Lord Steyn recently stepped down as a Law Lord. He invited Panorama into the room where the highest court in the land hears appeals. He wished to voice his concerns about the glorification proposal which he believes breaches the legal right to freedom of expression. He spoke to reporter Vivian White to give his view on the initial draft bill, which was announced in September 2005. The views given here are based on that bill and not the subsequent revision of October 2005.
"In particular I draw attention to the width of this proposal: that will found to be far too excessive and it will be found to be in breach of Human Rights law and in particular of Article 10 of the European Convention on Human Rights."
"We live in the country that Voltaire called "the country of liberty:" isn't that being endangered? I remind you of what happened a few days ago at the Labour Party Conference when Mr Walter Wolfgang shouted something very inoffensive but critical about the Iraq War; he was arrested under the Terrorism Act. Now where does this end?"
"Experience shows that Governments frequently ask for more powers than they need and when they get those powers they abuse them from time to time."
'A wholly disproportionate power'
The Government propose that there should be a new power under which suspects can be detained for up to three months for questioning before they are charged. Lord Steyn's view is that
"It's a wholly disproportionate power. It is unnecessary. Already under the existing Law it is necessary for the Police, or the Crown Prosecution Service, to have some evidence in order to affect an arrest. Without some basis for it, an arrest is, is not a lawful one. And I simply do not accept that the Police or the Crown Prosecution Service would not be able to put together a case, if there, one exists, within 14 days. But I would also add that in any event this period is a wholly disproportionate one. It is the equivalent of a three months prison sentence."
"It's got to be a limit of three months because this sort of power leads to abuses from time to time. When excessive powers are conferred, experience shows that those powers are abused from time to time. And I would remind you that in our country, particularly in the decade after the beginning of the nineties, we have had a series of very serious miscarriages of Justice. I do not refer to people who have been acquitted after an Appeal, I refer to people who have spent many, many years in Prison before they were released. We surely don't want that again?"
He went on to say that the new law may fall foul of existing statutes, in particular the European Human Rights Convention:
"In my view this new power is likely to be, to be found incompatible with the European Convention on Human Rights. Article 53 is quite explicit. It says, in peremptory language, that any person who is detained or is arrested, must be brought before a Court promptly. In my view a period exceeding 14 days will be found to be in breach of that Human Rights safeguard."
Glorification of terrorism
The Government also proposes that there should be a new offence of glorification, exultation or celebration of terrorism. Lord Steyn takes a dim view of this and argues that existing law already covers the offences:
"I think the new proposal is a thoroughly bad one. And it's quite easy to explain that to you. Incitement to terrorism is already a very serious offence, punished with very serious, punishments and, in view of the existence of that, there is absolutely no need for an offence of glorification or exultation."
"I think it's a bad proposal generally. I think it will divert the attention of juries from, from the task before them. I think it will perplex them but on wider grounds the consequences of it may amount to an infraction of Article 10.2 of the European Convention on Human Rights which is the guarantee of freedom of speech."
"Now we live in the country that Voltaire called 'The country of liberty.' Isn't that being endangered? I remind you what happened a few days ago at the Labour Party Conference when Mr Walter Wolfgang shouted something very inoffensive but critical about the Iraq War. And the consequences I draw attention to, he was arrested under the Terrorism Act 2002. Now where does this end? For my part, this is a hopeless proposal and should be abandoned forthwith."
The Prime Minister has argued that this issue has been resolved by recent interpretations by the Courts but Lord Steyn is adamant that this is not the case:
"My answer is first that a Judge is emphatically not a servant of the Government. His or her Oath is to the Queen as, as the Head of State. The duty of the Judge is not to the Government but to the public."
"The second point is, the Judge under our Constitution is under a bounden duty to uphold the rights of citizens when they are being endangered by the Government."
"Thirdly, it is a fact that Governments sometimes act unlawfully. And the people to hold them to account are the Judges, it is their task, task under our Constitution."
"Fourthly the Prime Minister gives insufficient allowance to the fact that, in our system over the last ten to 15 years, we have had many very grave miscarriages of justice, which were only rectified in many cases after a great many years of people serving in prison."
The danger of reactive legislation
Lord Steyn was keen to impress on reporter Vivian White the need for legislation to be made objectively and not purely in reaction to current events.
"I think the Government wants to be seen to be doing things. And they wish to impress the public with the strong stand that they take and I think the answer to that is one must look at these matters objectively and ask whether these powers are needed."
"I think, think there is a greater risk of Governments passing legislation simply reacting to events. Sometimes trivial. It is said that the Dangerous Dogs Act was the worst Statute ever put on the English Statute Book and if it wasn't then it certainly runs a close second. And that is instinctive knee jerk reaction by a Government to pass legislation reacting to events appearing in the tabloid press from day to day."
"Experience has shown over the last 20 years we have had a flood of legislation about crime. Now, what happens every year is there is a huge Criminal Justice Bill. The next year it is abandoned. Although the year before it had been puffed up as being perfection itself.
"And so, year by year, under Labour and Conservative Governments the process continues. The distinguished writers of textbooks on Criminal Law have described the position as "scandalous", and I don't think that's an overstatement. So to the bewilderment of the public this system goes on year by year and I think it is a bit rich to lay the blame on the doubters."