Plenary, 15 Nov 2001

Meeting date: Thursday, November 15, 2001

Official Report 658KB pdf

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Anti-Terrorism, Crime and Security Bill

Good morning. The first item of business is a debate on motion S1M-2445, in the name of Jim Wallace, on the Anti-Terrorism, Crime and Security Bill, which is UK legislation, and an amendment to that motion.

Earlier this week, the Government introduced the Anti-Terrorism, Crime and Security Bill in the House of Commons. The genesis of the bill needs little explanation. The terrorists who struck at New York struck at us all. They killed without discrimination, and those who died were men, women and children of all ages and of many nationalities, races, and religious and political persuasions. It was truly an act of terror.

Tragically, we are not strangers to acts of terrorism. However, 11 September saw the manifestation of a threat of terrorism of a scale, audacity, single-mindedness, global reach and disruptiveness that we have not previously faced. It is therefore right that we respond not only to the actual act, but to the threat of similar outrages. The recent advances that have been made in Afghanistan do not diminish that imperative; indeed, they may arguably increase it.

On this issue, we walk a fine and difficult line. We aspire to tolerance and respect for all and to uphold fundamental civil liberties. However, to do so, we must deal with those who exploit our liberties with threats to life and limb. I do not say that that is easy; however, it is inescapable.

The Executive believes that the Anti-Terrorism, Crime and Security Bill is a proportionate response to the events of 11 September. It is not a wholesale revision of our legal and security framework, but a collection of carefully targeted improvements.

The bill has a number of strands. First, it enhances information disclosure to aid policing and prosecution; it enhances financial controls in much the same way as the Proceeds of Crime Bill; and it strengthens existing asylum and immigration powers. Secondly, the bill contains new criminal offences on religious hatred, corruption, weapons of mass destruction, associated hoaxes, and failure to disclose information about terrorist offences.

Thirdly, the bill requires enhanced security for the storage of pathogens, civil nuclear installations, and airports, which form the tools and targets of the new terrorism. Fourthly, the bill enhances policing, with new powers on DNA and fingerprint evidence; an extended jurisdiction for British Transport and Ministry of Defence police; and extended access to passenger information. Finally, the bill allows for fast-track implementation of any European Union agreements on justice and home affairs.

I will now deal with the devolved provisions that we recommend be included in the Westminster bill and those that we propose to exclude. That is the purpose of our debate this morning; we are not debating aspects of the bill that are clearly reserved and would, in any circumstances, be a matter for the United Kingdom Parliament. That is why the SNP amendment is not appropriate.

Our rationale for a Sewel motion is essentially pragmatic. We do not think it acceptable to delay these matters until the introduction of the criminal justice bill next year, and we do not think that emergency legislation of our own is appropriate for proposals that are unlikely to differ on either side of the border. It is right to move quickly and, as far as possible, on a common UK front.

We recommend that the enabling power on EU criminal measures be extended to Scotland, which will allow Scottish Ministers to introduce secondary legislation on devolved, criminal, police and judicial co-operation initiatives. That safeguards this Parliament's role and strikes the right balance between parliamentary scrutiny and the ability to legislate quickly when necessary.

We recommend that the bill's provisions on dangerous substances be extended to Scotland, which will make it an offence for a person to use nuclear, biological, chemical, radiological or any other noxious substance, or to threaten to do so.

We recommend that the bill's provisions on disclosure of information be extended to Scotland. The provisions will enable Government departments and other public authorities to disclose information for possible criminal investigations or proceedings. The Parliament has already passed a Sewel motion on this in relation to the Criminal Justice and Police Bill. However, the measures were dropped and are now being reintroduced with some modifications.

We recommend that the new powers relating to the security of premises holding harmful substances be extended to Scotland. The powers are primarily designed to address security arrangements at laboratories where there are stocks of potentially dangerous substances such as viruses, bacteria and toxins. The substances will be specified in secondary legislation and examples of the new controls are given in the memorandum that accompanies the Sewel motion.

We recommend that the new police powers on passenger information be extended to Scotland, which would enable the police to request information in relation to ships and aircraft arriving anywhere in the UK from any other country. The current powers are limited to travel between the UK mainland, Northern Ireland and the Republic of Ireland.

We recommend that the extension of powers for the MOD and British Transport police be extended to Scotland. That would extend their jurisdiction so that they could assist other police forces on request. Members will recall that the Parliament previously approved this approach for the MOD police, but the proposals were subsequently dropped from the Armed Forces Bill.

We recommend making use of the bill to allow fingerprints and samples that are taken under Terrorism Act 2000 powers to be used in the investigation of the whole range of crime. That will ensure that links can be drawn between terrorist suspects and other criminal acts that might have terrorist connections.

I will now address the aspects of the bill that we do not wish to be extended to Scotland. First, we will pursue a distinctive approach on religious hatred. I shall chair a ministerial working group with cross-party representation and a remit to report by the end of February. The Deputy First Minister has written to invite the Commission for Racial Equality and the Association of Chief Police Officers in Scotland to participate in that group. We intend to invite others to participate and will of course consult widely. Our aim will be to ensure that any new legislation is workable and effective in the Scottish context. In the meantime, we will deal with religious hatred firmly under the current law. Religious aggravation already exists at common law in Scotland.

Furthermore, because of different rules of evidence and procedure in Scotland, we have decided to introduce international corruption provisions in our own criminal justice bill, which will be introduced next year.

Finally, we have decided not to extend to Scotland the new police powers to remove face coverings. The police in Scotland were lukewarm in their support for the proposal and pointed out that there could be practical difficulties, for example, with some forms of traditional dress. In the circumstances, we believe that the benefits would be marginal. The UK bill will be amended to exclude Scotland from this provision.

We consider the Anti-Terrorism, Crime and Security Bill to be a proportionate and carefully targeted piece of legislation. With the three exceptions that I have mentioned, we commend its extension to Scotland and I therefore invite the chamber's support for this Sewel motion.

I move,

That the Parliament recognises the urgency of enhancing anti-terrorist capability and security in the current international situation and agrees that the provisions of the Anti-Terrorism, Crime and Security Bill specified in the Scottish Executive's memorandum that relate to devolved matters should be considered by the UK Parliament.

At the outset, I should thank the Executive for arranging yesterday's briefing by officials on the Sewel motion, which helped to clarify some issues. However, although I am very grateful for those 40 minutes, they led me to question the extent to which the officials themselves had been consulted by Westminster. It was clear that the consultation has lasted only a matter of weeks, not months.

People will argue that this is an emergency. However, that argument would have considerably more force if we were not being presented with Sewel motions almost weekly. Everything cannot be an emergency and, given the number of Sewel motions that come before us, it will soon be difficult to ascertain when we are dealing with a genuine emergency.

All the Sewel motions that we deal with are not emergencies—in fact, they are anything but. The minister referred to the fact that two issues that are included in the memorandum that accompanies the motion have already been the subject of Sewel motions. On those occasions, the Scottish Parliament was asked to allow Westminster to legislate on our behalf on devolved matters, yet Westminster did nothing of the sort. One could argue that if we had gone ahead with appropriate Scottish Parliament legislation earlier this year, instead of having Sewel motions, we would have been ahead of Westminster in the game. However, we are considering the two issues again and it could be argued that parliamentary time was wasted earlier this year to no great purpose. For the record, the SNP abstained on one of the motions and voted against the other—we are therefore consistent in our arguments.

We will vote against today's Sewel motion for two main reasons, both of which are points of principle. First, there is the question of the continued use of Sewel motions. As I said, the Parliament is repeating itself. It seems that we are beginning to import some of Westminster's redundancies and inefficiencies. The procedure has become a matter of course. A startling development is that, when it comes to amending a Sewel motion, the onus is beginning to be put on those who do not think that such motions should be used, when it should be the other way around.

Let us be clear. The Scotland Act 1998 sets out the constitutional framework within which the Scottish Parliament operates. There is a clear distinction between devolved and reserved matters. For obvious reasons that do not need to be repeated, criminal justice is one of the most clearly defined matters. Westminster's handling of Scottish justice matters over many decades was beginning to cause major concern. Issues were not addressed speedily and simply finding out what the law was could be difficult. It was scattered around in bits of legislation that had Scottish clauses tacked on, or was contained in the now infamous law reform (miscellaneous provisions) (Scotland) acts that became too many to mention and were distinguishable only by the year in which they were passed. That was meant to stop. I regret that we are fast heading back to such a situation.

According to the Labour party, Donald Dewar could say or do nothing wrong. He said of devolved areas:

"there is a possibility … of the United Kingdom Parliament legislating across those areas, but it is not one which we anticipate or expect."—[Official Report, House of Commons, 28 January 1998; Vol 305, c 402-3.]

What was unanticipated and unexpected has turned into the 25th Sewel motion and the fifth that deals with law and order—the quintessential devolved area. When the Anti-Terrorism, Crime and Security Bill goes into standing committee at Westminster, we will be lucky if one Scottish MP is on the committee and lucky if that MP knows about Scots law. So much for scrutiny. There will be precious little of that, although it has always been a professed virtue of the Scottish Parliament's procedures.

The motion deals with fundamental matters of criminal procedure, which should themselves undergo the utmost scrutiny. For example, the Scottish Parliament should decide whether specific offences are required in respect of hoaxes or whether existing common-law offences in Scotland are sufficient.

I have focused on the general concept of Sewel motions. A number of measures may require to be introduced in the light of the current international situation; I do not argue with that. However, the Scottish Parliament is perfectly competent to deal with all the matters in the memorandum and to debate them in the detail that might be necessary and with the scrutiny that is absolutely necessary.

Another aspect of the Anti-Terrorism, Crime and Security Bill is the rather vexed question of the extension of detention without trial. There is some irony in the Sewel motion being in the name of the Minister for Justice, who is not in the chamber. I suppose that he might be rather embarrassed to have had to attach his name to the motion.

On Monday, when the bill was introduced, Simon Hughes MP said in a Liberal Democrat press release:

"Everybody must have the right to have their detention reviewed by the courts. Government plans to deviate from the European Human Rights Convention and to detain people for as many as five years goes far too far."

I agree. That a coach and horses is being driven through Scottish procedures is bad enough, but the procedures seem to be being torn up wholesale. That it is proposed to do so without reference to this Parliament is even worse. That it is expected that that can be done without so much as a cheep from this Parliament is the crowning insult.

The Blunkett proposals have, not unreasonably, been described as a return to internment. Leaving aside the dubious historical experience of internment, I will just say that the detention will, in effect, be enforced by certification by the Home Secretary.

Another politician said:

"The Prevention of Terrorism Act … allows an extension of detention not by the judiciary but by the Executive.

It must be accepted, as it was accepted when the power was introduced, that prima facie the power is offensive to the basic principle of the rule of law, which is that deprivation of liberty should be through the courts and not through politicians."—[Official Report, House of Commons, 10 March 1993; Vol 220, col 972.]

I could not have put it better myself, which is strange, given that I do not normally agree with Tony Blair, who said that when he was in Opposition.

I do not argue that certain measures may not be necessary in the current circumstances. However, there is no practical reason why we should not legislate where that is necessary. Some proposals in the bill extend to all criminal investigations, not just to terrorist-related offences. We have procedures in this Parliament that would expedite matters. It is right that this Parliament has the opportunity to make its position clear on the single most controversial aspect of the bill. For those reasons, I ask members to support the SNP amendment.

I move amendment S1M-2445.1, to leave out from "and agrees" to end and insert:

"calls on the Scottish Executive to bring forward legislation dealing with the relevant devolved matters, if necessary under the Parliament's emergency bill procedures, in order that there can be proper consultation with the relevant authorities, companies, agencies and organisations in Scotland, and furthermore notes with concern the new proposals in regard to detention without trial in clauses 21 to 32 of the Anti-Terrorism, Crime and Security Bill which are a suspension of the normal Scottish criminal justice procedures and which would breach the European Convention on Human Rights."

In general, I welcome the anti-terrorism measures, which deal with a range of domestic security issues, and thank the minister for the briefing on the bill's details, which I received from officials. However, we believe that there may be a need for sunset clauses to expire after 12 months, rather than the period that is specified in the bill.

We support the Sewel motion and want to be constructive and supportive wherever possible, but we have reservations about certain clauses in the Anti-Terrorism, Crime and Security Bill. We have specific concerns about three major areas of the bill, which our colleagues in the House of Commons will no doubt raise.

First, we will oppose in their present form the clauses on incitement to religious hatred and will support other measures to protect vulnerable faith communities. Our objection is based on the fear that the bill has serious implications for freedom of speech, which we seek to uphold. I am reassured by the minister's comments that that issue will be dealt with in the Scottish Parliament.

I am extremely concerned by the real threats and attacks on the Muslim community. On Monday night, I was present at the reopening of the Edinburgh mosque that had been the subject of a criminal attack. The reopening was a triumph in the face of adversity. We will strongly support the section on religiously aggravated offences and other measures to protect vulnerable communities.

Secondly, the Home Secretary should be able to take steps to remove dangerous foreign nationals from the country rather than have to use indefinite detention powers. The Government has used the excuse that to deport such suspects contravenes article 3 of the European convention on human rights. However, France has entered a reservation against article 3 and can deport foreign nationals who are a threat to national security. If France can act in the best interests of its security, we can, and should, do so too.

Thirdly, we will oppose the measures to implement EU third-pillar decisions—those relating to justice and home affairs and foreign affairs—by statutory instrument. To allow such decisions to be implemented through secondary legislation would restrict Westminster's power to scrutinise legislation fully and remove its power to amend it readily. Of course, if decisions are made between police forces for joint investigation of terrorist plans or conspiracies to commit crimes, we would support EU third-pillar action if it is specifically aimed at preventing terrorism.

Members may be aware of a recent article in Scotland on Sunday that recounted the tale of a young Scot of Muslim origin. In the article, which alleged that the man was a member of the Al-Muhajiroun organisation, he said that it

"would not bother me in the least"

to shoot a British soldier. I am a former Territorial Army soldier of 10 years' service, and it seemed that those remarks constituted very bad manners

After all, the British armed services exist to protect the people of this country, and literally hundreds of Muslims and British people were murdered in the unprovoked attack on the World Trade Center. There can be a narrow line between freedom of speech and incitement to commit a crime. I recall that a friend of mine once prosecuted an American for threatening to assassinate the President, because the American had said that, if he was called up to serve in Vietnam, the first person he wanted in the sights of his rifle was Lyndon Baines Johnson, who was President at the time. That case went all the way to the Supreme Court of the United States, which decided by five rulings to four that the American had been exercising his right to free speech—however, it was a close-run thing.

As the matter has given rise to some public concern in Scotland, I commend the wise words of Councillor Bashir Maan, a Glasgow Labour councillor and Scottish secretary of the Muslim Council of Britain. He spoke in an enlightened way with foresight and vision, saying:

"I have consulted the theologians, I have spoken to the Imams, and they have assured me that the teachings of the Koran are clear—you must not take up arms against a country you have accepted as your home. Here in Scotland we have the freedom of speech and freedom to practise our religion which we can use to voice our concerns. You can demonstrate, you can express your fears, but you cannot do that by taking up arms against the country to whom you owe allegiance."

In saying that, Bashir Maan was not only speaking for his community, but speaking to Scotland.

We will support the Sewel motion today.

One of the advantages of belonging to a governing party is that one is briefed by the Minister for Justice rather than by officials on these occasions. I thank Jim Wallace for his briefing and I imagine that, in his capacity as acting First Minister, he is involved this morning in carrying out the affairs of the country.

The Sewel motion comes before the Scottish Parliament in the aftermath of the 11 September atrocities and in pursuit of the war against terrorism, and it is quite understandable that the Government should seek to strengthen measures that will aid the prevention and detection of terrorist crimes. Ensuring the security of the citizen is the first duty of the state, but it is seldom a good idea to pass laws in haste or in times of raised passions. Not infrequently, the result can be bad, ineffective, unworkable and unjust law.

My colleague Simon Hughes, to whom Roseanna Cunningham referred earlier, described the Anti-Terrorism, Crime and Security Bill as

"a mixture of the welcome, the reasonable, the worrying and the completely unacceptable."

As Roseanna Cunningham said, the bill proposes detention without trial—internment—based on a certificate from the Home Secretary. The courts are to have no powers to review the matter, but there will be an appeal to a body called the special immigration appeals commission—a sinister-sounding title if ever there was one. If I understand it correctly, the appeal would be not against the detention as such, but against the finding that the detainee was a suspected terrorist. Quite what purpose such an appeal would serve is unclear, as a certificate from the Home Secretary is conclusive on most of the key matters.

Does Mr Brown acknowledge that, although the use of the word "detention" is correct, the bill proposes a detention that can be ended at any time by the decision of the person involved to leave the country? The detention is intended to avoid the necessity of deporting someone to a country where they might be tortured or executed. That puts a slightly different gloss on the arguments that are being presented, although I do not deny that there are arguments to be made.

I accept the minister's point; however, the front page of the bill carries a bold declaration from Mr Blunkett, certifying that the provisions of the Anti-Terrorism, Crime and Security Bill are compatible with the European convention on human rights. I am troubled as to how a measure that expressly abandons the protections that are given by the ECHR can be certified as being compatible with it.

I, too, noticed that point. The bill can be interpreted as compatible if a derogation to remove parts of the ECHR takes place, which has happened in the past few days. Is not that, in itself, worrying?

I agree with Fiona Hyslop. That is the point that I was trying to make.

The detention power is the "unacceptable" part of the bill, to use one of Simon Hughes's words. I will pass over the power to seize the money of someone whom David Blunkett regards as a terrorist. What concerns me is the broad and ill-defined nature of some of the proposals. For example, a sentence of five years in prison is proposed for someone who fails immediately to disclose information that might be of material assistance in preventing an act of terrorism or in arresting someone who commits, prepares or instigates an act of terrorism. Lawyers know that they have to be careful with the word "instigate", as it has rather wide connotations, particularly in this context.

The principle is that these laws protect our democratic society. There are no major arguments—not even Roseanna Cunningham came up with one—about the measures in the Sewel motion on which this Parliament requires to authorise Westminster to legislate. They are largely criminal investigative measures of a sensible kind and provisions for better national and international co-ordination. Jim Wallace's decision to exclude from the motion the power for the police to remove face coverings is right, as the basis for that power was unclear and the measure seemed designed to cause offence for no particular gain.

Will the member give way?

Will the member give way?

I have given way a lot already.

The general point is that the tradition of freedom under the law runs deep in this country. It is the key strength of a liberal democracy and means that we have no arbitrary arrests, no detention without trial and no punishment without due process of law. Nothing could be more fundamental. We have always defended those rights, except during the world wars and the unfortunate experience of internment in Ulster.

In the first world war, the hysteria of war led to the internment of innocent aliens of German, Austrian or central European origin and the execution of shell-shocked soldiers after a perfunctory court-martial procedure. The second world war saw the ridiculous spectacle of the internment of enemy aliens, some of whom were living in exile here as refugees from foreign Nazi or fascist regimes. In America—this is particularly pertinent to our debate today—Americans whose families had been in the country for generations but who looked vaguely eastern or Asian were interned in the wake of the attack on Pearl Harbour.

We are prepared to support the Sewel motion because it makes sense in terms of the devolution settlement. We are not happy with the time scales and believe that the matter would bear close examination by one of our justice committees. Whatever the nit-pickers in the SNP might say, this is not a matter of major constitutional importance. However, there is cause to examine whether the Sewel motion procedure might be improved to allow a tempered and studied response by the Parliament through its committees when Westminster makes proposals that overlap our jurisdiction.

Our approval of the motion should not be regarded as approval of the Anti-Terrorism, Crime and Security Bill. This Parliament guards jealously its human rights, which are built into its constitution and soul. We do not support measures that take away those rights or tear up sections of the ECHR as if they were of no account. We should not do so, even given the heightened mental state of the country.

We support the motion but have reservations about what is happening at Westminster as regards the major aspects of the bill.

I am one of those people who do not like the over-use of Sewel motions. I agree with Roseanna Cunningham that we have a distinctive system and that, as a general rule, matters that are devolved should be decided here. However, there are a number of important points in relation to this motion.

Many of the issues that we are dealing with are a response to the catastrophic events of recent weeks. That means that things will happen at a quicker pace than they otherwise would. I always like Robert Brown's speeches, but some of what he said today was irresponsible. To compare the sort of issues that we have been dealing with in the past month or two to internment during the first world war is to make an improper comparison. We are living in dangerous times and certain things need to be dealt with quickly.

I do not like the fact that we seem to be dealing with a lot of matters that are reserved.

Is the member saying that the provisions of the bill do not involve internment without trial?

No. A lot of matters in the bill are reserved issues and that is one of them. Detention is controversial. It is open to legitimate debate—certainly to debate on whether it should be renewed annually. That is not a matter for the Sewel motion.

A Sewel motion is about which devolved matters should be dealt with at Westminster. I do not much like a debate on such a motion being used as a device to reverse the situation and becoming a debate on issues that belong elsewhere. I do not like the idea of a Sewel motion becoming a device to revisit the devolution settlement. Michael Russell shakes his head at that, but that is what happens. Reserved matters are legitimate topics for debate, but are not to do with what the Sewel motion does.

Will Gordon Jackson give way?

In a moment.

Most of the matters that we are asking Westminster to deal with are good legislation. I take Robert Brown's point on that. Roseanna Cunningham could come up with almost nothing that she did not like about the legislation covered by the Sewel motion.

Yes I could.

She says that she could, but the best that she came up with was the matter of hoaxes. If people make hoax calls and frighten others about the dangers of terrorism or biological warfare, that is a serious matter. I am happy for us to deal with it quickly by the method proposed.

A balance must be struck—

My voice has gone this morning; my throat is bad.

Will Gordon Jackson give way?

Yes please.

Does Mr Jackson accept that, as long as the Parliament refuses to speak up on and take control of the big issues, we will continue to see trivia about the personal lives of politicians on the front pages of our papers instead of the issues that matter to the people of Scotland?

That question moves us into the surreal. I do not accept for one moment that the Parliament deals with trivia and I do not suggest that we should not deal with big matters. A Sewel motion should not be a device to consider issues that are not part of the debate.

My time is almost gone. The most important point is that we are not dealing with certain issues under the Sewel motion. The Executive recognises that it is appropriate to deal with those issues here, rather than to put them through the Westminster system. The bill contains provisions that recognise that. For example, we are not applying the provisions on bribery and corruption in part 12 for the good reason that those provisions involve evidential procedure issues that have a peculiar Scottish dimension. Perhaps more important is the fact that the race and religion provisions in part 5 will be dealt with here, not because the provisions in the Westminster bill are bad—unlike Lord James Douglas-Hamilton, I do not think that—but because there is a particular Scottish dimension to those matters, culturally and legally. We will tackle those matters here, take into account all the interests in Scotland, consult widely and deal with the issues as we think best.

That shows the balance. Where it is appropriate to put provisions through the Westminster system in a Sewel motion, we will do so for good, responsible reasons. Where there are matters that we should deal with here, we will do so. The motion and the proposals in the bill strike that balance. Although I agree with Roseanna Cunningham that we need to be careful with Sewel motions, we have the balance right in this instance. We should agree to the motion.

A simple statistic says it all. If we pass the Sewel motion today—I hope that we do not—the Parliament will have passed 25 Sewel motions. We have only passed 23 items of legislation. Sewel motions are now not the exception, they are the norm. We ask others to legislate more often than we legislate ourselves. Those are the simple facts of the matter. That alone should make us pause to decide what to do today.

I agree with Gordon Jackson—this is the only point on which I will agree with him—that Sewel motions are a possible and legitimate tool, on occasion and in specific circumstances. In the early days of the Parliament, the Sewel motions that we discussed were agreed among the parties because they dealt with small matters of legislation in a larger United Kingdom bill. That was true of the Financial Services and Markets Bill, the Limited Liability Partnerships Bill, small changes under the Representation of the People Bill and the small details of the Insolvency Bill.

However, what we are asked to do in passing this motion is different. We are asked to approve a major item of legislation with enormous impact on Scotland on the basis of an hour-and-a-half's debate and a vote at 5 o'clock.

Allow me to develop my argument, please.

To pass such legislation in such a way is the wrong thing to do for three clear reasons. The first is not to do with the Parliament, but to do with the country. Scotland, as the minister said, is not immune from a terrorist threat. It is absolutely right that the Government of Scotland engage the people of Scotland in debating the appropriate response to the present international situation. That is happening in every country in the western world and beyond. As members know, Lord James Douglas-Hamilton and I were in Canada last week. There, a major piece of legislation on terrorism is working its way not just through the federal Parliament, but through the provincial Parliaments. That is the way in which the Canadians are deciding on their response to the world in which we now live. This Parliament is being denied the right to do so by the Scottish Executive. The Executive is denying Scotland the right to do so. When the Scottish Government is asked how it is going to respond and how Scotland is going to respond, its answer is incredible. Its answer is "Somebody else will do it for us".

I will let Mr Brown intervene in a moment.

We cut out the possibility of engaging Scotland in the debate and getting the whole-hearted support of the people for measures that may be necessary to defeat worldwide terrorism. I can understand that the Labour party may be more concerned with internal matters than with the governance of Scotland, but surely the obligation on that party is to lead Scotland, not to abrogate its responsibility.

Does Mr Russell accept that he is once again raising the constitutional issue in a debate on a Sewel motion? Does he accept the constitutional settlement for the purposes of the bill? Is he suggesting that particular measures in the bill are significant policy matters within the powers of the Scottish Parliament that should be dealt with here, rather than accepting the considered view of the justice department and the Executive on the matters that they have said should be sorted out in this way?

I have just made that point. The most important issue—I will repeat it in simple terms for Mr Brown—is to engage Scotland in the debate, not to cut Scotland out of it. In that way, we will get the full assent of the people of Scotland to the measures that may be necessary.

I am sorry, I will not give way. I must make progress.

A second, strong issue arises. There will and must be appropriate developments in Scottish institutions to take account of the changing world. The Sewel motion does not allow those institutions to change. It freezes the debate. It says that such decisions are always made elsewhere, as in Gordon Jackson's remarkable contribution. Such decisions are not always made elsewhere.

An obligation is on us to consider the best response for Scottish institutions and allow them to change and develop. That is being denied in the debate, which is entirely wrong. We will be left with a set of devolved institutions that have not responded and that Scottish democratic politicians have not been able to help to develop.

There is a third, even stronger, reason to be worried about the Sewel motion. If we pass it, we will assent to certain measures that are anti-democratic. We are a small European country. We value liberty greatly. We have assented to the European provisions on civil liberties. By passing the Sewel motion, we will be saying that we no longer care about those provisions. I regard it as astonishing that the Liberal Democrats, who have a strong track record in such matters and are saying in Westminster what I am saying, should say it in this Parliament, but that their votes should not follow their voice.

I am sorry. I will not give way to Mr Smith.

What happens, as usual, is that the Liberal Democrats say, "We have some objections, but we're not going to do anything about them."

There are three strong reasons to be worried about what is happening in the Parliament today. There are three strong reasons why we should pause before we agree the motion. For me and for the SNP, there are three strong reasons why we should oppose the motion.

It is sad that we have to have the debate at all. We should all think about the circumstances that lie behind it. On that basis, Gordon Jackson's comments, which reminded us of the reasons why we are debating these issues, are important.

It is also sad that SNP members seem to be using the constitutional argument again. I acknowledge their feelings about Sewel motions, but the SNP has to acknowledge that, on occasion, there is a need to legislate on a UK-wide basis. We see regularly in the chamber that SNP members cannot get into their heads the fact that we are still part of the United Kingdom.

I accepted the fact that there are occasions on which we need to legislate on a UK-wide basis. Does the member believe that there are more occasions on which we should do that than occasions on which we should legislate ourselves? The figures that I gave showed that there are more occasions on which we allow other people to legislate than occasions on which we legislate ourselves. If he agrees with that position, why did he bother to get elected?

The member has already acknowledged the amount of legislation that has gone through the Parliament. Legislation is not pushed through on a whim after deciding on a title; a lot of thought and detail lies behind each piece of legislation.

The fact is that there are 72 Scottish members at Westminster who consider issues that affect Scotland. They will have a major role to play when the bill comes before the UK Parliament.

I take up Roseanna Cunningham's comments. She suggested that we would be lucky to get one Scottish member on the committee that considers the bill. I expect more than luck to be involved; I expect there to be Scottish members on that committee. I expect the Scottish Executive to use its influence to ensure that that happens.

I turn to the wider issues in the bill. A number of ECHR issues come to mind. A constriction is placed on the Scottish Parliament. Under the Scotland Act 1998, as I understand it, it is not permissible to debate in the Parliament a number of the issues in the bill because they would contravene the ECHR. That is not the case in the UK Parliament, which allows its members to consider the issues on a wider basis.

I was pleased to hear the minister comment that the religious aspects of the bill will be dealt with in the Scottish Parliament. I believe that we could make grave mistakes if we were to take the line that David Blunkett is considering. We have only to consider the complications of our laws, the difficulties that the police have in bringing charges and the difficulties that we have in finding time in courts for serious offences to recognise that we must debate thoroughly that issue in the Parliament when the time comes.

I said that it was sad that we had to have this debate. There is, however, always a silver lining. I believe that we can take advantage of the legislation to freeze assets. We have all expressed concerns for a long time in the Parliament about the way in which drug dealers and other serious criminals accrue massive wealth, but seem to go untouched. It is my recollection that one of the Sewel bills that we passed would allow the UK Parliament to legislate in the area of freezing assets on a UK basis. Perhaps the bill will give more impetus to the freezing of assets not only in terrorism, but in drug dealing and serious crime.

I say to the minister that there are advantages and disadvantages to deportation. There could be advantages to rejecting and turning back individuals who are likely to cause massive disruption and problems in our country in the long term. At the same time, there is another element. As I understand it, one of the objectives of the war in Afghanistan—a war in which Scottish soldiers and airmen are involved—is to put countries in a position in which they are obliged to surrender to other legal systems individuals who have erred on the terrorism trail. If we were to take up an automatic deportation stance in every instance, somewhere along the line we could lose out on the opportunity to keep a known terrorist in a place in which we could identify him as being so and have him available for extradition.

Finally, I have a hypothetical question for the minister that is perhaps relevant to the ECHR. What would happen if we had bin Laden in Scotland today and the Americans applied for his extradition? Would Scottish law allow us to extradite bin Laden to America?

Nobody disputes that what happened on 11 September was an abomination, that the world has changed irrevocably—as numerous people have said—and that some legislative changes will be required. However, two matters must be addressed. First, how do we bring those changes into Scotland? Secondly, how do we ensure that the legislation that is brought in reflects our distinctive culture, nature, geography, demography—and whatever else? Things are distinct and different here. The one-cap-fits-all solution for the United Kingdom does not go well here. One just has to look at the use of statistics for the Terrorism Act 2000 to see that what is necessary for the greater London area does not reflect, and is not required for, the situation here.

We must make two points. The first is about the use of the Sewel motion, the second is on the question of detention. On the Sewel motion, there should be a presumption that wherever the Parliament is competent or capable we should address matters and legislate here. That should be taken as read, not simply because the matter of the Sewel motion is within our competency and capability, but because it impinges on and affects other bodies and institutions. We are competent in this matter and capable of acting on it. Failure to do so will impinge on our distinctive legal system and police forces, which will be fundamentally affected by what is happening in Parliament on this matter.

It is not just a matter of saying that we have competent and capable people within the chamber—there are many, whatever the tabloid press might think. We also have competent and capable people within our legislative and police networks. Just yesterday we appointed a new Lord President and a new Lord Justice Clerk. Lord Cullen, the Lord President, is highly thought of, not only within Scotland but throughout the UK. After all, not only did he do the Piper Alpha report, he was also taken down to do the report on the Ladbroke Grove rail disaster and he has done an array of other matters. For a panoply of matters the cry was, "Get in Lord Cullen. He is the best man that there is."

Yet what are we saying here? We apparently do not have the knowledge to consider the terrorism matter distinctly and individually. We will just take on a plate what comes from down south. Not only does that impinge upon Parliament's ability and capability, it also fundamentally impinges on the ability and capability of others in other institutions that are equally important and valid in our society.

It also fundamentally affects our legal system, because our ancient and modern law has taken the view that detention without trial must be considered extremely seriously and avoided at all costs. I am always amazed—as are others in the chamber—by the limited knowledge that Scots have of their legislative system. Those such as Gordon Jackson and Lord James Douglas-Hamilton will have had jury trials where people did not know that we have 15 jurors and that we do not have opening speeches. That is understandable, because the mass media is geared towards a system that reflects what happens south of the border or in the United States. People know more about those legislative systems, irrespective of "Taggart" or "Rebus". However, when we as a Parliament take this stuff just willy-nilly, it is no wonder that individuals in Scotland do not know about their distinctive legal system. All that we get fed by those in power is, in fact, a system from elsewhere. If we want to make sure that people know—

Will the member give way?

Yes.

I have listened to what Kenny MacAskill has said in his great defence of the Scottish legal system, but can he tell us—leaving detention aside—what proposals in the Sewel motion he regards as destroying in some way our distinctive legal system?

We cannot ignore the matter of detention—that is fundamental. The whole ethos of detention refers to such matters as Magna Carta. The fact is that, in terms of our legal system, the 110-day rule is sacrosanct, as Gordon Jackson knows. That rule has been applied for centuries and generations because the view has been that people should not be detained eternally without trial. That is why the 110-day rule is a cardinal aspect of our legal system. This motion is ripping that up and throwing it away. We cannot accept that. We have now, in our modern age and after great debate—whatever Phil Gallie and others might have thought—invoked the ECHR because we viewed that as a fundamental tenet of where we Scots see Scotland in the new millennium and in the 21st century. We brought in those individual rights to add to and bolster our legal system. By introducing detention without trial through today's motion, we are ignoring that. Detention without trial is anathema. We are a western, northern-European democracy, so let us consider which other ECHR countries are bringing in such measures. Is detention without trial being invoked in Sweden or Finland? Is the Republic of Ireland introducing it? That country has problems with terrorism equal to ours, but it is not rushing to introduce these measures, because it is considering matters.

Who in Scotland would we be dealing with through the imposition of detention without trial if they cannot be deported or extradited and dealt with by an international criminal court, and if they cannot be found guilty of a criminal offence in this country? Imposing detention means passing a Sewel motion, which undermines the jurisdiction not just of the Parliament, but of our legal system. Detention is fundamentally wrong, not just in Scotland and in the context of Scotland's legal history, but in any modern democracy.

I am convinced that, if we are to have effective anti-terrorist legislation, it is important, even essential, for that to be dealt with on a UK-wide basis. That is right and proper in the case of most of the issues concerning devolved matters, such as how to implement European justice and home affairs council measures on the new powers relating to the security of premises holding harmful substances and on police powers to access information about passengers.

As Gordon Jackson and others have said, we have not heard from the SNP to which detailed points of the Sewel motion its members really object and think should not be dealt with by the Westminster Parliament. It is right that most of the devolved matters concerning the effects of the anti-terrorism legislation should be dealt with at Westminster, but some of the provisions in the Anti-Terrorism, Crime and Security Bill would not suit that approach, because Scotland's circumstances are different to those that obtain south of the border.

In particular, the religious hatred provisions of the bill are not appropriate here. That is why Jim Wallace, the Minister for Justice, has decided that we will not use the Sewel motion for the measures that are proposed in that area. Why are those measures not appropriate? Because they do not work. Such legislation is in place in Northern Ireland, but it does not work and people are not prosecuted under it. It is completely ineffective, and simply pays lip service.

My colleague Donald Gorrie has introduced a draft bill to the effect that, if someone uses religious intolerance in aggravating an offence, it should be treated appropriately. That is the most appropriate approach, not the creation of new criminal offences for which nobody is prosecuted; that is a ridiculous approach. I am delighted that Jim Wallace has decided not to take us down that most ineffective of routes. We need to tackle religious hatred through the route offered by Donald Gorrie—through the aggravation of offences. I would appeal to the Minister for Justice to consider adopting Donald Gorrie's bill and progressing it.

I turn to Roseanna Cunningham's comments. She, quite rightly, referred to my Westminster colleague Simon Hughes MP. There are real objections to the subject matter of the UK bill, namely:

"There is not an expiry date for the majority of emergency powers in the bill. This is unacceptable".

The emergency powers in Northern Ireland have to be renewed every year. Furthermore,

"emergency powers restricting liberties"

could only be supported by parliamentarians

"if they have strict time limits and are in place for the shortest possible time."

I was quoting my colleague Simon Hughes.

Robert Brown highlighted the authoritarian nature of some aspects of the bill being considered at Westminster, such as the removal of ECHR provisions. We have discussed internment without trial. In fact, we are to have internment, by a politician, without trial. I have to take issue with Gordon Jackson: I found his comment on this point rather bizarre. The idea that somebody here who cannot be extradited because they face torture or death might simply decide to leave of their own volition, and that that is quite all right, is a bizarre approach.

That was the minister's point, not mine.

I stand corrected. Gordon Jackson's comments were not bizarre; the minister's comments were bizarre. I am glad that Gordon corrected me on that point, and I apologise to him. It is quite correct that, if blame is to be apportioned, it should be apportioned properly.

The Liberal Democrats support the way in which we are tackling the issue. Most of the measures are reserved and are, quite rightly, being dealt with by the Westminster Parliament. There are many devolved provisions that should be dealt with by the Sewel motion, and there are two or three that will not be covered through the Sewel device. We will debate those fully in the Parliament, so that we can have Scottish solutions to Scottish problems.

We were all shocked by the events of 11 September. It is right and proper and responsible that the nations that make up this state take action to protect themselves and their citizens and contribute to international anti-terrorism efforts. The prevention of terrorism, as an aim, is undoubtedly a good thing. However, it does not automatically follow that any legislation on the prevention of terrorism will automatically and undoubtedly be a good thing. It needs to be tested and challenged and, after two months of preparation, to have only a day or two of consideration on the Scottish areas affected is not acceptable.

We have two areas of doubt with regard to the proposed legislation. We have doubts about how we deal with the devolved aspects of Scots law, and we have doubts about the internment proposals in the UK bill. We have serious concerns on a point of fundamental principle regarding the right to trial and the effectiveness of detention without trial. We have serious concerns about the effect of that on the Scottish criminal justice system.

Furthermore, I am concerned about the human rights aspects. Other members have dealt with and will deal with that matter, but I ask members to reflect on what other nations, for example the United States, are doing. The new anti-terror laws being adopted there allow foreigners awaiting deportation or charge to be detained for only seven days. That is different from what is being proposed in the Anti-Terrorism, Crime and Security Bill, and we should reflect on that.

I will turn to the legislative aspect. Gordon Jackson and Mike Rumbles, for example, have asked what parts of the Sewel motion we are opposed to. I will make it quite clear. It would not matter if SNP members were to support all aspects of the areas that the Executive wants to give over to Westminster—that is not the subject of the debate. The debate is about whether we should consider those aspects in this chamber or allow them to be considered down at Westminster. If some members do not understand that, no wonder 25 Sewel motions have been passed unopposed by the Parliament.

Fiona Hyslop makes an absolutely correct point: that is exactly the purpose of the debate. The question that members have been asking is why, therefore, so much of SNP members' time has been devoted to discussion of a matter that is manifestly reserved and manifestly not the subject of today's debate.

Exactly. The motion before us is printed on page 23 of the first version of today's business bulletin. It is interesting that the Executive recognised overnight that, had it left the motion as it was, without reference to the Executive memorandum, it would itself be allowing and instructing the UK Parliament to cover aspects relating to all devolved matters.

How is detention without trial practised? Does it not involve the Scottish police forces? Does it not involve the Scottish criminal justice system? Of course it affects devolved matters. If ministers themselves suddenly recognised, only the night before, that they had to reduce the scope of their motion, they are recognising the danger that the Government is turning Sewel motions into a pick-'n'-mix. Ministers have chosen the bits that they want—and I am pleased that they have taken responsibility for crimes of racial hatred—but that is still a pick-'n'-mix. They cannot treat Scottish legislation and the Parliament in that way.

We must ensure that we have responsibility. We have been consistent in our arguments. We opposed a Sewel motion sometime last year when we were considering a question relating to the military police. Either we take responsibility for our actions seriously, or we do not. This is a very serious matter.

I would challenge the Conservatives: if they consider the list of provisions that they would want to oppose at Westminster, they will find that those cover the areas covered by the Executive memorandum. Would it not be better if the Parliament's justice committees had more time for consideration of such matters? The Scottish Conservatives should remember that they have only one MP. Are they seriously saying that they can better defend Scots law with one Tory MP at Westminster than the justice committees and the whole Scottish Parliament?

We must guard our Scottish justice system jealously and we must guard our citizens from attack. The two things are not mutually exclusive. The Scottish Parliament can and should deal with issues for which it is responsible under the Scotland Act 1998. I fail to be convinced that we should not take up those responsibilities. I am not convinced by the arguments that the Scottish Executive has made in the chamber, because we can and should deal with these issues.

Like many members—including, perhaps, even Roseanna Cunningham—I had hoped that John Sewel would participate in the proceedings of this Parliament as a member. I agree that we should be careful in handling the parameters of the devolution settlement and when scrutinising business such as today's.

We have heard Mike Russell's arithmetic, but we do not measure legislation by arithmetic. The Parliament can make judgments on Sewel motions, and I urge members to make a judgment on this one. When making such judgments, we must be mindful of the circumstances in our country. This is not a question of being ahead of the game or of giving way to Westminster. The imperative of finding terrorists and preventing their attacks requires energetic use of all the legal authorities and instruments that are available. We must ensure that civil liberties are not the first casualty of war, because terrorist attacks threaten more than the tragic loss of individual lives: some terrorists hope to provoke responses that undermine our democratic systems of government. As political leaders, we must find an appropriate balance by adopting counter-terrorism policies that are effective while recognising and respecting the democratic traditions that are the bedrock of our strength. I, for one, am not sure what the position is. However, I am pretty confident that it is not the same as the position in 1993.

Combating terrorism should not be used as a pretext for discrimination against any segment of society. Terrorists often claim to act on behalf of ethnic groups, religions or even entire nations. The Irish Republican Army used to say that it spoke for people with surnames like mine. It never did. Claims of that sort are always false.

In Northern Ireland, where internment was used most recently, it allowed the IRA to profit by taking refuge in the sympathy of the local population. Is that not a risk inherent in all internment procedures?

There is such a risk. No one can be happy about the extension of powers of detention, although we do not need to accept everything that Kenny MacAskill said in his outburst. I am mindful of the fact that the Government has sought to build safeguards and checks into the legislation. I recognise also that we and our Liberal Democrat partners differ on this issue on principle.

I understand that under the procedure that is proposed at Westminster a certificate will be issued on the basis of evidence presented to the secretary of state by the intelligence services. There will be a right of appeal to the Special Immigration Appeals Commission, which will include a High Court judge. It is possible that Kenny MacAskill will be lucky and that Lord Cullen will be among those to hear such appeals. However, I suspect that objections would then be made to the participation of Scottish judges in UK-wide activities. The commission will be able to examine the circumstances of the case before it and certificates will be reviewed on a six-monthly basis. I am mindful of the concerns regarding detention, but I am also mindful of the Government's legitimate attempts to make—

Will the member give way?

Yes.

Can the member give me an idea of the quality, origins or standard of evidence that will be used in these hearings?

If Lloyd Quinan would like me to, I would be happy to spend a couple of hours later helping him to answer that question. He may be asking whether guilt will need to be proved beyond reasonable doubt. I accept that different measures are applied in cases of the sort that we are discussing. Those measures were upheld recently by the House of Lords in the Rehman case. I refer the member to that case, the terms of which I am sure he is familiar with.

As an individual member of the Labour-Liberal Democrat partnership, I am somewhat upset that we do not intend to accept the bill's provisions on incitement to religious hatred. I do not see any difference between the threats and abuse that Muslim constituents of mine face in Bishopbriggs and the threats that Muslims in Bradford and other places face. However, I am conscious of the need to find consensus on that issue. We should see what we can do to tackle it in Scotland. I ask the minister to let us know what progress is being made in that regard.

Our position is different from that set out by Phil Gallie. I do not intend to support measures that would offer people the prospect of going only to countries where they faced torture and death. That seemed to be Phil Gallie's view. I know that he is obsessed with the ECHR, but we are dealing here with an obligation that we have, not under the ECHR, but as United Nations members. We must raise the level of debate on this issue.

Clearly, the principal issue at stake in this debate is the rule of law. In any state that is governed by the rule of law, if the state wishes to deprive someone of their liberty, it should prove the necessity of that. If someone is suspected of being an international terrorist, they should be put on trial for that crime. The principal issue that we are debating is the suggestion that there should be detention without trial.

None of the SNP members who have spoken so far has accepted that the issue of detention without trial has nothing to do with the Sewel motion that we are debating, which would not affect that issue one iota. In other words, the issue of detention without trial is being used as a device in this debate. Does Lloyd Quinan accept that?

I refute that totally. The principle that I am discussing is the right to a fair trial. The motion refers to a bill that would remove the possibility of fair trial from a number of people. For that reason, the issue of detention without trial is relevant to the debate.

I will not take an intervention at the moment from Mr Gray.

Historically, the use of detention without trial in this country has been a singular failure. The use of internment in Northern Ireland, where there was no burden of proof whatever, resulted in the arrest of 340 people in a 24-hour period, 160 of whom were released within 36 hours. A number of people who were arrested under those powers went on to win cases in the European Court of Human Rights against the British Government on the ground that they had been detained without trial.

During the Falklands war, members of the Argentinian armed forces who were living in this country were interned. That was a war. As Gordon Jackson pointed out, the circumstances in the first and second world wars that led to the use of internment were very different from the circumstances now.

Article 15 of the European convention on human rights, which allows states to seek a derogation from article 5 of the convention, says that such measures may be taken

"In time of war or other public emergency threatening the life of the nation".

Clearly, we are not at war, as there has been no declaration of war. There was a declaration of war during the first world war, the second world war and the Falklands war. The use of internment in those circumstances is radically different from its use at a time when no formal declaration of war has been made.

We must, therefore, assume that the derogation is being sought under the provision that refers to a

"public emergency threatening the life of the nation".

How does the direct threat to the life of the nation of Scotland at this time differ from the threat to this nation during 35 years of war with the Irish Republican Army? During that period far more casualties were caused in the United Kingdom by the actions of the IRA than by the actions of any other terrorist organisation, but the British Government did not require to seek derogation from the ECHR or to introduce a rolling programme of internment without trial.

The real issue here is the requirement that the special relationship be maintained. The United States wants one individual extradited. Under current British law, that individual cannot be extradited, so we are seeking derogation from an international treaty to allow the British Government to hand over people to a country that has the ability to issue a death sentence, which is entirely contrary to United Nations conventions. That is the principal reason that we are discussing this issue.

As members have said, in the past week much has changed in the conflict in the Hindu Kush. Do we face the same level of threat that we faced last week? If so, I would like the minister to tell us exactly what the threat is. Is it greater than the threat that we faced during the 35 years of attacks on the mainland of this country by the IRA? If so, let the minister tell us that right now or state clearly his reasons for not providing us with a straightforward answer to the question, "What level of evidence will be required for the power of detention to be invoked?"

If the minister cannot do that, I must simply say that the bill will be bad law, which will have been rushed in as a knee-jerk reaction to a particular event. For the Government, the most important thing is that the bill will seal the special relationship between the poodle and the lamppost of the United States and the UK.

We now move to wind-up speeches.

As some members have said, today we are discussing not the wider implications of the Anti-Terrorism, Crime and Security Bill, but the Sewel motion. I am concerned about the process that we use for such motions. Perhaps the Procedures Committee will consider, in early course, how the Parliament deals with them. Before Sewel motions come to the Parliament, committees should have as adequate an opportunity to scrutinise them as they normally have with other motions.

My concern arises from the truncated time scale to deal with the Sewel motion, which relates to a major piece of Westminster legislation. The bill was published on Monday; today, Thursday, we are considering the Sewel motion. The bill includes 125 clauses, which run over 70 pages, and an additional eight schedules, which run over a further 41 pages. I am concerned that such a complex bill is being rushed through Westminster with a time scale that is inadequate for proper consultation and scrutiny. It would be preferable if the Scottish Parliament had more time to consider the Sewel motion.

As Robert Brown remarked on behalf of the Liberal Democrats, it is important to remember that our support for the Sewel motion should not be taken as support for the Anti-Terrorism, Crime and Security Bill. I do not agree with the concluding remarks of the minister's opening speech, in which he stated:

"We consider the Anti-Terrorism, Crime and Security Bill to be a proportionate and carefully targeted piece of legislation."

Given the derogations from the European convention on human rights, the bill is not an appropriate and proportionate measure. Lloyd Quinan made some valuable points about how the level of risk will be defined. Once the bill is enacted, how will the passing of that risk be defined so that the bill can be removed from the statute book? The fact that the bill contains nothing to indicate how that would happen is extremely worrying.

Will the member give way?

I have only four minutes. I have used up half my time already and am barely started.

Human rights are fundamental. They are not a menu from which the Government can pick and choose at will. The purpose of human rights legislation is to protect us from the will of Government. Detention without trial is not acceptable to me as a Liberal. I agree with John Wadham, the director of Liberty, who says of the bill:

"The Government intends to jail people not for anything they have done, but for what the Home Secretary thinks they might have done or might do in the future. This punches a hole in our constitutional protections—and the Government can only get away with it because they're using it against foreigners."

That is an important point. He continues:

"Why is it that none of the other 40-plus European countries that have signed the Human Rights Convention feel they have to do this?"

I agree with those points. I also agree with my colleague Simon Hughes MP—although only to an extent; he should perhaps have gone further—who said on Monday:

"Everybody must have the right to have their detention reviewed by the courts."

That is an absolutely fundamental human right, which must be kept. He also made the important point that we Liberal Democrats

"shall seek to build the broadest possible political coalition to ensure that we do not give up on democratic or human rights at home, just at the moment when we are so energetically campaigning for them abroad."

The problem with the SNP's amendment is that it shows that the SNP does not understand the constitution. This morning's debate is not on the Anti-Terrorism, Crime and Security Bill. Even if the Parliament were to debate the bill and vote against it, that would make no difference because Westminster could still pass the bill; the measures that cause us concern—such as detention and the derogation from the European convention on human rights—could still be passed by Westminster, whatever the Scottish Parliament says. Today, we are debating only what is in the Sewel motion, which we need to consider on its own merits.

Will the member give way?

No, I must conclude.

The bill contains 10 proposals that relate to devolved responsibilities. The Executive has said that three of them will not apply to Scotland and the Parliament has agreed to Sewel motions on two others in the past. That leaves us with only five. Of those five, it makes sense that information on passengers, European justice and home affairs legislation—which would be subject to scrutiny by this Parliament—security of premises and dangerous substances should be dealt with consistently on both sides of the border. Indeed, I tell Roseanna Cunningham that premises in my constituency have been subject to a number of hoax packages and threats, some of which occurred even before 11 September. We know the need for the bill.

I have some concerns about the bill's provisions on DNA and fingerprinting, but such concerns can be dealt with when the bill is considered at Westminster. I support the Sewel motion. However, I believe that we need to review the process for Sewel motions and I ask the Procedures Committee to do that. I have concerns about many of the reserved matters in the bill, but those are not matters for debate in the Scottish Parliament. Those matters will be vigorously opposed by the effective Opposition at Westminster, which is the Liberal Democrats.

I shall deal with the amendment presently, but it is appropriate that I begin by expressing the genuine regret from all parts of the chamber that the bill is necessary. The reasons for the bill are self-evident. As Iain Gray said, an uneasy and difficult balance is required, but it is essential to defend our interests. The reality is that the lives of our people are under threat.

Some may advance the argument that we have been too soft for too long. However, our view on civil liberties is that our basic fairness has deterred us from taking such steps before now. The events of 11 September demonstrated that others have no such inhibition. We will support today's motion, but our colleagues at Westminster will oppose certain aspects of the primary legislation.

Let me turn to the SNP's amendment. The best way to destroy one's case is to overstate it. Basically, the SNP is fighting on the wrong issue. I know that SNP members sincerely hold the view that there are too many Sewel motions, but I suggest in the strongest terms that today's motion is not one with which they should take issue. The issues are far more serious than the SNP's wish to revisit the devolution settlement.

Does Bill Aitken accept that when Winston Churchill introduced emergency powers legislation, as a result of getting a bullet in his Afghan coat when attending the Sidney Street siege, he laid the basis for a whole series of acts, such as the prevention of terrorism acts, all of which were passed without adequate debate? To deprive this Parliament of contributing to the debate will lead to bad law and to all the consequences that my friends have mentioned.

We are debating the motion today. I do not recall that there was any request from the SNP's business manager for a longer debate on it. I am sure that such a request would have been granted, had it been made.

She did ask.

The member states that the SNP business manager did ask for a debate. Even so, the SNP has the facility to use its own time to debate the matter. It is obvious that the SNP would do that if it considered the issue sufficiently important. In the main, the SNP has failed to address the serious issues.

However, Kenny MacAskill was right to deal with detention, as that is an important matter. All of us are uncomfortable with the concept of detention without trial. As Brian Fitzpatrick pointed out, however, an appeals mechanism will be put in place to cope with the inadequacies of such a system, so there will be a safeguard. Obviously, we would prefer there to be no detention without trial but, with the safeguard in place and in view of the present situation, we have no option but to go ahead with that.

The Liberals' contribution to the debate has been characteristically idiosyncratic. They appeared to object to the terms of the bill but, in their usual supine manner, they will support the Executive's Sewel motion. Most people would find the Liberals' position a little inconsistent, but—after all—we are talking about Liberals.

Of course we all wish that we did not need to debate this serious matter. When the bill is considered at Westminster, the Conservative representatives will take issue with a number of aspects. We are unhappy with the clauses on the incitement to religious hatred. We would defend the liberties of vulnerable faith communities, but we think that those provisions are perhaps unnecessary.

We argue that, rather than invoking the powers of detention, the Home Secretary should take steps that would allow him to remove dangerous foreign nationals from the country. That would answer many of the worries and it would get those people out of the country, perhaps preventing terrorist outrages. Such issues will have to be addressed.

It is unfortunate in the extreme that SNP members should have chosen such an issue on which to advance their well-documented detestation of Sewel motions. This is a united kingdom, and will long remain a united kingdom. If we were to legislate separately, and if there were inconsistencies between English and Scottish legislation, a chaotic situation would result. That would do no one any good whatever.

Bill Aitken appears not to have been in the chamber on the numerous occasions when SNP members have made many of the same points about previous Sewel motions as we are now making about this Sewel motion. Indeed, I managed to refrain from doing a simple cut-and-paste job on previous speeches; I have changed the words this time for the sake of my sanity. We have made this argument consistently and we will go on doing so. It is about the fundamental constitutional settlement for this Parliament. Every Sewel motion, by its existence, goes to the heart of that.

I go back to Donald Dewar's comment—which I notice no Labour member has mentioned—that it was not expected that we would deal with Sewel motions very often. In fact, we are dealing with them practically every week. Something that Donald Dewar did not expect to happen has, indeed, happened.

In my opening remarks, I should have said that we applaud and support the Scottish Executive opt-outs. We look forward to Executive proposals on religious hatred. I concede that that will be a difficult issue, but we must consider it in a Scottish context. However, the same argument can be extended to the remainder of the proposals in the Sewel memorandum.

James Douglas-Hamilton reminds us that detention without trial—or, more properly, internment—will apply only to foreign nationals. I appreciate that the Government has tried to draw the terms narrowly. However, I am not sure that that narrowness helps in the current situation. The pool of potential detainees remains pretty large. They will all, I presume, be Muslims. On past performance, the majority of people who are picked up will be innocent of the charges—or the not-charges of the current proposal. That means that, in one part of the bill, we may do something that we are trying to avoid in another part, with regard to racial aggravation and hatred. The bill will focus on just one religious group in this country.

Iain Gray's astonishing intervention, when he said that detention could be ended by the individual's leaving the country, was unworthy of him. If he had thought a little more carefully, he might not have got to his feet. What he said implied that, if a person was wrongly suspected, that is too bad. That is a bit like witch-finding: bind them with stones and throw them in the water—if they sink they are innocent but if they float they are guilty. Heads the accuser wins; tails the accused loses. The proposals will put people in that ludicrous position.

To Gordon Jackson, I say that much of the memorandum does not necessarily relate directly to current international circumstances. We know that because at least two of the items under discussion were proposed nine months ago and were dealt with in previous Sewel motions. Please do not let anyone argue that everything in the memorandum is an emergency response to the current situation. It is not.

I am not saying that the bill is all about an emergency situation, but I still ask Roseanna Cunningham what parts of the Sewel motion are really objectionable in principle.

That does not really matter.

As my colleague says, that does not really matter. I have already spoken about one part of the memorandum as an example; Mr Jackson chose to forget that and pretended that I had taken it in isolation.

Robert Brown said that the SNP continually uses Sewel motions to raise constitutional issues. He rather misses the point. Does he not understand that the very introduction of a Sewel motion is a constitutional issue? Having a Sewel motion means that we are arguing for a departure from the agreed constitutional set-up. That is the point. Mr Brown also spoke about onus. He is saying that the onus is now on us to say why we should not depart from the constitutional set-up of this Parliament, instead of its being on the Executive to say why we should depart from it.

I am not arguing that certain measures in the bill are not necessary. However, there is no practical reason why we should not legislate on them in this Parliament. I note that some of the proposals extend to all criminal investigations, not just to terrorism. That is an aspect that Gordon Jackson may have wished to consider. Some issues in the memorandum could be commented on. For example, secondary legislation will now be used to implement European Union decisions. The Parliament may have wanted to consider that in a bit more detail—perhaps the Tories would have had something to say.

As for hoaxes and special statutory offences, there is a continual debate in this Parliament about whether the existing common law is sufficient or whether we need more specified offences. I would have thought that Gordon Jackson—a leading Queen's counsel, as we are continually told—might have had something to say about that.

We could reasonably have debated a number of the issues in the memorandum. However, we have had only 24 hours to consider them. Perhaps Gordon Jackson's brilliance allows him to master, in 24 hours, every item in the memorandum, but I suspect not. The point is that we cannot even have a proper debate about the issues, simply because of the way in which the memorandum has been presented. That is why I am asking for support for the SNP amendment.

I acknowledge—I will return to this point—that the bill is large and complex. Roseanna Cunningham is right: it deals with many important issues, some of which are very difficult. In normal circumstances, such matters would not proceed without lengthy and protracted scrutiny. However, these are not normal circumstances, as we all agree. The Government decided that the attacks on New York and the associated risks warranted a quick response—although not a rushed response. Two months have passed. That is not a long time but it means that this is not an immediate or knee-jerk response. The Executive supports that robust and comprehensive UK response to the terrorist threat.

It is important to put on record once again that the bill does not represent a rewriting of our legislation on terrorism, criminal offences or policing. Such an overhaul certainly could not be conducted properly in the space of two months. The bill is a targeted collection of specific measures. It is true, as Roseanna Cunningham says, that some of those measures have been considered previously, as they were thought to be of use. However, the point is that they are now more urgent. That is why they are included in the bill.

May I ask the First Minister—the First Minister! That is perhaps too soon, although on the basis of last week it may not be. May I ask the minister whether his remarks also apply to the aspects of the Sewel memorandum that will extend to all criminal investigations, not just to those that are connected with the current international situation and international terrorism?

The clauses to which Roseanna Cunningham refers deal with issues where there may be a connection between terrorist offences and criminal offences. For example, under the Terrorism Act 2000, DNA and fingerprint samples may be taken. The changes that we want to make will mean that fingerprint evidence taken from a stolen vehicle may be cross-referenced to records taken during previous terrorism investigations. Terrorism and ordinary criminal activity are linked.

The bill tries to fine-tune and make more effective the existing legal framework in different ways. In the circumstances, its introduction is not inappropriate. I made it clear that on issues to which we want, and there is a reason for, a distinctive approach, we have effectively opted out of the Westminster bill. I am pleased that nearly every speaker has welcomed that. The issues that require a distinctive approach are religious hatred, corruption and the removal of face coverings.

Because we do not see the need for a distinctive Scottish approach on the other measures, we have sought to proceed with them by way of a Sewel motion. In the circumstances, the advantages of a rapid UK-wide approach take precedence. It is extremely important that it is open to the Parliament to amend in future any of the proposals that we sanction today for inclusion in the Westminster bill. The fact that we are using a Sewel motion does not mean that we will somehow lose our competence to legislate on such matters. Roseanna Cunningham is right that some of the measures—on hoaxes or the others that she referred to—might require further examination, with more time and perhaps the consideration of amendments. That is entirely within the power of the Parliament.

Lord James Douglas-Hamilton quoted Councillor Bashir Maan. I take this opportunity to associate the Executive with Councillor Maan's remarks on UK citizens who encourage other UK citizens to take up arms against their country, which is deplorable. Councillor Maan expressed his views on the issue eloquently, as we heard today.

During the past number of years of troubles in Northern Ireland, UK citizens urged other UK citizens to take up arms against Britain. Why did we not have similar legislation during that period?

I said that I deplored those actions, and I deplore them in the circumstances that Lloyd Quinan describes.

Lord James Douglas-Hamilton and Roseanna Cunningham mentioned the power to implement European Union measures by secondary legislation. I have two points on that. First, the bill will provide an option, not an obligation, to use secondary legislation. Secondly—I repeat an earlier point—with devolved matters, the power is an option that would be exercised by Scottish ministers, so it would be subject to the scrutiny of the Parliament, although scrutiny of secondary legislation is different from that of primary legislation.

I reassure Phil Gallie that if Osama bin Laden were captured in the UK, including Scotland, it is our understanding that he could be extradited to the United States of America. When murderers have been extradited to the USA in the past, an undertaking that they will not be subjected to the death penalty has been given—that is what allows them to be extradited. In any case, New York state does not have the death penalty, although I am not 100 per cent certain of that. I believe that the situation that Phil Gallie described is resolvable.

The people of Scotland expect to benefit from the same protections that the bill will provide for the rest of the UK. They would not appreciate the constitutional niceties of an approach that could leave Scotland behind in time or in the rigour of the measures. The Scottish people would prefer us to compromise on our powers of legislation rather than to risk compromise on their security.

I think that the people of Scotland would be surprised and baffled by the SNP's arguments. The SNP argue that the devolved aspects of the bill are so important that we need more time to debate them. I agree that those aspects of the bill are important. However, the SNP used the time that it had to debate those measures, first, to debate the procedures of the Parliament—legitimately, in respect of a Sewel motion—and, secondly, to debate an issue over which we manifestly have no legislative power, as it is a reserved matter. Charged with that, Stewart Stevenson claimed that the devolved matters involved are trivial issues of less interest than tabloid gossip. Which case is the SNP arguing?

Will the minister give way?

No. I am sorry.

The minister is in the last minute of his speech.

Which is it? Are the issues so important that we should spend more time on them, or are they unimportant, the only issues that matter being the reserved ones, over which we do not have legislative power?

We are not being asked today to pass the measures in the anti-terrorism legislation; we are being asked to allow the UK Parliament to legislate in devolved areas after it has considered the legislation. We are certainly not being asked to extend powers of detention—we do not have that legislative power. I have made it clear that I support that extension. Other members have made it clear that they do not support it, but that they will still support the Sewel motion. That is an entirely consistent position. I can only assume that those members have confidence in their Westminster colleagues to do their job when the time comes. The question that has to be posed is why the SNP has so little confidence in its famous five, whom it sent to Westminster to stand for Scotland. They were going to stand for Scotland, yet Michael Russell says that they will be cut out. They will presumably be cut out because of the ineffectiveness of their voice in Westminster.

The Anti-Terrorism, Crime and Security Bill will help to undermine terrorist finance and it will prevent abuse of our immigration and asylum procedures by international terrorists. It will discourage the use of dangerous substances and associated hoaxes. The bill is a major one, but the circumstances are such that we are right to use the Sewel convention to move forward quickly and consistently throughout the UK. That must be our paramount concern. That is what Scotland's people would accept and it is for that reason above all that I commend the Sewel motion to the chamber.