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Terrorism Act 2006 (Disapplication of Section 25) Order 2007

Volume 694: debated on Tuesday 24 July 2007

rose to move, That the draft order laid before the House on 11 June be approved.

The noble and gallant Lord said: My Lords, the Government agreed during the debates on what became the Terrorism Act 2006 that there should be a requirement for the annual renewal by Parliament of Section 23 of that Act. Section 23 extends the maximum period of detention of terrorist suspects before charge from 14 days to 28 days. Section 25 of the Act says that the period of detention will revert to 14 days unless it is disapplied by order. The order before noble Lords today, therefore, disapplies Section 25 of the Terrorism Act 2006 for a period of one year, beginning on 25 July 2007, thereby extending Section 23 for another year.

Terrorism investigations can be immensely time-consuming and the increase from 14 days to 28 was necessary primarily as a result of greater use of encrypted computers and mobile phones, the increasingly complex nature of terrorist networks that have to be investigated—indeed, they have learnt from the way we have prosecuted them and chased after them and have become even cleverer at hiding some of these aspects of computers and mobile phone networks—and the increasingly international nature of terrorist networks, meaning greater language difficulties and a greater need to gather evidence from abroad. In a current case, we have had to approach 17 countries.

Such investigations may also involve properties where there is the possibility of CBRN material being present. It is against this background that we have to consider the most appropriate steps to protect our citizens from the threats posed by terrorists.

The potential consequences of a terrorist attack are of such magnitude that it is imperative that the police have the powers to arrest terrorists before they can achieve their goals. The scale and nature of the threat we now face means that, when a terrorist plot is uncovered, law enforcement agencies often have to intervene at a much earlier stage in the investigation than they would like, or would do in a normal criminal case. As a result, at the point of arrest, the information that the police have available to them may be based more on intelligence than admissible evidence. This is one of the fundamental ways in which terrorism is different from other crimes.

Therefore, unlike other forms of crime, proportionately more work needs to be done on the investigation after an individual has been arrested. The provisions for extended pre-charge detention to 28 days in the Terrorism Act 2006 take account of these unique difficulties and the decision to increase the pre-charge detention limits from 14 to 28 days has, I believe, been justified by subsequent events. It means that we have been able to bring forward prosecutions that might otherwise not have been possible. Since the power came into force in July 2006, six people have been held for between 27 and 28 days, covering two different operations. Of those, three were charged with terrorist-related offences.

I should point out that the existing application for an extension is a rigorous process. At present, those arrested can be detained for 48 hours, after which the police or CPS may apply to a judicial authority for an extension of detention warrant. The application is to a designated magistrate when the person has been in detention for less than 14 days and to a High Court judge thereafter. A CPS lawyer makes the application and the senior investigating officer is present. Defence solicitors are provided in advance of each application with a written document setting out the grounds for the application. The applications are usually strenuously opposed and can last for several hours. The officer may be questioned vigorously by the defence solicitor about all aspects of the case. Applications to extend the detention period may be made for up to seven days at a time up to a maximum of 28 days.

The conditions in which the suspects are detained are covered in detail in the relevant code of practice. They include ensuring that suspects have access to legal advice and that their welfare needs are met. Suspects can be held only for the purpose of obtaining evidence in relation to criminal offences; they cannot simply be detained for public safety reasons. That means that, once the police have exhausted their questioning of a suspect, the person must either be released or charged, regardless of how many days they have been detained. There has not yet been a case where 28 days has been inadequate but, as I said, all 28 days have already been proved necessary, and it is possible to envisage cases where the police will need more than 28 days in the future because of the increasing scale, complexity and sequential nature of operations.

We are consulting, and hope to achieve a consensus, on the period of pre-charge detention where, for terrorism alone, we believe that exceptional circumstances make it necessary to extend the maximum period of detention while ensuring rigorous judicial oversight and parliamentary accountability. That document will come out tomorrow and we hope to be able to get consensus on it. It is part of the wider consultation on the forthcoming counter terrorism legislation.

All of us, on all sides of the House, appreciate the seriousness of the terrorist threat that we face and the importance of having the right measures in place to counter that threat. This year alone, a total of 26 individuals have been convicted in eight terrorist cases. Terrorism is a huge international challenge but it is a particular challenge for democracies, which must strive to protect individual liberties while, at the same time, ensuring collective security. It is vital to strike a balance between protecting the rights of the detainee and ensuring that an investigation proceeds properly and effectively, enabling the police to deal with the complexity of modern terrorism investigations, thereby protecting the rights of our own citizens to live their lives in safety and security. I hope that noble Lords agree that this order achieves that, and I commend it to the House. I beg to move.

Moved, That the draft order laid before the House on 11 June be approved. 20th Report from the Statutory Instruments Committee.—(Lord West of Spithead.)

My Lords, the House will be grateful to the noble and gallant Lord for explaining the background to the order. It is easy to forget that in 1997—the year in which the present Government came to power—the time limit for detaining suspected terrorists was four days. That period had proved sufficient throughout the 25 years of Irish terrorism. The Terrorism Act 2000 increased the period from four to seven days. In my view, that was correct, even though four days remained the maximum for all other crimes, however complex or serious.

In 2003, the police said that they wanted more than the seven days provided by the 2000 Act. They said that they needed 14 days, and they gave very much the reasons that are now set out in paragraph 7.1 of the Explanatory Memorandum, some of which the noble Lord has gone through. I do not intend to go through them myself as they have been debated on many occasions in this House. Therefore, in 2003 the police were given 14 days.

In 2005, the police came back again, saying on this occasion that they needed 90 days, even though the reasons that they gave were exactly the same as the ones they had given in 2003 and even though the Association of Chief Police Officers had given evidence to the Constitutional Committee in the House of Commons that they had never needed more than 14 days. I need not remind the House that they did not get 90 days; they got 28 days, subject to a sunset clause. The sunset clause was important, for, as I understand it, it requires the Government and, in this case, the police, on whose advice the Government rely, to justify the original increase from 14 to 28 days in the light of what has happened during the past year; otherwise, a sunset clause is pointless. It is not enough for the Government to say that nothing has changed since a year ago. We are not now acting as a rubber stamp for what was agreed then.

So far as I can judge from what the noble Lord has just said, nothing material has changed. He has said nothing new to justify the original increase from 14 to 28 days, let alone any increase from 28 days. The only evidence that we have had in the past year is from Ken Jones, a senior police officer and chairman of ACPO. He told the Observer during an interview a week or so ago that the police were “up against the buffers” with the 28-day limit and that they needed to be able to detain suspects for “as long as it takes”. I do not know precisely what Ken Jones meant by that, but I hope that, when he comes to reply, the Minister will confirm that what he said does not represent government policy and that he will dissociate the Government from the remark made by that senior police officer.

As for being “up against the buffers”, I take the facts from the recent incidents in London and Glasgow, to which I think the noble Lord did not refer. No doubt it was those events that prompted the interview between Ken Jones and the Observer. Eight suspects were arrested; four were charged after eight, 12, 14 and 20 days respectively; three were released within 15 days; and one is still in hospital. Those facts do not suggest to me that the police were up against the buffers in that case. On the contrary, with the exception of the suspect who was detained for up to 20 days, 14 days would appear to have been ample for questioning the others. Of course, we do not know the evidence relating to the suspect who was detained for 20 days. There may have been special circumstances in his case; we do not know, for example, whether he could have been charged within 14 days but for some reason was detained longer. Perhaps the Minister will be able to enlighten the House about that.

That leaves only the airline bomb plot of August 2006. Again, perhaps the noble and gallant Lord can confirm that that is the only case on which the Government are relying since the 28-day period was enacted. In that case, 17 suspects in all were arrested; six were held for 28 days, of whom three were charged; and three were released. I do not know with what specific offence those three were charged. Perhaps the Minister can tell us. Perhaps he can also tell us whether they could have been charged after 14 days and, if so, how the additional 14 days were occupied. If they could have been charged after 14 days, why were they not so charged?

As for those who were released, he must tell us whether there is any reason to suppose that they could have been charged if they had been held longer than the 28-day period. With great respect, it will not be enough for the Minister to say that it is not the practice to comment on individual cases. That may well be so, but equally, statistics provided by the airline case do not help. Unless some particulars are given in relation to that case—and there is none other—we cannot in future be expected to renew the 28 days, let alone increase that period on the mere say-so of the police. I remind the House, if it needs reminding, that 28 days is already far beyond what is allowed in any other common law country, and is almost certainly in contravention of Article 5 of the European convention.

My Lords, I was unfortunately not here for the Minister’s speech, and I apologise for that. But I must intervene because, as the noble and learned Lord knows, we have a difference of opinion on this. There has to be a recognition that the period is up to 28 days, and that in each case renewal takes place week by week and is reviewed by a judge.

I refer to the case of the Indian who turned Muslim, whose name I forget, who was recently sentenced. The police, when looking at the contents of the many flats and houses that he controlled—something they could not do until he was arrested—found computers containing layers and layers of information and an enormous quantity of evidence that needed to be sifted, much of which was not only in Arabic but in peculiar, special forms of Arabic. There is no doubt in my mind—as there would be no doubt in the minds of the special services—that time is needed to look at such material, which cannot be accessed until the arrest has been made.

We must maintain the principle that cases have to be reviewed week by week by a judge, as recommended by the noble Lord, Lord Carlile of Berriew and the other noble judge. They both said that they felt that serious application of good judges, who were perhaps specially trained for this, would solve the problem. There would be justice if such people were looking week by week at a situation in which the forces of law and order needed time to look through vast quantities of material.

The forces of law and order also need time when they are following up clues to be able to talk to other services, and—surprise, surprise—the Pakistanis or Indonesians will not necessarily respond within 10 days or so to requests for confirmation. There can be nothing but justice for the public—as well as others—in giving the maximum possible chance to the forces of law and order to establish proof and evidence that can take people to court. If time is required for that, and there is a proper review every week, I contend strongly that the Government are in the right and that we should extend the time limit. I would prefer to see it extended further, but I know that there is probably not much hope of that.

My Lords, I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for presenting the reasons why your Lordships’ House has objected in the past to the extension of the period from 14 to 28 days. In this order, I have no difficulty in supporting the disapplication, but I very much hope that the Minister will take into account our concerns raised in the serious debates that have taken place in this House about 28 days.

I remember a few weeks ago reading an article by the Minister, in which he advocated the need to extend the period. I hope I am right about that. It is difficult to accept, because only a few weeks ago, the Government produced a Statement on issues of anti-terrorism and gave a commitment that there would be cross-party discussion on that. Rather than establishing the position now, that would be the time for parties to come to some sort of resolution. Unfortunately, Ken Jones of ACPO is now advocating a longer period, without necessarily having some restraint that allows us to have that political discussion to see where we go from there.

I do not want the Government to take it for granted that by approving this order at this stage we in any way subscribe to any extension of the period from 14 to 28 days; that must be subject to cross-party discussion, as was promised. This occasion must not be taken as a mini-rehearsal for putting forward the Government’s case for an extended period.

I remind the House of the requirements in other countries; the noble and learned Lord, Lord Lloyd of Berwick, was absolutely right,. We have moved so fast in extending the period from 14 to 28 days. First, there was a change from 17 to 14 only in 2003. Within two years, that moved from 14 to 28 days. It is a matter of concern when we consider other countries. In Canada, a suspect needs to be brought before a judge within 24 hours. In Australia, it is within 14 days. It is also 24 hours before a suspect needs to go before a magistrate in Italy and in Germany the period is 48 hours. We can deal simply with this order at this stage, but we must have a substantive discussion not only during the cross-party talks but when legislation is introduced. That will be the time to challenge the need for even 28 days.

My Lords, the issue before us is not whether we should be extending 28 days to something longer—I gather the Government will tell us a little more about their thinking on that tomorrow morning—but whether we should maintain 28 days or go back to 14 days. The Terrorism Act 2006 inserted a sunset clause about this matter, requiring us, once a year, to listen to the Government’s justification for the continuation of 28 days. If the Government are not justified, in our view, in sustaining the 28 days, we would be perfectly entitled to vote against this order.

As the noble Lord, Lord Dholakia, rightly said, or implied from his examples, we, of all liberal democracies, have the longest period of detention without charge—28 days. The sunset clause in the Terrorism Act requires the Government to justify, in terms, why we need 28 days but, by contrast, the United States requires only 10.

This matter was warmly debated in another place a few days ago. One of the issues addressed by the honourable Mr Dismore, a member of the government party, was precisely this point. He asked what specific analysis the Government have done to satisfy themselves that 28 days was needed rather than 14. He used the example of the airline bomb plot. The facts are that 24 suspects were arrested following the plot; 17 were charged; 11 were charged within 14 days; 6 after their detention was extended beyond 14 days, and two within a day of the 28-day limit. Of the seven not charged, four were released within 14 days and three within 28 days.

Your Lordships’ House is entitled to know what the Government make of those statistics. The honourable Mr Dismore asked four questions about them. Was the evidence upon which suspects were charged after 14 days available before the 14 days? How has the 28-day period enabled prosecutions to be brought which would otherwise not be possible? How did the longer period affect the urgency of how the police went about their work? How often were suspects questioned during this period, and for how long?

My noble friend rightly drew your Lordships’ attention to the judicial safeguards. The noble Baroness is absolutely right. They are there and are strict. But we do not know—for example, with respect to the airline plot—what questions the judiciary asked in responding to requests from the Government to extend this period. Mr Dismore again suggests that the Government ought to address this issue. Did the material before the judiciary provide reasonable grounds for believing that the suspect had committed a terrorism-related offence? Were there reasonable grounds for believing that further detention was necessary to deal with potentially probative evidence? That is the kind of response we would expect the Government to make to justify continuing the 28 days.

In the context of the history of this nation, a period without charge of 28 days is a very long one. It is a serious deprivation of liberty. It is right that the Executive should regularly seek to endorse it in front of your Lordships’ House and another place. I am afraid that there is, among some members of the Government, a view that the more you reduce liberty, the more you increase security. That is wholly fallacious. Quite apart from anything else, the longer that suspects are kept in detention without charge and then released, the more bitter their reaction will be to the authorities and the more disengaged they will become from the positive forces in our society. Moreover, the more we reduce liberty in response to the terrorist threat, the more the terrorists will think that they are succeeding in undermining the principles upon which our society is based, and the more determined they will become to succeed.

These issues are not to be taken lightly. They go to the root of our constitutional freedom. We are right to ask the Government to be much more specific about these matters than they have been today.

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, made a powerful speech this evening, as he has done on previous similar occasions, in the cause of civil liberty. He certainly made a justifiable criticism of Ken Jones for going so far as to rashly say that one ought to be able to detain someone for as long as it takes—a most unwise statement. It was no doubt not as carefully judged as the statements of the noble and learned Lord typically are, or those of the noble Lord, Lord Kingsland, who has spoken up in favour of individual liberty—again, in a powerful way.

However, I was more impressed by the speech of the noble Baroness, Lady Park of Monmouth, who emphasised that detention of 28 days is subject to repeated and regular consideration by judges of appropriate rank, depending on how long the detention has been. That is a most important safeguard, and a most important part of the balance between civil individual liberty on the one hand and the security of the general public on the other. I am bound to say to the noble Lord, Lord Dholakia, that his mentions of countries overseas—the noble Lord, Lord Kingsland, also mentioned some—were not particularly impressive to me. Britain happens to be, for a number of reasons that it would be tiresome for me to go into now, a centre of terrorist activity in a way which many other countries—certainly Canada, which was mentioned by the noble Lord, Lord Dholakia—are not. Good luck to them! But we in this country must give special consideration to the balance referred to by all speakers.

Of course the 28-day period is substantial, bearing in mind the long period of individual liberty, rule of law and democracy that we have enjoyed in this country. But terrorism is a reality, and the recent examples, trials and knowledge we have from the intelligence services that other trials and incidents may unfortunately take place are sufficient to suggest that the Government have, as the noble Baroness, Lady Park, pointed out, a strong case for asking for this order today.

My Lords, I say to the noble Lord that we do not underestimate the threat of terrorism to this country. We take it very seriously. I do not want the noble Lord to be in any doubt about that. However, we believe that if it is necessary to constrain liberty in the face of the terrorist threat, we must have some evidence of that necessity. My concern today is not a concern of principle, but that the Government have not produced that evidence. We want to hear it.

The Minister said that the Government were going to produce a paper tomorrow suggesting some extension of the 28 days; he did not say how much. We are not ideologically opposed to an extension of 28 days if there is really cogent evidence that that is necessary. However, what has been lacking so far is that evidence, both in relation to the extension from 28 days and for the necessity of 28 days itself.

My Lords, I am grateful to all those who have contributed to the debate this evening. I take the point of the noble Lord, Lord Kingsland. We all appreciate the seriousness of the terrorist threat, and I would not for a moment think that any of these comments mean that that is not appreciated.

First, it is dangerous to look at other countries and say whether the way in which they do things is better than our approach. For example, the length of time Australia will keep someone before charging them was cited. Of course, in Australia, if they stop questioning the man—which they do—they are then allowed to hold him as long as they wish; they will not be questioning him, but he will be held in detention. We must look at these matters carefully. There are other countries one could look at which have far less tight rules. I am very proud of Britain, and the fact that we look after the freedom of the individual to the extent that we do.

As the noble Lord, Lord Kingsland, said, we are not looking at going any further tonight. We have produced a consultative document and the Government believe that there is a good case for having more time, but we need to talk across the board with numerous people—the judiciary and everybody—about how we should extend it, how much further we go, whether we want a finite figure—we might have to come up with one—and what is the best way of going about that. We intend to have a detailed consultation because we realise the significance of this for civil liberties.

However, like all noble Lords, I would not want to find that the police had delayed arresting people of whom they were aware—perhaps a cell about to carry out a terrorist plot—because they knew that they did not have sufficient evidence and would not have sufficient time to gather the data to have a sensible prosecution. There is no doubt that in two cases—the alleged airline plot and the Greater Manchester thing—we needed up to 28 days. Noble Lords can ask for much greater detail on this. I will look to see if it is possible to give it, as I would like to do so. I have been assured that all that time was necessary. The sheer complexity of the problem means that we might need more time in future, but we need consensus on that. We need to look at it very carefully and to talk to everyone to make sure that we have the right judicial oversight.

The noble Baroness, Lady Park, made the point that the period is up to 28 days. We do not use them very often, but if we need them, they are there and we can use them. We have needed them on two occasions. It is important that we have that ability, which is why it is so important that we have this capability for another year.

As far as the statement by Ken Jones is concerned, within our consultation, we will consider all the comments. I do not think that,

“as long as it takes”,

is a particularly clever statement. I am sure that he did not mean it exactly like that, but we will look at it in the consultation. I am sure that, at the end of this, we would all like to feel that there is greater security for the average citizen of this country because we are able to arrest people quickly, before they can carry out a crime—normally a suicide attack where we cannot take the risk of not arresting them—but when we know we have not got enough evidence at that stage to charge them and take them to court.

There may be points that I have not answered. Some useful comments were made for the right reasons, not because noble Lords do not appreciate how important combating terrorism is, but because of civil liberties that are important to us as a nation. If I have not answered them, I shall give a written answer. In the mean time, for the reasons that I have given, it is, unfortunately, necessary—it would be nice if we did not have to do this—to keep this extended period. I therefore commend the order to the House.

On Question, Motion agreed to.