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Terrorism Act 2006 (Disapplication of Section 25) Order 2008

Volume 703: debated on Tuesday 1 July 2008

rose to move, That the draft order laid before the House on 21 May be approved.

The noble Lord said: My Lords, the Government agreed in our debates during the passage of what became the Terrorism Act 2006 that there should be a requirement for the annual renewal by Parliament of Section 23 of the Act, which extends the maximum period of detention of terrorist suspects from 14 to 28 days. The order before the House today therefore disapplies Section 25 of the Terrorism Act 2006 for a period of one year beginning 25 July 2008, thereby extending for another year the maximum period of pre-charge detention for terrorist suspects of 28 days.

Pre-charge detention has been the subject of considerable debate over the past 12 months, both in the context of the Counter-Terrorism Bill and in the reviews carried out by the Home Affairs Committee and the Joint Committee on Human Rights. I do not intend to go over those debates here, but it is worth reminding ourselves why Parliament agreed to the exceptional 28-day limit.

Terrorist investigations can be hugely time-consuming, and the increase from 14 to 28 days was necessary primarily as a result of the greater use of encrypted computers and mobile phones, the increasingly complex nature of terrorist networks that have to be investigated, and the increasingly international nature of terrorist networks, meaning greater language difficulties and a greater need to gather evidence from different jurisdictions abroad.

The safety of the public is of course paramount, and it is the responsibility of government and security and law enforcement agencies to protect our citizens from the threats posed by terrorism. The first priority must be to stop terrorist activity taking place, rather than dealing with its consequences. However, where we identify those who are engaged in terrorism, we need to ensure that we have the right tools to investigate and prosecute them.

In much police work, the investigation takes place after a crime has been committed. In such cases, there will often be a victim, possible suspects, witnesses to the crime and forensic material from the crime scene. The police will investigate the crime and may arrest the suspect once they have gathered a considerable amount of admissible evidence. In such cases, often very little time is needed to question the suspect before a decision is taken on whether to charge them for an offence.

Terrorism cases are different. Because of the severe consequences of a terrorist attack, the police and the Security Service need to intervene before it takes place. Critically, they may need to intervene in an investigation at a very early stage—before they have had the opportunity to gather any admissible evidence and on the basis of intelligence about who and what is involved. As Assistant Commissioner Bob Quick said recently in his evidence to the Counter-Terrorism Bill Committee:

“In some investigations, we have seen [attack-planning activity] materialise so quickly that on public safety grounds we have had to act pre-emptively before we have had the opportunity to exploit pre-arrest evidential opportunities. That places a huge burden on the … investigating officer”.—[Official Report, Commons, Counter-Terrorism Bill Committee, 22/4/08; col. 14.]

Few would disagree with the need to pre-empt such attacks. That is why United Kingdom legislation has, since 2000, provided specific powers of arrest and detention in relation to terrorism. The provisions for extended pre-charge detention of up to 28 days in the Terrorism Act 2006 take account of these practical and unique difficulties. The decision to increase pre-charge detention limits from 14 to 28 days has, I believe, been justified by subsequent events and means that we have been able to bring forward prosecutions that otherwise might not have been possible. Indeed, both the police and the DPP have made it clear that the 28-day limit is necessary. Since the power came into force in July 2006, six people have been held for between 27 and 28 days and three of them have been charged.

We accept that the Government should endeavour to provide detailed statistical information on the use of the 28-day limit in advance of the renewal debates. Once the joint Home Office/police review of pre-charge detention statistics has been completed, we expect to be able to provide more detailed information on the outcome of detention, including the charges brought.

The application for extension is a rigorous process. A CPS lawyer makes the application for an extension beyond 14 days 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 the hearings can last several hours. The officer may be questioned vigorously by the defence solicitor about all aspects of the case. I have attended one of those applications, and it was vigorous. The judge does not have to give another seven days. In the application that I attended, the judge told the applicant they had to get the evidence within two days. It is scrupulously done and strenuously carried out.

Some have accused the police of holding a suspect for the maximum period simply because it is available. This is nonsense. The police investigate as quickly as possible; they must do, and would not detain anyone for longer than is absolutely necessary. That has been clearly demonstrated by the fact that only six people have been held for the maximum period since the power came into force in July 2006, and none has been held for the maximum period since the 28-day time limit was renewed last year. Indeed, when applying to the courts for an extension of detention, the police and the CPS have to present substantial evidence for it. A judge may not grant extensions of detention where he or she is not satisfied that the investigation is being pursued diligently and expeditiously. Judges can, of course, grant less than the full seven days’ extension, as I have said, or no extension if they feel further detention is unjustified. That, too, happens.

Getting the balance right between individual freedom and collective security must always be at the heart of what we do. There is no contradiction between pursuing our counter-terrorism objectives and defending our freedoms and civil liberties. Fourteen days’ pre-charge detention remains the norm and 28 days is for exceptional circumstances, but this exceptional power continues to be necessary as a result of the growing scale and complexity of terrorist investigations.

All of us, on all sides of the House, appreciate the seriousness of the terrorist threat we face and the importance of having the right measures in place to counter it. Terrorism is a huge international challenge but a particular challenge for democracies, which must strive to protect individual liberties while ensuring collective security. It is vital to strike the 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. I hope that this House agrees that the order achieves that, and I commend it to the House. I beg to move.

Moved, That the order laid before the House on 21 May be approved. 21st Report from the Joint Committee on Statutory Instruments, 25th Report from the Joint Committee on Human Rights.—(Lord West of Spithead.)

My Lords, this order, as the Minister has said, is before the House because of the requirement for Parliament to renew annually Section 23 of the Terrorism Act 2006. Section 23 extends the maximum period of pre-charge detention of terrorist suspects from 14 days to 28 days. We support the order. These Benches take the terrorist threat to this country every bit as seriously as the Government do. We are debating it at a time when the Government want to extend the period of pre-charge detention to a maximum of 42 days. In this context, it is worth noting the obvious: the need for Parliament to renew Section 23 annually demonstrates that the extension from 14 to 28 days is already an exceptional power. We scrutinise it frequently because it is such a dramatic departure from normal practice.

Despite its exceptional nature, the extension to 28 days is effectively contained in the law. We should retain it unless there is compelling evidence to go beyond it. The Government have not provided that evidence. The proposals put forward for 42 days also lack the rigorous safeguards currently in place. Section 25 of the Terrorism Act, which says that the period of pre-charge detention will revert to 14 days unless it is disapplied by order each year, is a sunset clause and one of the most important of these safeguards. This is not, of course, the time to debate the merits of the proposals in the Counter-Terrorism Bill but an opportunity to review the operation of the system currently in place. To do so, Parliament must have available to it all necessary information to assess the extension on an evidential basis.

The Government undertook, as the Minister said, to provide detailed statistical information on the use of the 28-day limit in advance of the renewal debates. That was reaffirmed in another place last week, but we do not have the information. We are told that it will only be available once the joint Home Office-police review of pre-charge detention statistics has been completed. How can we, therefore, assess now—at this very moment when we are asked to renew the extension—the use of the 28-day limit? It is an extremely important issue, and not having the necessary information to hand or on time is not at all satisfactory. Can the Minister confirm when the review will be completed and when the statistical information will be provided to Parliament?

The Government also previously undertook to conduct a risk assessment on the effect of the 28-day extension on communities and, indeed, to conduct risk assessments for all terrorism legislation. That was also reaffirmed in another place last week. Can the Minister confirm what progress the Government have made on this? Despite these concerns, which relate to the Government’s handling of this order, we consider that the current arrangement recognises the seriousness of the terrorist threat and balances the security measures needed to address it with our civil liberties and democratic values.

My Lords, this debate must remind the Minister how fast a year flies by, because he took this order through last year, just after becoming the Minister responsible for terrorism, which we all welcomed because we were aware of his expertise in the area. I notice that, not unreasonably, in large part his wording this year is unchanged from last year. Having said that, given the timing of the debate on renewing this order—a short time before this House’s Second Reading of the Counter-Terrorism Bill—none of the remarks that I make from these Benches should be taken as a mini-rehearsal for that Bill, because this only renews the order.

I also want to ask what has changed since last year. It is important that we do not rubber-stamp the order simply on the presumption that extending it another year with no alteration is favourable. The Minister needs to demonstrate clearly whether the threat has indeed diminished. These Benches would certainly support a necessary measure, but it would be interesting to hear the Minister’s view. Given all his work in the past year, the budget he has been able to spend and all the work of the Office for Security and Counter-Terrorism, does he feel that the Government are more on top of the situation than they were this time last year, and does that lessen the threat?

The changes proposed in the Counter-Terrorism Bill should help with the process, but at the end of all that will be a balance between individual freedom and collective security. I am sorry that the noble and learned Lord, Lord Lloyd of Berwick, who contributed so forcefully to the debate last year, is not here to contribute this evening. Yet, rather as the Minister made many of the same points as last year, I think that the noble and learned Lord, Lord Lloyd, would have made the same points again. My question, then, is: how have things changed in the past year in the Government’s capacity to deal with this threat? It will be impossible for the Minister to look forward to this time next year, but between now and then we will have had the new Counter-Terrorism Bill, which may have changed the picture somewhat.

My Lords, first, I appreciate the thoroughness with which my noble friend always approaches these matters and, as I was able to experience again this morning outside the Chamber, the thoroughness with which he tries to ensure that all of us who want to be can be fully informed about how the Government are handling these matters and why they are doing so in the way that they are.

I hope that we are not drifting into a situation in which the Joint Committee on Human Rights becomes a ritual formality in its reports. If we have a Joint Committee of that nature, which has high-powered legal and other specialist advice, we should take its reports very seriously. I hope that my noble friend will therefore be able to deal in a little more detail before we conclude our proceedings with some of the significant observations made in the report published on 30 June—yesterday.

The first point to make is that the committee was clearly dismayed that the report of the statutory reviewer of the Terrorism Act was not published,

“in time to allow the House of Commons and its Committees properly to consider it prior to debate on the draft Order”.

The second point, which the committee raised in the same sort of context, is that the reviewer's report did not,

“explain how the power to detain suspects for more than 14 days has been used in practice”.

The committee goes on to suggest:

“Parliament needs this information in order to improve decision-making on this issue”.

It recommends that,

“any future report should include this information and that the reviewer report directly to Parliament”.

It would be very helpful to have my noble friend’s specific observations on those points. The committee also recommends that,

“relevant statistical information and the reviewer's report should be provided to Parliament at least 28 days before debate on these draft Orders to enable meaningful scrutiny of the need for renewal”.

Again, it would be helpful to have my noble friend's comments.

The report underlines—this is very important—that:

“No suspect has been held for more than 14 days since the renewal of the power last year”.

We need to know a good deal more about why, therefore, we are renewing the order when it has not been necessary to use it in the past year. To assess how necessary it was, when it was used, to have a period between 14 and 28 days, the Joint Committee suggests that there needs to be a review. It strongly recommends,

“that such an independent review be conducted by [for example] the Crown Prosecution Service Inspectorate”.

In its commitment to human rights and humanitarian concerns, the committee also suggests that there should be independent advice to the Government about,

“the impact on suspects of being detained for longer than 14 days”.

It calls for such a process to be undertaken and for a report to be made to Parliament. It also questions how far the proceedings for applying for an extension can really be called “judicial” in how we have come to understand that word in the whole operation of our administration of law.

I became concerned about that matter when I was a member of the committee, not least because—at their request, as I recall—some special advocates came to give evidence to the committee. Some of the things that they said were quite startling. They went on record as saying that in what they were expected to do, they could find very little that was in keeping with all their training and all the custom which had been part of the normal administration of justice.

An issue about which the special advocates felt most strongly was the complete impossibility of having any detailed discussion with the client, the defendant, about what was going on and the reasons for it. They found a real tension there. To be honest, they were in some state of distress about the situation. We questioned them in some detail about how far they were just a group of special advocates who felt especially strongly and how far they were speaking for special advocates as a whole. They said that of course they were leading on the issue but that, in honesty, they felt that it was a concern shared by the whole community of special advocates.

We cannot take that lightly. After all, in our stand against terrorism—no one must ever underestimate the gravity, the sinisterness or the nastiness of the threat—what we are defending is a society worth having. Our administration of justice is a crucial part of the quality of that society. We also want to be very careful that we are not giving the terrorists, the extremists, a victory by beginning to dismantle what we have been used to in the face of the perceived threat. We also have to be very careful that we are not being counter-productive—I am sure that we will debate these things more fully next week—by doing things that play into the hands of extremist manipulators of the more naive, who are open to manipulation.

Those points are rather serious when we come to renew an order of this kind. I hope that my noble friend will be able to speak more specifically about the Government’s position in response to the observations of the Joint Committee. I hope that noble Lords will have realised that I very much share those views, given the work that I was able to do previously in this realm.

My Lords, I, too, am grateful to my noble friend for the presentation that he made on the order. I am sure that the whole House also agrees with the noble Baroness, Lady Neville-Jones, in the remarks with which she prefaced her contribution: that no one in this House doubts the severity and reality of the terrorist threat that we face.

However, we should look at the order in context. The fact that there have been no cases in the past year where it has been necessary for someone to be detained for more than 14 days is by no means an argument for saying, “Whoopee—the threat has passed!”. It demonstrates that the police do not willy-nilly hold people for up to 28 days because they have the power to do so. What we have seen in the past year is that the powers have been used appropriately, not excessively. The fact that in the past year there have been no individual instances where it has been necessary to hold someone for more than 14 days tells us nothing about whether the threat has increased or diminished in that period. Obviously, there would come a time if Parliament was asked year after year to approve such an order and there had been no cases in that period where anyone had been held for more than 14 days, when people would say that perhaps it was no longer necessary. But the mere passing of 12 months does not give us any such assurance.

Anyone who has looked at the history and frequency of major terrorist attacks over the past few years will see that there is a periodicity. There are often major attacks in the summer months. Those attacks are often extremely highly organised, involving a large number of people stretching across a number of jurisdictions. Those are precisely the cases where more than 14 days—and possibly 28 days; next week we will debate whether there should be circumstances in which a further extension might be possible—may be needed. Those cases remain. In the past year, we have seen some new developments. We have seen cases of two individuals—the cases are still to come forward—where it is alleged they acted alone to try to create a terrorist act.

If there are individuals who are not obviously operating as part of a network or who are not particularly visibly inspired by particular people, that again gives rise to questions about how the terrorist threat is changing. We may be seeing a variation in terrorist tactics over time. Therefore, the fact that no major plot appears to have been uncovered in the past year that has led to a requirement to detain people for more than 14 days does not mean the threat has disappeared and the order should not go through tonight. That is the most important lesson that emerges.

The mere fact that the Joint Committee on Human Rights has looked into these matters in such detail, as the noble Lord, Lord Judd, said, and the mere fact that we are debating the order seriously tonight and making serious points to which my noble friend Lord West will no doubt wish to respond, demonstrates that this cannot simply be done automatically, on the nod or without consideration. Moreover, while everyone in your Lordships’ House is mindful of the risk that actions such as approving this order tonight may be used by those who want to inspire people to go down the route of violent extremism, the fact that Parliament looks at these matters so seriously and debates them so clearly is also evidence that we are not intent on doing these things willy-nilly.

Of course my noble friend is also trying to find other steps and create mechanisms that will help to prevent violent extremism, and these are a necessary part of the picture, but it would be very dangerous to hobble the police by saying that they should not have the capacity to come before a court and argue the case for particular individuals to be held for 14 days in the next year. That would be a risk too far.

My Lords, I am grateful to those who have contributed to the debate this evening. I am very conscious that the Counter-terrorism Bill is fast coming down the track, and I am very much looking forward to that. There will be considerable debate on it, so I am grateful to noble Lords for making important comments. All of us in this House appreciate the seriousness of the terrorist threat that we face and the importance of having the right measures in place. We might have different views about how that should be done, but I know that we all acknowledge it. That has been reflected in the short but excellent contributions to the debate. As I said, we will have a considerably longer debate in a few weeks.

I shall respond briefly to the specific points that have been made. The noble Baroness, Lady Neville-Jones, asked a number of questions. She was interested first in how we can ask to assess the use of the 28 days. This goes to the fact that no one has been held for more than 14 days in the past year of review. My noble friend Lord Harris absolutely correctly pointed out that that indicates a number of things. One is that this is not used willy-nilly by our police force. There is careful thought about what has to be used. He is also absolutely right about the periodicity of these sorts of attacks. We are, as the director-general of the Security Service said, monitoring a large number of plots. I have to be careful at times about what I say. However, the complexity of major plots and when they are dismantled has an impact on the progression of further plots. It is cyclical. It would not be sensible to remove this statute because there has been nothing for the past 12 months, as that could change quite dramatically in the very near future. We need this in our back pocket for all the reasons that I think everyone in the debate has accepted.

The noble Baroness, Lady Neville-Jones, also asked when the Home Office review on statistics will be completed. I agree that this has not been as rapid as it should have been. I would have liked it to have been faster. We need to pull our finger out. It will come out in the autumn. That is a slightly inflexible timeline, but I will put pressure on it.

The noble Baroness also asked when the community impact review will be complete. We are considering the scope of the review now. We hope to have the initial findings out by the end of the year, although we have not scoped it yet. That is the way forward.

The noble Baroness, Lady Miller, asked what has changed since this time last year. I have to be very careful here. I am told off when I say this, but I am afraid that I am going to say it anyway: we are safer than we were 12 months ago. I say that because we have done a lot of very good things—a whole spread of things that I will not mention. We have a great quiver full of arrows that we use, but the threat level is still severe. There could be a bomb attack as I speak. That is why one has to be so very careful about saying that, but I think that we are safer. We have done some very good things. The National Counter Terrorism Security Office has been a huge success. The focus that it has put on co-ordination across government has been good. Is it perfect? Far from it. There are lots of things that we still have to do, but there are many specific areas in which I can say that we are safer because of this. As I say, however, that does not mean that we are safe. The threat that we face is huge. Anything could happen at any moment, but we have achieved a great deal.

My answer to the noble Baroness is that we have achieved things. As I said, I probably should not have said that. I am sure that I will be told off by the media people in government for having done so, but I believe that to be the case. Given the effort made by a resource of very bright, hard-working people across government and in the police force, in SO15 and the agencies, that is only to be expected. Considerable resources have been put in, although the threat level, as I say, is still severe.

All speakers in the debate tonight are aware of the balance of rights. We are all believers in habeas corpus, and we are always balancing this terribly difficult thing—the freedom of the individual, which is so crucial to our nation and for which tens of thousands of people have died throughout our history, and the right of our population to live their lives normally as they are entitled to do. That is a very important right, too. We must balance these things, but it is not easy. There is no easy equation in a democracy to do that, but those are absolutely the right things.

On the question of taking people through the judicial process and convicting them, it is interesting that, so far in 2008, 32 people have been convicted in 10 significant terrorist cases. Of those 32, 11 pleaded guilty. We are not going far wrong in identifying people by intelligence, getting the evidence and taking them to trial. In 2007, 36 individuals were convicted in 14 significant terrorist cases, of whom 21 pleaded guilty. That is really quite an achievement.

The more we do this, the more we can get across to people—to the Muslim community—that there is a real risk and that we are trying to do things properly. That is the right way of doing things, but at times it is extremely difficult because, as I say, we have to move quickly. Some of the things that these people wish to do are just horrifying. They want to cause mass casualties among innocent people. Therefore we have to act quickly, and we have to act earlier than one would like to in collecting evidence. That is just a fact of life. I would never want to be in the position in which, because we have adjusted things, the Security Service and particularly the police say, “Let’s just leave it for a couple more days because we want to get that evidence”. If something happened in that couple of days that killed hundreds of our people, I would find that very difficult to live with. That is one of the real problems.

My noble friend Lord Judd made some very important points. We read very carefully what the Joint Committee on Human Rights says, and what it says is very important. It is certainly not taken lightly; it is very important to us. We go through the review very carefully, and it is very important that we do exactly that.

I have said on the Floor of the House that the report of the noble Lord, Lord Carlile, was not published far enough in advance. The Home Office received it on 15 June, and we published it on 23 June. That is not good enough, and we need to do better. People need to be allowed to look at it so that they can make the correct comments. We are aware of that and we must do better. We are working with the independent reviewer to ensure that these reports are published in good time in the future. The role of the independent reviewer is set out in statute, and it is open to Members of this House to propose amendments to the Counter-Terrorism Bill if they want to change it. That could easily be done.

On the judicial process and the judiciary, perhaps I am wrong in this, but I have immense faith in our judges. Having seen one of these processes at Paddington Green, I was impressed by the rigour of what went on. Perhaps it is not absolutely perfect, but my goodness, the judge went into great detail; people there were defending while others in a sense were prosecutors, and all the intelligence and other evidence was looked at. It was a thorough scrutiny. One could debate the issue at length, but overall the system is good and serves as a protection for people in this position—and we are talking about a very small number where there is a lot of intelligence that can be used against them. But, of course, intelligence is not evidence.

My Lords, I am grateful to my noble friend for giving way. He has emphasised how far the system goes to try to ensure fair play. When I was still serving on the Joint Committee on Human Rights, we visited Paddington Green and looked at where these proceedings are conducted. It is fair to say that none of us had realised before that sometimes the judge is not present in the room in which the proceedings are taking place, but is in video contact with it. However, the people carrying out the interrogation are sitting in the room. Can my noble friend give an assurance that that practice does not continue? I cannot speak for the committee as a whole, but I for one did not find it convincing when we were told by the police, first, that anyone who wants to go before the judge in his chambers or elsewhere could do so, and secondly, that transporting a defendant to a judge’s chambers creates a huge disruption to London traffic. That is hardly a convincing case for departing from the normal expectations in the administration of justice. It would be helpful if I could be reassured that this matter has been seriously addressed.

My Lords, perhaps I may respond to my noble friend in writing on that point because I am not sure of the exact position.

My noble friend Lord Harris was absolutely right to make the point that this should be used sparingly. I have talked about the cyclical nature of the threat in the sense that if you manage to unwind a complicated plot, it takes time for these things to be built up again through links. However, I have to be careful of what I say in order not to tread in sensitive areas. My noble friend also made the interesting point about the alleged self-starters, one in Bristol and another in Exeter. If this is a variation on terrorist tactics, it means that the issue will have to be looked at in a different way. Some interesting issues have to be teased out in this area.

Overall, it is clear that this House understands what kind of threat we face, and that it is very different from that posed by the IRA. This is a threat to our way of life made by people who do not mind dying themselves and who wish to cause mass innocent casualties. That is a very different thing and has to be taken extremely seriously. As I said, I know that we hold different views about exactly how it should be done, but we share the belief that in the final analysis we have to protect and look after our people. I thank all noble Lords for their contributions.

On Question, Motion agreed to.

My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.04 to 8.25 pm.]