My Lords, I beg to move that this Bill be now read a second time.
We face an unprecedented terrorist threat. In film sound-bite terms, there is “a clear and present danger” to our population. Indeed, the prime reason for my agreement to join the Government was the level of threat and the belief—I hope, not misguided—that perhaps I could do something, no matter how small, to enhance the safety of our people and nation.
The terrorists are more ruthless than those we have faced in the past: they aim at causing mass civilian casualties without prior warning, involving suicide attacks. Plus they have the aspiration to use chemical, biological or radiological weapons. The threat is international, drawing on loosely affiliated networks across the globe that travel and share experience, training and funds.
The threat is much more complex than historically, with multiple connections in many countries and terrorists exploiting new technology not only to plan and perpetrate attacks but to cover their tracks and hinder investigation. It is of an unprecedented scale, with more than 200 groupings or networks and around 2,000 individuals of concern to the police and security service in the United Kingdom alone. This figure is the highest it has been. It is not a spike but represents a sustained level of activity by those who wish to undermine the fundamental values that all of us, including the vast majority of Muslims, share.
This threat demands a co-ordinated and multifaceted response from all of us. That is why we have made far-reaching changes to our counterterrorism strategy and created the Office for Security and Counter-Terrorism to co-ordinate our response. That office has become a real centre of excellence, and we have made huge strides in the past year. We have significantly increased the resources available to deal with terrorism, with Security Service staffing now double the pre-9/11 level, and more than £1 billion being added to the security budget by 2011.
We have also—this is important—redoubled our efforts to prevent violent extremism taking hold in the first place. Our long-term challenge, and our priority, must be to stop people becoming or supporting terrorists, and we have provided new funding to support communities and organisations who are taking on and disrupting those who promote violent extremism. We must continue to pursue vigorously those who commit terrorist crimes and bring them to justice.
Since the beginning of 2007 alone, 68 terrorists have been convicted. As the DPP has made clear, the CPS is currently enjoying a 92 per cent successful conviction rate in terrorist cases compared with 77 per cent for other crimes. It is also the case that nearly half of those convicted pleaded guilty to their crimes. This shows, I believe, that the actions we are taking are working. But as the threat from terrorism evolves so our laws must change and we must continue to ensure that the front-line agencies have the right legal tools they need to do the job. One of the arrows in our quiver of measures to remove the cancer of extremist terrorism is our anti-terrorist legislation. That is why we have comprehensively reviewed it to ensure that it remains effective. This review identified a number of areas where our laws needed strengthening, and these are covered by the measures in the Bill. In particular, these measures will ensure that better use can be made of information when taking action against terrorists and that we have effective measures in place to deal with terrorist suspects after they have been charged and convicted.
On the first of these, the Bill contains measures to provide a proper statutory framework to retain and use DNA and other forensic material related to terrorism; to provide statutory gateways for sharing information with the security and intelligence agencies; and to make sure that all information can be used for defined challenges against asset-freezing decisions. The Bill will also allow the questioning of terrorist subjects after charge, a measure that has broad consensus from all sides. Together with the other measures in the Bill, we believe that this will help the police and prosecutors to ensure more successful convictions.
Post conviction, the Bill will ensure that those found guilty of terrorist-related offences receive a sentence that reflects the seriousness of their crimes. There will also be a new requirement for convicted terrorists to provide the police with key personal information when they are released from custody, thereby strengthening the arrangements for monitoring terrorist offenders in the community.
In addition to these measures, the Bill contains new powers covering the removal of documents for examination, new offences relating to information about the Armed Forces and others, and new provisions relating to control orders, forfeiture and the policing of gas facilities. We have consulted widely, and the proposals have been scrutinised by relevant committees in Parliament, and by the noble Lord, Lord Carlile, the independent reviewer of terrorism legislation. As a result, I believe that many measures in the Bill have already achieved broad support.
However, I accept that there is not a consensus on everything, and I turn now to the issue of pre-charge detention, which has caused most debate, both inside and outside Parliament. Two factors are relevant to the issue of pre-charge detention, and to my assessment that there will be exceptional cases where the police will require more than 28 days to frame charges. First, because of the severe consequences of a successful terrorist attack, the police often need to intervene much earlier in terrorist cases. They cannot afford—and I would not want them to—to wait until an attack has happened, and may need to step in at a very early stage of an investigation, before they have had the chance to gather admissible evidence. In the Dhiren Barot case, for example, former Deputy Assistant Commissioner Peter Clarke, the then National Co-ordinator of Terrorist Investigations, said that,
“there was not one shred of admissible evidence”
at the point of arrest. This is different from what happens in most other crimes, where there are victims, witnesses and forensic material that can be used as evidence. Barot subsequently pleaded guilty and was sentenced to 40 years.
Secondly, the clear trend is for terrorist investigations to grow in scale and complexity. In 2001, for example, when the police investigated the last major IRA case, they had to analyse the contents of one computer and a handful of floppy disks. The suspects used their own names, and their activities were confined to the Republic of Ireland and the UK. In 2004, the investigation into Dhiren Barot involved the seizure of 270 computers, 2,000 computer disks and 8,224 exhibits. There were seven co-conspirators and, during the investigation, police carried out enquiries in the United States of America, Pakistan, Malaysia, the Philippines, Indonesia, France, Spain and Sweden. I make no apologies for banging this home. In another recent case, 30 addresses were searched within two hours of the start of the arrest phase of the operation; and 400 computers and 8,000 computer disks were seized, along with more than 25,000 exhibits.
I have looked in detail at the possibility of throwing resources—both people and money—at the problem, to reduce timescales and boost our technical capability of looking at these things. However, the choke points of other jurisdictions and encryption mean that this will not solve the problem. In addition, the consequences of radiation, chemical or biological contamination could delay investigations by days if not weeks. I fear that all the indications are—and I do not say this lightly—that it is not a matter of if such an attack will be plotted, but when.
As a result of the increasing complexity of investigations, and the need to intervene early, the police have held 11 suspects for more than 14 days before charging them. Investigations have already needed all 28 days, and the indications are that this may be insufficient in future. That is why the police asked us to look again at the issue. The question we face is: will there be a potential need for pre-charge detention of more than 28 days? I have looked at this in depth for nearly 12 months and I believe that there will. Therefore, we face the problem of whether to legislate now. I believe that it is better for us to legislate calmly, on a precautionary basis, than to find ourselves scrambling for emergency legislation in the heat of a serious operation. That is why we have included in the Bill a proposal to extend the pre-charge detention limit in future if required.
This proposal contains a number of important safeguards, as it should do. First, the reserve power in the Bill can be brought into force in future only where the Home Secretary is able to confirm to Parliament that she is satisfied that it is needed for investigating serious terrorist offences arising out of a “grave exceptional terrorist threat”; that is, an event or situation involving terrorism which causes or threatens serious loss of human life, serious damage to human welfare in the United Kingdom or serious damage to the security of the United Kingdom.
Secondly, the Home Secretary will need to have received a report from the Director of Public Prosecutions and a senior police officer, and both will have had to be convinced that more than 28 days is necessary. Thirdly, both Houses of Parliament will vote on the order making the higher limit available within seven days of it being laid. Fourthly, the reserve power will be in force for 30 days only.
In addition, there are other safeguards. Individual detention beyond 28 days will be authorised by a senior judge, who may issue a warrant of further detention only if he is satisfied that there are reasonable grounds for believing that further detention is necessary for investigation into a serious terrorist offence and that the investigation is being conducted diligently and expeditiously. It may be for a matter of hours, a couple of days or a maximum of seven days at a time. That seems a very considerable safeguard. However, over my very short time in your Lordships’ House, I have noticed that I seem to have more faith in our senior judiciary than most noble Lords do.
The independent reviewer will report on whether individual suspects were held in accordance with the requirements governing detention, whether proper procedures were followed for applications for detention beyond 28 days and whether it was reasonable for the Home Secretary to make the higher limit available.
The proposal on pre-charge detention is therefore very different from the original proposal. It does not change the pre-charge detention limit now but it does enable the limit to be increased in future in specific and exceptional circumstances, and then only for a strictly limited period.
I believe that this new proposal achieves the balance that we have always sought between providing the police with the powers that they need when they need them and protecting the rights of individuals being investigated for these most serious of crimes.
Finally, I turn to the issue of coroners’ inquests. The Government have put forward these proposals because there is a genuine problem when an inquest into a death must be held with a jury but it involves the consideration of sensitive material which cannot be disclosed publicly. When an inquest has to consider such material, currently there is the potential for it to be incompatible with Article 2 of the European Convention on Human Rights if the sensitive material is central to the purpose of the inquest. The Government are firmly of the view that the proposed changes will ensure that an Article 2-compatible inquest can be held in all cases, including those where there is a possibility that state actions may have caused or contributed to the death, while protecting the integrity of the material in question.
The vast majority of inquests will continue to be held in public. However, in the very few cases which the Secretary of State has certified will involve consideration of material that cannot be disclosed publicly without damaging the public interest, it will be necessary for the part of the inquest to which that evidence relates to be held in private. Our proposals will not result in material that would otherwise have been heard in public being heard privately, but they will allow material to be considered that could not otherwise have been taken into account.
I recognise that these provisions were the subject of detailed comment in the other place. Equally, I am aware that some Members of your Lordships’ House, including the Constitution Committee, have expressed concerns about them. We are all attuned to these sensitivities but we also recognise that there is a real-world issue with which we must deal—not least in meeting our obligations under Article 2 of the ECHR and in enabling certain cases to be concluded, allowing the families involved to achieve some kind of closure. My right honourable friend Tony McNulty indicated in the other place that we would look to amend these provisions to include a sunset clause. I stress to the House this afternoon that, as ever, we want to listen to the views of noble Lords, reflect on them and work to alleviate any concerns, if possible.
I know that we will have a full and interesting debate this afternoon; I have been looking forward to it. Although there is, I believe, a large degree of consensus on many of the measures in the Bill, it is clear that the issues of pre-charge detention and coroners’ inquests, in particular, need to be fully and properly debated. I know from my time here that everyone in this House is aware of the terrible threat we face from terrorism and is committed, in their own way, to doing everything we can to address it. In a democracy such as ours, this involves striking the very difficult balance between providing the law enforcement agencies with the legal powers they need to protect our people and the need to protect individual civil liberties. That difficult balance is something that this House is expertly placed to address, and I know that the debate will be positive and constructive. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord West of Spithead.)
My Lords, let me make it clear that we on these Benches take the terrorist threat to this country every bit as seriously as do the Government; there is no difference between us on that. Wherever possible, we strive for agreement on security matters. The issue today is how the security that the British people expect, and to which they are entitled, is best brought about and sustained.
The Bill contains many detailed provisions and we have called for some of the measures—such as post-charge questioning—for some years. There are measures that we support in principle, such as making terrorism an aggravating factor in sentencing; notification requirements; travel restrictions on those convicted of terrorist offences; and offences related to the security of members of the Armed Forces. There are other measures with which we still have certain difficulties, such as control orders. My noble friend Lady Hanham will, in winding up, also touch on inquests, inquiries and the rules of court. Important concerns on these were largely obscured in another place by the debate on 42 days’ detention.
I will, at this stage, focus most of my remarks on the proposal to extend pre-charge detention to 42 days. We oppose the proposal in its entirety. Many in this House will have watched with grave concern the passage of this proposal through another place. It brings to the fore the challenge of balancing the rights of the individual and the needs of efficient justice with the duty of the state to protect its citizens. We will be judged on how we strike this balance.
At the heart of the debate is one central question: what type of society are we trying to create, protect and secure? After all, it is on the effects of our actions, not our intentions—however virtuous these may be—that we will be judged. Extending pre-charge detention seeks to guard against the terrorist threat by giving more power to the state. We take a different view from that of the Government. Security measures should not have as their sole focus a reduction in the threat, essential as this is. If security is to be sustainable over the long term, security measures must also facilitate and protect a united society based on shared liberal values and the mutual trust of a free, responsible citizenry. Citizens must be able to repose their trust in each other, not in the state for fear of each other. The impact of this legislation on different communities is, therefore, not a minor, subordinate matter. It goes to the heart of our chances of reconciling freedom with security.
Will the proposed extension achieve and protect an open and unified society? The answer is emphatically no. It represents yet another attempt on the part of the Government to abridge, without sufficient justification, fundamental democratic rights and freedoms that have underpinned our society for centuries and which we have defended against tyranny on so many occasions. The Government are putting those rights and freedoms at risk in a reactionary fashion. Terrorists want to undermine our freedoms and way of life by provoking the state into putting in place repressive measures. We therefore risk, in effect, doing their job for them. No doubt many noble Lords will make comparisons with other common-law jurisdictions to illustrate the point that our allies are addressing the terrorist threat without draconian extensions of detention.
If we are to approve any measures that restrict our fundamental rights and freedoms, we must have two things. First, evidence is needed to show that new measures are required, the proportionality of which we can then assess. Secondly, if restrictive powers are deemed necessary, we must have proper safeguards. In his speech of 17 June, the Prime Minister noted that the civil liberties aspects of extended detention without charge could be taken care of by a bunch of claimed safeguards. But, in the view of those on these Benches, precise justification for the proposed extension and considerations about proportionality must come first. I should like to take a few moments to examine those points.
The first is the threat. Agreed, it is real; agreed, it is severe. However, the Minister asserted as recently as 1 July in this House that we were now safer than we had been. At the least, if that does not mean a reduction in the threat, it must mean an improved capacity to detect, disrupt and protect against terrorist activity, so one has to wonder somewhat at the timing of the legislation.
The Government have laid much stress on the complexity of terrorist conspiracies, which they say gives rise to the need for extended time for investigation. To make that argument, the Government have relied on what they have called pragmatic inference. At an extreme, Mr Tony McNulty, the Minister of State in the Home Office, has painted an alarming picture of complexity combined with magnitude. Imagine, he says, five 9/11s. But such a scenario would be in the catastrophic class, for which there is already legislation on the statute book in the shape of the Civil Contingencies Act 2004. The Government are not powerless in such a situation, and to suggest otherwise is to scaremonger.
The Metropolitan Police Commissioner has said explicitly:
“We have never put forward a case that there is evidence of a need for an extension”.
Precisely, but that is not good enough. The evidence actually suggests that an extension is not needed and would not be proportionate. Last week, this House approved an order to renew the extension of pre-charge detention from 14 to 28 days. It was clear that, in the past year, no terrorist suspect has been detained without charge for the maximum of 28 days. If we look at the cases often cited to demonstrate the complexity of investigations, which we do not underestimate, we find that in no case was there a need for an extension beyond 28 days. The case of Dhiren Barot, which the Minister cited, was one of the most technically challenging, but charges were successfully brought within 14 days. In the case of the 2004 Crevice fertiliser bomb plot, all charges were brought within 14 days.
The original justification for an extension to 90 days involved a scenario with over 20 suspects, multiple locations, multiple targets, multiple computers with encrypted files in different languages and dependency on foreign intelligence. Operation Overt, the investigation into the alleged plot to attack 10 airliners at Heathrow in 2006, had every one of those characteristics, yet the police were able to charge every suspect within 28 days. All those facing the most serious charge—conspiracy to murder—were charged within 21 days. Of the five held to the end, three were discharged and two were charged with lesser offences based on information obtained well before the 28th day. This is far from being up against the buffers, as has been claimed. In his broadcast on the “Today” programme last November, the Minister spoke of the importance of being certain of the need for more than 28 days. He is right in this. The trouble is that the Government have not demonstrated the need for what the Minister has described as “the precautionary approach”.
I turn now to the safeguards, in which the Prime Minister reposes so much confidence as the guarantee of our liberties. The Terrorism Act 2006 and the Civil Contingencies Act contain key provisions for Parliament, such as a sunset clause and stringent requirements for judicial supervision. The Government’s concessions to secure the passage of this Bill in another place do not compare. They still allow the extension to 42 days to be triggered at the subjective, unfettered discretion of the Home Secretary. They do not allow judicial review of the Government’s claim that a “grave exceptional terrorist threat” exists. There is no requirement for Parliament to vote on whether there is an emergency or a “grave exceptional terrorist threat”.
Does one not think that in the context of greater restriction of liberty, the safeguards against its abuse might be at least as great as those which apply in the case of lesser restriction? Is not this inverse relationship of greater restriction and lesser safeguard extremely odd? Even if the Government’s concessions could be considered proper safeguards, the former Home Secretary, Charles Clarke, has made clear his view that the procedures that will be established are so cumbersome that the police and the prosecuting authorities will be most unlikely to seek an extension. Mr Clarke also labelled the so-called concessions “constitutionally damaging”, in that they would confuse the role of Parliament with that of the judiciary. Members of this House may share this view.
This House cannot endorse the so-called safeguards, any more than it can accept the case for an extension of pre-charge detention. Not only is an extension unnecessary and unworkable, but it has an active downside in two key respects. First, the extension is a disproportionate response, which would be likely to serve as a recruiting sergeant for terrorism. In this regard it is worth noting that the Government still have to produce the promised risk assessment for communities of the current extension to 28 days. They should have done so and should not try to proceed to 42 days without having done so. The Minister has promised this assessment for the autumn, and I ask him to have it ready for the House to take into account when this debate resumes in October. Secondly, the Government’s own impact statement for this Bill notes that the reaction of Muslim groups to the proposal puts at risk information that might otherwise be forthcoming from members of the community in the future. In other words, the Home Office itself suggests that extending detention without charge may hinder our counterterrorism efforts, by cutting off vital local intelligence. Let us be clear: these are security warnings.
We also know that a significant number of current senior police officers see the risks. It may surprise the House to learn that the Association of Chief Police Officers, ACPO, has never collectively discussed the effect on its work of an extension to 42 days. The Director of Public Prosecutions and the former head of counterterrorism in the Crown Prosecution Service, as well a number of noble Lords, have all voiced their opposition. Should not so many weighty and knowledgeable dissenters give the Government pause? It is clear that an extension is not needed, will not work and will have an active downside. Why are the Government therefore fighting so hard for it? If one looks at the history of the debate one sees that the Government first wanted 90 days, then wanted 56 days and now want 42 days. It seems that they have become fixated on extending pre-charge detention for political reasons, rather than for well considered policy and strategic reasons. Alternative, proportionate security measures are, in effect, neglected.
There are alternatives. In terrorist cases, the criterion for charging is already the lesser standard of reasonable suspicion. Is it really the case that the British state would contemplate holding for even longer than 28 days people against whom not even a reasonable suspicion of a terrorist-related offence had by then been established? Related to this is the use of post-charge questioning under judicial supervision which could and should be used more extensively. No doubt the noble and learned Lord, Lord Lloyd of Berwick, will speak to this point. There are also measures that we have pushed for that are entirely absent from the Bill. They include lifting the ban on using intercept evidence in court, tightening the rules on extremists entering the UK and banning radical groups that serve as antechambers for terrorism.
I shall focus briefly on the use of intercept evidence. I am aware of the sensitivities, which I take seriously. Against them, the Joint Committee on Human Rights has noted that the current prohibition on the admissibility of intercept evidence is,
“the single biggest obstacle to bringing more prosecutions for terrorism”.
The Crown Prosecution Service is clear that its use will lead to more guilty pleas and fewer abortive trials. The Director of Public Prosecutions was told in Australia that prosecutors who do not use intercept evidence in terrorist cases are not being serious. The situation in this country is all the more anomalous, given that it is used in organised crime cases. Even with the backing of the committee of privy counsellors, the Government still appear reluctant to allow the use of intercept evidence. I am sure it would help the House to know from the Minister when the committee appointed to follow up the privy counsellors’ report is likely to be ready with its findings.
In putting in place counterterrorism legislation, we must be clear that we are charged with taking into account the implications not just for the police, the security agencies and the prosecuting authorities, but for society and the constitution as a whole. On these Benches, our approach to the Bill is to guard against three things: possible miscarriages of justice; adverse outcomes for our society; and counterproductive consequences for our ability to tackle the terrorist threat. We want strong security, the preservation of liberties and efficient justice.
We will work with the Government to strengthen aspects of the Bill, and we will press them to take measures they have left out, but we will not agree to the sacrifice of our fundamental freedoms without the most compelling, evidence-based justification.
My Lords, in October 1963, the Tryweryn dam and reservoir were opened in the heart of mid-Wales by the Lord Mayor of Liverpool. The drowning of that valley had been opposed by every Welsh Member of Parliament of every political colour. It awakened feelings of outrage that the countryside, the culture, the language and a way of life were being destroyed. In the Lords, counsel for Liverpool Corporation in promoting the Private Bill told the committee:
“There can be no question that emotions in Wales have been aroused. But Liverpool Corporation have to take the constitution as they find it. There is no separate Welsh government. There is no demarcation of Wales from England from the point of view of water supplies”.
We started to campaign in earnest for a Welsh parliament. Many noble Lords in this House were part of that campaign.
For my part, in 1967, I drafted a Bill for a Welsh parliament which my noble friend Lord Hooson presented in the Commons. However, there were others who wanted to take more extreme steps. There were explosions to transformers and power cables that served the dam, which were undoubtedly terrorist acts. It continued with cottage burnings and the antics of the Free Wales Army, whose manoeuvres I once stumbled on in the mountains above Dolgellau. On 2 December 1968, two of the four water pipes carrying the main supplies to Birmingham were blown up. It was a matter of a Private Notice Question that day in the House of Commons and Mr Leo Abse asked:
“Will my right hon. Friend accept that the people of Wales will have heard with considerable dismay of this further act, an act which seems to indicate that extremists who do not belong to the main bulk of the Welsh people are yet again active?”.—[Official Report, Commons, 2/12/68 ; col. 1036.]
Mr James Griffiths called for stricter security for explosives. My noble friend Lord Hooson asked:
“Does the Minister appreciate that the greatest safeguard that people can have is the apprehension of those responsible for these outrages?”.—[Official Report, Commons, 2/12/68; col. 1037.]
Sir Knox Cunningham called for “special security measures”.
At that time, I had a work colleague who was a passionate nationalist. He was a very likeable man, but he also knew something about explosives because of his job. I used to banter with him that he must be a general in the Free Wales Army. On the day of that explosion I asked him, jokingly, what he had been up to. He seemed somewhat abashed. Later that morning, I noticed that his Land Rover had over the weekend lost all its political stickers—“Cofia Dryweryn”. His Land Rover was covered with mud. That evening, I talked it over with my wife and I telephoned the police.
Information to the police and to the security services comes from within a community. Last year, the Observer told us that more than one year before he detonated his Tube bomb on 7/7, Mohammed Siddique Khan had been listed as a “desirable suspect” by MI5, along with fellow bomber, Shehzad Tanweer. Where did the intelligence come from that led to that or to the thwarting of so many violent terrorist plots by our police and security services, to whom I pay tribute for the tremendous work they have done in protecting the people of this country? I am delighted that we shall later hear from the noble Baroness, Lady Manningham-Buller. We look forward to her contribution, whatever side of the debate she may happen to be.
The police and security services, in targeting people, do not make wild guesses. They act on information that is obtained from within the Muslim community. If you lose the confidence of that community, in the fairness of our police and in the justice of our legal system, you will hinder the prevention and the detection of terrorist acts. That is the apprehension which unites the people who know most about policing, about prosecuting and about the conviction and punishment of terrorism, many of whom will speak in this debate today.
On these Benches, we oppose the proposal in the Bill for detention without charge for up to 42 days. I address that issue alone. My noble friends will address your Lordships later on other aspects of the Bill. In terrorist cases, the act of arrest is the end of a long process of surveillance and evidence gathering. The surveillance continues so that the security services and the police can see the scope of the whole operation. Arrest opens up to the police the chance of seizing incriminating material, such as mobile phones, computers, and even perhaps suspect substances. The suspect can be interrogated both about the facts revealed by surveillance and his explanations for the material seized.
If he is detained in custody, by the common law of this country, not to mention Article 5 of the European Convention, he is entitled to know the reason for his detention promptly. When he is properly charged, he knows where he stands. He is entitled to be brought before a judge promptly and to have the lawfulness of his detention determined. But when he is not charged, which is the proposal in the Bill, he is in limbo. He is detained without even a reasonable suspicion based on admissible evidence of his involvement in terrorist activity.
In previous terrorism Bills, we have passed a succession of new offences for acts preparatory to terrorism and for association and support. There are all sorts of acts which do not amount to any physical involvement, but encouragement and preparation are now criminal acts. A person who is detained without charge is detained without even a reasonable suspicion that he is involved in acts of that sort. Reasonable suspicion, as the noble Baroness, Lady Neville-Jones, pointed out, is the threshold test advised by the Crown Prosecution Service as the basis for preferring a charge. Reasonable suspicion does not require a realistic prospect of conviction. That is the full code test applied to the evidence by CPS lawyers at a much later stage in the collection of evidence when determining whether the case should proceed. Sir Ken Macdonald, the Director of Public Prosecutions, is happy with current procedures, and he should be because he has succeeded, as the noble Lord, Lord West of Spithead, pointed out, in 92 per cent of the cases that have been brought.
Interrogation of the suspect after charge in relation to the subject matter of the charge is unusual, but it has always been permitted under the judges’ rules under PACE Code C in special circumstances. It enables, even now, for a suspect to be questioned on new evidence where it is in the public interest. Consequently it is no surprise that all parties in this House support Clause 34 of the Bill which permits further questioning on the subject matter after a charge of a terrorism offence.
The usefulness of such questioning is a different matter. It should be realised that one of the side-effects of the introduction of planned and lengthy interviews is that a defendant at his trial may be subjected to the deconstruction of every sentence and every word recorded in his interviews by a highly experienced prosecutor and all sorts of unintended implications will be put to him in the presence of the jury. Those with a less than adequate grasp of the English language may prefer, indeed may be advised, to say nothing. The purpose of further questioning in a no-comment interview is to cover the ground—simply to raise an inference of guilt from the failure of the suspect to answer questions. The noble Baroness, Lady Kennedy of The Shaws, will recall the methods of the IRA: say nothing, plead not guilty, do not give evidence, and when you get to prison, turn it into a prisoner-of-war camp and wait for the amnesty. That is exactly what happened.
Even if a suspect confesses after continuous interrogation over many days, it is worthless. It is inconceivable that a suspect should be questioned daily for 42 days, or that if he were, evidence of a confession so obtained would ever be accepted by a judge as untainted by oppression. This is the important point which the argument seems to have missed so often. Other evidence-gathering in relation to the inquiry will continue after charge in any event, fuelled by the items seized. That is normal in every type of case. The inquiry is not hindered in any way by the act of charging the suspect. In any serious case, it is highly unusual for technical, scientific or other forensic investigations and material seized to be reported on for weeks or months. Inquiries into phone records and overseas contacts will continue, and fresh evidence will be served as the case proceeds towards its trial date.
So the period of 42 days has no practical or principled basis. It does not set a time limit for the inquiry. A period for a suspect in the police cells without charge adds nothing of value to the investigation, prosecution or conviction of terrorists. The noble Baroness, Lady Neville-Jones, has pointed out the alternatives that are available to detention without charge, and I will not go over that ground.
This Bill has passed its stages in the Commons by the production of gesture after gesture. A very important part of our constitution and legal system is that the party Whips do not determine whether an individual should lose his liberty. Let us look at what is proposed in the Bill. The DPP and the police must tell the independent lawyer to advise; he must tell the Home Secretary of his advice; she must tell the senior judge and the chairs of the JCHR and others; and she must tell Parliament, which must approve the order. And woe betide the lot of them if the independent reviewer says six months later that they got it all wrong. This is legislation in the AA Milne style.
There were 65 rebels among Labour Members of Parliament. Some of them were persuaded to change their views, not by knighthoods or peerages or pork-barrel promises, but a melange that only Winnie the Pooh could invent of executive, legislative and judicial functions, all mixed together in one useful jar. Some of those rebels and the entire DUP swallowed that melange whole. What a triumph that was for informed democratic politics.
In January 1993, I prosecuted the last terrorist trial in Wales, concerning the sending of letter bombs to senior police and officials of the Conservative Party. Since that time, thanks to our long campaign, the wisdom of the late and much-lamented John Smith and the leadership of Gareth Williams in this House, Wales gained its Assembly. There has been no more violence or threat of violence; the grievances of the people are addressed. The day will come when our minority communities will be proportionately and fairly represented in our democratic institutions, and in our police forces and security services. There will then be no more violence within, and threats from without will be resisted by a country that has learnt to share the same goals and values to which the noble Lord, Lord West, referred. If only the Government would drop these proposals and work to that end.
My Lords, I look forward keenly to the maiden speech of the noble Baroness, Lady Manningham-Buller. We are very lucky to have her in this House. Having worked with her on the sort of issues that we are dealing with today, I know the huge contribution that she has made to the defence of the United Kingdom.
I shall speak of only one issue in my remarks: the extension of pre-charge detention to 42 days. We are a country where there is in a meaningful sense both freedom and security. Both are important to our well-being and we understand the importance of both. We restrict freedom when we have to provide security and, generally as a nation, we have got the balance right. Getting the balance right requires open debate and mutual trust. We should respect both sides of the debate. On these issues, we should as legislators understand that we are trying to get the right policy answer. That is what the public expect of us.
We should pay special attention to what the Government say on these matters, not only because, as I know from my own experience, these judgments are difficult, but above all because of the consequences to innocent lives if atrocities occur as a result of our getting it wrong. However, I am absolutely clear that no advantage in fighting terrorism will be obtained by extending pre-charge detention to 42 days. I will therefore oppose this part of the Bill.
The terrorism backed and driven by al-Qaeda has raised new difficulties that everybody in this House will acknowledge: the need for long-term forensic examination of computers; the important links with abroad, in particular Pakistan; and, as my noble friend Lord West on the Front Bench said, the fact that the police often have to intervene earlier than simply evidence gathering would suggest to protect lives. Equally, it is accepted that a significant number of plots have to be fought against. It is also agreed that prosecuting terrorists in the conventional courts is one of our most critical defences against terrorism.
In most cases—I emphasise “most”—criminal charges may be laid and further detention justified after charge only if there is a 50 per cent or more chance of success before the jury and public interest requires the prosecution. In most terrorist cases of any complexity, it takes longer than 14 days. Indeed, it takes longer than 28 days; it takes many months in many cases to gather the evidence to establish the 50 per cent-plus. It was because of that that the proposal to extend the pre-charge detention period to 90 days was made. I supported that privately and publicly.
Parliament rejected that proposal. Since it did so, the Crown Prosecution Service has successfully used what is described as the threshold test in the vast majority of cases to charge terrorist defendants. The threshold test allows charging where the evidence to show 50 per cent-plus prospects is not yet available but the authorities believe on reasonable grounds that it will become available and where, if the detainee were released, he would be a danger to individuals or the community at large.
My Lords, I completely accept that it was in place at that time. The extent to which it could be used was not known; the extent to which it became the basis of most terrorist charges was not known. Now that it is known, the basis for an extension to 42 days completely disappears.
The test allows charging where the authorities believe that the evidence will come, for example, from the forensic examination of computers from abroad. It means that there is no need for an artificial deadline. We know that the CPS is satisfied with that approach; the Director of Public Prosecutions has made that clear. They know best; they are the ones making the decision about charges that determine whether people who may be terrorists have to be released before the opportunities have existed to gather evidence against them. They do not think that pre-charge detention extensions are required. We have heard from my noble friend Lord West that there were 8,000 exhibits in the Barot case, for example. Those 8,000 exhibits were not contained within the 14 days; they took many months to gather.
What is the argument to justify the extension? I quote from the Government’s policy paper in support of the 42 days. It says:
“An extension of pre-charge detention for more than 28 days may be needed in a case where although there is reasonable suspicion that an offence has been committed, and evidence is anticipated to be found in the material to be examined (or expected from overseas), the likelihood of that evidence being available within a reasonable time is not sufficiently certain for the threshold test to be met”.
It is rather difficult to know precisely what that means. However, it is suggested that the 14 days between 28 and 42 days will make the difference as to whether it is a reasonable time. I have news for those who put forward that view: it will make no difference. Test it. Suppose it is said that it will take six months to get the evidence. Is any judge going to say, “I would have allowed the charge but for the fact that you would not get the evidence in five and a half months”? No. That would be a ridiculous assertion, I submit.
If someone has been in custody for 28 days and there is not even a reasonable suspicion—this is the point made by the noble Lord, Lord Thomas—it seems extremely odd that there could be a basis for detaining him. If the Government had in mind a situation in which the state was overwhelmed by multiple plots and the life of the nation was threatened, the debate could be about whether the Civil Contingencies Act was sufficient. But that was not how the case was framed. The Home Office put the case on the basis that it is to apply, to quote from its paper, to,
“a specific operation exceptionally requiring the powers”.
The threshold test provides the best framework. If there is reasonable suspicion, charge the detainee and let the search go on for evidence. That meets the case. The basis for the extension simply is not there. I shall oppose the extension to 42 days root and branch.
I say little about the safeguards, save the following. First, on their complexity, we have heard that it needs a chief of police, a Parliament, a judge, an independent lawyer and a DPP before you can charge. If it was necessary to extend the time, I would hope that our police and prosecutors would be focusing on seeing whether there was evidence there, not trying to find their way through the complex flow chart that the Home Office has provided to try to help them through this position.
The second problem with the safeguards is that we in this country determine whether people should be detained on the basis of a judge’s view after analysis of the evidence. I find it worrying that somebody could be detained in prison on the basis of a deal done with another political party. That is something that we have never accepted in this country before.
The safeguards are obviously defective, but I shall vote against the whole extension to 42 days because I consider that no proper basis has been shown for it. We should address the issue in this House on the basis of a rational and open debate on the merits of the proposal. Only that rational debate will allow a true consensus to form and only in that way do we demonstrate both our determination to defeat terrorism and the strength of our values in doing so.
My Lords, I am delighted to be in your Lordships’ House. I thank noble Lords for the very warm welcome that I have had from all parts of the House and for the generous comments made today.
Normally, I would have liked a little longer than a week to settle in and to learn the conventions of your Lordships’ House before opening my mouth, but I have learnt one convention, which has been drummed home to me, which is that maiden speeches are to be short and non-controversial. I can do short, but non-controversial is a bit trickier in the circumstances.
Since 9/11, we have had a great deal of terrorism legislation. One point that has not been made so far is that successful counterterrorism work depends on a number of things, but in particular on good intelligence and good police work, not necessarily on changes in the law. That said, all the legislation has had some important and enabling provisions.
I applaud the fact that we are discussing now, rather than against the background of an atrocity, where this country wants to draw the line on issues such as pre-charge detention. I have considerable sympathy with the police on the collection of evidence, which is very challenging, given the need to move early, the amount of seized data, the complexity of cases and the forensics. I congratulate the anti-terrorist branch of the Metropolitan Police for the superb job that it does. But arguments can be made to justify any time of detention, just as in other countries, although mercifully not here, they can be made to justify any method of interrogation.
In deciding what I believe on these matters, I have weighed up the balance between the right to life—the most important civil liberty—the fact that there is no such thing as complete security and the importance of our hard-won civil liberties. Therefore, on a matter of principle, I cannot support the proposal in the Bill for pre-charge detention of 42 days.
I understand that there are different views and that these judgments are honestly reached by others. I respect those views, but I do not see on a practical basis or on a principled one that these proposals are in any way workable for the reasons already mentioned and because of the need for the suspect to be given the right to a fair trial.
Finally, I have been fortunate in my career to have dealt with national security. It has been a great privilege. Our legislation covering the Security Service refers to the protection of parliamentary democracy. I have a plea: handling national security should, as far as possible, be above party politics, as it has been for most of my career. Faced by a severe terrorist threat, we should aim to reach, after debate and discussion, a broad, cross-party consensus on the way ahead. Polarised positions are damaging to what we are all trying to achieve in preventing—I underline that—detecting and countering terrorism.
My Lords, it gives me great pleasure to congratulate the noble Baroness, Lady Manningham-Buller, on her outstanding, thoughtful and valuable maiden speech. I have known the noble Baroness for some time and, in spite of the conventions of address in this House, I am happy to call her a friend. Although a new Peer, she is no stranger to this House. Not only is she very well known to us from her distinguished career in the Security Service, culminating in being its director-general, she is the daughter of an eminent former Lord Chancellor and the sister of a hereditary Peer, formerly a Member of this House. What she has said today will provide the House with food for thought, delivered in her usual forthright manner. We look forward to hearing a lot more from her and we warmly welcome her to this House.
My Lords, I now turn to the Bill. It is beyond doubt that we are being threatened now by forces of terrorism that constitute a unique challenge to our society in general and to our security, intelligence and law enforcement services in particular. The nature and severity of that threat are unprecedented. This Bill is a serious attempt to deal with that threat while trying to preserve our democratic principles and practices. The introduction of some unparalleled safeguards and parliamentary involvement is the result of the widespread consultation in all directions in an attempt to obtain the broadest possible support, although unfortunately the much desired cross-party consensus has not been obtained on many crucial issues. I will never be able to understand the Conservative position on some of these issues. We will have an opportunity to discuss details of the Bill in future stages. At Second Reading, I will speak on only two points: making intercept material available to coroners and pre-charge detention.
The House has often heard the concerns expressed by myself and others about the use of intercept as evidence in courts. It has never been a question of principle for any of us, but one of practicality. The Chilcot committee of privy counsellors, in its excellent and thorough report, laid down nine considerations which would have to be satisfied if intercept was to be used as evidence. These nine considerations encompass all the points we have ever argued of the difficulties and dangers of using intercept as evidence. The Chilcot report was accepted by the Government, and my right honourable friend the Prime Minister made clear that only when the nine conditions were safeguarded could the matter progress. The privy counsellors entrusted with putting this into practice are in the process of doing so.
It is therefore with considerable surprise that one finds Clauses 80 and 81 in Part 6 of the Bill, amending RIPA so that intercept can be used in inquests and inquiries. I am unimpressed by the so-called safeguards enumerated in the Bill. The clauses seem to fly in the face of the assurances given by the Prime Minister and repeated in this House by the noble Baroness the Leader of the House. I understand that there is a coroners Bill planned for the next parliamentary Session, which would seem the appropriate place for this. There is also the work of the noble and learned Lord, Lord Cullen of Whitekirk, in Scotland, on fatal accident inquiries to be taken into account.
On Report in another place, these points were all raised by some distinguished former Ministers—my right honourable friends Reid, Ingram and Spellar—by the opposition Front Bench and by two Chilcot privy counsellors, the right honourable Alan Beith and the right honourable Michael Howard. The Minister, my right honourable friend Tony McNulty, responded to their concerns by confirming that amendments in this House would meet their points. I look forward to those government amendments in Committee. These clauses should be deleted, sunseted or sunrised, and they should definitely be amended so that they do not come into effect before the work on the nine Chilcot requirements is complete.
Apparently, the motivation for these two clauses is concern about one particular case. I say only this: there must be a way to solve this other than inserting two clauses into a wholly inappropriate Bill with serious, far-reaching, unintended consequences, in contradiction to assurances given in both Houses on the Chilcot considerations.
As the House knows, I and other noble Lords—the noble Baroness, Lady Park, the noble Lord, Lord Imbert, and my noble friend Lord Foulkes—moved on a previous Bill an amendment for pre-charge detention for up to 90 days, reviewed every seven days by a High Court judge and sunseted. I remain as convinced now as I was then that a maximum of 28 days in our legal system is inadequate in the face of the distinctive terrorist challenge of our time. I would also rather give the Home Secretary a reserve power for a possible increase than legislate in the emotional heat of a terrorist crisis.
The reasons for the need for increased time have been rehearsed often in this House: the sophisticated complexity of the material; the vastly increasing amount of computer product, often encrypted; the need for the police to intervene at an early stage to avoid the risk of letting a terrorist plot run; the request for the increase from all the senior police officers directly working operationally on terrorism; the multiple identities of suspects—it often takes time to establish who an arrested person is; and the global reach of contacts involved, which in these cases often necessitates reliance on liaison services for information. We are fortunate in our intelligence and security services, which have a history of close and successful relationships with foreign intelligence and security services, often built up painstakingly over many years. No one should think that this is easy or can be taken for granted. Liaison services have varied degrees of competences, resources and speed of working, and of course varying degrees of willingness to pass on all they know or discover. This is not always from ill will but sometimes because of their own national interests.
The various safeguards and the parliamentary role built into this Bill result from the widest possible consultations—I have never known a Home Secretary or Minister of State to consult more widely. They are an attempt to satisfy concerns about civil rights and parliamentary control. No one pretends it will be easy to implement them; it would be much easier to do without them. It is ironic that criticism about the practicality and difficulty of some of these measures comes from those most concerned about civil rights and democratic control. I support this Bill.
My Lords, I was delighted and privileged to hear the maiden speech of the noble Baroness, Lady Manningham-Buller, and share her point of view that, if possible, security matters should be above party politics. I had the honour of introducing to this House the first Bill that dealt with the security services. That was done on the basis of strong cross-party support. It has been somewhat amended since then but on the whole has worked successfully.
I will talk briefly on Clause 40 of the Bill, which creates a universal jurisdiction for serious terrorist offences in the United Kingdom. It is desirable to point out the need for some mechanism to determine how this matter is to be exercised, remembering that the Scottish courts have a particular position under Article 19 of the Treaty of Union. The primary matter to deal with is detention without charge. I of course accept all that has been said about the complexity of the terrorist threat in modern times. Like the noble and learned Lord, Lord Falconer of Thoroton, I do not see a direct connection between that complexity to do with gathering evidence and holding a person without charge in the mean time. These are separate matters requiring separate consideration.
This Bill requires that the Home Secretary should have discretion to bring in a reserve power in this connection following a report by the Director of Public Prosecutions and the chief officer of a police force in England and Wales, the Crown Agent and the chief constable of a police force in Scotland, or the Director of Public Prosecutions for Northern Ireland and the Chief Constable of Northern Ireland. It seems to suggest that if one of these three groups should make such a report, this power is triggered for the United Kingdom as a whole.
The requirements of that report are clear. It is necessary that,
“each of the persons making the report is satisfied that there are reasonable grounds for believing that the detention of one or more persons beyond 28 days will be necessary for one or more of the [stated] purposes”.
They must give grounds for that belief and must also be satisfied that any investigation is being pursued diligently and expeditiously.
On the basis of that report, the Bill gives the Secretary of State power to make an order bringing in that reserve power. It is interesting for me to notice that this involves something more than what was in the report, because the Secretary of State must satisfy Parliament that the need for the reserve power is urgent. There does not seem to be anything in the report from the prosecuting authorities that requires that to be stated. Whether the independent lawyer is able to furnish that out of his own head must be a matter of question, unless one has more faith in the independent lawyer than I have.
However, I believe that we can have faith in the senior judge with supreme confidence. On the other hand, I do not believe that it is right to impose on the senior judge an impossible task. The procedure seems to be a private procedure that is alien to the general judicial process, and there does not seem to be any opportunity for intervention by the detained person. I do not think that the Bill states what the senior judge is supposed to be satisfied about before he grants the application. I would have thought that that at least would be required.
When I became Lord Advocate in 1979, the outgoing Labour Government had a criminal justice Bill for Scotland before Parliament. When we took office, we decided that it would be good to promote a similar Bill, with some changes of course, as always happens on these occasions. It was interesting that what we were trying to do was give a statutory framework for detention before charge. The time limits in question were something like four hours or eight hours. That was a time of quite severe terrorist threat. Noble Lords might remember that Mr Airey Neave was blown up in New Palace Yard at that time. I of course accept that the complications of terrorist activity are much greater now than they were then. However, it seems to me that when we are going from, on the one hand, four to eight hours in 1979, to 42 days at this time, we have seen a very considerable erosion of the civil liberties on which our society is founded. If we wish to preserve our society, methods that destroy that framework of civil liberties seem to me to be quite wrong.
My Lords, I add my congratulations to the noble Baroness, Lady Manningham-Buller, who has joined us today. She was a star in her previous job, and I hope that she will bring the same qualities here as well. She came to visit me when I was Secretary-General of NATO, and it was a breath of fresh air. I remembered the visit made to me by her predecessor, whom I had asked why my protection in the United Kingdom had been withdrawn, at a time when all of the major NATO nations, and NATO as an organisation, believed that I might conceivably be under threat. He looked at me and said, “Well, we make our own threat assessments in the United Kingdom and we don’t think you’re under threat. Mind you, it is an imprecise science we use. It is a question of balance and judgment”. I suppose the fact that I am here speaking today shows he got the gamble right, but I did not agree with him at the time.
Essentially, we are talking about exactly the same thing today. It is a question of achieving a balance between the liberties that the noble and learned Lord and others have spoken about and the new challenges that we face now and will increasingly face. Judgment as to the appropriate framework of legislation is required. It is better that we discuss this calmly and rationally rather than after the event when public sentiment is strong, and often an artificial all-party consensus can drive us in the wrong direction. I am not a particularly partisan politician at the moment, having achieved near sainthood in Brussels, but there is a role for party politics because it brings out the issues. The outcome of partisan debates is sometimes better than the outcome of a short-term consensus in an emergency. That is why I think the Government have the balance right and that the judgment of the Prime Minister, the Home Secretary and the Minister here today is right, and they should be supported.
We are, after all, talking about up to 42 days and not a mandatory 42 days. We are talking about a limit of 42 days but with very significant safeguards built in. In the circumstances, when terrorists are moving at the speed of light and can harness technology and communications in such a way that sometimes the democracies of the world can be too slow, we require that measure. We have an open, clear-cut, transparent and exceptional process that we should support.
Like my noble friend Lady Ramsay, I shall touch on the question of intercept. It is a rarefied issue that has boiled around both Houses of Parliament, and the use of intercept evidence in court is a matter of real concern. I declare an interest, although it is not particularly relevant, in as much as I am a senior adviser to Cable & Wireless—the second telecommunications company of this country—which gives me some knowledge of and background to these issues.
As a result of debates here and in the other House, the Government decided to set up an all-party committee under Mr John Chilcot, a distinguished former civil servant. That committee deliberated for longer than was anticipated because of the complications involved. It wrestled with the issues and took some time producing a report that was accepted by the Prime Minister and welcomed in all parts of this House and the other place. Nine major safeguards were proposed by the Chilcot committee, designed to ensure that essential national security was not prejudiced should intercept evidence be used as well. I do not think that I have ever done this in my life before, but I would like to quote what Michael Howard said in the other place. He is a member of the Chilcot committee, having replaced the noble Lord, Lord Hurd. In the debate on 10 June, Michael Howard said:
“The Chilcot committee report set out nine requirements that must be met to ensure that the United Kingdom’s strategic intelligence capability is safeguarded, and that the ability of intelligence and law enforcement agencies to protect the public is not harmed if intercept evidence is made admissible”.
He went on to refer to the provisions in the Bill regarding coroners’ courts. It does not seem to be a comfortable marriage when he states:
“It therefore came as a surprise, to me at least, to see the provisions of the Bill that allow for the admissibility of intercept evidence in coroners’ inquests without a jury, and to see that there was no reference to those safeguards, and indeed no hint of their necessity”.—[Official Report, Commons 10/6/08; cols. 260-61.]
He was supported in that—I do not wish to single him out—by John Reid, Adam Ingram and John Spellar, all of them former senior Government Ministers.
I repeat what my noble friend Lady Ramsay said: a promise was made by Mr McNulty in the other place that amendments would be put forward in this place to deal with the serious concerns expressed by those individuals. I hope that, at the end of the debate, my noble friend will articulate what these amendments will be and how we will safeguard national security. I do not believe that we should seriously compromise the nation’s security by exposing methods, techniques and sources simply to get one or two convictions. To do so would close off a stream of information and intelligence that already has prevented major terrorist attacks in this country. It is a serious issue and I look forward to the reassurances that I am sure we will be given.
My Lords, like everyone else, I congratulate the noble Baroness, Lady Manningham-Buller, on a memorable, well informed, practical and very influential speech—all in three minutes. If I could emulate that, I would be very surprised. I declare an interest as a member of the Joint Committee on Human Rights, which has scrutinised the Bill and has reported six times this year on counterterrorist proposals.
I begin not with the 42-day issue, but with another that we regard as equally important. It has received very little attention, except recently in the other place. I refer to the provisions on coroners’ inquests in Part 6 of the Bill. Even though those provisions have an impact on the right to life and to an effective and independent investigation under Article 6 of the convention, the Explanatory Notes do not explain the basis for the Government’s view that Part 6 is convention-compatible. That is deeply regrettable and I hope that the Minister will deal with it fully in his reply. He has not done so in his opening speech.
I commend a close reading of the debate of 10 June in the other place, initiated by our powerful chair, Andrew Dismore MP, with the support of Dominic Grieve QC MP, the new and admirable shadow Home Secretary. As Mr Dismore explained, the convention imposes a positive obligation on the state to provide an adequate and effective investigation where someone has been killed as the result of the use of force, particularly by state agents. The person conducting the investigation must be independent from those implicated in the events, and there must be a sufficient element of public scrutiny to secure accountability, in practice as well as in theory. The inquest must involve the next of kin to the extent necessary to protect their legitimate interests.
The procedure proposed by the Bill would empower the Secretary of State to certify that the inquest should be conducted without a jury—and with a special coroner—if, in the Minister’s opinion, it is in the interests of national security, or in the interests of the relationship between the UK and another country, or if it is otherwise in the public interest. The Secretary of State thus seeks sweepingly broad discretionary powers, going well beyond those needed to counter terrorism. The Government’s justification—the need to comply with Article 2 of the convention—is an example of Home Office chutzpah.
Independence is essential, and a system based on special appointment of security-cleared coroners by the Minister would inevitably involve serious breaches of convention rights and obligations, because it would be fatal to any appearance of independence.
Dominic Grieve MP rightly asked:
“What is the point of suddenly dispensing with juries? … it is possible to have specially vetted juries, to have public interest immunity certificates, and to treat these processes as ordinary hearings ... If … the Government came forward with other ideas and proposals in the context of their planned reforms to the coroner system generally, that would be a sensible approach. Legislating quickly and repenting at leisure is a big mistake ... This House”—
he was referring to the other place—
“has a major responsibility in upholding confidence in the law and the rule of law and in ensuring that deaths are properly investigated, particularly where there are issues of sensitivity surrounding possible state intervention, and it should not have anything to do with a set of proposals that will ultimately bring the Government into disrepute”.—[Official Report, Commons, 10/6/08; col. 249.]
The Commons Justice Committee called for the proposals to be withdrawn pending more detailed scrutiny and the introduction of the promised Coroners Bill. The Joint Committee agrees with that. We hope that the Government will decide to do so before we have to vote on whether Part 6 should be removed from the Bill. Sunset should come early in October.
I shall refer briefly to the issue of 42-day detention because everyone else speaking before me will have said almost all that can be said, as will those who follow. We all have too much experience in this country of the effects of murderous terrorism from within. One lesson of the IRA experience is that excessively repressive responses are counterproductive, and the Government’s attempt to justify seeking new powers of administrative detention is wholly unconvincing. They narrowly escaped defeat in the other place with the aid of nine DUP Members, persuaded by some Faustian bargain to swallow their doubts. The tactics used were squalid, including a deplorable whispering campaign against Liberty and its brave director, Shami Chakrabarti. The outcome of that vote cannot be said to demonstrate strong support in the elected House, even from the governing party’s supporters.
The Home Secretary’s argument would not be likely to convince either our courts or the European Court that the 42-day extension would be compatible with the fundamental right to liberty in Article 5 of the convention. Nothing that has been said or written by Ministers explains why 42 days has been chosen, except that it is thrice 14 days. The Home Secretary frankly admitted on 11 June that, apart from evidence of the growing scale and complexity of terrorist plots,
“the only other evidence that it would be possible to provide would be provided on the day when a terror suspect walks free because an investigation cannot be completed. I am not willing to wait until then to legislate”.—[Official Report, Commons, 11/6/08, col. 322.]
That is not evidence and it does not justify what is proposed in the Bill, especially when weighed against the knowledge and experience of the Director of Public Prosecutions, two former Lord Chancellors, the former Lord Chief Justice, the former Attorney-General, the Home Affairs Select Committee, senior police officers and, last but not least, the noble Baroness, Lady Manningham-Buller.
The safeguards in the Bill are illusory, cumbersome and self-defeating. Parliament cannot judge the merits of individual cases and pending investigations, and it would not be given evidence on which to base a judgment as to whether the reserve power should be triggered. The procedures envisaged are so bureaucratic that they would defeat the object of speedily and fairly tackling a serious emergency threatening the life of the nation and its people.
The Joint Committee includes members of all three parties in both Houses and of the Cross Benches. We concluded unanimously that,
“the case for 42 days detention has not been made, that the availability of alternatives makes it unnecessary, and that it would inevitably breach Article 5”,
of the convention. We advocated a framework for making a derogation under Article 5 of the convention if it were necessary to do so.
Finally, apart from the human rights and constitutional principles that are at stake, there is a wider and equally important issue concerning the effectiveness of the Bill in reducing the risk of further acts of home-grown terrorism by fanatics pursuing an unholy political jihad against their fellow British citizens. There is a real danger that, by taking further reserve powers now for use in some future, hypothetical situation, the Government will alienate law-abiding, peace-loving British Muslims or weaken their ability to combat political extremism and criminal violence within the younger generation.
I worked with Roy Jenkins at the height of the Birmingham and other bombings, and one lesson from the long years of Irish terrorism was that moderation and self-restraint, rather than overkill, were vital weapons in the battle for hearts and minds. The Government have somehow convinced Keith Vaz MP to change his mind, but I doubt whether they have convinced many British Muslims or, I suppose, a majority of your Lordships’ House.
My Lords, for over six years I had the privilege and burden of dealing with the issues with which your Lordships’ House is concerned in this Bill. The horrors of 9/11 occurred three months to the day after I had taken office and I was hurled headlong into the first of the antiterrorism Bills with which I had to be involved. Thereafter, through successive antiterrorism Bills, those that came to your Lordships’ House and, yes, those that were discussed but never brought forward, through Madrid, through Beslan and the horrors of 7 July, I was concerned not simply as legal adviser to the Government but as the senior prosecutor, the person responsible for the Crown Prosecution Service and its policies, and the person who had to take the decision in relation to some of the cases because my consent was required.
I worked closely with the Home Secretary and other senior Ministers in looking at all the issues with which your Lordships are concerned: intercept, control orders, counterterrorism and increasing resources for the police and the security services. I want to pay tribute to the police, the security services and the prosecutors. I want also to welcome the noble Baroness and compliment her on her discretion. While she was in post I tried to get out of her for quite a long time her view on an extension and only now has she said it openly—although it is what I suspected.
Those events taught me two things. The first is that the threat from terrorism is real and grave. No one who sat in the bunker, in the Cabinet Office, watching the 7 July events unfold could doubt that for one moment. Therefore it was right to look to increase resources for the services, and to look to the powers that might be necessary to increase their capability. But it taught me one other thing: if we are going to make changes to our fundamental rights, it must be on the basis of principle. Above all, it must bear in mind one very important factor which a number of noble Lords have referred to already, and of which I became increasingly convinced: we will not win this battle against the arc of terrorism that we see across the world by might alone; we need to win hearts and minds. We need to persuade people outside this country and—yes, noble Lords are right—some within this country that the values for which we stand of justice, fair play, freedom and liberty, the very basis of our society, are better, stronger and more valid than the horrible creed of hatred and oppression of al-Qaeda.
When I approached this particular issue for the first time, when the 90 days proposal was put forward, the question I asked myself was: what are the principles upon which we should be legislating? I tried to articulate those—to myself, to colleagues and then more publicly. I believed that it was critical that we should hold on to and not compromise on certain fundamental freedoms which are non-negotiable, such as fair trial and freedom from torture. I recognised, though, that there were some other aspects where a balance could be struck and the question was how to strike that balance. It seemed to me that the test was one of necessity and proportionality. This is not lawyers’ jargon; it means something very real: you do not take away fundamental freedoms that people, including our ancestors, have fought for, without very good cause and unless you can show that it is needed. You do not do it unless you can show that it is proportionate to the risk that you face, or else you risk giving away the very freedoms and liberties that the terrorists are trying to take from us.
So when, for the first time, 90 days came up I asked, “What is the evidence for this? Why 90 days?”. I was persuaded that there was a case for an extension from 14 days because of all the points that my noble friend Lord West referred to. The arguments that he puts forward are no different; one of the problems with the proposal is that there is nothing new with the arguments and evidence put forward. I was not persuaded that 90 days was justified. I argued against it within government and could not have supported it had it come in that form to your Lordships' House. I do not say that because I do not welcome those who have now changed their view on it; I was consistently against it, despite some comments recently to the contrary.
What is the argument in favour of the proposal? I have heard it said that 42 days is not enough and that the period should be 42 years. I have heard it said by one senior police officer that it should be as long as it takes. All that misunderstands what detention before charge is about. It is about having enough time to assemble a case to charge. It is not about public protection; we have other ways—control orders, with which some of your Lordships may disagree—of protecting against people against whom there is not enough evidence but who are believed to be a risk. It is not about stopping the investigations; that is why post-charge questioning was put forward, as an alternative to extending the period rather than as an addition to it, so that the police and the prosecutors can continue.
It is therefore important to consider whether the necessity for the extension has been shown. I looked at it hard through, I think, all the cases that the noble Lord, Lord West, referred to, which I dealt with at the time with the prosecutors. When we believed that plots were being uncovered in the summer of 2006, I flew back from my holiday, stayed with the prosecutors and got detailed briefings throughout that period. I was anxiously considering and wanted to know whether a longer time would be necessary. It was not. I asked the prosecutors, “If you had had longer than 28 days, would you have used it?”. “No”, they said.
Test it this way: you cannot keep somebody for as long as it takes. You can keep them only so long as there is a reasonable suspicion that they have committed an offence and you have a reasonable prospect of getting the evidence if you keep them a little longer. After 28 days, how likely is that? In my judgment, having looked at it, it is not likely at all. Therefore I cannot support the proposal. Detention without charge for a long period would undermine the fundamental freedoms on which this country is based, of which this country should be proud, and of which—yes, I will say it—my party ought to be proud. I for one will not undermine them by voting for this proposal.
My Lords, like other Members of your Lordships' House, I too will concentrate my remarks on the proposal to extend pre-charge detention. I noted with some interest that the noble Lord, Lord Lester of Herne Hill, said that everything that could be said about it had already been said; in some ways, he is right. However, it struck me that it would be interesting to take the opportunity at the beginning of my short remarks to remind us just what sort of fundamental rights we are talking about.
It has been a fundamental right of the UK citizen not to be detained arbitrarily without charge, and upon detention to know the nature of the charge against him and to have legal representation. That is easily said; we all understand it. However, I need to put on record on this occasion that those rights can be traced all the way back to Magna Carta in the 13th century, of course, and probably arguably to the earlier great reforms of Henry II at the end of the 12th century. As we all know, it is a principle that runs in parallel to habeas corpus, that we introduced to the civilised world, and that we have defended as a fundamental right for centuries. Evidence of that will be found in our war cemeteries in northern France, north Africa, the Netherlands and many other places across the world, all of which bear stark testimony to the price that this nation has been prepared to pay in confronting those who exercise arbitrary power, unfettered by considerations of natural and legal justice.
We have already heard that, at times of serious threat to the nation, balances have to be struck. We have heard reference to 9/11, Madrid, and 7/7 and 21/7 in London, though not to Bali, but I put that on the table as well. Because of all that, as we know, we have good cause to strengthen our defences against the international fundamental terrorist. Other countries face the same threat, and they have not considered it proper to extend detention without charge as we have done. Other countries face the same dangers, and have not been nearly so extravagant. I remind your Lordships’ House that comparisons with non-common law countries are not always helpful, though one might reflect that Russia and Spain have five days, France has seven, and Turkey seven and a half. Realistically, if one compares other common law countries which, like us, have accusatorial, rather than inquisitorial, systems, even then our present 28 days looks excessive. Nowhere else in the developed world has a maximum period of detention as long as the UK. Australia is closest; there, the process is limited to 12 days. Others trail well behind. The USA, New Zealand, South Africa and Germany settle at two days. Canada has a mere 24 hours. By those comparisons, our country fares very badly, even at present.
We also fare badly in the target that we offer the international terrorist on the issue of extended detention. I have said previously in your Lordships’ House that it is a well known tenet of the international terrorist—going back as far as Marcuse and Che Guevara—that the terrorist has only to prompt or provoke a democracy into more repressive measures in the name of public safety, for that same terrorist to be able to point to those increased measures and claim that the now repressive regime is the reason that the terrorist is in business in the first place. In short, the measures become a recruiting sergeant for the terrorist, justifying, in his eyes, further acts of terror. We already recognise—I allude to the remarks of the noble Lord, Lord Thomas of Gresford—the need for the support of minority communities. I will not labour the point, save to remind noble Lords that most of those involved in terrorism in this country, and convicted of the offence to date, were born and lived here. We know that little information comes out of their communities. An extension beyond 28 days would be bound to exacerbate opposition to the state and ease the path of the terrorist.
We have heard that the emergence of the suicide bomber has changed the terrorist landscape across the world. Of course it has. As head of police operations in London and as chief constable of the largest provincial police force, I was closely involved in operations against the Provisional IRA and, to some extent, against Punjabi and Kashmiri terrorist groups. I was named as a specific target of the Provisional IRA; I lived with round-the-clock armed protection. Against that background, I put on record my recognition that the picture has now changed and that the threats are even more difficult to combat. The Minister has already given us evidence of that. I recognise that and agree with him. All of this makes the task of the investigator far more difficult and complex. Times have changed and I, as others have done this afternoon, pay a fulsome tribute to the police and security services for their successes over the years.
As we have already heard, not all senior police officers, by any means, support the extension beyond 28 days. Many chief constables tell me privately that they have no heart at all for the proposed change. The argument for an extension rests solely on the issue of adequacy of time: enough time to allow the investigators to build the case, secure the evidence and prefer the charge. Yet we already know, and I mention it again, that to date we have never come close to running up against the 28-day limit and out of time. We know that in the overwhelming majority of cases charges have been preferred at or before 14 days. In short, we have not yet lost a case or come close to losing a case because of inadequacy of time, yet there is apparently a fear that with the growing complexity of investigations, 28 days will not be sufficient and that we need “something in the back pocket”, as it has recently been put in the newspapers, to guard against that eventuality. I am not sure where that unhappy phrase “the back pocket” came from, or who advanced it. I would not employ such words to describe a matter of such weight and importance, and I am distinctly uncomfortable to see legislation enacted on a hypothetical supposition or on a “just in case” basis.
To be charitable, if we need to have something in place just in case—and I believe that we are still a long way away from that eventuality—we certainly do not need the legalistic fudge envisaged in the Bill. The noble Lord, Lord Thomas, alluded to AA Milne, but what came to my mind was Monsieur Clouseau because in a vain attempt to appear tough on terrorism, we are asked to consider a measure that in Clause 22 seeks to define a grave exceptional terrorist threat but which in reality restates what we already accept as terrorism; constructs a Byzantine consultation procedure; puts Parliament—a legislative body—into a quasi-judicial role; asks it to consider material that would almost certainly be sub judice; and, significantly, inserts the words “42 days” into the Act. Those words might well be hedged in with provisos, but their very existence breaches our present, extravagant limit and will be held up by our critics as a very large recruiting sergeant for al-Qaeda.
That brings me to the nub of my argument, and I begin to conclude. The extension is unnecessary. We can obviate any need for an extension of time by allowing post-charge questioning. I shall not repeat the arguments for that because we have already heard them this afternoon. Charging a lesser terrorist offence and then conducting post-charge questioning would be preferable to the 42-days minefield that we are offered. If we add to that intercept evidence, the threshold test and other things that have been mentioned today, we have enough to go forward with. If a suspect is in custody for 27 days without any evidence against him, he should most certainly be released. There is no doubt about that. However, it is highly probable that evidence for a charge will have emerged much earlier: acts preparatory to terrorism, membership of a proscribed organisation and possession of materials all come to mind. Critically, the act of charging that offence immediately cleans the slate and 28 days, 42 days, and 90 days all become irrelevant because the suspect has been charged. He is now in the normal judicial process, has legal representation and knowledge of the charge made against him and is regularly produced in court.
In conclusion, there are some people—we have heard them alluded to this afternoon—who argue that we are under considerable threat and that we should give the security forces whatever they require to deal with the terrorist. They argue that difficult times call for stern measures no matter what the cost and that it does not matter if we erode fundamental civil rights in the process. I answer them by quoting the short and chilling poem by the Lutheran pastor, Martin Niemöller, who reflected on his experiences in Europe in the 1930s, a time when perceived threats to the state from within were met with steadily enhanced and increasingly oppressive executive powers. He said:
“First they came for the Jews and I did not speak out—because I was not a Jew.
Then they came for the communists and I did not speak out—because I was not a communist.
Then they came for the trade unionists and I did not speak out—because I was not a trade unionist.
Then they came for me—and by then there was no one left to speak out for me”.
I vigorously oppose the proposal to extend the detention period to 42 days. I believe that it is unnecessary. Any increasing problems can be dealt with by relatively minor adjustments to existing law. We run a grave risk of further inflaming terrorist opposition. We have gone far enough already in eroding our long-cherished and long-guarded rights, which, as I have already said, we have been so far proud to advocate to the world. Enough is enough and I would commend that we stand firm.
My Lords, on the night of 10 September 2001, my wife and I were on a plane from Washington to London. We arrived on 11 September and returned to my diocese in Guildford. Two or three days later, more than 500 members of the American community in Surrey gathered in Guildford Cathedral for a service, Surrey having the largest American community in the country. What struck me very forcefully about the opinions and the attitude of the American citizens living in shock after 11 September was not only their dignity but their strong sense that we in the free world should not react to these sorts of events by undermining our liberties and values. That memory has remained with me.
Of course, the Government have a challenge, but it is easy for us not to recognise it. If there is a breach of our security, Governments pay a very heavy price for serious lapses in national security. We have to bear that seriously in mind. A number of noble Lords have talked about the values that underlie our liberal democracy. I would suggest that in our Christian tradition freedom and order, and law and liberty, feed each other. They are not just held in tension, but they serve each other and are the basis on which oppression, anarchy and the corporate abuse of power are resisted. The Church of England’s response to the Home Office paper of July 2007 from which this comes stated:
“The Christian tradition, in common with liberal democratic political theory and human rights law, upholds the safeguarding of public safety and civil liberties alike as major claims upon government … The protection of liberty within the rule of law is itself a major motive for resisting terrorism, and its erosion in response to threats to security constitutes a partial victory for terrorism”.
We are dealing with legislation that has exceptional provision within it, which is beyond the normal bounds of the way in which we operate in the protection of civil liberties. If this House and Parliament are to give their consent to those extreme steps, they need sufficient evidence that that is needed and need to be sure that the powers therein are properly distributed. I share some of the anxieties about whether it is wise to give senior members of Government and of Parliament responsibilities that might properly belong within the judiciary. It is really important that we protect the judiciary from any sense that its activity is politically bounded. I agree with the comments made by the noble Lord, Lord Lester, particularly about Clause 79, and I will be very interested to hear the Minister’s response to some of the issues that he raised.
What I am not clear about is the reason for the Bill. In the July 2007 paper it was clear that the motivation for the extension of pre-charge detention was the sense that the police do not have enough time. The changes introduced into this legislation in the parliamentary process seem to suggest now that the reason for the Bill is the grave, exceptional threat of terrorism. These are not the same reasons. If the reason is a lack of police time, then we need the evidence. If it is a grave and serious terrorist threat, then, as others have suggested, why is the Civil Contingencies Act 2004 not sufficient for the task?
Like many noble Lords, I appreciate the efforts the Government have made to respond to public concerns, but I share the concerns about the Byzantine processes that are now in place. Is the Bill, as it stands, workable? It is not just in the interest of national security but also in the interest of those under suspicion that the process is simple, understandable, immediate and straightforward.
In my diocese, two young men have already returned to their community innocent after having been suspected of involvement in terrorist activity. These two young people were held for 28 days after an incident in 2006 and released on the 28th day without charge. What is it going to be like after seven weeks of detention, if that is what happens, for young people to return to their communities? What is going to be the impact of that? Those of us who work in these communities face a severe challenge now with regard to the attitudes of young people in minority groups and their social place and sense of cohesion. Have we not got into a mode of thinking that the way to deal with such threats is to produce criminal justice legislation that turns the screws a bit harder? That argument is counterproductive and will radicalise communities yet further.
My Lords, this Bill contains points that raise significant concern. The key concern is the period of pre-charge detention that is justified in the case of terrorist suspects. The Crown Prosecution Service has stated:
“We think the 28 days has been sufficient in each case that we have had ... We have not seen any evidence that we have needed beyond 28 days”.
The arbitrary detention will violate the right to liberty and freedom for citizens as protected by the European Convention on Human Rights and other international human rights instruments.
We must all be very concerned about the harm that may be caused to anyone who is arrested and detained for a long period and released without charge. The arrest in the first place should have been based on sound intelligence and good police work. Any form of payment will not compensate for the damage inflicted on the innocent person.
We already have the longest period of detention in the democratic world, which this Bill seeks to extend further on the pretext that there is increasing complexity of terrorist operations and that more time is required to gather admissible evidence for a charge. The period of pre-charge detention in the United States is limited to just 48 hours. Why should we need 42 days when the United States requires so much less time?
I am not at all convinced about the Government’s assertions on this matter; they will need to put forward a logical and sound case to persuade me that the provisions are necessary. I do not want to see heroes created as a consequence of draconian legislation that can serve only to strengthen the propaganda wars of the extremist. Eleven individuals have been detained between 14 and 28 days, pre-charge, since the provisions of the Terrorism Act 2006 came into force, three of whom were released without charge.
The question that we need to consider in the context of this part of the Bill is whether an extension to 42 days is necessary and whether it will make us safer. In my view, the Government have a significant amount of persuading to do. The political tactics apparently deployed in another place to approve this part of the Bill are unlikely to count as persuasion in your Lordships’ House.
This legislation will mainly affect one section of the population. It will antagonise Muslims when we need the help of the community to combat the threat of terrorism. We need to reflect on the messages that the Bill will send. As one of the 2 million Muslims resident in this country, I am concerned at the apparent demonisation of the Islamic faith. Nearly all Muslims are peaceful people and have played a significant role in the advancement and well-being of this country. We do, however, accept that there is a tiny minority of Muslims who are misled and have extreme views. Islam is indeed a religion of peace. In fact, when we meet each other, we say, “Assalaamu Alaikum”, which means, “The peace of God be upon you”. Islam forbids suicide bombing and the word “jihad” is often misunderstood—it means doing one’s utmost. A Muslim must carry out good deeds. Nearly all British Muslims share the same values and interests as anyone else who lives here.
Any person who commits a terrorist act should be treated as a criminal and referred to accordingly. Making reference to a terrorist with any linkage to a particular religion is wrong.
We cannot hide from the fact that the most significant terrorist threat that we face in the United Kingdom today derives from a tiny minority of people who have a distorted interpretation of Islam. Nearly all Muslims, including myself, totally condemn any form of terrorism and want to live in peace with others. We are horrified at the vile activities advanced by any terrorist, who is a criminal, supposedly in the name of Islam.
I have spoken on terrorism on numerous occasions and believe that the remedy does not lie in draconian and severe legislation. The problem requires a holistic solution involving the Government, police, local authorities, voluntary bodies and the Muslim community itself. The Muslim community is involved in looking at the problems of extremism. Its initiatives to deal with the matter include effective self-regulation of mosques and other Muslim organisations. Programmes to interact with the young are a part of those initiatives. I chair the Conservative Muslim Forum, which has established a youth wing to engage with the young.
Terrorism has to be fought on a wide spectrum of co-ordinated fronts and through community cohesion and comprehensive engagement extolling the values and virtues that bind us together as a society. It has to be fought through effective education programmes to widen understanding and challenge extremism, particularly among the young.
I support measures advanced by my party to tackle the terrorist threat; for example, I would like to see a dedicated border police whose purpose is to defend us against that threat. We need to alter the terms of the debate. I fear that the measures in the Bill are unlikely greatly to advance that cause. We need to confront the threat posed by terrorists by depriving them of the supply of volunteers and those prepared to support their disgusting abuses. We need to make people feel safer in their communities and advance genuine cohesion and identity. We need to construct a robust political consensus justified by evidence. The Government’s evidential base is tentative and unconvincing.
Although I was born in Africa, I learnt about the Magna Carta and habeas corpus as a schoolboy. The provisions of the Bill contravene these principles. There are better ways of protecting our society and its values than by undermining its freedom and liberty. For that reason, I object to the relevant provisions of the Bill.
My Lords, there are those, I understand, who from time to time assert that the Church of England speaks with an uncertain voice, although not perhaps if they had been listening to the General Synod in the past 24 hours. However, on this issue, the church has been very clear, as I hope the close proximity of my speech with that of the right reverend Prelate the Bishop of Chelmsford will demonstrate.
In February of this year, the General Synod asserted its grave concern that an extension to the current 28-day maximum period for detention without charge of terrorist suspects would, in the absence of the most compelling arguments, disturb unacceptably the balance between the liberty of the individual and the needs of national security. As is becoming clear the longer this debate continues—and in your Lordships’ contributions today—those compelling arguments have not been forthcoming. What is before us represents a significant retreat, as has already been pointed out, from the Government’s desire to introduce a 56-day limit, let alone a 90-day limit. To that extent, the proposals represent a victory for principled opposition to the erosion of civil liberties and an acceptance by the Government of the burden of justifying extension in particular and exceptional circumstances.
However, as we all know, the danger of normalising what was previously seen as exceptional is acute. It leaves us with the high risk of falling between two stools: eroding civil liberties unnecessarily on the one hand, but failing to provide a practical mechanism for the kind of exceptional situation supposedly envisaged on the other. Despite the concessions and amendments tabled by the Home Secretary on 3 June, to which the Minister referred in his opening remarks, we are still left with significant flaws in the criteria for extending legislation, for which no amount of procedural safeguards can possibly compensate. Further, by introducing the criteria of the grave and exceptional terrorist threat, the Government have shifted the ground, as the right reverend Prelate the Bishop of Chelmsford pointed out, because the original justification for the extension was the length and complexity of terrorist investigations and not the seriousness of the threat.
Many of us in the church stand with other of the Government’s critics in asserting clearly that these proposals are both unnecessary and unprincipled and offer us the prospect of innocent people being held for well over a month on the basis of police suspicion rather than hard evidence and without a formal accusation of any criminal offence.
Above all, it is clear that these proposals are unproductive. They will not make us safer. Those of us who live close to and talk regularly with the leaders of Muslim communities are acutely aware not only of their concern for security, as the noble Lord, Lord Sheikh, has pointed out, and the acute need to counter terrorism effectively, but also of their deep concern that this Bill will have the opposite effect.
At this point, I invite noble Lords to exercise their imaginations. Imagine the consequences for the tightly populated Muslim neighbourhoods around the major mosques of a city such as Leicester. Imagine the effects on the carefully and painstakingly built relationships of trust between community leaders and the police if a young man or woman were to be taken into custody, held for five weeks and released without charge. Imagine the concern among the elders of these communities, who already experience repeated delays at airports on return from foreign visits and who have been delayed, searched and questioned repeatedly without evidence. Imagine the effects on the large numbers of students in our universities and colleges, looking sometimes for evidence to corroborate the propaganda readily available to them, which tells them that this country is not on their side. Imagine the consequences for the police, whose intelligence gathering depends on the trust and co-operation of the local communities—a trust that, once fractured, can take years to reconstruct. Imagine the stigma attaching to an innocent detainee living with the consequences of detention without prospect of clearing his or her name in court.
I mentioned at the outset that on this issue the church has been clear and unequivocal. The Christian faith has no privileged insight that shortcuts the hard work of analysis and moral struggle on this issue, but the keen Christian awareness of the fallen and compromised nature of human beings serves as a perennial warning that measures taken to counter horrific evil must contain checks and balances, given the temptation, even to those whose intentions are laudable, to betray their own principles. Such checks and balances are at the heart of our moral identity as a nation. We ignore or erode them at our peril.
My Lords, I begin by declaring an interest as the Home Secretary’s representative on the Metropolitan Police Authority. As such, my role is to provide lay oversight to the Met’s national and international work, primarily security and counterterrorism.
Over the past four years, I have spent much of my time encouraging the police to be as sensitive as possible to the impact of what they are doing in potentially strengthening the single narrative of those who seek to lure some vulnerable young people down the road to violent extremism. The police understand that their job is just as much about “prevent”, to use the jargon of the CONTEST counterterrorism strategy, as it is about pursue and protect. What I say is very much in that context. As part of my role, I am regularly briefed on current operations and on the developing threat picture. While I have enormous admiration for the skill, dedication and determination of the police and staff in the counterterrorist command, those briefings dispel any complacency that that admiration may afford.
I need not remind your Lordships that yesterday was the anniversary of the 7/7 bombings. I hope that I do not demean those who died by pointing out that, as terrible as that atrocity was, the intention of the perpetrators was to kill and maim even more people, as was the intention of the perpetrators two weeks later in the failed bombings of 21/7—and as was the intent of those who planned one year after that to blow up holiday airliners in mid-air, with a view to killing thousands of passengers and perhaps many more people on the ground as the debris rained down.
That desire to achieve mass casualties distinguishes the current terrorist threat from those in the past. Today's terrorists do not utter warnings; they are ready—indeed, keen—to die as part of their attack, and the objective is not a definable political negotiation. Mass casualties are an end in themselves. That is very different from the threat from the Welsh nationalists in the 1960s described in such detail by the noble Lord, Lord Thomas of Gresford.
It has been a pleasure to follow so closely the noble Lord, Lord Dear. He had a very distinguished policing career, including four years as an assistant commissioner at the Met followed by five years as Chief Constable of West Midlands Police. Of course, when he relinquished that role in 1990, we had yet to see this modern terrorism in the UK or indeed anywhere in the West. The experience on which he draws is of a different era. Moreover, not only is the terrorism of a different nature, so too are the investigative challenges. That is the essence of why this Bill is before your Lordships’ House today.
There is much in this Bill, and the detail will be considered carefully in this Chamber, but the focus of attention is clearly on the provision to allow pre-charge detention for up to 42 days in a very tightly defined emergency situation. Frankly, it is specious to try to build international comparisons. We have heard about the short period for which people can be detained in the United States. I merely point to the very unsatisfactory lesson of Guantanamo Bay.
Why might this proposal ever be necessary? I will give your Lordships some examples of the reasons why a longer period of pre-charge detention will sometimes be justified. Six weeks ago, a young man was arrested in hospital, where he was suffering from injuries he received when allegedly trying to detonate a bomb earlier that day in a restaurant in Exeter full of families with children. It was some days after that arrest before the doctors were prepared to allow the police to question him. The individual has, of course, now been charged, but the lesson about detainees who may have injured themselves is clear.
Three years ago, when the police entered what turned out to be the bomb factory for the 7/7 bombers, they came upon a bath tub of suppurating gloop. It took more than a week of drones going in to try and establish what was in the bath before officers were given the all-clear to search the premises properly and neighbours could be reassured that it was safe to go back to their homes. In that instance, the bombers were not in custody, but it is easy to see implications for a 14-day or 28-day limit with the clock ticking and when the premises of those being held cannot even be searched for the first 10 days or so. Then there is the complexity of what is found in such searches: in a recent case, more than 100 hard drives, each containing gigabytes of data, were seized and needed to be examined. The data are often encrypted and when unencrypted are in Arabic or the key material is tucked into the middle of otherwise innocuous files. With the best resources and the best experts available, it takes weeks to go through such material. Frequently, multiple jurisdictions are involved: some countries are not as prompt as others in responding to queries and the overseas activity itself may well be critical in determining whether a charge, and which one, is justifiable. That is why 14 days would never have been adequate for some of these investigations and why up to 28 days was needed.
Remember also that, because of the potentially terrible consequences of delaying an intervention, the police cannot spend as long as in the past building a case before arrest—the consequences of a miscalculation could be hundreds dead. So the police intervene earlier than they did in the past and more work needs to be done after arrest before charges can be laid.
The Bill does not automatically extend the potential period from 28 days to 42 days. It does so only under very limited circumstances. Those circumstances would imply a quantum leap of seriousness from what we have seen so far: an even bigger plot, multiple unrelated plots, or a plot involving CBRN materials seriously hampering the ability to investigate. Under those circumstances, even a reluctant DPP might certify that a longer period was necessary—and is not the reluctance of the DPP a safeguard against this power being used other than in extremis? It would not happen without Parliament debating whether the generality of the circumstances were serious enough to merit the temporary time-limited extension of the period, with each individual to whom the longer period applied having the extension in their case approved by a judge at least every seven days.
These are carefully worked out safeguards. I would rather that Parliament enacted them now, after proper and thorough debate, so that they may be used—and I hope the circumstances never merit it—in the precisely defined and limited way that the Bill sets out, as opposed to this House and the other place meeting in an emergency sitting following some appalling incident and rushing through a Bill in a day and a night to provide less well scrutinised and thought-through powers.
Some would tell us that these powers may not be needed. They point out that there have been no instances in the past year when the extension from 14 to 28 days was used. That, of course, is correct. But we know that these devastating plots are long in gestation—after the comparative failure of the first World Trade Centre bombing in 1993, planning for the second far more destructive attack began almost immediately, and those plans were enacted a full eight years later. One year's comparative quiet, particularly when the Metropolitan Police and others have been so successful in disrupting recent activity, should be no cause for complacency. The fact that the 28-day power has not been used in the past year does, however, provide a reassurance to those who believe that a power once given will be used to excess by the police.
There are known networks operating in this country, undoubtedly linked to al-Qaeda and planning we know not what. No doubt, there are other networks about which nothing is known. The events of recent months raise the spectre of the lone individual, perhaps radicalised on the net, self-taught in terrorist techniques, perhaps seeking to emulate the so-called martyrdom of those who have gone before in London, Glasgow, Beirut, Bali, Baghdad or the West Bank.
There are those who say that the other provisions in this Bill make the possible extension to up to 42 days unnecessary. To them, I say that I hope that they are right, but if they are wrong the public expect us to legislate for belt, braces and string. If the power may be needed in extremis, then let us legislate now, thoughtfully putting proper safeguards in place. For that reason, I support the Bill.
My Lords, when Members of another place and your Lordships’ House insist that the 28-day extension provision in the Bill is an assault on fundamental freedoms and an erosion of human rights, one is, I presume, by definition, expected to infer that those of us who feel differently are not concerned with human rights; but that is not the case. Indeed, it is because we are concerned about the most fundamental of all human rights, the right to life. I must speak only for myself, so I say that I support this provision when the most exceptional circumstances prevail, but with the cautionary conditions contained in the Bill, in particular the essential need to have robust judicial oversight before an extension is granted.
There is no magic in the number of 42 days, but it seems that some people are beginning to think that that will be the norm—far from it. Such an extension by a senior judge after examination of the case, and questioning of the Crown Prosecution Service and the investigating police officers, could be restricted to 48 or even just 24 hours. Putting a statutory limit of a maximum of 42 days on the granting of an extension is right, however.
It has been said that in other countries the permitted time for police to hold a suspect for a terrorism offence is much shorter than in this country. In other countries, including Canada and Australia, I have heard some European countries cited as examples of much restricted time limits. Neither Canada nor Australia has suffered suicide bombings like those that this country experienced in July 2005, when more than 50 people died—52 innocent people and four suicide bombers—and hundreds suffered injuries, including the loss of limbs and head and facial disfigurement. I hope those countries never will. As for the example of other countries, putting the suspect on some spurious minor charge and then handing him over to an examining magistrate so that he can remain in custody for an unspecified period would not be compatible with our traditions of criminal justice and police procedure. We do not do that, and I hope that we never will.
The fact that, over this past year, the extension of detention over 14 days has hardly been used is no argument against that provision; it is clear evidence that police act with integrity and as swiftly as possible. They do not hold, and do not wish to hold, persons any longer than the time for which it is absolutely essential either to gather the evidence to charge the suspect or to exonerate him or her. However, the scale and complexity of terrorist investigations is growing at a pace where an extension of detention is becoming more likely. It is significant that the demands on police and the security services in their surveillance of security suspects has grown, and is still growing apace. On 9 November 2006, my noble friend Lady Manningham-Buller, then the director of the Security Service and now a Member of your Lordships’ House, spoke of 1,600 persons of concern to that service.
Dame Eliza—I beg your Lordships’ pardon. My noble friend Lady Manningham-Buller said this afternoon that she was unsure of all the conventions of your Lordships’ House. One is that not everybody congratulates a maiden speaker, but I fear I must break that this afternoon. My noble friend and I have headed different services in London but have worked together for many years. I enjoyed her articulate and knowledgeable presentation this afternoon. It may be—I only say “may”—that we shall end up not agreeing. However, I am sure that we will walk and talk together, as we will with other noble Lords and members of the Government and the public, to resolve this dreadful 21st century conundrum. We will come to a civilised and acceptable way of proceeding.
Dame Eliza—I beg your Lordships’ pardon; when one has known somebody for as long as I have known my noble friend, it is difficult to change what you call them. I am sure that she would forgive me; I hope that everyone else will. Two years ago, there were 1,600 persons of interest to her service. Just over one year later, her successor spoke in an early public speech of there being 2,000 individuals of concern—a considerable increase in just one year. Memories are short, and some people seem to think that the terrorist threat has abated. Sadly, that is not so. I am told that the threat level is still classed as severe. As a reminder of the terrorists’ intentions, noble Lords will recall the media coverage of the horrific incident in early June last year at Glasgow airport.
It would be wrong not to give credit to the Security Service and police officers for remaining vigilant and determined in the face of our ever-present terrorist threat, often having to cancel their weekly leave at a moment’s notice to carry on with their duty. As a result, there have been a significant number of disruptions to terrorist intentions since 9/11. This year, up to the end of last week, 33 people have been prosecuted, 11 of whom pleaded guilty to the charges.
Just a few weeks ago, I watched a television programme on which a senior Member of your Lordships’ House for whom I have great respect eloquently and persuasively put the case against any extension of the present 28-day pre-charge rule, pointing out the harm that could be done to an innocent individual and his family if he were to be kept in custody for 42 days without charge or release. I understand that argument, but there is another side to it. Where lies the greatest harm? Where lies the greatest risk? To keep in custody for more than 28 days a person who is then not charged or who is charged and then found not guilty? Or to release someone strongly suspected of planning to cause casualties and murder, who goes on to commit a horrific offence? Getting the balance right between an individual’s human rights and the protection and safety of the public is a conundrum we must solve. We get it wrong at our peril.
In your Lordships' House on Tuesday last, the noble Lord, Lord Judd, referred to the very recent report of the Joint Committee on Human Rights and—rightly and wisely, in my respectful but inexperienced view—said that,
“we should take its reports very seriously”.—[Official Report, 1/7/08; col. 200.]
Among other recommendations of that body, he pointed to the committee's suggestion that there should be independent advice to the Government about,
“the impact on suspects of being detained for longer than 14 days”.
He also said,
“in our stand against terrorism—no one must ever underestimate the gravity, the sinisterness or the nastiness of the threat”.—[Official Report, 1/7/08; col. 201.]
On his point about the impact upon a suspect being detained for more than 14 days, while that is desirable and useful I must confess that my judgment is coloured having, in my younger days as a working Anti-Terrorist Squad detective, sat at bedsides endeavouring to take statements from those innocent people, including children, who had been injured and sometimes maimed for life; and through attending too many post-mortems of those who died through terrorist action.
Another most important point the noble Lord made was that we should not play into the hands of extremist manipulators of the more naïve who are open to such manipulation. The favourite expression that we have often heard is that any extension to pre-charge detention “will become the recruiting sergeant for al-Qaeda”. In my humble and non-political view—I am not a politician—the recruiting sergeant was that we supported President Bush and invaded an Islamic country in the first place. Many of our troops are still in that country. The recruiting sergeant has already done his work.
The noble Lord, Lord Harris, said on this subject in your Lordships’ House last week—
My Lords, I am sorry to interrupt the noble Lord. The House is trying to have speeches no more than seven minutes long. I know that the House is interested in what the noble Lord is saying, but I am afraid that if too many people take advantage of taking too long, the debate will go on longer than intended. I am sorry, but I wonder if the noble Lord could bring his remarks to a close.
My Lords, I apologise. The only excuse I can offer is that reaching for my notes is sometimes difficult with only one hand and takes me longer.
I apologise for taking the time of the House and conclude on a cautionary note. In the official Hansard report of the proceedings in your Lordships’ House at the time the proposal was made to extend the pre-charge detention time to 60 days, now some 18 months ago, genuine fears were expressed that such an extension would enflame Muslim youths who might then turn to terrorism. This fear was expressed, albeit in a different form of words from my own, by a noble friend who, I understand, has business interests in a Muslim country and so is much more aware than was I of the feeling of opposition and the fear that reprisal action might be taken. I respect his greater knowledge because of his travels in Muslim countries, but we must also consider the indigenous and native-born extremist elements in our country.
If we and the Government should be perceived as sitting on our hands because we have neither the courage nor the will or wisdom to take proper and legitimate measures against suspected terrorists, I fear that these other native-born extremists may act cruelly and indiscriminately. We have literally thousands of Muslim families living peacefully and contentedly in this country, their adopted home. Their families are as entitled to education, health, housing, employment and ambitions for their children as are the families, like mine and other noble Lords’, who have been here for generations. Do not let us forsake or forget them. They too are as vulnerable to the men of violence as we all are. We have a duty to protect them, as well as the second, third and fourth generations of native-born Britishers.
My Lords, during the four years in which I served on the parliamentary Intelligence and Security Committee, the noble Baroness, Lady Manningham-Buller, and her colleagues taught me to understand the nature and severity of the terrorist threat to our country. They also taught me to have a huge admiration for the work of the Security Service and to be deeply grateful to it. Her speech today made a notable impact on the House.
In 1996, Osama bin Laden issued a fatwa:
“The ruling to kill the Americans and their allies—civilian and military—is an individual duty for every Muslim who can do it in any country”.
In 2005, al-Qaeda released a videotape of Mohammad Sidique Khan before the 7/7 bombings, declaring:
“We are at war and I am a soldier”.
We are indeed at war—a new kind of war but an avowed one, avowed on both sides even though we do not like to use this language. Al-Qaeda and related jihadists do not operate in military or political structures that our conventional categories of strategy, tactics and law can finally deal with. They are entirely ruthless towards civilians and the generality of citizens. In 2005 Ayman al-Zawahiri, leader of al-Qaeda in Iraq, stated to the peoples of the West:
“Your democratically elected governments continuously make war and your support of them makes you directly responsible”.
Al-Qaeda operates in today’s clandestine market in weapons of mass destruction and their components. It seems overwhelmingly likely that some of them will have bio-weapons. They would use nuclear weapons without compunction if they were to obtain them. My noble friend Lord Robertson and some extremely distinguished co-signatories wrote an article in the Times the other day about the dangers of leakage of nuclear materials out of Russia and other places. However excellent the work of our troops in Iraq and Afghanistan, al-Qaeda is not susceptible to military defeat. The battlefield is everywhere. The most decisive conflicts are on the home front and in the hearts and minds of our fellow citizens.
No end to this war is foreseeable. In this conjunction we need to think anew. We need to rethink our concept of war and associated law, as Philip Bobbitt has argued powerfully in Terror and Consent. In this war the police and the intelligence and security services are in the front line. We need to rethink the balance between security and liberty. That is not a metaphysical absolute but it is contingent. Our responsibility is to uphold the maximum liberty consistent with our people’s security in these new circumstances. A pragmatic judgment has to be made. Islamist terrorism is new. It rapidly adapts and mutates. While we have to hold to our enduring values of liberal democracy and the rule of law, we too must adapt and mutate. That is the context in which this Bill has been brought forward and in which we should debate it.
I focus on the issue of 42 days as that is the main point of controversy in the legislation. The Government have asked Parliament for contingency provision for the extension of pre-charge detention beyond 28 days. They are right to invite Parliament and the country to think and to legislate in a time of relative calm—not in haste, else we risk resorting to the kinds of subterfuges and betrayals of liberal values that sadly we have seen in America. Extraordinary rendition and Guantanamo were victories for al-Qaeda. The first duty of government and Parliament is to protect the lives and safety of our people. The powers the Government are proposing to protect lives and safety are properly circumscribed, indeed they are encrusted with safeguards for civil liberties. Let us assume that Ministers as well as parliamentarians—all of us—are committed to civil liberties and are genuinely seeking the right balance between liberty and security.
What are the main objections advanced by critics of this proposal? First, they say there is no evidence that an extension beyond 28 days is needed. Yet we are in a state of war, in the sense I have described. I hasten to emphasise that I am not calling for martial law, but to recalibrate that balance between liberty and security. It has always been accepted that exceptional restraints on liberty may be necessary in a time of war. Past episodes where 14 or 28 days of pre-charge detention have sufficed are not a sure guide to the future. There is no evidence that the power to detain for longer will not be needed. My noble friend Lord West of Spithead spoke of the need for early arrest in terrorist cases and the extraordinary complexity of these investigations. In the normal way, when we are considering burglaries or even murders, we accept that it is better that 100 guilty people should go free than that one innocent person is imprisoned. Terrorism is qualitatively different. Is it better that 100 or 1,000 people may die so that one innocent person is not detained for two more weeks?
Secondly, it is objected that other legal devices and measures are available: threshold charging; the availability of the offence of committing acts preparatory to terrorism; and post-charge questioning. Is there not something casuistical about approving these devices to extend detention while objecting to a straightforward power, tightly safeguarded, to extend pre-charge detention beyond 28 days? I agreed with the noble Lord, Lord Imbert, on that just now. Some say that intercept material should be available as evidence in terrorism trials. My noble friends Lord Robertson and Lady Ramsay alluded to the real difficulties there are about that. Surveillance is not 100 per cent reliable and requires huge resources which may not be available. Control orders are another kind of detention. It is suggested that the Civil Contingencies Act should be invoked but that was not shaped to deal with the issues arising from terrorist investigations. It seems an odd alternative for Liberty to propose, given that under the Civil Contingencies Act detention can be for 58 days and would not be protected by the judicial safeguards written into this Bill. Derogation from the ECHR still leaves Parliament to decide what powers should be conferred.
It is further objected that 42 days would act as a recruiting sergeant—that poor recruiting sergeant has been marched on to the stage a great many times. It is said that the possibility of 42 days pre-charge detention would so enrage the Muslim community that it would drive Muslims into the arms of al-Qaeda and dry up the flow of intelligence from the community. We have to insist that Muslims who are citizens and residents of this country have the same responsibilities as everyone else. It is racist to suggest otherwise—I know that is not anybody’s intention. It would certainly be prejudicial to race relations and social harmony to suggest that Muslims have a greater propensity to criminality.
We must not shy away from necessary measures because they are unpopular with some. It is, of course, essential to win hearts and minds in the Muslim community in Britain. To do that, we must explain painstakingly and skilfully what this legislation is and ensure that the contents of it are understood, particularly the safeguards, and the reasons for it.
The Bill is full of safeguards, and in no sense will it create an arbitrary power. It is not the Home Secretary who would initiate the activation of the reserve power, but the Director of Public Prosecutions and a chief constable. It is not the Home Secretary but, as now, a judge who, at frequent intervals, would authorise or not authorise the extended detention of an individual.
It is my view that the safeguard of parliamentary approval is inappropriate, and that it is inappropriate to inform the chairmen of certain parliamentary committees without allowing them to share the material with their fellow committee members. We can debate those issues in Committee.
It is no part of our duty as parliamentarians and upholders of liberal democracy to wring our hands over the erosion of civil liberties while denying to the Government, their agencies and the judiciary the powers that may be needed to defend the lives and safety of the citizens whom we serve. The legislation calibrates a minimum prudent strengthening of the democratically legitimated powers of the Executive to secure the safety of our people. It passes the tests that my noble and learned friend Lord Goldsmith offered of necessity and proportionality. It is a proper and practical response to new historic circumstances, and it is fully respectful of civil liberties and democratic values within those circumstances.
My Lords, in her excellent maiden speech, the noble Baroness, Lady Manningham-Buller, said that there should be no political partisanship in questions of national security; I agree. I will go further and say that when one comes from a group that is likely to be most affected by those measures of legislation, we should, nevertheless, try to set aside those aspects to obtain the best legislation for all.
Three of us from those communities are speaking in the debate today. I shall start by reassuring the noble Lord, Lord Howarth of Newport, that neither the noble Lord, Lord Sheikh, nor I, nor the noble Lord, Lord Ahmed, from what I know of him—although I do not have his permission to say this—would in any measure try to effect any special pleading for Muslims in dealing with any legislation, whether it is on counterterrorism or not. We come to this House to speak in a non-partisan way, to deal in a non-partisan fashion with the matters that we see on the Order Paper, and to do so in the interests of all in the country, not for our community.
First, I shall consider how we deal with extremism in this country. The noble Lord, Lord West of Spithead, touched on political extremism as the precursor to terrorism, so I shall touch on that too. In the past four years, much has been made of the issue of home-grown terrorists. The implication is that there is something particular to Muslim communities here in Britain; some special characteristics that lead to radicalisation, which in turn results in the violent acts that we saw in 2005 and several attempts since. In taking the perspective of British Muslim exceptionalism, the starting premise is that, if we can therefore employ the right remedies, and if somehow we can change the drinking water in this pool, we will sort out the problem and root out terrorism from among those people. However, no unique features distinguish young British Muslims from those in Canada, the United States, France, Spain, Germany, or indeed Pakistan or Algeria, where people are subjected to equally horrific attacks.
On the whole, while circumstances may vary, a clear picture is emerging that the terrorists are motivated by a powerful ideology. It may be a twisted ideology, but it resonates with those who are prone to violence. Its justification is in terms of righteousness in the face of authoritarian rulers and Western double standards. It juxtapositions modernity with powerlessness; it pitches complexity against literalist clarity. It has its adherents, who use our liberty and freedoms to their advantage. The question for us here in Britain is whether it is something against which we can hermetically seal ourselves through passing more and more laws. In my view, we cannot. The global jihadi movement that al-Qaeda has launched will partly resolve itself as conflict in the Middle East and other Muslim countries abates, and it will lose its pull as new generations come up with new ideas from within Islam itself. Muslim societies are best placed to deal with modernity.
The issue before us is the extent to which we believe that more powers given to the state at the expense of its citizens will indeed keep them safer. There will always be more powers that might help. As one set of laws is passed, anomalies come up. New plots and the trials that follow reveal the existence of new loopholes. We face the possibility that every time we add a fresh bolt to the door, we find that the screw is too short, the hinges are too loose and it might yet be possible that the door will smash open. So we forge bigger and bigger bolts. That is called the politics of fear. That is where we substitute a grown-up debate with citizens about the duty to keep them safe with midnight whispers of barbarians at the gate. In saying that, I do not deny the need for new laws and additional powers to protect us. Some of the provisions in this Bill, which appear to be so potentially far-reaching and so disproportionate in terms of the balance between liberty and security, have caused concern, as we have already heard today in this House.
I shall turn to the measures that I hope we will be able to look at more carefully in Committee. Several noble Lords have spoken of the clauses on the extension of pre-charge detention to a maximum of 42 days. I will not dwell on that, other than to say that it would signal a dramatic change in the principles of internment and it would have implications well outside our borders. It will be more than just lowering the bar; it will effectively be placing the bar on the floor. There are other measures, too, which appear to be overly broad. In Part 1, my concern is with the powers to gather information and the changes where it would become a criminal offence to obstruct the gathering of information. I will be seeking to question the extent to which language or cultural barriers could inadvertently result in obstruction charges, and to secure safeguards in relation to those who might be subject to its implications. I will also be seeking to probe clauses to do with the taking and holding of fingerprints and non-intimate samples from those subject to control orders. Also of concern are clauses that deal with the sharing of information with foreign agencies.
The provisions in Part 4 deal with notification requirements and foreign travel restrictions. I recognise that some of those measures may well be necessary in light of a particular individual’s offence and the risk of recidivism. The problem with the current drafting of Clauses 51 to 68 is that the clauses would catch all those convicted of a terrorism offence, or an offence with a terrorism connection, if they were given a minimum of a one-year sentence. Those requirements are not based on a risk assessment that is framed to deal with an individual’s circumstances and are therefore capable of being disproportionate when applied so broadly.
I shall turn here to the Home Office’s equality impact assessment on the Bill. It found, unsurprisingly for some of us, that there is a perception among the Muslim community that terrorism legislation targets them as a group rather than as individuals. It is the scope of measures such as those in Part 4 that lends credence to that perception. The requirements are not headline grabbing, but they are well known about in the community. In Committee, I will be seeking to ensure that they are as narrow and specific as they can be, in order that they are targeted at individuals, in light of individual circumstances, rather than at anyone who came into the criminal justice system at a certain point in their life, however wrong they might have been at that point. There would be little scope for rehabilitation if we were to allow the measures to stand as they do currently.
Seven minutes is too short a time to say anything detailed about a Bill of this scope. In ending, all I can add is that we find ourselves in a long-term ideological struggle that is not of our making; all that we can do is deal with it as wisely as we can. I wish, as much as the security services might do, that there was a silver bullet. There is not. In its absence, we will have to secure the most effective and proportionate responses in law. The Bill as it stands does not do that.
My Lords, as a former police commissioner I support the aims of the Bill and most of its proposals. I certainly respect the views of noble Lords who have spoken with such passion and clarity in support of the extension of detention without charge. However, after much deliberation and consultation with my police friends still involved in the fight against terrorism, I cannot in all conscience support the proposal to extend detention without charge for up to 42 days.
I set out my concerns previously in your Lordships’ House when we debated and rejected proposals for even longer periods of detention without charge. In summary, I thought then and believe now that such proposals, even with the new safeguards, are disproportionate, counterproductive and divisive, as well as an unnecessary distraction from the more important task for all of us of developing a coherent strategy to combat extremism and terrorism.
Two weeks ago, I was on business in the Gulf region, where I spend quite a lot of time. During that period the Saudi Arabian police carried out raids, arrested several hundred suspects and seized copies of an important new book, Governance in the Wilderness, written by al-Qaeda’s chief theoretician, Sheikh Abu-Bakr Naji. Why is that book relevant to our debate today? Because it is the clearest and most contemporary manifesto statement of the jihad against us. We certainly need to understand the changing aims of the movement generically known as al-Qaeda to ensure that our counterterrorism proposals and legislation are relevant and will make things better rather than worse.
Sheikh Abu-Bakr Naji argues that the world struggle against us has been under way since the fall of the Ottoman empire and the abolition of the Islamic caliphate in 1924. He and others like him argue that only after 9/11 did the world wake up and realise that it was witnessing a world war about ideas, lifestyles, philosophies and religions that would be played out for decades if not centuries. He advocates turning the world into a series of wildernesses where only those under jihadi rule enjoy security and everyone else fears for their safety. Their long-term war against us is not about toppling a Government, running a country or restoring the Taliban to control in Afghanistan; it is about creating parallel extremist Islamic societies in all countries with Islamic communities and, through attacks and acts of terrorism, making our daily lives unbearable and unsafe.
This is why the proposal to extend detention without charge is flawed and counterproductive. Sheikh Abu-Bakr Naji argues that to sustain this campaign without end the jihadi movement must be divided into five concentric circles of activity. The first, the largest and most important is traditional Muslims in all countries who, although not personally violent, are prepared to give moral and, if necessary, material support to the militants. Our strategy—our legislation—to combat terrorism must also speak to and resonate with the same concentric circle of good, traditional Muslims in the forthcoming decades or perhaps even centuries of world war for hearts and minds and philosophy.
While al-Qaeda seeks to encourage the Muslim majority to accept and even support violence, we must encourage the same majority to reject violence and the extremist minorities. That is why the 42-day proposal may well be counterproductive and a propaganda gift to the extremists, who will group it with Guantanamo Bay, extraordinary rendition and alleged tortures to seek to influence the majority of good, traditional Muslims—and, in particular, young men—to acquiesce in violence or, at worst, to participate in those violent acts.
The 42-day proposal, even with the checks and balances that others have spoken about, undermines our moral authority to win the battle for hearts and minds that the Prime Minister has acknowledged is central to long-term success in countering terrorism. All the wasted time and energy expended on the debate about extending detention without charge is a debilitating, divisive and counterproductive distraction from our real task, which is to put in place a meaningful strategy and legislation to deal with the long-term struggle against extremists and their propensity for terrorist acts throughout the world. It is for that reason, even though I have enormous respect for those who have argued the other way, that I must argue against and will not support the proposal to extend detention without charge to 42 days.
My Lords, I have had to do a little rewriting—I hope that I can read it. I listened with great respect to the noble Baroness, Lady Manningham-Buller, who of course knows far more than I do about the workings of the terrorist world today. I respect her concern for our freedoms and our rights as citizens—rights that are shared by those who are under arrest. I have heard those views expressed right across this House, starting with my own Front Bench. I, too, care about human rights. Where we differ is that I believe that, given a ruthless enemy—and we are talking not about Muslims, but about terrorists—we need to be absolutely sure that we have made it possible to charge and identify those people and those who are working with them.
The police sometimes arrest suspects because it would be dangerous to let things run further. I assume that they initially have good reasons for believing that they have arrested someone who is at the least involved in a potential threat to the state. Why else would they take such a major political risk? However, there will be others, too—part of the terrorist diaspora. We surely cannot afford not to try to cut off all the tentacles of the octopus.
The US Senate 9/11 commission report gave several telling examples of terrorists identified too late because of the simple fact of delays in answers from often friendly but slow-acting services. One of those cases involved a close link to the group that eventually carried out that bombing. I give that as an example of why I believe that the law should make it possible to get an extension of time if that is judged necessary. I am not saying that it has to happen; I am saying that, if it needs to happen, it ought to be able to happen.
Therefore, I remain committed to the urgent need to extend the powers on pre-charge detention seven days at a time when asked for, for up to 42 days. The enemy is not the IRA but a global, amorphous organisation that uses rare forms of Arabic to communicate. It is highly skilled in new communications technology and its tentacles reach into Saudi Arabia, Indonesia, Pakistan and Malaysia. The men and women with the necessary linguistic and professional knowledge to extract intelligence from vast quantities of material seized are hard pressed.
One Islamist case, in which 200 officers were needed to collect the evidence, yielded 400 computers, more than 8,000 CDs and DVDs and 25,000 other exhibits. As the noble Baroness, Lady Ramsay, said, there is a problem with the liaison services. Once the team has identified a lead, it must go to them to confirm that identity, and many of the targets use multiple identities. The inquiries are often highly delicate politically. Carefully developed professional relationships have to be used to secure co-operation. The liaison services have an agenda of their own and, even if they respond promptly, they may be understaffed and the answer may—almost certainly will—take weeks rather than days. Can it be right to lose crucial evidence because it comes too late, when we are only seeking an extension of a week at a time, with the approval of a senior judge and the DPP, and only if it is necessary? Who is going to ask for it if it is not necessary?
I strongly support the appointment, with the approval of the DPP, of a second senior judge to review the position weekly after 28 days, as has been advocated by such experienced men as Sir Swinton Thomas and the noble Lord, Lord Carlile of Berriew. However, I utterly oppose the requirement for the Home Secretary, after securing the approval of the judges and the DPP, to bring the decision to the House of Commons and to provide the chairmen of the Home Affairs, Human Rights and Intelligence and Security Committees with a copy of the report that she received from the DPP, asking for the extension, and a copy of the legal advice. Apparently, she must then lay a statement before Parliament that,
“must not include any material that might prejudice the prosecution of any person”.
I would not like to be the person who writes that report. Surely the defence would have a cast-iron case for declaring a fair trial impossible. How can Parliament reach a valid decision? Why do we employ highly skilled intelligence services, judges with experience and probity and considerable human resources, yet still require Parliament to make a decision on a seven-day extension already reviewed and approved by not one but two judges?
My other concern has been and will be the use of intercept evidence. The Chilcot committee, to which I was privileged to give evidence, agrees with the principle that intercept as evidence should be introduced, but recommends that the Government should undertake at the outset to take action should practical operation of the regime mean that the operational requirements, which the committee set out extremely fairly, could no longer be met. The report recognises the operational and resource problems, which is extremely reassuring. However, there are substantial fears in the intelligence community that essential national security interests might be damaged. It is difficult to discuss those in public, which is why the Chilcot committee was such a splendid thing. There is a need to make it clear that,
“in no circumstances would there be a sacrifice of the essential security requirements the report lists”.
I hope that that wise advice is heeded and that the nine points of principle produced by the Chilcot inquiry will be dealt with by the same committee. The report, incidentally, regrets that the decision to amend RIPA to allow the use of intercept evidence in coroners’ courts came too late for the committee to consider.
That is all that I shall say. I have found the debate fascinating, but I do not move from my position. I shall vote for 42 days.
My Lords, it is my privilege to continue my long-standing interest in this matter by serving currently on the Intelligence and Security Committee. Soon after I was appointed last year, the then Dame Eliza Manningham-Buller retired early. I hope that there was no connection. I welcome her to this House and look forward to her further contributions.
As the noble Baroness will know, I cannot go into detail about operational matters that I have learnt about through my membership of the ISC. However, I do not need to because, as the noble Lord, Lord Imbert, eloquently pointed out, the then Dame Eliza Manningham-Buller herself said in a speech that there were around 1,600 individuals who she believed posed a direct threat to national security and public safety. As the noble Lord, Lord Imbert, pointed out, the current director-general, Jonathan Evans, said that the figure today would be at least 2,000. I know from the ISC that the police and the security services make huge efforts to apprehend those who are determined to destroy our lives and our way of life. It is our responsibility as parliamentarians to make sure that we give them every help that we can to bring these people to justice. That is why I wholly support the Bill, except in one small but important particular, to which I will return at the end of my speech.
First, I express my total support for the extension to 42 days and will explain why it is needed. Like the previous speaker, the noble Baroness, Lady Park, I have rewritten my speech in the light of the contributions that have been made. As the Home Secretary and a number of speakers here have said, the trend towards increasingly complex and international terrorist plots is why we have increased the period of pre-charge detention from seven days to 14 and then to 28—specifically to increase the chances of gaining the successful convictions of those terrorists. On each occasion, the extended period has been needed. Eleven individuals have now been held between 14 and 28 days, with three being charged on the 27th and the 28th days. That is leaving things to the last minute, with no margin whatsoever.
We can clearly see a growing need for more time; the evidence that people have called for exists. Our task as legislators is to listen in particular to what the operational police—not the retired chief constables and commanders—are telling the Government and to make sure that we provide them with the tools to keep the public safe. Of course, we have to balance this with civil liberties, but surely none of us wants the police to have to release dangerous individuals back into society, perhaps to disappear, just because time has run out. The question, therefore, is whether the Bill maintains the right balance between keeping the public safe and maintaining our hard-earned civil liberties.
As the Minister said, the Bill has six important safeguards, which will ensure that the provisions to extend the period of detention without charge are not used lightly. I will not go through them, although I have all six down here. It is cynical and ironic that those people who forced concessions out of the Government in another place are now saying that these safeguards make the provisions unworkable. Is it not outrageous to suggest that?
If one looks at the strident objections of some human rights groups—although I have a lot of respect for their work—one might imagine from their statements, and from speeches such as that of the noble Lord, Lord Condon, that here we have another Guantanamo Bay. I oppose totally Guantanamo Bay, as do the British Government. However, to suggest that this is anything like Guantanamo Bay is manifestly absurd. While human rights pressure groups have an important role to play in political debate, they are what they say they are: pressure groups. They look at and specialise in one narrow segment of the picture, not the whole picture. It is our responsibility as legislators to look at the whole picture and to strike the right balance.
That brings me to the curious case of Mr David Davis and the excellent comments of my colleague, Andy Burnham. What disappointed me was that media attention was unfortunately focused on the misunderstanding and the overreaction of Miss Chakrabarti, who threatened to sue. The point that Andy was making was to urge people to put things in perspective and to make one simple comparison: he questioned how a man can support the reintroduction of capital punishment and at the same time be so troubled by a two-week extension to the pre-charge detention period that he feels obliged to resign. I do not normally quote Nigel Farage, but I saw him on “Question Time” relentlessly challenging David Davis to say what principle was involved in 42 days that was different from 28 days. The difference is only 14 days, which is not a principle but a period of time. I say that to my noble and learned friend Lord Goldsmith, too.
It is not only the operational aspects of the Bill that are important, but also the messages that it sends. First among these is the message that we legislators send to the public. One day after the third anniversary of 7/7, we should not forget the victims of that terrible atrocity and their families and friends. Neither must we forget the wider context of 9/11 in America, 3/11 in Madrid and the other attacks in Bali, Nairobi and elsewhere. We did not hear a word about them from the opposition Front Bench in the introduction today. There was more concern for the civil rights of the alleged terrorists than for the victims and their families.
To people who say that this Bill is a recruiting sergeant for terrorists, I say that many of these atrocities took place long before any previous provisions were introduced, so the suggestion is manifestly absurd. We need to send a message to the families and friends of victims that we will provide our police and security services with all that they need to bring the perpetrators and their associates to justice and to prevent future atrocities.
This House should also note that the public overwhelmingly support the Bill. According to a YouGov poll in early June, 69 per cent support it, while only 24 per cent oppose it. I find outrageous the personal attacks—repeated by the noble Lord, Lord Thomas, today—on properly elected Democratic Unionist Party Members of Parliament. All the innuendo that comes from opposition Members is unbelievable.
Finally, a message should also be sent to terrorists and potential terrorists that we are constantly alert to their developments and changes and that we are ready to adapt promptly.
As for my one reservation about the Bill, I support my noble friends Lady Ramsay and Lord Robertson and others in their opposition to giving powers to coroners to use intercept as evidence. That blows a gaping hole in the work of the Chilcot committee and the carefully planned timetable to ensure that the work of the security services is not disrupted. I hope that the Government will look at how this can be amended in Committee. Otherwise, I support the Bill and the Government wholly and wholeheartedly.
My Lords, I am delighted to follow the noble Lord, Lord Foulkes, who has spoken today with all his usual moderation.
I declare an interest as chairman of the council of JUSTICE, an organisation that has sent a briefing paper to many Members of your Lordships’ House.
We have enacted four Acts on terrorism in the past eight years: the Terrorism Act 2000; the Anti-terrorism, Crime and Security Act 2001—perhaps that suggests that the Government are sometimes in favour of terrorism and sometimes against it—the Prevention of Terrorism Act 2005; and the Terrorism Act 2006. The last three of those were enacted hurriedly to deal with a crisis: the 2001 Act in response to 9/11; the 2005 Act as a result of the decision of the Law Lords in the Belmarsh case; and the 2006 Act in response to the London bombings. They provided no opportunity for a full and considered review of the law on terrorism, and this Bill, although not enacted in response to any particular crisis, does not provide such a review either. The main issue in the Bill is of course that of 42 days. I shall oppose the extension but today I want to take a wider view of anti-terrorism legislation and look at other issues.
For a long time, we have had anti-terrorism legislation in the context of Northern Ireland. By about 1995, concern was beginning to arise about the broader terrorist threats to the United Kingdom and about the use of the UK as a base for terrorism overseas. The noble and learned Lord, Lord Lloyd of Berwick, was appointed to produce a report on anti-terrorism and that resulted in the 2000 Act.
The most controversial provision in that Act was the definition of terrorism. It was defined in a way that ignored any justification for the use of violence against an oppressive and undemocratic regime. The African National Congress in the apartheid days would have been a terrorist organisation within the meaning of the Act, although the use of violence by it was limited and not directed to the killing of civilians. Unfortunately, it is not easy to get a wholly satisfactory definition of terrorism. My noble friend Lord Carlile of Berriew tried at the request of the Government but had to concede defeat. There remains the possibility—and I think that we need to consider it again—of coming back with something like the amendment that my noble friend Lady Williams and I tried to put into the 2006 Act, which would require prosecutors, when deciding whether to prosecute, to take into account the nature of the Government against whom the terrorist action was being taken and the nature of that action.
However, of all the issues from the existing Acts, I believe that by far the most controversial is that of the control orders under the 2005 Act. That issue kept your Lordships’ House sitting from 11 am on a Thursday morning until 7 pm on the following Friday evening. I dare say that many Members will remember that occasion. I thought then, and I think now, that control orders should be made by a judge and not by the Secretary of State, and that the level of proof required should be the balance of probability, not merely reasonable grounds for suspicion.
Even more serious is the concern about the use of the special procedure for the hearing of appeals against consent orders, which allows evidence to be withheld from the appellant and his lawyers. As cases show, there is a real danger of conflict with the right to liberty under Article 5 of the European Convention on Human Rights and the right to a fair trial under Article 6. The procedure is even more damaging to fairness than the use of anonymous witnesses—which we shall deal with starting the day after tomorrow—where the defendant at least knows what is said, even if he does not know who said it. The Joint Committee on Human Rights recommended a number of amendments to make the control order system less objectionable but the Government have failed to adopt any of them. Indeed, they have used this Bill to extend the special procedure to asset-freezing proceedings under Part 5. I hope that amendments will be tabled to remove Part 5 so as to require the Government at least to fully justify the use of the special procedure in that context.
It is plain that the special procedure should, in any event, be used as little as possible, whether for control orders, asset-freezing or anything else. Control orders are like a highly toxic medicine which may kill the virus but may kill the body as well. Prosecution in open court, wherever possible, is much better. This requires the use of intercept evidence in trials wherever possible where, in any case, the use of the intercept evidence will not provide a real danger to security. In fact, the Bill modifies, to a very limited extent, the ban on the use of intercept evidence. It does so in asset-freezing proceedings under Clause 73 and in inquiries and inquests under Clauses 80 and 81. However, it does not extend the use of intercept evidence to any proceedings where the matter will be heard in public, and as it will be used only in matters which are secure from the public, I am surprised that the noble Baroness, Lady Ramsay, opposes the clause. I hope that the noble and learned Lord, Lord Lloyd of Berwick, will pursue his campaign to remove the ban on intercept evidence; so far it has been very impressive.
Finally, I turn to the issue of inquests held in secret. This goes far beyond anti-terrorism measures and should, as the House of Commons Justice Committee said, preferably be left to the Coroners Bill, which is now long overdue. On this, I agree with my noble friend Lord Lester. I accept that there are perhaps a few cases, although very few, where national security would be at risk if evidence of this kind were available to the public. However, I cannot see that, for example, damage to the relationship between the United Kingdom and other countries is a serious ground for secrecy. Should we have a secret inquest on a Russian émigré in this country if it would upset Russia to disclose that he was murdered by agents of the Kremlin? Surely not. Apart from national security, what “public interest” might justify a secret inquest? It should at least be necessary to commit to publish the evidence given to an inquest when circumstances which required secrecy no longer exist, and perhaps in some cases there should even be a right to reopen that inquest.
There are several important issues in the Bill, in addition to that of 42 days, and I believe that we need to consider them all.
My Lords, I cannot resist saying how delicious it is to have the noble and learned Lords, Lord Falconer and Lord Goldsmith, on the side of civil liberties. I also welcome the noble Baroness, Lady Manningham-Buller, to this House and congratulate her on her maiden speech. I have long admired her. I think that her view on 42 days will be very influential, not least because her experience is not outdated but recent.
The government decision to seek the power to detain suspects without charge for 42 days in terrorist cases speaks to the worst of what has been happening to our political system. This is a policy brought into being not out of necessity, urgency or national emergency but for no other purpose than to back-foot political opponents. This is the politics of polling, focus groups and populism where the question asked is, “In which policy area do the public think that we are doing well? Let’s capitalise on it, give them some more tough action which will then be opposed by the other parties. We can then claim that the public are safe in our hands, not theirs”.
I am afraid that these are the shallow waters of political triangulation where you look to see how some meagre political advantage can be gained over the other guy, whatever the cost. It is where politics is reduced to gamesmanship. It really is politics at its ugliest and, in this particular case, shameful because it is about the sacrifice of liberty. This debasement of politics is something we should be concerned about. Then there was the ignominious business of securing votes by fair means and foul, where a Labour MP in the House of Commons described the 10 days of bone-crunching pressure on potential rebels. Is it any wonder that the pall of disillusionment hangs about us everywhere and that people no longer join political parties and turn out in fewer numbers at elections?
This is not an academic debate for me. I am a barrister with many years of experience in the criminal courts and have handled many of the most serious terrorist trials in this country from the Guildford Four appeal to the Brighton bombing trial, from the Balcombe Street siege to the bombing of the Israeli embassy. I have been engaged in the current range of trials involving jihadist terrorism, including the long Crevice trial—referred to by a number of speakers—which ended last year, and the British end of the case linked to suicide bombings in Tel Aviv where family members here were prosecuted. I am currently acting in Operation Overt, the liquid bomb case, alleging a conspiracy to blow up transatlantic planes.
I know the difficulties in these cases and the difficulties the police are facing in investigating terrorism. I share the repugnance felt by everyone about acts of terrorism. However, because of my experience I also know how, in periods of heightened tension in the face of abhorrent crime, power can be abused and innocent people wrongly convicted. I also know that when large-scale arrests take place, innocent people—merely friends or family members—can be caught up in the sweep. One has to bear that in mind when thinking about the need for protection.
As a result, I still believe profoundly that the answer is not to retreat from the principles that underpin our common law. The best answer to terrorism is a louder assertion of the values that are embedded in our system and of which we should be proud. As we know, large parts of the world have adopted them. The message that we should be stating clearly is that you cannot preserve liberty by reducing it. Detaining people without charge so that there can be a trawl for evidence is anathema to the rule of law. If the police do not have the evidence to charge within a very strictly allotted period, suspects should be released; otherwise the risk of abuse or mistakes are high.
People seem to misunderstand the fact that the police can carry on with their inquiries—disembowling computers, finding out about contacts through telecommunications and so on—after someone is either released or has been charged. The public are sometimes under the impression that if someone has to be released, or if someone is charged, somehow nothing happens thereafter. There is a notion that if someone is released, the police have to throw in their hand. The police frequently arrest people, release them after questioning, only to re-arrest at a later date when something incriminating comes to light. Others have mentioned something so powerfully important that nobody seemed to take it on board when we had the debate about 90 days’ detention; that is, that there is now an interim stage when it comes to the testing that the Crown prosecutors put in place. There is a threshold test which allows prosecutors to say, “We have reasonable suspicion here, but we feel that we need more time in order to have experts look at evidence or go through computers”. They will do that before the full code test that exists within the codes that the conduct of prosecutions dictate.
At times, this debate has descended into the realm of the absurd. I heard the noble Lord, Lord Carlile, the independent reviewer of terrorism, speak on the radio of the man who drove the incendiary vehicle into Glasgow airport to cause a terrorist outrage and who ended up, after arrest, in hospital, in a coma with severe burns and who eventually died. The noble Lord said that that would have presented the police with problems because he would still have been medically unfit beyond 28 days. Anyone listening might have thought this criminal would have got off scot free because we did not have 42 days pre-charge detention. In fact, half the nation saw the man drive the vehicle into the airport on the news. There were hundreds of witnesses to his actions and he was caught at the scene.
Sometimes I hardly recognise the facts of the cases in which I have been involved when they are described by Ministers, or politicians in the other place, who claim that cases are almost foiled by the absence of extended powers. I have heard this said about both the operations that have led to the cases in which I have been involved—Operation Crevice and Operation Overt; it was suggested that the police were up against the buffers but was just not true.
We must remember that law depends upon principles. Those principles did not come out of nowhere; they were forged in the fires of human experience. Yet we seem to be losing our collective memory over why civil liberties matter. I have often commented on the fact that so often it is Jewish lawyers who take up civil liberty cases in the courts. That is because Jewish lawyers so often know why civil liberties matter so much. Irish Catholics often know why civil liberties matter so much. Trade unionists used to know. Young black men, who experienced the sus law cases, knew too, just as Muslims nowadays know. But in our brave new world the urgently evanescent—tomorrow’s headline, the next poll or the next vote—seems to be all that matters. Knowledge of the abuses of the past and the historic battles for rights and liberty are rarely explained to our children and yet knowledge is what gives us the power to say “no” and the ability to give reasons for the rejection when Governments pass oppressive laws. If we do not understand our own history we are much more likely to be taken in by new-fangled dogmas and law.
Almost all terrorist trials start with intelligence but I do not want to see a situation where intelligence becomes the basis on which people are kept in custody week-in, week-out, only eventually to be released because it was a trawling exercise. The Government have piled on safeguards but others have mentioned just how facile and illusory they are.
Finally, I appreciate the difficult conundrums Governments face in trying to find the right balance between security and liberty. Only last week I gave the Sir Isaiah Berlin memorial lecture. I gave it at Hampstead Synagogue although I am not a Jew. I went back to his work on positive and negative liberty. Berlin was all too clear about the difficulty in finding the appropriate balance between different rights. But his words should be sacred in our hearts. He said:
“These collisions of values are of the essence of what they are and what we are”.
The torch of resistance has now passed to this House, whose powerful defence of freedom in recent years has more than justified our existence as a second Chamber. It fills me with pride when I think of the hard battles that we have fought together on justice and liberty. I trust that all of you, my esteemed colleagues on all Benches around this House, will again show our mettle and reject this erosion of liberty.
My Lords, I have not spoken in a general debate since I made my maiden speech in May 1995. Rightly or wrongly, I have taken the view that I ought not to take part in general debates while I was a serving Law Lord, or eligible to sit as a Law Lord after my retirement from judicial office. Since August last year, any such impediment came to an end. Given the importance of the subject of this debate I should like to make a few, very brief, observations.
It may be the case that from time to time it is appropriate for this House to defer to the views of the House of Commons. But the Bill before the House is demonstrably not such a case. If it is not appropriate and legitimate for this House on issues of high constitutional principle, fundamental civil liberties and Magna Carta itself to reach an independent conclusion, the usefulness of our bicameral parliamentary system would be placed in doubt. If I may slightly paraphrase words in the House of Commons almost 100 years ago by another Home Secretary, Winston Churchill, a calm and dispassionate recognition of the rights of the accused are the symbols which mark and measure the stored-up strength of a nation. That approach is as valid today as it was then.
It is undoubtedly right that the first duty of a Government is to protect citizens from harm. That is particularly so in this era of terrorism, but it does not excuse the endless excesses and acts of lawlessness committed in the name of the war on terror. The context is very relevant to today's debate. Emblematic of such repressive policies is Guantanamo Bay. At the very start of the lawless regime established on that island, our Government, through the then Defence Secretary, said on 15 January 2002 that:
“There is no doubting the legality in the way these combatants”,
at Guantanamo Bay,
“have been imprisoned. There is no doubting the legality of the right of the US .... to remove them for trial”,
to Guantanamo Bay.
Now the tide may be turning. A few days ago in Boumediene v Bush, a majority of the US Supreme Court decided that prisoners at Guantanamo Bay were entitled to habeas corpus—they have a constitutional right to take their cases to civil courts on the US mainland. The words of Justice Anthony Kennedy, a conservative member of the US Supreme Court, are worth citing. He said:
“Security subsists … in fidelity to freedom's first principles … The laws and constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled and in our system they are reconciled within the framework of the law”.
One wonders how long our Prime Minister can still insist that our Government stand shoulder to shoulder with the outgoing President Bush in regard to his discredited policies on the war on terror.
Turning directly to the 42-day detention provision in the Bill, I suggest that a solid case for extending the 28-day limit on pre-charge detention has not been established. Fundamental civil rights should not be whittled away by alarmist speculations. If the Government's reasoning were to prevail, one wonders what repressive policies would be truly beyond the pale. I am mystified by the purpose of the Government in embarking on this wholly unnecessary legislation. I asked myself whether it was for a tawdry political objective to wrong-foot political opponents, but I would not readily accept that because it would mean that the Government, instead of pursuing the public interest, were guilty of an abuse of power. I continue to be mystified about the Government's motivation in bringing forward this senseless legislation.
But there is a second and wholly separate reason why the 42-day provision in the Bill deserves to be rejected by this House. The so-called protections in the Bill are illusory and constitutionally illiterate. While the Bill makes provision for judicial oversight it is meaningless, because before a person is charged there is no evidence for a court to test. More importantly, the supposed parliamentary oversight is non-existent because Parliament cannot in our system examine individual cases. The attempt to create a provision for compensation possibly amounting to £3,000 per day is truly absurd. For very good reasons a provision for compensation is, as a matter of legal principle, limited to wrongful arrest and/or false imprisonment—that is, cases where there is malice on the part of the police. Surely, objectively considered, the Bill can be seen to be an attempt to lead the public to think that it is a serious attempt to improve security. It is nothing of the kind. It is also a wholly unworkable piece of legislation, which must in practice be a dead letter.
My Lords, the last time we debated pre-charge detention I moved the 60-day amendment, and lost, so I think that there has been an obligation on me to listen to the arguments in today’s debate and assess whether there is any basis for me to change my mind. I have listened and rewritten, but I have not changed.
I repeat two points I made in the earlier debate. First, I acknowledge that this is an enormously difficult matter. We all individually have to strike the balance between security and liberty, and I will not criticise those who have consistently and honourably come to a different conclusion from myself. However, I say in passing to my noble friend Lady Kennedy of The Shaws that I totally reject the link between ethnicity and the defence of civil liberties. Secondly, the debate addresses the perennial dilemma of the liberal state—how far is it justified to use illiberal means to defend itself from those who seek its destruction and, in so doing, exploit the very values they abhor?
So far, the weight in the debate has been very much in the direction of pointing out the dangers—I admit that there are dangers—of legislating in a way where the underpinning values of the liberal state are challenged and eroded, and that that therefore changes the nature and characteristics of the state. But there are counterarguments and counterexamples. The Weimar Republic was a liberal state with a liberal constitution, which was destroyed in part because it lacked the constitutional means to defend itself from the anti-parliamentary extremism of both the left and the right.
It has been claimed that 42 days is incompatible with the ECHR, a point made forcefully by the noble Lord, Lord Lester of Herne Hill. Non-lawyers like myself find it difficult to understand the type of situation that has arisen in the case of the recent horrible murder of a young woman in Italy, where it seems perfectly consistent with the ECHR for the Italian authorities to keep the suspects in detention without charge for a period greatly in excess of 42 days.
I listened hard and carefully to the arguments of my noble and learned friends Lord Falconer and Lord Goldsmith. Unfortunately, they are not in their places at the moment. Both are men of enormous ability and integrity whom I have always admired. They demand to be listened to, but I found their arguments difficult to follow. My noble and learned friend Lord Falconer says that he was persuaded to move away from supporting 90 days—and now cannot support 42 days—because of the emergence of the threshold test. Yet he agreed with the intervention of my noble and learned friend Lord Morris of Aberavon that the threshold test was available at the time of the 90 days debate. I do not understand where that argument is leading. My noble and learned friend Lord Goldsmith made the point that, as a Minister, he argued against 90 days on policy grounds within Government. That is undoubtedly the case. What I do not understand is how he felt able to continue in office once the policy that he had honourably opposed, and continued to oppose, had become the decided policy of the Government.
One Member of your Lordships’ House has been mentioned relatively infrequently today, namely the noble Lord, Lord Carlile of Berriew. He is the noble Lord who is, perhaps, best placed to provide a balanced and objective assessment. Not only is he the independent reviewer of terrorism legislation, but he is a lawyer and a Liberal, with a big “L” and a small “l”. The noble Lord has endorsed 42 days. We should not put his assessment aside lightly.
My Lords, I rise as the least qualified person to participate in this debate. I have no expertise in the judiciary, the legal profession, the police or the security services. I am setting aside a lesson that I learned a decade ago, when I first became a Member of this House—to know that you have expertise in what you speak about before entering into debate—perhaps to represent the voice of the man or woman on the Clapham omnibus. In my case, that would be the number 24 bus, and my build would not let me get up the stairs. The debates that I have heard in my locality and others have not been as high-flown or profound as ours, but they have asked a series of questions worthy of answer.
To begin, why is the issue of principle being raised so much, when there have been several terrorism Acts, and detention before charging has been increased to 28 days? It is not a principle, it is an expedient. The argument is 42 against 28. I have listened today to try to resolve that for myself, and I have heard some fairly extravagant language from Members I would not expect to hear it from. I heard “endless excess” and “draconian”. I took slight offence at the noble Lord, Lord Dear, who quoted Pastor Niemöller, who, as I recall, was talking about a Nazi Government’s behaviour towards their own people. The noble Lord seemed to be making a construction between that and this Bill, which takes matters somewhat further than it should.
Questions have to be answered and the debate has to take place. Outside this Chamber—where it is not as rarefied and people are not as endlessly engrossed in what we say as we are—are a whole population who know that they need protection and are not sure that they are getting it. Perhaps because of the media and our own contributions, the population sometimes feel that we think more about the rights of the accused than the rights of the innocent and the victims. If we can clear up one thing in the passage of this Bill, it should be to reassure the section of the public—whether that is 69 or 79 per cent of them—who believe that we need to do more to combat terrorism. They do not seem to be looking for 42 days; they are concerned about changing the law. They are also concerned because they see a kind of war that is different from any that they have seen before. That includes people who have seen two world wars. They see a need for the Government to be armed in order to protect them. They also see the logic of not doing that in the kind of hasty debates that we have had previously, going back to the outbreak of World War Two, when we passed legislation in one 24-hour session. Better to have the debate and decision in the cold light of day than in the hot aftermath of a catastrophe.
My Lords, this debate has been dominated so strongly by the 42 day issue that it is tempting to choose for one’s own seven minutes one of the Bill’s less notorious, but still alarming, provisions. I would have chosen the Government’s amiable attempt in Part 6 to rid themselves of the tiresomeness of having juries and local coroners at certain inquests, and to put in a coroner of their own choosing, so long as he behaves. This would all be on the certificate of the Secretary of State that, on some ground or other, it is in the public interest to do so. I agree with the noble Baroness, Lady Ramsay of Cartvale, about Part 6. That will be a pleasure postponed, because the 42 days issue is of such importance that I want to offer my view on it, however repetitious it may be.
I begin with a general reflection. It is greatly to the credit of our country that this issue has received such close attention, both in the parliamentary progress of this Bill and in the discussions that preceded it. I go on to consider the background. Beyond doubt, we face threats made all too credible by what was perpetrated in London on 7/7, what was attempted at Glasgow airport and what, earlier, had happened in the United States on a scale never previously imagined. We also know that other plots with horrifying objectives and capabilities, like those planned for Heathrow, would in all probability have succeeded, had it not been for great skill on the part of those who look after our safety and, perhaps, a measure of good luck. It would not have been irrational if all this had produced an overwhelming demand from the public that we forgo what might be seen as the forensic niceties of fairness, and keep terrorist suspects in custody without charge for as long as it takes.
This has not happened, due to the steadiness of people in this country and their invaluable gut feeling that their freedom is precious and an inheritance to be jealously guarded. In Parliament, too, we should demonstrate these qualities. I also reflect that, undoubtedly, the easier course for Parliament now is to support this, the “tough on terrorism” extension. No one could sensibly call that irrational either, for it plays not least to the powerful argument, never more movingly expressed than by victims, that there is no freedom without safety. The rights of victims have been tellingly alluded to by the noble Lord, Lord Brett, who has just spoken.
In thinking about the choices that face us, my starting point is that freedom from arbitrary detention, secured as it is by the venerable remedy of habeas corpus, lies at the very heart of what makes us free. I very much agree with my noble friend Lord Sheikh about this. In recent years we have thought it right to nibble at the application of that principle, and to do so with increasing appetite. The present maximum of 28 days’ detention without charge is four times longer than the seven days put in place as recently as 2000. Indeed, my noble and learned friend Lord Mackay of Clashfern reminded us that we talked about the difference between four and eight hours in 1979. Now it is proposed to increase this limit of 28 days to six weeks, which is half as much again. It has been pointed out that this gives a total equivalent to a sentence of three months’ immediate custody. This surely warrants proof of necessity if it is to be accepted. I recall—and I hope everybody will read—the powerful speech by the noble and learned Lord, Lord Goldsmith. That proof of necessity is lacking. Before such an increase was proposed, I would have expected the need for it to be common ground among informed opinion, yet the DPP, the professional head of the Crown Prosecution Service, told the Commons Public Bill Committee,
“we were very well placed to make that judgment”—
that is to say, whether there is enough evidence to charge—and that,
“our experience is that we have managed comfortably with 28 days, and have therefore not asked for an increase”.
He made it clear that what he said extended to,
“even … the most extraordinarily complex terrorism offences”. —[Official Report, Commons, Counter-Terrorism Bill Committee, 22/4/08; col. 58.]
The noble Lord, Lord Lester of Herne Hill, recited the list of distinguished ex-officeholders to oppose this extension on that ground among others.
If the test of necessity is failed, so is the test that the provision should not be counterproductive. I think it is counterproductive in three respects. First, as the noble Lord, Lord Dear, the right reverend Prelate the Bishop of Chelmsford and, perhaps most tellingly, the noble Lord, Lord Condon, said, this proposal will add predictably to disaffection in the Muslim communities in particular. The Islamist terrorist should not be fed with this kind of encouragement. Secondly—I do not think that this point has been made before—just as internment in Northern Ireland in the 1970s put us on the back foot and encouraged the violence we were resisting, so this proposal will predictably harm us. Thirdly, nibbling away at the principle of habeas corpus without proof of necessity is a proclivity to which all Governments are regrettably prone. It is dangerous, and this precedent will make it harder to resist in future.
I hope we shall not be had by the so-called concession of requiring parliamentary approval; in practice it will prove worthless, like the other concessions so tellingly criticised by the noble and learned Lord, Lord Steyn. This proposal is dangerous in principle, damaging in practice and has not been shown to be needed. I hope your Lordships will take the harder rather than the easier course and will reject it.
My Lords, I am privileged to follow the noble and learned Lord, Lord Mayhew, even if he took from my speech the point about internment in Northern Ireland. That was clearly seen as providing recruits for terrorism and was regarded as a mistake. I am not saying that internment in Northern Ireland is identical to 42 days, but there are sufficiently disturbing similarities in their effect on innocent people who might be detained in this way.
During this debate, I have been reflecting on the number of years during which we have debated detention without charge, long before terrorism loomed as large on the scene as it does now. When I was in the Commons, I was on the Standing Committee dealing with the Police and Criminal Evidence Act, and we debated at great length the decision by the Government that people should be detained without charge for not more than 96 hours—that related to criminal offences. We secured amendments against the Government that ensured that at 36 hours and at 72 hours the police had to go to the courts to get judicial approval for continued detention. That was not so long ago: 25 years.
Today, we have had prevention of terrorism legislation allowing seven days, 14 days and now 28 days. It is useful to reflect on what has happened. I am not saying that 96 hours would have been sufficient for terrorists, but we have gone a long way down a particular path and I do not think we should go down it any further. That is why I am against 42 days.
I am a former chair of Liberty and a member of the Joint Committee on Human Rights, but even if that were not the case, and I had had any doubts, they would have been fully met by some of the powerful arguments that I have heard this evening. Members of the House will recall that earlier today the former Lord Chancellor and the former Attorney-General were powerful advocates against 42 days. Senior police officers argued that there is no need to have 42 days. The Director of Public Prosecutions, who is not in this House, has argued very clearly that we do not need 42 days. The noble Baroness, Lady Manningham-Buller, who has enormous experience of the security services, said that we do not need 42 days. I remember going with a Select Committee to South Africa towards the end of last year and discussing the argument about 42 days. One person said that lengthy detention without charge was too reminiscent of apartheid and that he could not bear the thought that this was even being contemplated in Britain.
I do not think we have had any sufficiently convincing evidence in favour of 42 days. If we are to make such a major change in the way we deal with people before they are charged, we need a bit more evidence than the arguments that we have heard so far from the Government. I say that with sadness because I am a supporter of the Government, and I wish they did not put people like me in the position of having to oppose a key feature of their legislation. I would much rather that I was not in this position and could attack the Tories and all sorts of other things, but that is not the world we are in today. I say sincerely that I regret that my Government are doing this when they should not. I am sure that all noble Lords support civil liberties and that they believe passionately that we must do all we can for the security of our people. I am sure that we all agree that the safety of people in this country is very important, but the judgments we are making today about how we give effect to our beliefs will determine the pattern of civil liberties in the future. Even if people supporting the Government believe in civil liberties, I fear their effect will go the other way. It would be a step back in this country if we were to do that.
I hope the Government will think again. It is clear that this measure will not go through this House and that the onus will be on the Government to say, “What can we do to get this measure through?”. Listening to the arguments, it is fairly clear what changes they should make.
My Lords, there is no doubt in my mind that we have to defend our country and its citizens against those who may have evil and malicious intentions that lead to havoc and chaos and instil fear in civilians. Over the past few weeks, I have been consulting various groups from my community, and my fear is that the proposal in the Counter-Terrorism Bill for 42 days’ pre-charge detention will play into the hands of extremist groups and individuals and increase anti-Muslim feelings. It will be counterproductive as it will lead to damaged community relations and will further alienate the people we are aiming to integrate into our society. It is unjust and violates people’s rights. It will inevitably undermine the UK’s moral authority around the world. We have a proud history of respecting civil liberties from the early days of Magna Carta and the principle of habeas corpus. It is for these reasons that I will be opposing the Government’s proposed extension of pre-charge detention to 42 days.
I should like to draw noble Lords’ attention to some points that have gone some way in helping me make my decision. For many decades we have been a target for terrorism, whether by the IRA or others. However, I am proud that we have kept our traditions of freedom, justice and respect for individual rights, except for a short period when the counterproductive measure of internment was used in Northern Ireland, as mentioned by the noble and learned Lord, Lord Mayhew, and my noble friend Lord Dubs. Your Lordships will be aware that until 1974 crimes related to terrorism were generally dealt with through ordinary criminal law procedures. However, from 1974 to 2000 successive Governments sought to build upon the new statutory regime that had been implemented. The Prevention of Terrorism (Temporary Provisions) Acts that were introduced after 1974 were reactionary measures passed in response to various terror attacks. The first such Act was passed in 1974 in response to the IRA attacks in Birmingham. One feature of the Act was that it allowed police officers to hold terror suspects for a maximum of seven days before they were charged.
Although it was initially envisioned as a temporary measure, at intervals, the Act was renewed, reflecting the built-in sunset clauses, until 1989, with significant amendments in 1976, 1984, and 1989. These arrangements came to an end with the Terrorism Act 2000, which consolidated and amended earlier provisions, and introduced new measures. The 2000 Act was the beginning of a new chapter that took UK terror laws into a new era.
Since 2000, this Government have introduced six pieces of legislation relating to terrorism. Before us today is yet another anti-terror Bill for our consideration. I am disturbed by the fact that it proposes to extend the pre-charge detention limit to the magic figure of 42 days. In 2006, the Government advocated 90 days, 60 days or any figure that they could pluck out of thin air. The 42 days seems to be another bingo or lottery number that they have dreamt up.
I pay tribute to those Members of Parliament who stood firm on their principles and voted against this proposal. In particular, I applaud the courage of the 36 Labour MPs who refused to accept the extension of pre-charge detention, which illustrates the true essence of British democracy. If only MPs who aim to integrate young Muslims into British society had voted against this draconian measure, it would never have come to this House.
Many distinguished and influential members of our society have voiced their opposition to various features of the anti-terror legislation. They include the former Prime Minister, Sir John Major, and Sir Ken MacDonald. We have already heard the noble and learned Lords, Lord Falconer and Lord Goldsmith, the noble Lord, Lord Condon, and the noble Baroness, Lady Mallingham-Buller, in her eloquent maiden speech, oppose the 42 days. The former Lord Chief Justice, the noble and learned Lord, Lord Woolf, and the former Home Secretary, Charles Clarke, as well as organisations such as Amnesty International, Liberty and Human Rights Watch, have all expressed their concerns.
Where is the real evidence that we need 42 days? In November 2007, even my noble friend Lord West was not convinced. Is it not amazing how a cup of tea at No. 10 Downing Street two hours later can change someone’s priorities as well as the strength of their beliefs? It is unfortunate to hear so many stories about knighthoods, peerages, financial incentives and political sweeteners being offered in order to garner support for this outrageous proposal.
I am aware of only one so-called Muslim leader who supports the Government on this issue. I was shocked to learn that the same individual who supported the Government in the Sun, the Daily Telegraph, and the English section of the Daily Jang, in the Urdu side of the Daily Jang stated:
“Even seven days without charge is unacceptable to the British Muslim Forum”.
How can the Government be proud to be in bed with such an individual? I suppose that when you are desperate, want to sound tough and are doing it at the expense of that community, you need someone who epitomises Judas. Is it not funny how history repeats itself and we have the Mir Jaffars and Mir Sadiqs among our communities today?
I understand that the Foreign and Commonwealth Office has granted a substantial amount of money to a project called “I am the West”, which has been described as a deradicalisation programme, headed by the chairman of the British Muslim Forum. I should be obliged if my noble friend could confirm whether the £4.6 million granted for this project was given to an organisation headed by this man and on what basis this fund was allocated to this organisation. Would he be kind enough to tell the House whether the CBE granted to this man was a gesture of thanks for his unconditional support for these proposals?
This has been a sad experience at the expense of our liberties and human rights, and at the expense of the habeas corpus principle which is embedded in the Magna Carta and our basic British principles that we so rightly defend. The noble Lord, Lord Foulkes, who is not in his place, and others have reminded the House how popular this measure is with the public and that the job of this Parliament is to respect public opinion. I wonder why he and others did not ask the Government to respect the more than 70 per cent of the Irish community who were against the Sexual Offences (Northern Ireland) Order 2008, or to respect the more than 70 per cent of the British public who demanded the right to a referendum on the Lisbon treaty, or to respect the millions of people who marched on the streets of London to stop the war in Iraq.
With all due respect, even today, if we asked the public whether those paedophiles who ruin the lives of children should be hanged in Parliament Square, I am convinced that the overwhelming majority would vote for it. So why are we selective in pointing out public opinion when it suits our arguments, but remain deadly silent when our public demands that we should withdraw our troops from Iraq? Why do we remain silent on issues of morality, human rights and wars which are launched on fabricated evidence?
Last week, I asked a young man about the Government's proposal and he said, “Sir, I believe that our anti-terror laws are now on a par with McCarthyism and the experience of the Jewish community within Europe during the last century”. I cannot support the 42 days on the one hand, yet talk about the experience of the Muslim youth on the other, as the junior Minister did last week. If that is how young people feel, I am afraid that the Government’s rhetoric about winning hearts and minds will be doomed to failure. You cannot demonise peoples’ faith and marginalise young individuals, then expect to win any support from those you have alienated.
Finally, I love this country, its people and its diversity. Already, the spying culture, the stop-and-search and control orders, and demonisation is creating a wedge between the mainstream society and young Muslims. The ACPO report, entitled Hearts and Minds and Eyes and Ears stated that,
“increasing numbers of young Muslims have become alienated from mainstream society that they could even lend their support to ... terrorism”.
The Government’s measure in this Bill will only further alienation and segregation, and create radicalisation. I will wait for this Bill to return to your Lordships’ House to ensure that we bury this part of it before it becomes law.
My Lords, I wish to concentrate on two issues, neither of which contains any legal arguments: the role of the police and the impact of the Counter-Terrorism Bill on our diverse society, a point that was well made by the noble Lord, Lord Ahmed. No one disputes that it is the duty of the Government to ensure the safety of all their citizens. However, we should bear in mind three factors. First, there is no such thing as total security, a point that was well made by the noble Baroness, Lady Manningham-Buller, in her maiden speech. Secondly, the Government alone do not have the capacity to provide security for all their citizens. Thirdly, active citizen participation is essential if we are to tackle terrorism and the factors that give rise to it.
We must never forget that community participation is conditional on how the community views government action in relation to the protection of civil liberties. These are the essential values that we hold as a democratic nation and for which we have fought for decades. They are not something that we should surrender lightly. Unfortunately, the Counter-Terrorism Bill is one step in that direction.
We have seen over the past few years attempts by the Government to erode values that have stood the test of time. Look at the adverse and disproportionate impact of proposals such as for the abolition of jury trials, the collection of DNA samples and the data of innocent citizens, identity cards that seek disproportionate information about individuals, and now counterterrorism measures that strike at the heart of our fair and just judicial process.
My main concern is the role of the police in aiding and abetting the political process. We owe a huge debt to our police officers for the way in which they protect our community, but I part company with them when they indulge in the political process. During the Brixton disorders in the 1980s, we were privileged to have the wisdom of Lord Scarman, who redefined the traditional approach of policing by consent. We must add to this the principles of non-partisanship and the full accountability of the rule of law, which has served us so well for the past 200 years. I am afraid that these principles are being sacrificed. No one can dispute that there is now considerable interference on the part of the police in our political process.
I do not question the right of chief officers to brief the Government—some do it well—within the confines of their relationship with the Home Office. But I question the need for serving officers attending Parliament in chauffeur-driven cars to voice their opinions to parliamentarians. This sacrifices their independence. It erodes the confidence of communities in the principles of non-partisanship and brings the police into disrepute. In the Police Foundation’s John Harris memorial lecture last week, Shami Chakrabarti said:
“For in order for democracy to flourish for more than a brief moment, fundamental rights and freedoms and the rule of law must be protected by independent professionals. Not just the right to free and fair elections but interconnected rights to speech, protest, privacy, conscience, association, equal treatment, fair trials and against arbitrary detention and inhuman and degrading treatment. It is easy to see politicians and judges as the moving and fixed parts of the machine respectively. However the constitutional positioning of the police service is equally important. It seems clear to me that in contrast with other systems, the British policing tradition places the service under the rule of law rather than the political pillars of the constitution”.
It is easy to dismiss these words, coming as they do from a seasoned campaigner from Liberty. However, she has hit the nail on the head, because past experiences clearly demonstrate that we remove non-partisanship at our peril.
The nearest that we came to losing the semblance of local policing was during the miners’ strike. Strategy and operational methods directed centrally left an ugly scar on our mining communities. It is not my intention to comment on the rights and wrongs of that strike. Suffice it to say that, after decades of such actions, the trust between local police and what is left of the mining communities remains at a low ebb. I do not exclude the Association of Chief Police Officers. After the London bombings of 7/7, it was the first in line asking for new policies, with the 90-day detention at the top of its list. It is important to ask a simple question. Does ACPO represent the police point of view? If so, what consultation took place to ensure that this was so? Obviously the Freedom of Information Act 2000 does not apply in this case and let us not forget that ACPO is substantially funded by the Home Office.
I am delighted that the noble Lord, Lord Dear, a one-time ACPO member, chief constable and HM inspector of police, does not subscribe to ACPO’s point of view, and I commend the contribution of the noble Lord, Lord Condon. The noble Lord, Lord Dear, eloquently set out a case for why the provision for 42-day detention in the Counter-Terrorism Bill cannot stand up to scrutiny. I had long dealings with ACPO when I was at the Commission for Racial Equality and I had contact with a large number of chief officers when I was a member of the Police Complaints Authority. A number of senior officers have told me that operationally a 42-day detention is not necessary. That clear dissent has not been allowed to surface.
My concern is not just 42 days. Police have at their disposal substantial powers over citizens. If wrongly used, these could be oppressive. Take stop and search. If there is one clear example of adversarial relationships between police and ethnic communities, it is the use of such powers. I have nothing against the use of stop and search if it is based on sound intelligence, but the Government’s monitoring clearly demonstrates that it has been used disproportionately against minorities. To this day the Home Office is in a quandary over how to ensure that there is discretion and fairness in the way in which stop-and-search procedures are used.
We must also not forget the implication of the measures that the Government are seeking. If, by a miracle, the Counter-Terrorism Bill were to be on the statute book, what example would we be setting to the rest of the world? Dictators across the international scene would breathe a sigh of relief because long detention without a fair trial would play into their hands. The Mugabes of this world would be laughing their heads off on their way to their presidential offices.
My noble friend Lord Lester of Herne Hill spoke about the impact of this legislation on human rights. The Government can take credit for setting up the Equality and Human Rights Commission. My noble friend Lord Lester has been a pioneer in this field and we owe a debt of gratitude to him. I do not wish to go into details about the opinions that the EHRC sought from the UK’s leading public law and human rights barristers, but it should leave us in no doubt about the impact of the Bill on human rights provisions. Suffice it to say at this stage that the commission is on record as saying that it will use its powers to challenge the lawfulness of the Bill’s provisions if they are enacted.
My main concern is the impact of this Bill on community relations. Like it or not, at the best of times there remains an uneasy relationship between different communities. We continue to argue about our multicultural, multiethnic and multiracial society. We should add to the mix the war in Iraq and the growth of terrorism. The sense of shared values and the notion of citizenship are becoming a mask of acceptable language used to discuss what to do about the problems of the Muslim community in Britain.
To balance this, statements are made about promoting community cohesion, fostering shared values and preventing violent extremism. However, community cohesion is often addressed within the framework of race and religion and, more specifically, within the context of Islam. A little while ago, Jonathan Freedland noted in the Guardian,
“a kind of drumbeat of hysteria in which both politicians and media have turned again and again on a single, small minority, first prodding them, then pounding them as if they represented the single biggest problem in national life”.
How else can we explain the comment made by Shahid Malik MP, the government Minister who said that it has become legitimate to target Muslims in the media and society in a way that would be unacceptable for any other minority? He went on to say that many British Muslims now feel like,
“aliens in their own country”,
as society turns “a blind eye” to their persecution. The Home Office should take notice of one of its own Ministers who says that this has the effect of segregating society and undermining efforts to deal with extremism and terrorism.
We have a duty to ensure that no community feels isolated and lives in fear. The measures that we take should not stereotype communities as extremists. Large numbers of Muslims and other minorities are law-abiding citizens. Despite pressures, they have been loyal to this country. Extending the period of detention for the very few will have an impact on the whole community. We will pay a heavy price for these short-term measures in the long-term prosperity of our country.
My Lords, techniques of terrorism cannot be disinvented. The challenge is to contain and minimise the likelihood of their deployment and to isolate or marginalise those who would be prepared to deploy them. In this, Governments have a priority responsibility. It is their duty to protect those within their jurisdiction and it is therefore right that we should pay generous tribute to those servants of the state and to Ministers themselves who tirelessly seek to honour that responsibility.
I have been greatly impressed of late by those in the front line of the essential battle for hearts and minds who have told me that what arguably matters most is the credibility of transparent integrity and consistency in all that is done. Like those operational policemen who have explained their anxieties, I am not convinced that the possibility of 42-day pre-charge detention will help. Quite the reverse. Like them, I fear that it will be counterproductive—that the advantages will be outweighed by the disadvantages. It is likely, as my noble friend Lord Ahmed has just said, to play into the hands of the manipulators and could well amount, in effect, to acting out a script written by bin Laden himself. The noble Lord, Lord Dholakia, has covered the same area. It will certainly give ammunition to the manipulators.
Most of the Islamic community and most followers of other faiths are certainly not open to such manipulation, but acts of terrorism do not require large battalions. They are undertaken by small numbers of dedicated people. Just a few more carefully selected additional recruits can prove hugely significant.
Terrorists operate more effectively when there is a climate of ambivalence—when significant numbers of people, who themselves totally reject acts of terrorism, nevertheless sometimes believe that the cause with which terrorists attempt to justify their action may well be valid. That is why it is dangerously naive to argue that there is no recognisable political agenda with which the terrorists seek to identify. We may not like the agenda or support it and we may totally condemn, without reservation, the self-defeating, cruel methods applied for pursuing it, but to pretend that it is not there fosters the ambiguity to which I have just referred.
The agenda is about value systems and the prevailing global, economic, social, environmental and power structures in the world. It is about Palestine, the Middle East and the existing traditional order in a number of Arab states. It is about overt and covert racism, exclusion, oppression, humiliation and a search for identity. In this context, I have been deeply impressed by police and others actively engaged in the hearts and minds work who have suggested to me that people with whom it is essential to be in dialogue and to whom it is vital to listen include militants who are not, at least as yet, terrorists. Such militants, they believe, have street credibility. Hearts and minds processes have to be as inclusive as it is possible to make them. Policing is only highly successful when it is undertaken with the community.
That is why we have to take seriously, and be seen to take seriously, the perceived injustices that determine the agenda. That is why support for meaningful negotiations in the Middle East is highly relevant and why every sinew should be stretched to bring Hamas into those negotiations. It is why G8 summits matter in terms of economic, social and environmental justice for the world. It is why our immigration system and the real human experiences of those caught up in it matter so much. It is why the vocabulary and demeanour of the media and politicians towards these ethnic minorities and would-be immigrants are so crucial. It is why the temptation to play to the gallery of prejudice, apart from being utterly distasteful, is potentially disastrous.
We seek to defend the lives of our people. What are those lives? The right to be alive is basic, but health, shelter, nourishment and economic and employment prospects are all part of it. So, also—crucially—are our liberty and our system of justice, so painfully forged in our history: habeas corpus; justice being seen to be done; equality before the law; not being held without charge; presumption of innocence; cross-examination of witnesses, and the rest. The independence of the judiciary is a pillar of our judicial system and it is essential always to be absolutely clear what is the judicial role and what is the parliamentary legislative role. They are not the same. It is surely when the going gets tough and the provocation is most acute that we have to reassert a manifestly transparent determination to stand by all these principles. Otherwise we give the extremists the victory and we aid and abet their manipulations. We water the seeds of doubt and alienation.
In Committee, it will be vital to examine the Bill against all these considerations. Why is 42 days proposed, when nobody has been held for more than 14 days in the past year? Are we being invited to make a possible future convenience more important than a fundamental legal principle? Is it possible that it could really be about appeasing the worst tabloids? What alternatives, including, for example, police bail safeguards, have been examined? How has the lasting psychological damage, with its long-term consequences for those incarcerated in isolation, been considered?
Anyway, how reliable is intelligence secured in these conditions? Why have we not yet moved forward on the availability of intercept intelligence, of course with essential safeguards, in those court cases where everybody knows that it is central to the situation? Are we confident that the hearings for the extension of detention meet the basic requirements of adversarial justice? What are the misgivings of the special advocates about the procedures of which they are a part? Will not the new proposals for the coroners’ courts contradict the cause of transparent justice, especially when servants or agents of the state may have been involved in a death? Faced with the grim realities of what confronts us, we must beware of counterproductivity. Are we sure that the Bill avoids that trap? We must not become party to compounding the dangers.
The centuries of struggle for liberty and equality before the law in our own society have been, by definition, for inclusive, not exclusive or partial, application. The statesmen and stateswomen of the 1940s, with all the searing experience of the Second World War behind them, got it right in the Universal Declaration of Human Rights. The point was that, as a muscular cornerstone of a decent, stable and secure society, fundamental rights were there for everybody, not just for some. We go down the road of selective application of rights at our peril. In the end, we could all be the victims of such a process.
My Lords, I have two speeches prepared: one on post-charge questioning and the other on 42 days. I think that the former would be more interesting to your Lordships’ House, if only as a change, but I am afraid that the latter is more important.
The noble Lord, Lord Goodhart, pointed out, or should have done, that this is the sixth piece of counterterrorist legislation since 2000. I think he missed one out. No other country in the world—even Spain, which suffered an atrocity every bit as bad as the one we suffered on 7 July 2005—has had anything like the same plethora of legislation that we have had. One wonders why.
Then, a year ago, very soon after he took office, the Prime Minister made a statement on national security. It seemed to me as if it might be a new beginning. Yes, he said, we needed further legislation, but it would be based on consensus—consensus in Parliament and in the country. We look forward, he said, to seeking and obtaining all-party consensus on intercept evidence, pre-charge detention and post-charge questioning. Happily, we have reached all-party consensus on intercept evidence as a result of the efforts of the committee of privy counsellors under Sir John Chilcot. There is certainly still more work to be done, as the noble Baroness, Lady Ramsay, and the noble Lord, Lord Robertson, pointed out. However, I look forward to something on the subject of intercept evidence in the next Session. I see no reason why that should not be achieved.
If we have reached all-party consensus on intercept evidence, we have certainly not reached it on 42 days. Indeed, we have not reached even one-party consensus, since the Minister’s own party is split on the subject. A bare majority of nine votes in the House of Commons is not consensus, and this House has not yet spoken as I hope and believe it will. No doubt the Minister will say that he has tried hard to reach agreement with the Conservatives and the Liberal Democrats, but trying hard is not enough. Where the liberty of the subject and the rights of suspects to a fair trial are concerned, consensus is not just a desirable extra; it is a prerequisite. There is therefore no consensus in Parliament; nor is there any consensus in the country. The noble Lord, Lord Foulkes, drew attention to a poll from which it appeared that 69 per cent of the public were in favour of 42 days—if that be true—but a majority is not the same as a consensus.
We have 2 million Muslims in this country who are British citizens. Does anybody suggest that there is consensus in favour of 42 days among them? Yet they will be the most directly affected by the Bill—not only by the 42 days but also by post-charge questioning, about which I shall have something to say in Committee, and the notification provisions in Part 4, which seem to be iniquitous.
The Government have at last seen the critical importance of winning over the Muslim community, particularly young people on the edge of extremism. In May, they published Preventing Violent Extremism, which was a move in the right direction. Do the Government not see that extending 28 days to 42 days is a move in the wrong direction? It will alienate the people whom we should be winning over, and it will be counterproductive for all the reasons given by my noble friends Lord Dear and Lord Condon. We should give great weight to those speeches.
When the Government saw that they could not achieve a consensus, they should surely have dropped 42 days there and then, as I believe in the end they will be compelled to do. That would have been the sensible, courageous and statesmanlike course. It would have done much to win over and reassure the Muslim community. However, they did not do that; instead, they won over or sought to win over by a lot of small print, which we now find in Clauses 22 to 31, their own Back Benches.
The 42 days is now dressed up as a reserve power, which, it is said, we need to cover the so-called “grave exceptional terrorist threat”. I had imagined that what the Government had in mind by that was something truly catastrophic—a nightmare scenario such as 9/11 or worse—and one could understand that. However, the definition in Clause 22 is not what the Government have in mind at all. It covers any terrorist event which has caused, “serious loss of … life”, such as occurred on 7 July 2005. The “grave exceptional terrorist threat” is not something hitherto unexperienced or something which might occur; it is something which we have right now. If that is right, it follows that the Home Secretary could make an order tomorrow, as soon as this Act were passed, extending the period to 42 days provided only that there was an “operational need”. But who decides that there is an “operational need”? The answer is the police, the very people who said that there was an operational need for 90 days. It is true that a report has to be made to Parliament within two days of the order being made, but what is the use of that? How can Parliament have a clue whether there is an operational need? My conclusion is that there is no need for the reserve power and that the so-called safeguards are illusory. The 42 days has not been justified.
I refer finally to an argument which the Minister has used from time to time: that the threat is becoming greater all the time, that investigations are becoming more complex and, therefore, that if the present threat continues on the same trend, we will soon need more than 28 days. Where is the evidence that the threat is more serious or the investigation more complex than in 2004, at the time of the Dhiren Barot case, or in 2006, at the time of the airline case? There is no evidence to that effect. The number of plots referred to and the number of convictions do not show an upward trend from which we can extrapolate. My own guess, although I cannot prove it, is that the threat is currently being contained. We cannot rule out the possibility that, at some time in the future, a group of terrorists will bring about the nightmare scenario, but does that justify the 42 days?
At the very end of her speech in the other place, the Home Secretary posed the question in the following terms: “Can we be confident that no police investigation will ever need more than 28 days?”. That question obviously invited the answer no. But she asked the wrong question. She could not be confident that no police investigation would ever need more than 42 days, or even 90 days. The right question is whether detaining suspects for 42 days without charge is a proportionate response to the present threat. My answer is that it is not. That would be the answer given by our courts if ever the question came before them, and ultimately by Strasbourg.
My Lords, I cannot help feeling that something has gone badly wrong. If someone had told me in 1997 as I sat on the Benches opposite, which were Labour Benches then, that a Labour Government would come in and introduce measures to detain people without charge for 42 days, I would have laughed in disbelief. I find myself now sometimes on the verge of tears at what is going on. Having listened to many powerful speeches, most particularly those of the noble and learned Lords, Lord Goldsmith and Lord Falconer of Thoroton, I cannot believe that the proposal for 42 days will not sink without trace when the matter comes to be voted on in your Lordships’ House in the autumn.
I know nobody in this House who is unsympathetic to victims of terror or unconcerned about the threat of terror. I do not believe that we needed the scary speech of the noble Lord, Lord Harris of Haringey, because we are all fully aware of what is going on, at least in outline. We work, here in this building, in a terrorist target area. The level of security alert as we enter this House is displayed on the monitors each morning—and in my experience it has never been described as low. We, our family, our friends and neighbours fly, use the Underground and visit shopping centres and busy places that are vulnerable to attack. We all want to be safer and we all want our Government to do their best to ensure that we are.
Contained in this Bill are provisions that do just that. One of them has not received a lot of attention. The noble and learned Lord who spoke immediately before me is no doubt going to deliver a second speech when the matter comes up in Committee, but the legislation on post-charge questioning would appear to all of us to be potentially helpful to those investigating terrorism and something that in the long term is likely to help to make us safer. But as noble Lord after noble Lord has said, there has been no evidence whatever from any source that 42 days’ detention is necessary or would make our country safer in anyway. Quite the contrary: the people who “know best”, as the noble and learned Lord, Lord Falconer, described them, the Director of Public Prosecutions and the Crown Prosecution Service, say that it is unnecessary.
One would have hoped that that would be enough in another place. Instead, this provision was said at one stage to be necessary because we were “up against the buffers”. It was only later we saw the reality of what happened in the one case in which people were not charged until the very end of the 28-day period. No one has mentioned so far in this debate; that there was evidence for a charge at four and 12 days but the charging did not take place until 27 and 28 days, because the Crown Prosecution Service was unable to decide whether to charge or not. If these provisions are to be used for administrative convenience, or because people have a pile of papers and are busy dealing with something else, that is simply not good enough.
We have had references to the Civil Contingencies Act, which I was unhappy about when it went through this House, as it contained truly draconian provisions. However, it is on the statute book and available for the sort of doomsday scenario to which the noble Lord, Lord Harris of Haringey, referred. Even worse than unnecessary proposed legislation is having counterproductive legislation. We have heard, notably from the noble Lord, Lord Ahmed, but also from the right reverend Prelate the Bishop of Chelmsford, that this gives a propaganda coup to terrorism. It will be confirmation to many in our Muslim communities who are not disposed to support terrorism that those in power make special rules for them and regard their freedoms more lightly than those of ordinary criminals, for whom there is still the seven-day limit.
I share the view of a number of noble Lords who have already spoken that the proposal is wrong-headed and wrongly drafted. I am bound to say that the noble and learned Lord, Lord Steyn, was over-polite when he described the so-called safeguards as constitutionally illiterate. They are bordering on rubbish and were clearly cobbled together to buy off opposition in another place, probably in the hope that this House would give them the coup de grace, which I suspect it will.
There are obviously differences of view among people on the front line, whether senior police officers, those in the security services or people involved in the law offices, about where the line should be drawn on this issue. It must be right, therefore, to go back to the very first principle, and what could properly be called the “gut feeling” to which the noble and learned Lord, Lord Mayhew, referred. Surely, wherever we sit in this House, where we start is this: we used to take pride in calling our country a free country, and some still do. An essential element of living in a free country is to be free from the fear of being locked up without charge. When it is necessary to restrict that principle in the interests of public safety—sometimes it is, and I think that we would all accept that—it is surely the mark of a free country that we do it for the minimum possible time. We should not sacrifice freedom for no compelling reason or give away our liberties or toss them aside as a precautionary measure, or just in case it becomes necessary in future. In that direction lies the path towards indefinite detention, which we have seen others go down.
It is worth noting—and I found this chilling—that the Burmese regime took comfort publicly from the vote in another place. Terrorists seek to destroy our freedom, so why are we being asked to do the job for them? In the long term the best way in which to control terrorism is to maintain and strengthen the freedoms that terrorists themselves seek to destroy. I am bound to say that I voted against 28 days and would do so again if I were given the opportunity, which I am not likely to have immediately. But I very much welcome what Mr Dominic Grieve said in another place about the intentions of a future Conservative Government—that that 28-day limit would be revisited. It should not be there permanently; it is a blot on our civil liberties.
The noble and learned Lord, Lord Steyn, and others mentioned Magna Carta. Purely coincidentally, yesterday morning I stood in the great hall in Berkeley castle in Gloucester. As I was shown around, I was reminded that on the eve of Runnymede the barons from the West Country met there to determine their tactics to force the signature to Magna Carta. I very much hope that when we come to vote on this measure in the autumn, as I have very little doubt we will, the 21st-century barons who are now Members of your Lordships’ House will show the same sort of resolution in standing up for freedom.
My Lords, I appreciated that last point because we lived in Berkeley for several years.
I shall come to the 42 days’ detention in a minute but will start with some quick general points on the Bill. The Home Office seems to treat Bills like buses: as soon as one has gone past they look to the next one—and it is not all that long in coming, although sometimes they come in groups. As soon as one arrives, the Home Office climbs on board with whatever luggage it happens to be carrying. This particular Bill also has clauses about inquests; that bit of the luggage appears a bit lightweight, as far as I can detect, but I shall leave that to others who know more about it.
Home Office Bills enshrine our most basic principles of law, order and freedom. They should be like Rolls-Royces: rare, thoughtfully engineered and long-lasting. This Bill is not those things. With all the policy changes, I cannot help feeling sorry for the parliamentary draftsmen involved, which is an unusual sentiment for me. However, like others, I think that the 42 days’ detention without charge offends British liberties as understood at least from Magna Carta onwards. This is not just a historical or constitutional point; it is fundamental to what we stand for and is also a most important practical point, as has come out in the debate.
The struggle against terrorism is one for hearts and minds, as other noble Lords have said. The noble Lord, Lord Malloch-Brown, said that at Question Time this afternoon in the context of Afghanistan, but it is true in this context too. My noble friend Lord Sheikh, the noble Lord, Lord Ahmed, and a whole lot of other Peers have said the same thing this afternoon. That puts me against the proposal in principle from the start. But the actual proposal has become hopelessly complex in practice in the course of trying to get it through the Commons. If I were not trying to be non-partisan on an occasion like this, I might be tempted to say that it is a classic piece of Gordon Brown legislation. It seems that its complexity will defeat its object. It will attract all the negative feelings that noble Lords have drawn attention to this afternoon but it will not, in my view, be effective.
It is now a very limited proposal indeed and we must judge its effectiveness in deciding whether to pass it. That is partly because of the threshold test, which others have already explained. Also, if anyone is to be detained for more than 28 days, there is a whole steeplechase of jumps to clear. They are adequately set out on page 21 of the Explanatory Notes, but are quite complicated, involving all the various authorities that we have heard about.
One of the effects of that is to make the timing of it all rather tricky. Providing that Parliament ratifies it, an order will last for 30 days. If a suspect has been detained for 12 days or more when the order is laid, he or she can be detained for up to 42 days if it all goes through. But someone detained on the day that the order is laid can be detained only for 30 days—two over the current position. Of course, that does not apply to anyone who is detained more than two days after the order has been laid. The police would therefore be wise not to set the process in motion until after they have detained for some days all the key suspects that they may want to detain for more than 28 days. They will not do it immediately after some great terrorist operation or huge incident that causes a great deal of feeling, or even start doing it until they have rounded up all the key suspects and think that they are in a position to proceed.
I am also concerned about the involvement of Parliament in all this. It is one of the hurdles that I described. The Select Committee chairmen will be told things that they cannot disclose even in confidence to their own committee members. If they agree with the Government, they will be thought to be puppets. If they disagree with the Government, they will not be able to explain why to Parliament, to their own committee colleagues or to anyone else. The other members of the committees concerned and Parliament generally will see only a censored version of the legal advice and not at all the police and DPP report which started the whole process running before the Secretary of State made the decision.
Lastly, what about the trial after people have been detained and investigations have taken place? After the heavy machinery of the DPP, the Secretary of State, Parliament, judges and so forth have been publicly wheeled out—that collection of high authorities—in order to investigate the charge, will the accused really be able to get a fair trial? I suspect that if ever it comes to it, that matter will be appealed all the way up the courts—probably all the way to the Middlesex Guildhall. That is one of the difficulties.
All these so-called safeguards have been progressively introduced as a series of sops to government supporters in another place and presumably also to the DUP, but they are almost unworkable. I am not sure that this will ever happen but, on the other hand, it would be rather embarrassing for the Government to reach the general election without ever using these powers that they have gone to so much trouble and strife to try to acquire.
In the past, I have had some ministerial responsibility—and for that matter, shadow ministerial responsibility—for fighting terrorism in Northern Ireland and elsewhere. I have also had for 40 years a family connection with Palestine, which has given me an insight into terrorism, what happens and how it all works. I dislike this proposal in principle and because it will be counterproductive to the hearts and minds operation that is so important to it all. I am also most concerned that, in practice, it is deeply flawed.
My Lords, I intend to concentrate on the most controversial aspect of the Bill—the 42 days’ detention without charge. I read a particularly persuasive article by the Prime Minister in the Times justifying 42 days. He made all the points that I would have ventured to make, but they were equally applicable to 142 days as to 42 days.
When we last considered detention, I went along to hear Assistant Commissioner Hayman, who persuaded me of the complexity of the issues involved. My subsequent speech setting out the case is on the record, only in that case it was for 90 days, although I did not vote on the second bite at the cherry proposed by some of my honourable friends. When the issue appeared to be coming back to us, I thought that I should return to re-examine the case in depth. When I was Attorney-General, I was not greatly troubled by the most recent type of terrorism cases, as was my noble and learned friend Lord Goldsmith, but I had to adjudicate on other cases of terrorism. We got by in that period of terrorism on seven days’ detention without charge. What is now proposed, accounting for the differences in the judicial and investigative systems, will result in the longest period of detention in the common law world. It is six times higher than it was a few years ago. It is at least doubtful, despite the Home Secretary's endorsement, whether it will comply with Article 5(2) of the convention where there is a requirement that a suspect is informed “promptly” of the charge against him.
Is there a need for this part of the legislation? We have had a recital of the existence of a number of suspects and plots. I am not in a position to argue to the contrary as to such a state of affairs. If this provision justifies a need, you would expect everyone who has ever had a hand in the prosecuting process to justify and stand up this particular encroachment on our liberty. The Home Secretary herself at an earlier stage did not seem to be sure how many days were required. The security services are neutral, and we have had the advantage of hearing the speech of the noble Baroness, Lady Manningham-Buller. The police are divided. All former law officers who have spoken today are against it. The DPP, who will have to administer the Act, does not demand it. In his evidence to the home affairs sub-committee, he said that he was satisfied with the position at the moment, had not asked for the increase and that his experience has been that the 28 days has suited him quite nicely; the evidence on individual cases supports this. At the time of giving evidence, he had not met the Home Secretary, the Prime Minister or the Metropolitan Police Commissioner. I hope that this has now been rectified. It would have been better if the Prime Minister had been properly briefed before this voyage started.
The head of the CPS counterterrorism division has said that there had been no need to make an application to extend pre-charge detention beyond 14 days since the investigation into the attack on Glasgow airport in 2007. We are asked to further encroach on the subject’s liberty, not on present need but on the possibility of a future need.
In the mean time, there are other options. The Joint Committee has spelt out some of them. What has influenced me, as a criminal practitioner, has been a better understanding of the basis of charging since the publication of the code for prosecutions as far back as 2004. The DPP says that the code has included specific guidance on how prosecutors should determine whether and what to charge. Therefore, instead of the need for a realistic prospect of conviction for charging, if sufficient evidence is not presently available to charge on that basis, a lower criterion of a reasonable suspicion that a person has committed an offence has developed. At a hearing, the court and the defence will receive an outline of the case and the reason why the prosecution will be seeking remand into custody. The court will take the strength of the evidence into account on an application to dismiss. All cases must pass the full code test within a reasonable time.
In the mean time, crucially, notices of evidence supplementing and overtaking the outline will be served. This will inevitably involve staged service of distinct sections of evidence. The evidential case inevitably continues to develop until the full case is served, but often beyond this as terrorism investigations are frequently large and wide-ranging. So what is the problem? It would have been better if there had been consultation with the practitioners who operate on this basis day after day.
In the time available, I cannot say much about the problems of a parliamentary debate after the Home Secretary’s Statement to Parliament on having made the provision available. But I can question how there can be a fair trial if sufficient material—as mentioned by the noble Lord, Lord Cope—triggered by a specific case, is made available to Parliament. How can parliamentary oversight be meaningful? The Home Secretary has suggested topics for debate: “The outline of the plot”, “The number of suspects detained”, “The what, when and why”. That Parliament will face this scenario is incredible. The more detailed the material provided, the more prejudicial it will be. I therefore endorse the Joint Committee’s conclusion in this respect: the Government’s proposals are fundamentally flawed. They confuse parliamentary and judicial functions by attempting to give to Parliament an unavoidably judicial function: the decision over whether it is justifiable to detain individual suspects for longer.
The lower threshold of charge and post-charge questioning achieves many of the Government’s aims. Experience will tell whether the mixing of Parliament and the judiciary, as proposed, is workable. I think not. The Government’s proposals are a bridge too far, and the Government should take them back and think again.
My Lords, I am a member of the Joint Committee on Human Rights and want to confine my contribution to some points that have particularly concerned the committee and continue to concern it in relation to the Bill we are discussing today. I shall confine my remarks to matters relating to the definition of terrorism, control orders, coroners’ inquests and safeguards against the use of information obtained under torture. I shall not deal with 42 days. The noble Lord, Lord Dubs, who is also a member of the Joint Committee, has already addressed that matter extremely effectively.
I begin by saying, as the Joint Committee on Human Rights makes clear at the beginning of all its reports on this subject, that we start,
“from a full recognition that the Government has a duty to protect people from terrorism, a duty imposed by human rights law itself”.
The committee also agrees with one of the central tenets of the Newton committee of privy counsellors that counterterrorism measures ought not to be extraordinary measures in a special category of their own but as far as possible part of the ordinary criminal law of the land. That is the preferred route whenever it can be followed.
I am sure all members of the Joint Committee would agree with one of the committee’s former and most distinguished members, the noble Lord, Lord Judd, who said on 27 February when debating the renewal of control orders:
“We must remember that those cornerstones of British justice which have been so admired throughout the world did not come lightly; they came from decades and centuries of struggle and rugged determination to make the law a civilised example … Part of me recoils at the concept that, however frightening the terrorism with which we are confronted, we should by the presence of that danger begin to dismantle or erode what we have seen as fundamental to our system of justice”.—[Official Report, 27/2/08; col. 729.]
The noble Lord reminds us constantly of this point and we should be grateful to him for this and for his contribution today. That is why the Joint Committee has paid such close attention to counterterrorism legislation and its possible consequences for our fundamental freedoms.
Turning to the Bill, first, we have long had concerns about the breadth of the definition of terrorism and the impact it may have on freedom of expression. As noble Lords will know, the definition is very broad, covering violence against people and property, and actions taken outside the UK. The public against whom a serious risk to health and safety is threatened can be situated abroad. The public can be that of a country other than the UK. The Government subject to such actions can be a foreign Government, however cruel or tyrannous it is. This definition of terrorism is the basis of the offences of publishing statements which are an encouragement to terrorism and glorifying terrorism. It is a matter of considerable concern on human rights grounds. The noble Lord, Lord Goodhart, has proposed some changes which I hope we will consider further.
Secondly, the committee welcomes the Government’s proposal to place the disclosure and use of information by the intelligence services on a statutory footing, a measure we see as potentially enhancing human rights. It has become clear in recent months that there is an issue in many areas about information and its use, and a need for the Government to be more conscious of the importance of respect for people’s privacy. We welcome the establishment of a legal basis for the disclosure and use of information by the intelligence services and the creation of a legal framework prescribing the scope of the power and providing adequate safeguards against the power being exercised arbitrarily or disproportionately.
However, the committee notes that there is,
“an additional and very significant human rights concern about these provisions, which is not acknowledged in the Explanatory Notes to the Bill, concerning the risk of complicity by our intelligence services in the use of torture, inhuman or degrading treatment or other human rights violations in other countries”.
The committee feels that there should be,
“safeguards to make sure, first, that information acquired and used by our intelligence services has not been obtained by torture or other human rights violations, and, second, that information disclosed by our intelligence services is not then used in acts, such as interrogation by torture, which amount to serious human rights violations”.
We do not doubt the Government’s commitment to work to eliminate torture and to oppose it when possible but we are of the view that it would be in the spirit of this commitment for the Government to agree to amend the Bill to provide that nothing in Clause 19 authorises a disclosure that breaches the Human Rights Act, the United Nations Convention Against Torture or any other relevant international obligation.
The committee also suggests a number of improvements to the system of control orders. On Report in the other place, Dominic Grieve MP said:
“I suspect that no one in this House likes control orders; certainly, none of us should”.—[Official Report, Commons, 10/6/08; col. 204.]
In the committee’s view, the control orders regime will not be human-rights compatible unless measures are introduced to ensure that, first, there is a priority given to trying to instigate a prosecution. So far, no one subject to a control order has subsequently been prosecuted for a terrorism offence, other than for a breach of a control order.
Secondly, we would like to see changes to the hearings, so that they are fairer and more in accordance with what we know as justice. Thirdly, we would like to see a maximum daily limit of 12 hours on the curfew that can be imposed in a control order. Fourthly, we suggest that control orders should be time-limited and that a limit of two years might be a starting point for debate.
Finally, I add my voice and that of the Joint Committee on Human Rights to the concerns that have been raised about the human rights implications of the Bill’s provisions on coroners’ inquests. The measures were of much concern in the other place, where David Howarth MP described them as,
“simultaneously repugnant, unnecessary, ineffective and premature”.—[Official Report, Commons, 10/6/08; col. 252.]
The arguments against the measure have been well put by other noble Lords, and I look forward to the Government’s promised amendments in Committee.
Overall, as the Minister is no doubt aware, there are serious human rights concerns about the Bill. The preamble to the Council of Europe Convention on the Prevention of Terrorism affirms that,
“all measures taken to prevent or suppress terrorist offences have to respect the rule of law and democratic values, human rights and fundamental freedoms”.
There is some work to do before the Bill reaches that standard in all respects, and I look forward to debating it further.
My Lords, for more than six years, I was Lord Advocate in Scotland. As such, I was for the most part an observer of terrorism policy and terrorism cases rather than being an active player. However, I gained sufficient insight, not only from the cases that we dealt with but from contacts with the CPS, the Director of Public Prosecutions and law officers in England and Wales, to be able to add my voice as a former law officer to those who have spoken against the extension of pre-trial detention to 42 days.
Before turning to that matter, I shall raise one other issue. I welcome the provision in the Bill that gives common jurisdiction for the prosecution of terrorism offences, which is in Clause 40. I pressed for that when I was Lord Advocate, and I am very glad to see that is now being taken on board. The reason why I supported it then was as a result of experience of a terrorism case in Scotland. It was a situation in which I believed that had we been able to prosecute that would have made a difference to the evidence. We were contemplating a prosecution against a number of individuals charged with the commission of offences preparatory to the acts of terrorism. That was related to items that had been discovered in Scotland. In England, some suspicious items had been discovered at a house that was associated with at least one of the suspects. On their own, they were insufficient for proceedings in England, but they would certainly have made a difference to a case if it were possible to prosecute it in Scotland.
There is a precedent in the Explosive Substances Act. While I note the concerns of the noble and learned Lord, Lord Mackay of Clashfern, in relation to the constitutional issue of Article 19—echoed I think by the Law Society of Scotland—I believe that it should be possible to put in place adequate provisions, through consultation and protocols, to ensure that constitutional sensitivities are protected.
Turning to the issue of 42 days, I note that I am number 37 on the speakers’ list, and most of the points that I wished to make have already been made, no doubt far more eloquently, by others. I regret that I cannot support the proposal. I was the Lord Advocate at the time the proposal to extend pre-trial detention to 90 days was made. I was not formally asked for my views on that occasion, although I was consulted about procedural matters that did not go to the principle of whether it was right to extend the period to 90 days. Had I been asked, like my noble and learned friend Lord Goldsmith, I would have supported an extension, although I have to say that I was sceptical about whether 90 days was justified.
We now have experience of the extension to 28 days, which is highly relevant to noble Lords in considering the matter. The reasons why we should not support a further extension beyond 28 days have already been made. I was particularly struck, if I may say so, by the maiden speech of the noble Baroness, Lady Manningham-Buller, when she suggested, quite rightly, that there is a balancing exercise and a judgment to be made. The background to all our deliberations has to be one of ensuring the preservation of our democratic traditions and civil liberties.
I understand that the Government say that it is necessary to make provision by extending the period because of what might happen in future. But, like many others, I have found it difficult to find evidence to support an extension. The question is where to stop. I was struck by the remarks of my noble and learned friend Lord Morris of Aberavon when he said that the article that he read by the Prime Minister in the Times was highly persuasive, but it was also persuasive of further extensions. If we do not have an evidence base for drawing the line, why is it 42 days? Why not 56, 90, 120 or any other number? There is no logical point at which to draw that line.
I was also struck by the evidence given by the Director of Public Prosecutions to the Home Affairs Committee in the other place, pointing out that to bring a charge under the prosecutor’s code, prosecutors have to determine whether there is reasonable suspicion—not reasonable prospects of a conviction, but reasonable suspicion. If one cannot show after 28 days in detention that there is reasonable suspicion that the person who is detained has actually committed an offence, in my submission it is very difficult to further justify holding that person in detention, and I very much doubt whether the courts would go along with it.
I am troubled, too, by the powers in the Bill providing that only when the Secretary of State makes an order is that order then subject to parliamentary scrutiny. Of course one can understand the motive of attempting to put in place some kind of safeguard, but as the noble and learned Lord, Lord Falconer of Thoroton, said at the beginning of the debate, it is a pretty complicated safeguard involving large numbers of individuals. Like other noble Lords, my submission is that it mixes the different functions: the legislative functions of Parliament; the executive functions of the Secretary of State; and the judicial functions that should properly regulate the detention of people in custody.
I note, for example, that an order can be made only if an order is already in force under Section 25 of the Terrorism Act 2006 extending the period to 28 days. So the order is not made in the abstract, or on the occasion of a certain event, such as a terrorism outrage. It is made in respect of individuals and, in my submission, the Secretary of State has no place in this process, and nor does Parliament. These are judicial functions that should be settled judicially.
None of this would be necessary if it were not for the fact that we face the further extension of the period of detention from 28 days to 42. That principle is fundamental and should be opposed.
My Lords, I am tempted to say that we have reached the stage of the debate where most of what needs to be said has been said, but not everybody has had the chance to say it. It must be recorded that those who have made their case have tapped a rich seam of experience and have been very persuasive. I join many others in commending the noble Baroness, Lady Manningham-Buller, on a maiden speech that concisely and compellingly set out her case.
It is right that people on both sides of the argument express themselves with passion, because fundamental issues and high constitutional principles are at stake. The fundamental challenge of a free and democratic society is how we balance liberty and security. I accept that defending the security of our nation is one of the supreme duties—if not the supreme duty—of government. However, I also believe that if, in doing so, the fundamental values of our community and nation are eroded, and the essence of what makes us a nation is significantly altered, the wrong balance has been struck. I fear that that would be the outcome of certain provisions in the Bill, particularly the provisions with regard to 42 days’ detention. I join others in challenging these provisions, not only on the grounds that I believe that they erode some of our fundamental liberties, but also because they could undermine the fight against terrorism. As my noble friend Lord Thomas of Gresford said in his opening remarks from these Benches, so much of the information essential to tackle terrorism comes from within communities. If we take steps that cut down that flow, I fear that we might disable the authorities in their battle against terrorism.
There is no difference north or south of the border in our commitment to individual freedom. However, over the centuries we have developed in different ways. Scotland does not have Magna Carta. We do not even have the writ of habeas corpus; but our love of liberty is no less. It is not so many years since the trial of someone remanded in custody in Scotland had to be completed within 110 days of their committal. Tackling terrorism is an issue rightly reserved for the Westminster Parliament. I will reflect on three issues that arise out of the Bill as they affect Scotland.
The first relates to 42-day detention. The noble and learned Lord, Lord Boyd of Duncansby, reflected on his experience as Lord Advocate. I had the privilege of serving with him in government in Scotland for six years. He indicated that he is opposed to the extension of the period of detention before charge. The current Lord Advocate, Ms Elish Angiolini QC, in a letter to my honourable friend Mr Alistair Carmichael MP last month, said that,
“while I accept that there have been a limited number of cases in Scotland which were investigated in terms of the Terrorism Act 2000, I am not aware of any case where an extension of the period beyond 28 days would have been required.
I therefore share the view of the DPP Sir Ken MacDonald and the former Attorney General, Lord Goldsmith, that the requirement for an extension to the current 28 days is not supported by prosecution experience to date”.
There we have the up-to-date position expressed by the present Lord Advocate.
I will reflect on two further issues. The first is universal jurisdiction, which was referred to by the noble and learned Lord, Lord Mackay of Clashfern, and also by the noble and learned Lord, Lord Boyd of Duncansby, who argued cogently that Clause 40 should be in the Bill, and that the perpetrator of a terrorism offence within the UK should be tried anywhere within the UK. When the Bill was originally published, it would be fair to say—if I may use the Scottish word—that it caused a bit of a stushie in Scotland. It was seen to erode the independence of the Lord Advocate and even to be contrary to the Treaty of Union. However, when the noble and learned Lord, Lord Boyd, said that he had pressed for this provision, and the present Lord Advocate, in her evidence to the Public Bill Committee that was dealing with the Bill in another place, indicated that she had sought a similar provision, some of the heat went out of that argument.
Nevertheless, there are important issues to which we should address ourselves, probably in Committee, regarding the implications of this measure. What would the criteria be for transferring an accused person from one jurisdiction to the other? If proceedings start in one jurisdiction, can a trial take place in another? These are not simply academic points. In Scotland, there are time limits under the Criminal Procedure (Amendment) (Scotland) Act 2004: 80 days for serving indictments; the commencement of a trial of a person in custody must take place within 140 days unless the court grants an extension; and a preliminary hearing must occur within 110 days unless the court grants an extension. If someone who was originally charged in Scotland was sent to stand trial in England, would those time limits apply? Conversely, if someone originally arrested in England were sent for trial in Scotland, would these time limits apply to that person and, if so, when would they kick in?
As I said, those are not academic points; they are fundamental. In Scottish criminal law, great pride is taken in the safeguard provided by the time limits for bringing people in custody to trial, and we should not let that go by without any reference being made to it in the Bill. I looked at the Bill in great detail but did not see anything that covered that kind of situation; nor, indeed, did I see what the criteria would be for transferring an accused person or deciding in which jurisdiction that person should be tried.
The other point that I wish to raise concerns post-charge questioning. As my noble friend Lord Thomas indicated, such questioning is not unprecedented in England and Wales, and the Bill has separate provisions for Scotland. It is fair to say that until now in Scotland it has been an established and fundamental common-law principle that the police are prevented from questioning a suspect after he or she has been charged. There is no doubt that the legislature can change that but, if it does, it is only fair for us to take the argument to the Government and ask what account was taken of the Scottish situation when the provisions of Clause 35 were drafted. In the case of Stark and Smith v Her Majesty’s Advocate in 1938, the Lord Justice General, Lord Normand, said:
“When an accused person has been committed, he comes under the protection of the court and it is the court’s duty to see that nothing is done by the police that will prejudice his trial”.
If someone is under the protection of the court, we should expect more than we see in the Bill if that protection is to be interfered with somehow or another. Should that protection be interfered with in the first instance simply on the authority of a superintendent? The questioning can take place right up to the trial. If the trial is to take place in the High Court, is it right that the sheriff should have to give authority for the questioning to go beyond 24 hours? What is the role of the Lord Advocate in this? In Scotland, not only is the Lord Advocate a prosecutor but he has responsibility for directing the police in their investigations of a crime. Therefore, does the Lord Advocate have a locus if a superintendent intends to give the authority for post-charge questioning, as is proposed in Clause 35?
I raise those points because they are important. We are not necessarily saying that we are opposed to the measure but we should expect more in the Bill if a fundamental change is to take place. There is the impression that it has not been properly thought through. If, as I think is appropriate in cases of terrorism, matters are reserved to the Westminster Parliament, the least that we can expect of it so far as concerns Scots law is that it does things properly.
My Lords, it is with a sense of trepidation that I address your Lordships’ House this evening, as I sense that my view is a minority one. My contribution to the debate will be, again, on the controversial subject of the detention of suspects, of which I have some 35 years’ experience at the sharp end of policing as a working detective up to the rank of chief superintendent. Noble Lords will be pleased to hear that it is not my intention to detain your Lordships for too long this evening.
During my service, I arrested all types of suspect in cases ranging from theft to murder. The law is quite clear that the police have a right to detain a suspect on reasonable suspicion of his having committed the offence and, at that stage, evidence is not required. It is sufficient reasonably to suspect. It could be on the basis of what the officers have been told by the victim, or indeed the actions of the suspect himself, or perhaps scientific evidence linking him to the crime. Any of these could be grounds to detain the suspect. One thing is certain: the suspect is entitled to be told of the grounds upon which he is being detained as soon as possible after the arrest.
No one should be detained without knowing why. The law used to be governed by the common-law judges rules until procedures were eventually developed under the Police and Criminal Evidence Act of which we have talked this afternoon. This sets out the time limits for detention and the procedures for extending it in certain circumstances. The law is equally clear about charging a suspect. Generally speaking, he should be charged where there are sufficient grounds to justify taking him to trial. It is then that other restrictions kick in. I mention this simply to set the scene, because the distinctions may well not be totally clear to all Members of your Lordships’ House.
Terrorism is a completely separate matter and of course different rules have been developed over recent years under new legislation. Today we are discussing the period of detention before charging to enable police in these very complex cases in which there are international connotations, often involving conspiracies between continents, and with thousands of mobile phone records to be checked, hundreds of hours of CCTV images to be examined, and encrypted computer records to be deciphered in what can be the most complex and time-consuming investigations. It is said that there are currently 30 known plots, over 200 groups or networks and some 2,000 individuals being investigated. This takes time and investigating officers should be allowed sufficient time to complete these inquiries within a reasonable time.
What is to be done? The Government’s independent reviewer of terrorism, the noble Lord, Lord Carlile of Berriew, of the liberal Benches, a champion of human rights throughout his life, has clearly indicated that he believes that there is a case for increased powers to detain before charging. Like me, he hoped that a consensus could be reached between the various parties. I had hoped that, with judicial oversight, a way forward could be agreed to extend detention in extreme circumstances.
Having looked at all the circumstances and the evidence, I part company with colleagues—former police officers—in this House, because in my view a maximum 42 days, with all the safeguards, is not unreasonable if the alternative is to release the suspect, who may well then go on to thwart the investigation.
The Director of Public Prosecutions, Sir Ken Macdonald, agrees that long periods to investigate are required. His remedy is to charge sooner than normal by lowering the bar, without having the evidence that would normally be required. The police would then have to secure the proof within the period before charging, after charging, and appearing before the court. At first I found this quite an attractive argument, but on further examination it seems to be very subjective. What if the next DPP does not agree with that particular level of the bar? What if the police are unable to get the evidence required, or more evidence, after charging? Would the charges be dropped after months, or perhaps even over a year, on remand? Would that not be a greater infringement than 42 days?
That is what happens in other jurisdictions. But because of differing judicial systems, comparisons between them are fatuous. For example, on 19 January, 14 Asians were arrested in Barcelona on suspicion of plotting an attack. They were held in preventive detention until indicted some four and a half months later. I understand that the detention could have been for four years. Comparisons between the systems are not realistic. In my view, this Bill is far more transparent and sets out clearly the required judicial safeguards.
Like the noble and learned Lord, Lord Boyd, I am unhappy with the parliamentary and ministerial oversight. But, on balance, the measures to extend up to 42 days would be rarely used and they are necessary to protect the public against the terrorist threat. The public are strongly in favour in such reserve powers and Parliament should respond accordingly in order to safeguard British people of all faiths—and of none—in the interests of national security. I commend the provisions to the House.
My Lords, I will focus only on the proposed extension of the maximum period of detention by a further 14 days.
I naturally do not question the seriousness of the threat of terrorism or the view that, consistent with their duty to protect their citizens, the Government must take all necessary powers to protect people from death or injury by terrorism. However, in so doing, the Government also have the duty to protect the human rights of their citizens and the rule of law, which are the cornerstones of our democracy. When the proposal is to allow the police to deprive citizens of their right to liberty, that is so serious a breach of the principles of habeas corpus that a compelling evidence-based case must be made by the Government in respect of each of the following four issues: first, that the existing powers of the police and intelligence agencies are effectively used at present; secondly, that there is an increased threat, for which the existing powers are inadequate; thirdly, that the additional powers will be likely to meet the increased threat; and, fourthly, that no other powers would meet the threat without further eroding human rights. I will deal briefly with those issues.
I understand that, in the last year, the police have not found it necessary to detain any suspect for more than 14 days before charging them. We also know from the speech of my noble friend Lord West in the debate last week on the renewal of 28 days’ detention under the Terrorism Act 2006 that he was of the opinion that, although the threat level is still severe, we are safer now than we were 12 months ago. He also told us:
“We have a great quiver full of arrows that we use”,
“In 2007, 36 individuals were convicted in 14 significant terrorist cases, of whom 21 pleaded guilty. That is really quite an achievement”.—[Official Report, 1/7/08; cols. 203-04.]
I agree: the police should be congratulated on that achievement—achieved, as it happened, with the quiver full of arrows that they already have. The fine record of the police and our improved safety are strong evidence that they have all the arrows that they need to protect the public, unless the threat has significantly increased.
When we are considering the request for 42 days’ detention, it is also important to remember that we moved in 2000 to detention for seven days, in 2002 for 14 days and in 2006 for 28 days. That is a worrying trend line for a democracy once regarded as the bastion of freedom. If we carry on regularly increasing detention limits by 50 per cent at a time, as is now proposed, it will not be too long before we reach 90 days and more.
Against that background, I have attempted to find evidence justifying an increase in the maximum period of detention. There is evidence of ever increasing complication, but that cannot be sufficient justification for depriving suspects of their liberty without charge for another 14 days. Many other powers, including control orders, post-charge questioning, the threshold test, surveillance and additional resources, together should have the potential to solve the problems of complexity at least as well as an extra 14 days’ detention, without in the process further eroding our rights to freedom.
Even if there were evidence of an increased threat, the Government would have to produce further evidence that those extra 14 days would be essential to meet it. The Government have not even attempted to do this, and I think that it is almost impossible to produce that evidence. Having carefully studied the reports of the Joint Committee on Human Rights, I agree with its conclusion that the Government have failed to make a case for further extending the maximum period of detention. I am fortified in arriving at that conclusion by having had the benefit of listening to the eloquent speeches of so many illustrious Peers in this House. It is clear that the Home Secretary has done her best, with the raft of provisions occupying five pages of this Bill, to meet many of the concerns expressed about the proposed extension of 14 days. However, the provisions are not a substitute for the lack of evidence in support of the proposed extension. They would only need to be considered if there was such evidence, which I do not believe there is.
It is important, when considering proportionality, to remember the plight of innocent detainees. Detention for long periods, plus ongoing interrogation, is akin to torture for some individuals. It is particularly agonising and dangerous for those who are innocent. The evidence from psychiatrists in South Africa is that some detainees eventually become receptive to continued suggestions by their interrogators that they had participated in terrorist activities, to the extent that they believed that they were guilty and confessed to crimes that they had not committed. I admire and greatly respect the Prime Minister, who has done more than any other politician in the world to attack poverty and injustice in the developing world, but I very much regret that I cannot support him in increasing detention and will oppose this Bill.
My Lords, we keep hearing the figure of 42 days for detention. I take your Lordships back 36 years, when I sat where the noble Baroness, Lady Mallalieu, and the noble Baroness, Lady Ramsay, sit now. I shall sharpen your Lordships’ memories: that was the year of the Munich Olympics, when Israeli athletes were kidnapped and done to death. It is fresh in my mind that at that time, 36 years ago, we were discussing aspects of legislation in the United Kingdom—more precisely, Northern Ireland. We discussed a process similar to the 42-day proposal in this Bill that we are discussing today. I think that it was known as internment, or perhaps one calls it detention. Nevertheless, the principle is exactly the same: depriving people of their liberty pre-trial, before they are brought to justice or while making further inquiries.
In another Olympic year, 1984, I was asked to serve in Northern Ireland. My noble and learned friend in front of me will know that I am a young Scot. I am not a lawyer; I am a chartered accountant. I was asked to carry out various duties in Northern Ireland. These ranged further than the duties that I had to deal with as, say, Minister for Agriculture, let alone in your Lordships’ House. Ministers in your Lordships’ House and Ministers in Northern Ireland have to get their knees brown or their toes wet with the matters that we are discussing in this Bill. I had always to remember to try to get it right. One would cover everything. I am not a lawyer, but I had to see that no mistakes at all were made. If a Minister—someone in my position of not being a lawyer—made mistakes, they could bring to absolutely nothing or to destruction all the hard work of the security forces and the police. We have heard tonight about the excellent work that they have done all over the United Kingdom. I hope that I began to learn there. I learned that Ministers perhaps have some knowledge of the aspects of security that we are discussing this evening.
Noble Lords are lucky that most of my speech has been made by my noble friend Lady Neville-Jones. Her outstanding opening speech covered everything, and I look forward to her contributions in the stages of the Bill that will bring it to fruition. The other half of what I might have wanted to say was covered by the noble and learned Lord, Lord Lloyd of Berwick, who is not in his place. He is another Member of your Lordships' House who covers security. He is the essential link man between everything we are discussing tonight to bring suspected terrorists to justice before the courts and, above all, to get all the evidence and the details right. The speech made by the noble and learned Lord was an example to us all.
Virtually all the speeches have been made on the subject of 42 days’ pre-charge detention. I understand that there will be quite a lengthy wait before we come to the next stages of the Bill. I ask the Minister to be kind enough to take the warning, which is customary at Second Readings of Bills before your Lordships' House, that I will be particularly following some Scottish aspects of the Bill. I shall be guided by my noble and learned friend, the noble and learned Lord, Lord Boyd, and perhaps even the noble Lord, Lord Wallace of Tankerness. The particular clauses that I might want to look at are Clauses 11, 17, 18, 19, 35 and 41 and Clauses 89 and 90 when we come to the definition of cash.
That will come another day, but today we have been discussing a crucial aspect of the Bill: the right to liberty of every person in the United Kingdom. Nothing must be done that will bring their reputation and liberty to a halt. We must get it right. I am sure that the Minister will remember that. That is enough from a Scottish accountant. I look forward to the next stages of the Bill.
My Lords, the noble Lord, Lord Lyell, equated the situation that we now face with that in Northern Ireland. That is incorrect, as I hope to show. The noble and learned Lord, Lord Boyd, unlike others, put the issue fairly. He said that the issue of 28 days or 42 days is a matter of judgment. I disagree with noble Lords who argue that it is a question of sincerity. It is not. There is sincerity on both sides of the argument that we are now confronting. Arguing, as I do, for 42 days, I think that strong and workable safeguards have to be implemented. I do not think that they have been cobbled together or are irrelevant, as has been alleged.
My noble friend Lord Mackenzie of Framwellgate, a police officer of great experience, listed the difficulties confronting prosecutors, and I entirely agree. So, am I completely satisfied with the Government’s proposals? I certainly am not. In my view, it is necessary to pose the following questions. Do the risks which we now confront justify the extension to 42 days? Are the safeguards adequate? Is a fair trial possible? What, above all, is the alternative?
At the outset, I am concerned about civil liberties, with which I have been involved throughout my life as a politician and as a lawyer. They are precious to us. But the risk we now face from extremists is different in quality. It is unprecedented. Never have we been obliged to confront anything like this before, even in Northern Ireland. Never before have terrorists cared so little for their own lives or have they been prepared to make the sacrifices that these people are ready to contemplate. What are the safeguards? As I have said, they are of fundamental significance. The Home Secretary and the Government have listened carefully to the debates here and in another place. I believe that they have brokered a viable compromise. No one can rejoice in what is put before us as a solution. But, realistically, is there any other?
In his opening speech, my noble friend Lord West spelt out vividly the safeguards that the Government have proposed in this Bill. We are told by many in positions of authority that 28 days may be insufficient in some cases and, as we have heard, that the maximum period of 28 days has been reached in some instances. What is put before us is not only fair but justified. If the proponents of no change are justified, having to legislate in haste is not a prescription for accuracy or efficiency.
The need for a fair trial has been mentioned. It goes without saying that that is critical. Defence lawyers have to have faith in the sanctity of the legal process. But what evidence is being produced to argue that a fair trial is impossible? I do not believe that. On the alternative, how can people be so sure, so certain, that everything can be accomplished within 28 days when evidence has shown that we have already come close to violating that principle?
The Civil Contingencies Act, which has been mentioned, is quite wrong. It is said, rightly, that our liberties were hard fought for. No one can dissent from that proposition, but, today, regrettably, minorities threaten those freedoms. Accordingly we cannot be optimistic and hope that nothing too terrible will occur. It has already happened in America and here in our own city. Alas, drastic action has to be contemplated, but workable safeguards are essential. That is what the Bill proposes.
In conclusion, I will address the issue of our approach to the Muslim community. Ed Husain argued in the Evening Standard yesterday that we should have no truck with extremists. They do not speak the same language as moderate Muslims. They speak of destruction and ruination. They bring odium on all who seek a peaceful outcome to our problems worldwide. Husain is absolutely right to describe these elements as “fascist”, the equivalent of the BNP. Unlike the former Mayor of London, we should not appease them. In no way will that abate the hunger for human sacrifices made by others, rarely by themselves. These people, as Husain writes, are,
“a threat to Islam and Muslims”.
Their fanaticism, their terrorism and their calls for martyrdom inevitably result in the death of their fellow Muslims.
I have certain other proposals to make regarding the Bill but I think I have said enough.
My Lords, I congratulate the noble Baroness, Lady Manningham-Buller, on her maiden speech, which combined succinctness with analytical clarity—a winning combination. She applauded the decision to discuss this issue and encapsulated our dilemma, which is the right to life versus civil liberties. I trust she will forgive my paraphrasing her remarks. I hesitated to enter the List on this debate, given the array of legal talent that has been displayed today, but I felt that the metaphorical view of the man or woman on the Clapham omnibus would be relevant to the discussion, given that the majority of the public, according to the polls, support the Government’s view.
Given the limitations of time, I want to focus on pre-charge detention, starting with the point made by my noble friend Lord Robertson, who reminded us that it is up to 42 days, not, as the noble Lord, Lord Lyell, said, internment, which is a more open-ended judgment. The House of Lords Research Paper says:
“Under this proposal, the 14 day limit would remain the standard, permanent limit with the 28 day limit needing to be agreed annually by Parliament as now. The new, temporary, upper limit of 42 days could only become law where there was an exceptional operational need and under a ‘triple lock’ comprising of a report by the police and DPP on a specific operational need, the agreement of the Home Secretary and a set of strong parliamentary and judicial safeguards”.
Not quite the subjective view of the Home Secretary, as the noble Baroness, Lady Neville-Jones, suggested.
I congratulate the noble Lord, Lord Dear. I do not know if he is in his seat. He was the first person to refer to the Magna Carta in this debate, reminding us of the enshrined right to a fair trial and the principle of habeas corpus. However, I cannot accept his invoking of the dire warning from Pastor Niemöller on the power of the state. This is not the fascist Germany of the Third Reich, where the rights of the individual were trampled into the dust along with the remains of the Weimar republic. These powers are carefully circumscribed, subject to the scrutiny of an independent judiciary and parliament, and time-limited. To my knowledge these are not features of a national socialist Government. Time and again contributors to this debate have warned against extending pre-charge detention because of the possibility of a negative community impact. A serious charge, but can it be substantiated?
The noble Lord, Lord Thomas of Gresford, gave us the example of the part he played as a responsible member of the community in reporting his suspicions about an extreme Welsh nationalist, who, he told us, was no longer a threat now that there is a Welsh Assembly. If only it was as simple as that. But we know that the vast majority of the Muslim community do not support terrorism, and those who preach the nihilist gospel of al-Qaeda know that innocent Muslims were among those who perished on 7 July. This tiny minority of extremists has no negotiable agenda, unlike our experience of Welsh nationalists and even the IRA. They want to undermine our democratic society and believe that the end justifies the means.
I share the view expressed by the noble Lord, Lord Carlile, the independent reviewer of terrorist legislation, on pre-charge detention being a recruiting sergeant for terrorism:
“I do not accept that. The Government have now given a great deal of resources to the prevents strand of counter-terrorism strategy, and they are right about that … I do not see the period of detention as a recruiting ground”.—[Official Report, Commons, Counter-Terrorism Bill Committee, 24/4/08; col. 127]
Like a number of my noble friends, I believe that the controlled extension of up to 42 days is justified on the grounds of the severity of a threat which is global in reach and the complexity of these cases, which utilise the power of IT and the internet to achieve their objectives. Add to this the complexity of encryption and translation, plus the need to seek co-operation from a range of Governments and judicial systems. Does this not represent an enormous challenge to national security which we have to take very seriously?
Returning to the need for a period of more than 28 days, once again I can do no better than refer to the noble Lord, Lord Carlile. He said:
“I want us to have an enduring corpus of terrorism law. I would not like to see someone released—a scientist, for example—who then took part in some future terrorism plot, and then have to observe the reaction in both Houses of Parliament to such an event occurring”.—[Official Report, Commons, Counter-Terrorism Bill Committee, 24/4/08; col. 128.]
He also said:
“I think that there have been cases where inquiries overseas, which might have led to a more realistic and serious charge, have not been completed”.—[Official Report, Commons, Counter-Terrorism Bill Committee, 24/4/08; col. 123.]
The noble Lord made the point:
“It is desirable in as many cases as possible that people should be charged with something approaching the criminality of which it is reasonably suspected that they are guilty and on which a prime facie case will be presented. I have heard it said that the way to deal with that is simply to produce holding charges—the threshold test almost encourages that—and to produce the real charge at some later stage. I do not see that as being any more human-rights compatible than a properly judicially supervised extended detention period that results in proper charges being brought on a sound basis, without the necessity to use the threshold test, which is undoubtedly second-best, as the Crown Prosecution Service recognises”.—[Official Report, Commons, Counter-Terrorism Bill Committee, 24/4/08; col. 122.]
On comparisons with other countries, once again, the noble Lord says:
“I think that Liberty has been grossly misleading about this: every comparable country, perhaps by different means such as a very small holding charge, has at least as long periods of detention as are envisaged in this country. If we have the right protections, we can do an awful lot better than any comparable country in the world”.—[Official Report, Commons, Counter-Terrorism Bill Committee; 24/4/08. col. 126].
That is a pretty powerful statement from the independent reviewer of terrorism legislation.
I should like to end on a quote; we have heard a lot of quotes tonight, and I suppose that we are all selective in that respect. Chief constable Ken Jones, ACPO president, says:
“We stand by our advice to government that it is possible to foresee circumstances in the future under which the current 28 day limit will prove insufficient”.
Sir Richard Dearlove, the former head of the Secret Intelligence Service, said:
“I am instinctively against the erosion of the basic liberties to which we in the UK are so thoroughly attached. However, when I know that a few of my fellow citizens feel that they are justified in the name of some greater purpose to attempt to kill their neighbours, then I want them, where and when necessary, to be effectively constrained … As the intensity and complexity of terrorist investigations continues to increase and more distant and less co-operative jurisdictions come within their scope, it is certain that some cases, and perhaps very serious ones of a type not hitherto experienced (for example employing unconventional weapons technologies) will require more than twenty-eight days investigation. In some states simply establishing identity is a major investigative challenge. When we do need that extension, we will need it badly”.
I shall not go on, in the interests of time, except to say that I commend the Government for this legislation. It is a difficult but courageous decision.
My Lords, like the majority of noble Lords who have spoken today, I shall confine my remarks to the question “28 or 42?”, to use convenient shorthand. There have been some magnificent speeches today on both sides. I think of two in particular, both from the Labour Benches. There was that of the noble and learned Lord, Lord Falconer of Thoroton, with whom I agreed totally, and then, a little later, that of the noble Lord, Lord Howarth of Newport, who took a totally opposing view with which I agreed even more strongly. From the Conservative Benches, I was most interested in the speech of the noble Lord, Lord Cope of Berkeley—I am glad to see him in his place—which tellingly attacked the proposed change from a practical rather than a wholly emotional point of view. It is well worth studying. It is a matter which understandably generates great emotion, but when many innocent lives may be at stake, the head must ultimately prevail over the heart, as I hope your Lordships will agree.
We all, I think, have enormous respect for Colonel Tim Collins, but when he wrote in the press a few days ago that al-Qaeda and its many imitators are not so very different from the IRA, the INLA, the UVF, the UDA and so on, he was mistaken. I was glad to hear the noble Baroness, Lady Park of Monmouth, and the noble Lord, Lord Clinton-Davis, agree with me about that.
Over the past 50 years, conventional terrorist bombers, by which I mean bombers who are prepared to take risks, sometimes fatal, but hope on the whole to emerge unscathed from the carnage that they have caused—for example, the Baader Meinhof gang, the Brigado Rosso, the shadowy right-wing group which bombed in a long tunnel the express train travelling between Florence and Bologna and killed a great number of people, the various Northern Ireland groups, some of them operating south of the border, and ETA, the Basque terrorist group—have all caused plenty of death and destruction. However, things started to get far worse 25 years ago when a new phenomenon, the suicide bomber, emerged, carrying out a spectacular, lethal attack on a US Marine barracks outside Beirut, killing hundreds of American Marines and dozens of French soldiers. Since then, suicide bombers have gone from success to success by their own warped and perverted standards—I think of the American embassy bombing in Nairobi, 9/11 and 7/7, together with hundreds of attacks in Israel, Iraq, Afghanistan, Pakistan and even Sri Lanka, where the suicide bombers are a different kind of fanatic. The total number of casualties in Asian countries has been enormous, but, alas, they are off the radar as far as most Westerners are concerned. The only major non-suicide atrocities during this time that come to mind—I have not done deep research on the matter, but I think that I am right—are the bombings in Bali and the bombing of commuter trains heading towards Madrid and Bombay respectively, which caused tremendous carnage. In other words, as the extremely stressful security nightmare at airports testifies, we are now in new territory. I submit that suicide bombers are not merely two or three times but perhaps 10 times as dangerous as conventional bombers, since it is so difficult to defend oneself against them—it is a different ball game, as the Israelis, with their decades of experience in these matters, have found.
With that in mind, two alternative initial conclusions can be drawn vis-à-vis this legislation. The first is that 28 days is more than adequate and that any extension would in practice save virtually no innocent lives and that, therefore, the status quo should prevail. The second is that up to 42 days—as has just been said, we are talking not about 42 days but up to 42 days—will occasionally be needed to foil a terrorist attack which could cost many lives. Even if the new legislation prevented only one such attack in, let us say, three years, it would be worth while.
Like, I suspect, most of your Lordships, I lack the inside knowledge to adjudicate between these two claims. But leaving aside the three Front Benches so as to eliminate even the merest hint of subconscious political bias—and apart from the noble Baroness whose excellent maiden speech we heard with such interest—there is at least one person who possesses that inside knowledge, who has just been mentioned. I refer to the noble Lord, Lord Carlile of Berriew. The noble Lord is clearly not in any way an instinctive authoritarian; indeed, quite the contrary, he is an instinctive libertarian, like myself. Nor does he have any political axe to grind. Again, quite the opposite is the case since, one understands, he is at odds with his own Front Bench in this regard. If he says that detention for longer than 28 days may on occasion be needed to foil terrorist atrocities, I am inclined to believe him. I am sorry that he is not here tonight, but I heard him on the radio very recently passionately defending the 42-day principle and rubbishing any idea of a fudge that would introduce 42 days obliquely by the back door. In parenthesis, however, I sometimes wonder whether a fudge might not be the best solution, although that option is not open to us at this point.
Although their information is not as up to date as that available to the noble Lord, Lord Carlile, I am also inclined to believe the noble Baronesses, Lady Park of Monmouth and Lady Ramsay of Cartvale, whose good sense, moderation and devotion to traditional British freedoms one has no reason to doubt. But of course that is not the end of the story. There are those who argue that, even if an extension from 28 days may well save a few lives over the next five years or so, the benefits will be outweighed by the consequent enlargement of the existing pool of disgruntled youth, who may become in effect fifth columnists—let us be blunt about it—willing to abet and sometimes commit acts of terrorism, thereby leading to more death and destruction overall in the longer term. That is an argument that one has to take seriously. However, on the assumption that any new powers will be used extremely sparingly and with the utmost sensitivity, I have yet to be convinced by that scenario. Let us remember how many decent Muslims were killed and maimed in the 9/11 and 7/7 bombings, and how many are still being killed by suicide bombers in Iraq and, to a lesser extent, further east. Ed Husain, who has been mentioned, has reminded us that Islamist fanatics are just as much the enemy of the moderate Muslim majority as they are the rest of us, whatever our religion or beliefs.
If 42 days is outrageous, 28 days must be almost as outrageous—at least 66 and two-thirds per cent as much. It is a question of degree, not principle, is it not? Yet the 28 days has not provoked comparable indignation politically, perhaps because it is being used so sparingly. I would love to be able to believe that 28 days was adequate and I am willing to be so convinced at some future date, but that has not happened yet. I shall reserve my final judgment until a later stage of this Bill’s passage.
My Lords, some months ago in a debate in this House I suggested to the Government that we should adopt an element of continental law to deal with this very tiny but particularly dangerous group of suspects. In a curious sort of way, that is being accepted in this Bill. The idea of 42 days under the supervision of a judge is not very different from what happens in continental Europe, where they hold people for much longer but under the supervision of a magistrate. It is an important point. Liberty and other groups are wrong to say that we compare badly with other countries on this. I know that as an ex-MP who intervened on many occasions to try to get people out of French jails, in particular. They would be held for long periods of time while an examination went on; then suddenly they would be deported to such beacons of liberty as Algeria without as much as a by-your-leave. I have to say that the situation in Europe in terms of being a terrorist suspect is not good.
In the United States, Australia and other countries with the English common-law system, there are also problems. In the United States, leaving aside the horror of Guantanamo Bay, they use much more surveillance—and there are obvious implications in that for resources—but they also do something that we used to do here many years ago, which they also do in Australia. They give the nod and the wink to the magistrate or the judge that you were charging a person with a lower offence but that you did not want that person to get bail because you envisaged a much more serious offence. I do not know whether that was done with terrorism cases, but I do know—and I speak as an ex-probation officer—that it frequently happened for common offences.
Fortunately, thanks to people like me, people in the other House and my noble friend Lady Stern, who all argued that bail should not be used in that way, it is now much more difficult to give a nod and a wink. When I was a probation officer, I often looked in law books to see whether I could find “nod” and “wink” defined, but nothing was there. The reality is that we did that—as many of the lawyers here will know—as a way of holding a person while more serious charges were considered. I do not want to go back to that, which is why I say to the Government that I would prefer to adopt an element of continental law for this tiny number of particularly serious cases. To some extent, we seem to be going down that road, because with the supervision of a judge and other safeguards, the safeguards in place are much greater.
The noble Lord, Lord Carlile, is right when he says that if you are suspected of a terrorist offence in Britain you have a better chance of having your civil rights respected than in most other countries. The underlying reason why he is right, without going into the details because I do not have time, is that we have had experience since 1969 of learning by our mistakes. The big mistake of course was internment. The United States has Guantanamo Bay, which is internment writ large. Internment was bad news.
I want to say a couple of things about the past in relation to this because I have heard some speeches today from people who would have made very different speeches in the 1980s—people from politics, the law, the intelligence services and the police—who were strongly in favour of the old Prevention of Terrorism Act, which was worse than this legislation. I will say why. Internment was not part of the old Prevention of Terrorism Act. It was a big mistake that we should put to one side. Look instead at exclusion orders. Exclusion orders were defined not only by me but by others as internal exile. It was the first time in the history of United Kingdom since Henry VIII that a political person—the Secretary of State—had the power to say, “You cannot move from one part of the United Kingdom to another”. That was done by the Home Secretary. It was defended hotly by the Conservative Party and the Liberals, and people like me who opposed it at the time were told that we were being irresponsible and that we ought to allow the security forces to have this power because they needed it.
The exclusion order was bad news in terms of the principles of civil liberty and it was eventually dropped. The noble and learned Lord, Lord Mayhew, who is in his place and who I wish had said this, recognised that it needed to be dropped. The John Major Government, to some extent, amended some of that legislation in a way that we then continued, which was when things began to change for the better.
Then there was the use of the old Prevention of Terrorism Act. Up to 6,000 people per annum were taken in for questioning under that Act, of which only about 5 per cent were charged and only about 2.5 per cent were charged with anything relating to terrorism. There is not a recruiting sergeant major for the IRA or al-Qaeda in the sense that someone who has a bad experience in a court of law then goes outside and blows themselves up. People do that for other reasons as well. What internment did and what the sweeping- up powers of the old Prevention of Terrorism Act did was to make people nervous—particularly people from the Catholic and Irish communities—about giving information to the police in case they were held under those powers. That is where it undermined the approach of winning hearts and minds. It is not just a recruitment sergeant major in the simple sense. That point was also recognised because, to some extent under John Major's Government, the use of those powers was drastically reduced. Again, the noble and learned Lord, Lord Mayhew, would know about that and I wish that he had said so.
The situation has also improved in other ways. There was no video or recording of interviews. I was responsible as a probation officer for one of the people wrongly held and sentenced to many years’ imprisonment for one of the pub bombings. A very young person, under the influence of drugs, did not know what time of day it was and confessed. That person was still confessing to me literally a year later, part way through the sentence, on the grounds that “I must have done it; they said so, didn’t they?”. The reality is that if you are not allowed to see a solicitor—which you were not for the first seven days—or family or friends, you are on your own. That is no longer true, and has not been for some time. You can now have more safeguards.
There is a danger, as we all know, of serious terrorist attacks. Whenever that happens, the mood of the country changes, which is how we originally got the old Prevention of Terrorism Act. That is the important point. It is why the Conservative, Labour and Liberal parties all supported it at the time, and why a number of them—including some members of my own—went on supporting it when it had the internal exile and the sweeping-up powers I have referred to. That has gone, and we must ensure that it stays out of the legislation. We must be much more focused. I congratulate the police because they do not use powers in that way. The Minister will correct me if I am wrong, but I understand that we have never held more than 1,000—as opposed to 6,000 under the old Prevention of Terrorism Act—charging more of them as a result with them either pleading guilty or being found guilty. In other words, we have become more intelligent with how we use it.
I say to the parties opposite and some of my own colleagues that the key is to recognise that we need to hold people longer. I would prefer the continental law system, even if it upsets lawyers here; they say “We cannot do this, this is English law”. Frankly, tough. We can do it and we should. We must then focus on how to prevent wrongful convictions and avoid sweeping people up into the net, so that they are then frightened to give evidence to the police. That is the key to this and, staggeringly, we are getting there, albeit in a series of steps. I wish that the noble and learned Lord, Lord Mayhew, had made this point because, to be fair, John Major’s Government started that process.
My Lords, when I recently had the privilege to be permitted to visit our troops in Helmand province in Afghanistan, it was evident to an ex-soldier like me that our service men and women had learnt hugely from the Northern Ireland experience. When I listened to the Minister today, it was equally evident that the Government have learnt nothing.
At this late hour and after 45 speakers, I will try not to reiterate what has been said. I am on my feet to vehemently oppose 42-day detention. It is wrong, unjust and potentially the repetition of a 1970s mistake in Northern Ireland. As my noble and learned friend Lord Steyn clearly indicated, it would be a process without safeguards, as it would occur in circumstances where there was no evidence for a court to test. Thirty-five years ago, I saw how internment without much high-grade intelligence, based on perception and prejudice, resulted in many of the wrong people being detained without any judicial safeguards. It saw alienation and a loss of community support.
I am not opposed to internment, by which I mean the real thing, where we have evidence to tender in a closed court that simply cannot be revealed in open court because it would infringe the security of a valuable source of information or the use of electronic devices, or would endanger security personnel working under cover. That is as opposed to this 42-day compromise, which assumes that, if we keep suspects long enough, we will break them. We might break an innocent person and get a confession, but there is not a defence lawyer in the country who cannot argue successfully that duress, not guilt, was the reason for the confession. The hardened, conditioned, brainwashed terrorist whom I have known for 30 years in Northern Ireland will concentrate on the cracks in the wall or the individual bits of dandruff on the interrogator’s shoulders—whatever—and it will not matter whether it is 28, 42, 56 or 90 days. He will resist and resist and he will win the day.
I am no softie on terrorism. I have probably been instrumental in helping to put away more terrorists in Northern Ireland than anyone else in your Lordships’ House. I learnt at first hand and know what must be done. In Northern Ireland, the Government backed down on the option to have judicially directed and monitored internment when improving high-grade intelligence would have provided sensitive information and allowed vulnerable sources to give their evidence in closed court. Such a process could have been honourably and justifiably employed. Today, instead of biting the bullet, the Government want us to accept their disguised version of the Guantanamo gulag employed by the United States. That is what the Government’s demand amounts to. When it does not work, we will we have a clamour for 56 days or 90 days.
Let me forecast to the Government what they will inevitably do when they come under international pressure, as they will if they go down the route of extended detention without trial. They will do what they have done in Northern Ireland. They will abandon those police and intelligence agencies that are currently striving to defend our community against the evil that threatens us. I hope that the Government recognise that this is what the police and intelligence agencies here in Great Britain expect and fear. They have seen the Government’s willingness to accept phrases such as “a force within a force” as something discreditable in relation to the RUC’s Special Branch. What do they think Special Branch and the intelligence agencies really are?
Today’s police and security personnel have seen the Government spend multiples of millions of pounds sterling on inquiries where the actions of security services in the 1970s or 1980s are judged against the comparative normality of 2008 and where the security of the then serving officers is disregarded and their approaching old age is disrupted by what they see as a treacherous attempt to criminalise them. That is the background evidence against which our security services are asked to work today. For example, in Northern Ireland, over £60 million has been spent to date looking at the Hamill, Nelson and Wright cases. Almost £10 million per annum is being spent to maintain a Police Ombudsman’s office with almost 150 staff—one member of staff for every 50 police officers on the ground, or £1,500 per annum per policeman in Northern Ireland to be policed by PONI. Against that craven reaction to terrorist propaganda, how can our current security forces anywhere in the UK have the confidence that they will not be the sacrificial lambs?
If the Government want to prevent and overcome the terrorist threat, they must realise that it cannot be done by intimidation, by creating distrust within society as a whole or by diluting a nation’s hard-won freedoms and rights. It must be done by recreating the confidence that society has lost in the Government’s ability to think ahead of the event, to put a vibrant and well resourced security and intelligence service in place and to give it—and us—the confidence to believe that, in doing what is right, it will not be betrayed or abandoned.
Finally, do the Government believe that, if we have a terrorist outrage, the victims’ families will take comfort from the fact that we can fill our holding centres with suspects? No. They will still ask why the Government expended energy and resources on diluting a nation’s civil rights rather than on implementing a feisty, durable and well resourced anti-terrorist capability.
My Lords, we have had about as powerful a series of speeches laying out the principle of the Bill as it is possible to have on Second Reading. The debate certainly has, as my noble friend Lord Wallace of Tankerness said, tapped an extremely rich seam of experience. We were able to dwell on the issues that the noble Baroness, Lady Manningham-Buller, set out in her eloquent maiden speech, and on the merits of consensus, which she spoke about. The noble Lord, Lord Robertson of Port Ellen, put a different argument and talked about the merits of a political stance. The noble Baroness, Lady Mallalieu, reminded us of the role that the barons should play. We have had an extremely productive start to our considerations of the Counter-Terrorism Bill.
The noble Lord, Lord Brett, asked why now, and why we are going to make such an issue of this Bill, when we have had so many terrorism Bills already. The arguments laid that out very clearly. They laid out that the Bill is presenting us with a fork in the road. We have heard this evening that we have a very clear choice. We can choose whether to go with legislation that is eroding human rights and freedoms as a response to terrorism, or we can take a very different path, the path laid out by the noble Baroness, Lady Kennedy of The Shaws, who talked of the assertion of our values. We believe that other paths can be taken, in the knowledge that there is a far better system of measures in place than when the other terrorism Bills were passed. My noble friend Lord Goodhart, who played such a role in the passing of those other Bills, reminded us that, in general, they were passed in a great hurry and there was not much time to dwell on the issues.
We would credit the Government and the Minister in particular for the measures that are now in place that he talked about in his opening speech, such as the Office for Security and Counter-terrorism, the much-increased cross-departmental action and the much bigger budget spend on critical intelligence; he referred to £1 billion by 2011. We have a Minister who is a specialist with a whole spread of things that he cannot be specific about; but he mentioned his great quiver full of things to help us to counter terrorism. That is a big change since the last terrorism legislation, when those things were not in place, but when we still rejected the disproportionate measures that the Government were calling for then, such as 90 days detention. Surely, with those measures in place, we can reject any extension that is being called for.
There are measures in the Bill on which there was clear consensus this evening, such as post-charge questioning. There are other measures that we will support, although we will question them, such as measures around the gathering of data, data-sharing and the need to examine with whom and why the data is shared. There are other measures that appear to be completely pointless at best and highly damaging at worst. Many contributions dwelt on parliamentary scrutiny being a pointless measure. Just some of the adjectives that I noted came from the noble and learned Lord, Lord Steyn, who called it illusory, the noble and learned Lord, Lord Mayhew, who called it worthless, and the noble Baroness, Lady Park of Monmouth, who was not at all convinced by it. In particular, the noble and learned Lord, Lord Morris of Aberavon, gave a powerful exposé of the unworkable nature of such parliamentary scrutiny. That is the sort of measure that we want to take out. The JCHR commented powerfully that the proposed parliamentary safeguards were virtually worthless. We should start from the point of view that we want to strip out the pointless parts of the Bill. They add nothing, and actually diminish it.
I am not sure that I have anything to add to the 42-day argument. The noble Lord, Lord Joffe, laid out in his four tests some profound and good arguments on whether 42 days’ detention was necessary. While we do not dispute the complexity of counterterrorism operations and we will agree mechanisms to increase powers to gather and share information, we would want to know what evidence the Government have for proposing 42 days. That issue was returned to time and again by noble Lords this evening.
The evidence we heard on the other side from my noble friends Lord Dholakia and Lady Falkner of Margravine and the noble Lord, Lord Ahmed, who made a powerful contribution, was that the legislation in this form could further split communities when it is the reverse process that is needed. My noble friend Lord Dholakia said that we must never forget that community participation is conditional on how the community views government actions in relation to protection of civil liberties.
I cannot think of a more powerful contribution than that of the noble Lord, Lord Condon, and with all his experience I am sure that the whole House will have taken it deeply to heart. Of course, the contribution of the noble and learned Lord, Lord Goldsmith, was particularly powerful. Given his recent experience of government, I felt that it may have been quite difficult for him to make, but he made it nevertheless—that was brave of him. We also have the contribution of the noble and learned Lord, Lord Falconer of Thoroton. All those give us a great deal of evidence of why we should question deeply and reject 42 days’ detention.
I shall spend a little time on Part 6, dealing with inquests, which has received very little comment. My noble friends Lord Lester and Lord Goodhart referred to it, and the noble and learned Lord, Lord Mayhew of Twysden, mentioned in passing that the Government would be inclined to get rid of the tiresomeness of certain inquests. I look forward to his expansion of that in Committee.
In our discussions on the 42 days, we have been worrying that losing your liberty with no explanation is bad enough; but losing your life with no public explanation is totally unacceptable. I do not need to remind the House that it has been the duty of coroners since 1194,
“to investigate the circumstances of unnatural, sudden or suspicious deaths, and deaths in prison”.
This Bill allows the Secretary of State to appoint coroners, disallow juries and to intervene in ongoing cases. The introduction of the concept of secret inquests with the Secretary of State, coroner and no jury—and possibly without the dead person’s family being present—flies in the face of the very reasons for inquests.
Mr McNulty said in another place on 13 May that the Government were not talking about absolutely closed proceedings from start to finish, but that is just what the Bill allows for. It allows for it,
“in the interests of national security”.
It is doubtful that we should agree to that because we have perfectly adequate PII systems. It allows for special procedures,
“in the interests of the relationship between the UK and another country”.
I am certain that we should not accept that.
The reasons for the death of a UK citizen cannot be hushed up just because it may embarrass our allies in arms or trading partners. Those on these Benches will never accept that it should.
The Bill allows for special procedures,
“otherwise in the public interest”.
This definition is so wide as to deal a body blow to the traditional inquest system. It could cover deaths in custody, deaths in hospitals and deaths in the military. In all those cases, public interest could be claimed when it was simply the case that the truth might undermine public confidence in the system. For example, the Secretary of State could claim that it was in the interests of national security not to expose an Army supply chain that was chaotic.
Without answers, the public cannot renew the confidence that they may have lost in the system because of mysterious or unexplained deaths. Why are major alterations to the inquest system in the Bill? It seems to be an attempt to link changes to inquests with terrorism matters to make them more acceptable. Otherwise, the proposed changes could be in the forthcoming Coroners Bill. They might not be any more acceptable, but at least they would be debated in context. I am sure that Part 6 will get the full attention that it deserves in your Lordships’ House.
All states have an obligation to protect people from terrorism. The perpetrators of terrorist attacks must be brought to justice. We will amend the Bill to ensure that the quality of that justice is undiminished.
My Lords, this has been an astounding debate, because many views expressed across the House have not complied with what you would call normal party politics. It has been astounding also because it has concentrated almost entirely on the 42-day extension, although there are other matters in the Bill.
My noble friend Lady Neville-Jones clearly set out the line that we have adopted on the issues of 42 days and intercept evidence. I shall concentrate on the Bill’s remaining issues. Before I do so, I say that the Minister faces an unpalatable truth. Two-thirds of the House today have not accepted 42 days and huge concerns will be made evident in Committee not just on the implications of 42 days but on the processes that would set up 42 days. Many noble Lords have expressed concern about the interweaving of the state, the judiciary and the politicians. This must be unpicked very carefully in Committee.
We have heard many remarkable speeches this afternoon. The noble Baroness, Lady Miller, referred to some of them. I thank those on my Benches for their contributions, all of which were extremely apposite. My noble and learned friend Lord Mayhew, with all his experience in dealing with terrorism, made apposite warnings about the implications of 42 days. My noble friend Lord Sheikh, along with the noble Lord, Lord Ahmed, rather tentatively drew our attention to the care that we should take to remember that the Muslim community is very stable, sure and supportive of living in our community, but that a small element is causing—or can be led to cause—trouble. They were both careful, good speeches. My noble friend Lord Cope of Berkeley referred to the Bill as offensive to our fundamental liberties. It is on that basis that we have discussed it—the balancing of liberties and freedoms against our enormous concerns about terrorism and preventing terrorist attacks.
We have all listened to the Government, but I am afraid that their approach to counterterrorism still appears to be reactive rather than proactive. In their response to terrorism, they keep on trying to take more judicial powers, impose more restrictions on the general public and seek greater intrusion by the state as a legal normality. As my noble friend Lady Neville-Jones made clear, we do not believe in doing the terrorists’ work for them. As she said, we want strong security, the preservation of liberties and efficient justice.
No one here has denied—as no one here would deny, and certainly I do not—the dangers of the terrorist threats to this country. How could anyone do so in the face of the reality that we have seen? However, although we agree with some of the provisions in the Bill, there are others, in addition to the question of pre-charge detention, about which we have concerns. My noble friend made the case eloquently for the need to protect our great traditions and—a point echoed across the Chamber today—our democratic rights and freedoms. To those I would add the need for an independent judiciary in which the public can have confidence.
In particular, it should come as no surprise that we, too, will be looking closely at Part 6, which is on inquests. The provisions under this part would allow the Secretary of State to appoint a chosen coroner, to select a special coroner and to decide whether an inquest should be held without a jury. It was only after the most heated debate in the other place that a role for the judiciary and the Lord Chief Justice in approving special coroners was proposed, but that still does not answer the known concerns—that coroners’ inquests with specially appointed coroners and no juries will not inspire any confidence among the public and that they are largely counter to the normal open legal proceedings that we understand as proper in this country. In the other place, my honourable friend Dominic Grieve said of the Government:
“I can see that they have a real problem, but the answer that they have come up with is profoundly … wrong”.—[Official Report, Commons, 10/6/08; col. 249.]
These provisions, or some of them, were intended to be in the long-lost Coroners Bill. That Bill has been promised for years but has not yet been delivered. However, only these provisions are being considered outside the wider coroners’ courts reforms. These few clauses give the Government enormous powers with almost no safeguards. The noble Baroness, Lady Ramsay, offered the Government incisive reasons why Part 6 is not acceptable.
It is essential that untoward deaths should all be properly investigated, particularly where there are issues of sensitivity surrounding possible state intervention, and that there should be openness throughout all the processes. We appreciate that the Government made some small moves in the other place but we do not believe that these provisions are anything like adequate. My noble friend Lord Kingsland will therefore table amendments in Committee to try to resolve these problems.
Many other provisions in the Bill—even those for which we have some sympathy—have the potential to reduce confidence in our judicial system further. The new powers to collect information and DNA in Part 1, along with the notification requirements in Part 4, seem innocuous enough when looked at in isolation, especially with the Government’s promise to use the powers only in the most extreme cases, but they represent yet another step towards the criminalisation of the innocent. We shall be looking with the utmost care at the safeguards and limitations on these provisions.
Similarly, the impact of new provisions on asset freezing and the rules of court, and the changes to the jurisdiction of terrorist offences, will need to be scrutinised carefully. Provisions such as these have a nasty habit of developing unintended consequences after implementation. Therefore, rather than relying on future legislation to undo bad law, we prefer to get it right the first time.
Much of this legislation has been justified by the Government on the grounds that it is to be used only in the most exceptional cases. However, the concept that we have one justice system for terrorist offences and one for all others causes considerable disquiet. As the noble Baroness, Lady Stern, said, the view of the Joint Committee on Human Rights is that this is not an acceptable situation. It is also rarely true in practice. There has been much discussion in the media recently on the excessive use of draconian powers—justified in Parliament as targeting terrorism—to investigate minor crimes. The Government must be very careful that the precedents that they set for terrorism do not become absorbed into normal practice.
This Government have given in to the temptation of seeking new powers in order to solve old problems far too often in the past. Before allowing these further provisions to be passed, we shall be exploring whether the enormous powers given in previous legislation have been inadequate or whether they have just been ineffectively implemented.
During the passage of the Bill through another place, the debate over 42 days rather overshadowed much of the proceedings—as it has here—on Report. Although useful progress was made in Committee, many of the government concessions and promises on other aspects went unscrutinised at a later stage. We will therefore return to those issues and seek to clarify any remaining uncertainty over the new clauses that the Government have introduced.
This Bill has already generated enormous concern on the 42-day issue alone, as I said. The Government’s obduracy in proceeding with this inchoate proposal in the face of well informed opposition is staggering. The depth of feeling has been well demonstrated again today. Of the 45 speakers, over two-thirds have concentrated on this aspect alone and I have no doubt that, when we come to Part 2 in Committee, that opposition will manifest itself again. However, this House must not believe that the other provisions do not require the most detailed scrutiny. They do and we will make sure that they receive it.
It has been a long day of debate. The Government are clearly in no rush to see this Bill on the statute book, as they have timed its arrival here to coincide with the long Recess. However, on our return in October, we will have much detailed work to do and we look forward to that.
My Lords, we have had a fascinating and very constructive debate. Noble Lords have spoken passionately and, I have to say, at length about the importance of getting the right balance between national security and individual liberty. Of course, we are only part of the way through the first watch and, as a sailor, I can easily go through the middle and morning, but my Whip has asked me not to give my two-hour response to this. I am afraid, therefore, that it will be impossible to address many of the very good points raised, but there will be lots of opportunities to do that in Committee and on Report. Today’s debate has shown again—I have come to realise this over the past year—is how this place is a formidable defender not just of our liberties but of the protections that we need to ensure that everyone in Britain can enjoy those liberties.
A number of speakers, including my noble friend Lord Harris of Haringey, mentioned how close we are to the anniversary of 7/7. I ought to put on record that I am sure that all of us in the Chamber remember the dead of that event, all their loved ones who still suffer, and the pain and suffering that so many of the survivors are still going through. These things last for ever. I know that well from the loss of my own ship and those who were injured and lost. I have to say that it is sometimes very easy for legislators to forget victims. I am sure that we will not be guilty of that within this Chamber.
If I have a fault, it is probably that I tend more towards trying to favour someone who is likely to be a victim than otherwise. My noble friend Lord Howarth of Newport made a point which is always a problem for those in power and to which it is sometimes quite difficult to find an answer. He asked whether it is better that we should risk hundreds, nay thousands, of casualties rather than risk the liberty of one person for a few days. I know that it is not as simple as that, but it is an interesting concept and something that one has to think about when one is in power. It is extremely difficult.
Much has been achieved in our efforts to tackle terrorism. We have had notable successes in ensuring that those who wish to destroy our way of life are brought to justice. I know that all noble Lords will applaud the excellent work of our security and intelligence agencies, police and prosecutors in that regard; a number of noble Lords have done.
I was taken to task by a number of people, including my noble friend Lord Joffe and the noble and learned Lord, Lord Lloyd of Berwick, for saying that we were safer. After a year in post, with all the extra resources and opportunities that I have had to look at the issue, I would be shocked if one felt that we were less safe. However, that does not mean that we are not still at great risk. The threat is still severe. The cleverness and cuteness of the people we are against gets ever greater. That is why matters are getting so much more complex and harder. They understand these things; they learn from when we make mistakes and from things such as intercepts—I shall come to those later—which is why we have to move down this route.
Talking briefly about the work of the agencies, I welcome the noble Baroness, Lady Manningham-Buller. I worked alongside her in several guises for many years. The first time we came across each other was in the 1980s, but probably the longest period we had together was when I was chief of defence intelligence and the vice-chairman of the Joint Intelligence Committee. I used to see her regularly then because she was at that stage the deputy head of the Security Service, I think. Her non-contentious maiden speech will set standards and interesting precedents for the future, and no doubt we will see that as time unfolds; I look forward to it. Her speech was good and succinct. She pointed out that she had an intelligence background. The Security Service is not deeply involved with things such as pre-charge detention; those are matters for prosecutors and the police. It is not its area of expertise or involvement. When I used to work with her, we did not always see eye to eye. I do not now; I disagree with her and think that she is wrong over pre-charge detention, but I defend her right to be wrong to the hilt.
Legislation plays a small but important part in our counterterrorist strategy. I again use the allusion of one arrow in a quiver full of measures aimed at terrorism, but it is a useful way of seeing it. Those measures include important work on preventing radicalisation and violent extremism, helping to protect critical infrastructure and so on. We should talk a little more about the preventive side. We have got together the most comprehensive and all pervasive preventive strategy of any nation in the world. We are world leaders on that. We have seen how important it is. One issue that I discussed with our Prime Minister before I came into government was that we had to do something in the area, because only that area will excise the cancer of terrorism and let us move forward. As has been said by some speakers, you cannot arrest or protect your way out of the issue. I have given an opportunity for Members of the House to hear where we have gone on the preventive side and I make the offer that, if anyone else would like to hear that, they should please come along and listen to it. The noble Lord, Lord Dholakia, might make good use of that; he would find it valuable. Some of the things that he said showed that he did not quite understand how far we had gone.
As part of that, it is important to realise that we are talking and engaging with the Muslim community. There is a great tendency to say “the Muslim community” as though it is one thing. It is not; it is very disparate, as all communities are and everyone is. However, we are trying to engage with it all; we are getting better at it. I have many Muslim friends, and I find it offensive sometimes to think that those communities are different from any of the rest of us. They do not like criminals; they want them brought to justice. When you engage them and debate with them about things—pre-charge detention or whatever—some might disagree but you will have a valid debate, and some of them will see where we are coming from. The noble Lord, Lord Young of Norwood Green, was right about that; the noble Lord, Lord Carlile of Berriew, has also touched on it. We have an extremely good story to tell in the area, and the measure will not swing things dramatically. We have to engage, talk, debate and make sure that we involve Muslims fully as part of our community, which they are. Of course, the vast majority of them do not like terrorism. They do not like these people. Muslims are part of our society; they are part of us, which is important to get across.
Giving the law enforcement agencies the legal powers that they need is important. The importance has been demonstrated, again, by the excellent contributions to today’s debate. Clearly, pre-charge detention is the issue. As I said earlier, I have been looking at this for almost a year, probably in more detail than most people. It is absolutely clear to me that, for all the reasons that I have given, sooner or later, more than 28 days’ detention will be needed to charge suspects in terrorist cases. We may hope that it will not be the case, but I fear that everything suggests otherwise. It is unfortunate—and I will mention it at this stage—that many noble Lords seem not to have given much weight to the views of the noble Lord, Lord Carlile of Berriew, the independent reviewer of terrorism. The noble Lord, Lord Monson, and the noble Lord, Lord Young of Norwood Green, pointed this out. The noble Lord, Lord Carlile, has had greater visibility in this topic than almost anybody else and has no axe to grind. What he says is important and should be looked at and valued.
There is no doubt that all the other measures that we have put in place, such as the threshold test and the new offence of acts preparatory to terrorism, together with the use of post-charge questioning and, possibly in the future, intercept as evidence will assist. These were referred to by many speakers. I have been impressed by the detail that people have gone into and their depth of knowledge. However, I fear that 28 days will not be sufficient, and that is not a risk that we can take. I certainly agree with the noble Lord, Lord Imbert, that using a spurious minor charge is not the UK’s way of doing business, and it will not work. We cannot risk having to release a potentially dangerous suspect simply because the police have run out of time. That would not be a responsible approach. Equally, I do not want the police to delay moving against a plot, awaiting some solid evidence because they fear that they will not get some case. The results of that could be catastrophic. As an aside on that, interestingly, my advice from the police clearly differs from the great body of police advice that seems to go to large chunks of this House. At times, it seems to be somewhat different.
What if my assessment is wrong? The worst that can happen regarding this clause is that nothing will happen. That is, there will be no request to extend pre-charge detention beyond 28 days. The impact will be zero. However, if this clause is removed the worst that can happen is that a non-charged terrorist will go on and spoil some investigation, or be involved in the murder of perhaps hundreds of our people. I know which I would prefer. I would prefer to have legislation that is never used than risk having none when it is needed for the safety of our country. That is why the reserve power that we propose in the Bill will not extend the pre-charge detention limit now, but in the future, and only then in exceptional circumstances, where there is a compelling operational need to do so. I say again that it is far better for us to legislate now on such a basis than to wait until those circumstances arise and then be forced to legislate in the middle of a crisis. We have done that before and, I have to say, we are not good at doing it because we often get the wrong answers.
There was talk about what real evidence is, and what the evidence for this need is. People were talking in terms of judicial evidence. We had no judicial evidence to extend beyond seven days, but we found that it was needed. We have had to use it. We had no evidence, in those terms, to extend beyond 14 days, but it was needed. In every arm of government and in the commercial world one has to make serious decisions based on predictions and trends. It cannot be avoided. Indeed, it is only the privilege of those not in power to be pedantic about such things, as they have no ultimate responsibility for the wrong decision.
It is also wrong to say that all the safeguards in place are unworkable. ACPO has certainly stated that it believes they are workable. The safeguards were built in after talking with people across parties about what we should do to safeguard people and look after them. There will be a great opportunity in Committee and on Report to test their applicability and see whether they need tweaking. They were put there in good faith, and ACPO has said that they are workable.
The noble Baroness, Lady Neville-Jones, said that we do not want to do the terrorists’ job for them. That remark could have been taken straight from my script as I have been going around the country talking to people, particularly in areas of work on protection. We must not do that. That is the Government’s line. We need to be able to live our lives, work, travel and have fun. We must not do things that stop any of those things happening, so I could not agree more.
My Lords, we appear to agree on the principle of not doing the terrorists’ work, but the sentiment in this House is two to one against the Government’s expressed position on 42 days. I suggest to the Minister that it might be right and sensible at this stage to withdraw the proposal, otherwise I fear that we will waste a good deal of the House’s time before the Government are defeated in a vote.
My Lords, that would be totally bonkers. I do not know where the two-to-one prediction comes from. I would not go down that route.
My noble friend Lord Ahmed raised my so-called U-turn. We had a bet in my office about who would mention it. There were many likely candidates, but he was not one of them, so I was a little surprised, and no one wins the money. I felt it was my duty to look closely at whether there was any other way to resolve some of these problems. I looked at them. I looked at throwing resources at them, at whether there was some other method of legislation and at whether there was some way round them. I also wanted to ensure that there were proper safeguards in place. At that stage, I did not want 56 days on the statute book. I wanted something that came into force only if we needed it and that had all the safeguards. I am happy that we are now in the right ballpark with a few minor amendments. I am happy with that. My noble friend Lord Ahmed does not know me if he thinks that someone can sit on me and make me do a U-turn. He has a lot to learn about me if that is what he believes. I was rather surprised by his comment.
My noble and learned friend Lord Falconer raised the threshold test. It has been available since 2004, which is before the debates on the 2006 Act. It is a useful tool, but it cannot be used in every case. It does not mean that we can charge on the basis of reasonable suspicion. We could not charge someone if all we had on him was intelligence material, no matter how compelling it might be. The threshold test does not replace the full-code test used by prosecutors. All it means is that in some cases we can charge using a lower threshold if we are reasonably certain that sufficient admissible evidence will become available in a reasonable amount of time to meet the full test. That is why the threshold test has proved useful at the current 28-day limit and why it could be equally useful at, say, 29 or 30 days, but it simply does not remove the need to extend pre-charge detention altogether.
My noble friends Lady Ramsay of Cartvale, Lord Foulkes of Cumnock and Lord Robertson and other noble Lords talked about intercept as evidence. I do not want to go into that at great length because it is late and we will have a chance to talk more about it. We are taking the Chilcot report ahead swiftly and with consensus. It has nine tests. I reiterate that what we get from intercept are the crown jewels. We have to be certain that we do not give something away. The people who wish to destroy our way of life and kill us are getting cuter and cuter and they pick up these things, so we have to be extremely careful. It is an area in which we hope we might be successful because there might be occasions when it will help, but it is not a silver bullet and will not resolve the issue of pre-charge detention. I say to my noble friend Lady Ramsay of Cartvale that we are listening very carefully to what she has been saying about this in the context of the coroners’ courts. I am not going to go into detail on the coroners’ courts. It is an issue of great complexity, and I can see that the House wishes to have a great debate on it. There will be opportunities in Committee and on Report to do that.
In terms of international comparisons—
My Lords, that is difficult to answer because I would tread into areas where I may say things that I should not. A case and a possible case are coming up that could put us at great risk of breaking Article 2 of the ECHR, which is why we are being forced down this route. I think that we will be able to expose this further in debate later, but it is difficult to do so at the moment.
My noble friend Lord Soley rightly said that international comparisons are not of any value or of any use. I have talked with colleagues in various nations. Although it might look on the face of it that they have benign legislation, it is quite extraordinary how long some of these countries seem to put people away without any proper judicial oversight. I know that the noble Lord, Lord Dear, talked about a few of them, but there is no point in trying to make comparisons because this is absolute apples and oranges. Doing such comparisons does not add anything. As I say, I am glad to be in this country when I look at what is done in some others that I come across. I also agree with my noble friend Lord Brett when he says that the noble Lord, Lord Dear, probably goes too far to compare what we are doing with Nazi Germany and what it did with the Jews.
My Lords, for the sake of the record, I was not comparing Nazi Germany with this country. I was merely giving an illustration of how it is easy to go down a slippery slope of justifying steady incursions and encroachments in civil law and civil liberties and getting into a position where it is impossible to defend the arrival point. I was not saying that we are like Nazi Germany and it should not be imputed that I was.
My Lords, I apologise to the noble Lord if I got the wrong end of that, but there has been reference to Mugabe, Guantanamo and internment in Northern Ireland. While I accept that one has to be careful about not going down the slippery slope, I think that we are a long way from there. In my work, I find it fascinating that alleged non-British terrorists fight tooth and nail to avoid being sent to any other country in the world, which leads me to believe that our country is not that bad. In this country, it is marvellous that we can put so much concern and effort—it is right that we do—into a measure that has so many safeguards in place. I wish that many other countries would do that. I know that there has been a lot of talk about—
My Lords, the noble Lord has not dealt with my point that the Explanatory Notes give no clue about the Government’s justification under the convention for what they propose on inquests. Can he write to noble Lords who have taken part in the debate to explain that in the absence of anything in the Explanatory Notes? I simply do not understand the Government’s position at all.
My Lords, I most certainly will do that. I was about to mention the talk on the Clapham omnibus. Clearly, we have to think very carefully about legislation but, equally, we must be aware of what people think about these things. It is interesting that in my position—I think that a lot of my friends still think that I am a Conservative or something—I get a lot of input from middle England. Certainly, a number of those people think that we need to look at this closely. I live in Hackney, so I get quite a good input from my neighbours, too. I have had a lot of building work done and know quite a lot of builders, so I have also been getting the Essex man input. I have to say that there seems to be a general consensus. That is a small group, but one must take it into account.
The noble Lord, Lord Goodhart, referred to the debate on control orders running from 11 am on one day to 7 pm on the next. We might do longer than that as this Bill moves through the House and I shall practise building my stamina for when that happens.
Many speakers have remarked that the issues we have been debating should be above party politics. In most cases, though I fear not all, the debate has shown that to be true of this House. As the Bill proceeds, I am sure noble Lords will continue to approach it in that way. There are many points that I have not been able to address and I apologise for that but we will have a chance to debate all of these things in Committee and at Report. I have been not a little surprised to find that the media feel that they can predict the outcome of the debate in your Lordships’ House so easily. Clearly I hope that they will be proved wrong. The last time I embarked on what was fanfared by the media as a forlorn hope was during the retaking of the Falkland Islands.
When it comes to dealing with terrorism, my view is straightforward. We cannot simply hope for the best. That is only possible for those who are not in power and have no responsibility. We must have plans in place that mean we can cope with the worst and the proposals in the Bill in general, and those on pre-charge in particular, do just that. I therefore commend this Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.