Contribution To “Off The Fence”
As election fever starts to rise it is not surprising, I suppose, that all political parties are trying to position themselves in the most favourable light possible. Putting all that aside, the Bill at the moment being tossed between the House of Commons and the House of Lords giving a Minister of the Crown rather than a judge the right to deprive a person of his liberty without producing any evidence as to why this should be so, is too serious a matter for the party battle, for it goes to the heart of our constitution.
I know better than most, because of my membership of the Intelligence and Security Committee for the last ten years, that there are some real difficulties in this area in our fight against the new sort of enemy – international terrorism. I also know that, for very important security reasons, we cannot share with suspects or their lawyers some of the evidence we have which shows them to be involved in international terrorism. Nevertheless, there must be a way to take this out of the hands of Ministers and into the hands of the judiciary, which is, thankfully, still independent.
Both opposition parties have proposed that it should be a judge who decides, having seen the evidence which cannot be shown to a person whom
it is proposed to detain.
Another option would be to instigate the sort of trial that we had to introduce in Northern Ireland for terrorist offences – the so-called Diplock Courts. Here a judge sat without a jury; evidence, if the judge decided it was in the interest of the security of the nation, could be given by a witness behind a screen with his voice disguised; and parts of the case could be heard in camera, again at the discretion of the judge. This worked tolerably well for twenty odd years and the judges – Lord Hutton among them – were scrupulous in ensuring that the evidence was sound.
There is no ideal solution: whatever measures we have to put in place will curtail some of the rights that we have had for centuries – to a free and open trial and to trial by jury. Unfortunately, to protect ourselves from a new threat, some of these rights will have to be temporarily given up – but of one thing I am absolutely certain: the way forward is not to do this by ministerial diktat but on the say-so of a High Court judge in whom most of us have complete trust.
