice among the speakers, who all seem to have come from the Joint Committee on Human Rights, but I will say two things. First, on the moral question, I deprecate torture as much as anyone in this House. I deprecate it in the case of that have been mentioned. I also deprecate it in the case of the 62 British citizens who were tortured by being burnt to death in the Twin Towers and the 50-odd British citizens who were tortured to death by being blown up in the subway and on the buses in London. They had human rights as well, and the primary human right is the right to life. There is a moral obligation on government to take that into consideration.

I find that one of the astonishing things about these debates is that there is never any context about the nature of national security. It is paraded camouflaged in words such as murky, corrupt, and lapdog—the disparaging avalanche of comments against our security services. Politicians can take it. We are used to it from the Opposition, from people outside and from some of our errant Back-Benchers, but the intelligence services do not deserve that. Were it not for them, I can tell you, thousands of British citizens would have had their basic human right of life removed from them. In one incident in August 2006, 2,500 people would have been blown out of the skies over the Atlantic were it not for our intelligence services and, yes, their colleagues in the American intelligence services.

So let me just say a word to balance the quite proper legal points that have been made about national security. We have come through a dark time. I regret to say that we still live in a dark time, not just here but throughout the world—anyone who thinks that areas of Pakistan are not a conflict zone does not begin to understand that. There are two elements to the threat to the British people, as there always are in any threat. The first is intention and the second is capability. The real question that we should be asking is not whether this proposal arrives from the Government because they are corrupt, because they have been seduced by civil servants or because they are lapdogs of the Americans. We should be asking what particular set of circumstances regarding the threat to national security brings a measure like this on to the agenda. We should then analyse the two elements of threat: intention and capability. Let me to say a word on both. The intention of those who wish to inflict terrorism on the citizens of this country is now unconstrained. It is not limited, as it was with the IRA in terms of tactical questions. It is not limited by their concern for what the public might think. It is not limited in terms of the numbers that they wish to kill. Anyone who tried to kill 10,000 people in the Twin Towers would be happy to kill 10 million people. Indeed, not only are they not constrained in their intent by politics or ideology, they are driven in their ideological premise towards a massive massacre of people.

That on its own would be bad enough to weigh in the minds of today's Home Secretaries if it were not for the fact that the other element of threat, which is the ability to carry out the intent, is now unfortunately unconstrained as well. Those in the past who had a genocidal intent, such as the Nazis, were constrained by the technical ability to achieve their intention—in the Nazis case either by carbon monoxide or Zyklon B canisters. Biological, chemical and radiological weapons now mean that we live in a world where unconstrained intent to do damage is allied with the potential for unconstrained capability. That is the burden that sits on the shoulders of government Ministers nowadays, not whether they will fall out with the Americans or anyone else. It is in that context that we have to consider the unique circumstances that we have never had to face before because the means of mass destruction have not been available to small groups of non-state actors and, by and large, non-state actors have not had an unconstrained intent to murder in a wholesale fashion. It is those circumstances that make the protection of intelligence all the more important. Had it not been for that exchange of intelligence—in one case, across 29 countries—we would not have achieved the protection of our British citizens and their fundamental right to life.

[Lord Thomas of Gresford]

I am sure the noble Lord is not suggesting that those of us who oppose these clauses are in favour of terrorism. He must appreciate that we are not concerned with proposals that will make security information available to the public. All we are concerned about is, what is the response to an action that is brought by a claimant against the security services or any other government department? I appreciate the noble Lord’s sincerity but is he not a little off the point?

[Lord Reid of Cardowan]

There are three points there. First, of course I was not suggesting that there was any intent on the part of the noble Lord. However, I was explaining that there is a law of unintended consequences. You do not need an intention to make it easier for terrorists in order to embark on a course of action that ends up assisting in that. The second point relates to the Government’s response. As I understand it, the Government are saying that we currently have a system that does not give us justice because the requirement to protect national security information is such that they cannot take it to court, and therefore, whether or not it is just, someone is in receipt of benefits.

[Lord Strasburger]

My Lords—

[Lord Reid of Cardowan]

Let me finish with the questions that I have been asked and then I will happily come back to the noble Lord.

The third question is whether I am off the point. I do not see how this issue can be discussed without a deeper understanding of the security—I truly do not—and yet in this Chamber I hear speech after speech about law but no one sets out the circumstances in which we have to face these threats. We might as well try to exist in a vacuum. Of course we can turn our eyes and act blind to the world outside but we have at least to try and understand the circumstances that give rise to what the Government are doing, or alternatively we will be forced to say that they are either mad, bad, corrupt with power, lapdogs, murky, conspirators or acting at the behest of evil civil servants.

[Baroness Kennedy of The Shaws]

The noble Lord is presenting a parody of the argument that I have made, and I refute it. I understand—as does everyone in this House because we have debated it so often—the incredible context of having to deal with terrorism. Sensibly, however, most of us accept that you do not sacrifice the high standards of legal procedure that we have developed in this country to the terrorists. When the British state does that, it descends to the level of the people who bomb, kill and do all the things that the noble Lord has described so powerfully. If there is any question that our security services have in any way fallen from grace—and no one is suggesting that they have tortured—in the standards that we expect and which they normally set store by themselves, it is important that that should be explored so that we can put right any of the wrongs that have taken place. That is the issue.

[Baroness Manningham-Buller]

My Lords—

[Lord Reid of Cardowan]

Perhaps I may respond and then I will give way to the noble Baroness, Lady Manningham-Buller. I was not trying to parody or even respond to the argument of the noble Baroness, Lady Kennedy, with the exception of her incorrect statement that there is no one from Labour here and her reference to Pakistan. The rest of it actually applied to the generality of the arguments that I have heard since I came in. I have made my position known on torture, but I have also made my position known on the obligations of government to protect the rights of the British citizen, including the basic one of the right to life.

[Baroness Manningham-Buller]

The noble Lord, Lord Strasburger, should speak first.

[Lord Strasburger]

Can the noble Lord tell the House about a single occasion when a British court has released into the public domain any information that has been detrimental to the country’s national security? Can he name a single one?

[Lord Reid of Cardowan]

That is rather a Catch-22 question, is it not? The reason they have not is that they have settled out of court. That is the point that we are trying to make. The noble Lord is asking for evidence that cannot be adduced. The very purpose of bringing forward this provision is precisely to meet a situation which has arisen because they cannot.

[Lord Strasburger]

Then the answer to my question is no.

[Lord Reid of Cardowan]

The explanation for a no is always more substantial than a straight no.

[Baroness Manningham-Buller]

My Lords, I feel I have to rise to speak because of the presumption of guilt suggested by some people on the part of my organisation in the past. I should say first that torture is a crime in our law and in international law. It is morally wrong, ethically wrong and it is never justified—even when, as the Americans would claim, you get the truth from it. That is irrelevant. It is not what a civilised country does and it is illegal. For my colleagues to be accused of it is to accuse us of a crime.

I can now talk about the Binyam Mohamed case. We interviewed him in Pakistan in 2002, where he was in American custody. Later that year we sent questions to the Americans to put to him. There were two things that we did not know in 2002. We did not know that our closest intelligence ally was resorting to waterboarding; that is, torturing people. We did not know that in 2002. Additionally, we did not know that Binyam Mohamed had been rendited by the Americans to Morocco. Had we known that, we would have been more careful about the questions we had put, as I said to the parliamentary committee in 2006 and as it was recorded in its report. Certainly we regretted that.

Because torture is a crime, the person who interviewed Binyam Mohamed in Pakistan was extensively investigated by the police. A report went to the Crown Prosecution Service and it was decided that there was no case to answer. If any of my colleagues had been involved in criminality, the criminal courts—we are not talking about civil proceedings here—the police and the Crown Prosecution Service would have been involved. We are absolutely subject to the criminal law, and so we should be. But I find it pretty difficult to accept a presumption of guilt without it being proved in a court.

I shall put a caveat on that, picking up the comment of the noble Baroness, Lady Kennedy. I cannot talk about matters to do with Libya because those are the subject of current civil proceedings, as I understand it, and criminal investigations. It would be inappropriate for me to comment at this stage.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, perhaps I may remind the House that the Companion sets out that, at Report stage, a speaker other than the mover of an amendment, a Minister or the noble Lord in charge of the Bill can speak twice only if granted the leave of the House, and then to explain a material point of his own speech that may have been misunderstood or misquoted.

[Lord Reid of Cardowan]

I will give way but I was not quite finished. I have heard of being overtaken by events but I think that I was overtaken by Baronesses in the middle of my speech. I did give way to the noble Baroness, Lady Manningham-Buller.

I have said what I wanted to say, which was mainly to try to give to the debate a balance which I think is, perhaps wrongly, missing. We are discussing a justice and security Bill generally, and the actual analysis of the security elements of that seemed to be somewhat missing from our deliberations, both in this group of amendments and previously.

[Lord Lester of Herne Hill]

I hope the fact that, with Roy Jenkins, I helped produce the first anti-terrorism Bill, which became the Prevention of Terrorism (Temporary Provisions) Act 1974, illustrates that I take national security at least as seriously as the noble Lord, Lord Reid—if not perhaps quite as seriously, because no one could take it as seriously as he does.

Neither the noble Baroness, Lady Kennedy, nor my noble friend Lord Thomas of Gresford were present when I explained earlier today that the origin of the closed material procedure, which they both deplore, comes from suggestions made by civil society—that is to say organisations such as Justice, Liberty, the AIRE Centre and Amnesty International—both in the Chahal case and later, through me, in the Tinnelly case. They both deplore the procedure as criminal lawyers, and I quite understand that as a criminal lawyer you regard everything in terms of the context of criminal trials and that the CMP is seen to be totally incompatible with their concept of justice. I understand and respect that. However, they have to face the fact that the procedure came in because the Strasbourg court could not find any other way of weighing the needs of national security with the interests of justice. It had regard to the Canadian procedure, because that is what Liberty, Justice and the AIRE Centre—and perhaps also Amnesty, although it denies it—suggested to the Strasbourg court.

When Lord Williams of Mostyn was responsible for the SIAC Bill in 1997 I was one of those who spoke in favour, because although it is imperfect justice, I could not think of a better way of weighing the needs of national security against the interests of justice. I believe that it has worked pretty well in the context of SIAC, and we, as the Joint Committee on Human Rights, have recommended that SIAC’s jurisdiction be extended. I do not think that the noble Baroness, Lady Kennedy, as a party to the report, will disagree with that. I do not think that she has so far.

The short answer to the supporters of this amendment is that we have today incorporated into Clauses 6 and 7 almost all the safeguards that the Joint Committee on Human Rights advocated. We did so in order to strike a better balance between fairness and national security. If the supporters of this amendment succeed, they would remove Clauses 6 and Clause 7 altogether. That would mean that the Bill would go to the House of Commons with no safeguards. The Prime Minister, the Foreign Secretary, the Home Secretary and others would have little difficulty in ridiculing what we had done. They would find that, having spent the period before the dinner hour putting in the safeguards, we had spent the period after it removing them. I can be accused of being over-logical, but it seems to me that to walk upon your head is a very strange thing to do. It makes me realise the wisdom of the noble Lord, Lord Campbell of Alloway, when he once rebuked me for making a serious point after the dinner hour. I now realise that all the serious points were made before the dinner hour and what we now have is a kind of tragic comedy. I very much hope that we do not as a House approve amendments that will have the effect of undoing all that we have been doing since 3.30 pm.