House again in Committee.
Schedule 2 [Amendments relating to period of pre-charge detention]:
31A: Schedule 2, page 75, line 28, leave out “(in Scotland, of the Crown Agent)”
The noble Lord said: This amendment and Amendment No. 31B are detailed, technical probing amendments. I rather suspect that they are now academic. I shall not move them.
[Amendment No. 31A not moved.]
Schedule 2 negatived.
Clause 24 [Report of operational need for further extension of maximum period of detention]:
[Amendment No. 31B not moved.]
Clause 24 negatived.
Clause 25 negatived.
Clause 26 [Notification of chairmen of certain committees]:
[Amendment No. 32 not moved.]
Clause 26 negatived.
Clause 27 [Statement to be laid before Parliament]:
[Amendment No. 33 not moved.]
Clause 27 negatived.
Clauses 28 to 33 negatived.
34: After Clause 33, insert the following new Clause—
“Extension of detention under section 41 of the Terrorism Act 2000
(1) Part 3 of Schedule 8 to The Terrorism Act 2000 (c. 11) (extension of detention under section 41) is amended as follows.
(2) In paragraph 29 (warrants of further detention) after sub-paragraph (6) insert—
“(7) Nothing in this Part is to be read as requiring the judicial authority to act in a manner inconsistent with the right of the specified person to a fully judicial procedure under Article 5(4) of the European Convention on Human Rights.”
(3) In paragraph 31 (notice) after paragraph (d) insert—
“(e) a statement of the suspicion which forms the basis for the person’s original arrest and continued detention, and(f) the gist of the material on which the suspicion is based.”(4) Before paragraph (a) of paragraph 32(1) (grounds for extension) insert—
“(za) there are reasonable grounds for believing that the person has been involved in the commission, preparation or instigation of a terrorist offence,”.(5) For sub-paragraph (1) of paragraph 33 (representation) substitute—
“(1) The person to whom an application relates shall be entitled—
(a) to appear in person before the judicial authority and make oral representations about the application,(b) to be legally represented by counsel at the hearing,(c) to legal aid for such representation,(d) to be represented by a special advocate at any closed part of the hearing of the application, and(e) through his representative, to cross examine the investigating officer.”(6) After sub-paragraph (3)(b) of paragraph 33 insert—
“(ba) if the judicial authority is satisfied that there are reasonable grounds for believing that the exclusion of the person or his representative is necessary in order to avoid any of the harms set out in paragraph 34(2)(a) to (g).””
The noble Baroness said: Amendment No. 34 is in my name and that of the noble Earl, Lord Onslow, and the noble Lords, Lord Lester and Lord Dubs. I imagine that the Committee has now registered that we are all members of the Joint Committee on Human Rights.
Amendments Nos. 34 and 35 reflect concerns that the committee has felt for some considerable time about the safeguards that are in place when pre-charge detention of between 14 and 28 days is being authorised. The Minister will no doubt be grateful to know that these are probing amendments through which we seek his views on what the committee sees as the need for more adequate safeguards.
The committee has done some detailed work on the arrangements surrounding pre-charge detention. The Minister is no doubt aware of this work and has read it with great interest. I shall say a little more about the detail. Between 14 and 28 days, if detention is to be continued, there has to be a hearing before a judge,and it is the nature of these hearings that has caused the committee concern. In its 25th report of the Session—its 12th report on counterterrorism—it says:
“We do not accept that the current arrangements for judicial authorisation of extended pre-charge detention satisfy the stringent requirements either of habeas corpus or Article 5 ECHR”.
The committee has identified three basic problems. First, the suspect and his or her lawyer can be excluded from the hearing, so parts of the hearing can be closed to them. Secondly, information can be put before the judge that neither the suspect nor his or her lawyer can see. Thirdly, the committee was concerned about the narrowness of the questions that the court is required to answer when it decides whether or not to authorise further detention.
The committee’s second report of this Session therefore recommended a statutory regime to govern the hearings that give warrants for further detention. We suggested that there should be more stringent requirements about the information that must be contained in the statutory notice given to a suspect before such a hearing; that there should be measures to define more closely the power to withhold information from the suspect and his or her lawyer; that there should be provisions for special advocates to represent the interests of the suspect at any closed part of the hearing; that there should be express provision for the right of the suspect to cross-examine the investigation officer; and that any restrictions on disclosure or participation are subject to the overriding requirement that the hearing of the application be fair. We have attempted to put those requirements into our amendment. I hope very much that the Minister will feel able to enter this discussion with us about how far the safeguards for extending detention from 14 to 28 days are satisfactory and in accordance with our human rights requirements. I beg to move.
I have put my name to this amendment, as well as being a member of the Joint Committee on Human Rights. The noble Baroness, Lady Stern, has said everything that needs to be said. I should like to add one or two points. Although this issue may now seem academic in one sense, it is not at all academic because the Home Secretary’s Statement in the other place has indicated that a Bill is in the offing, if and when it is needed, which would extend the period of detention without trial beyond 42 days.
I deeply regret the part of the Home Secretary’s Statement, which says that she deeply regrets,
“that some have been prepared to ignore the terrorist threat, for fear of taking a tough but necessary decision”.
That is a most impertinent thing for her to have said if it refers to those of us in the opposition parties and on the Cross Benches in this House, and those on the Back Benches from the Labour Party who have disagreed with the Government’s judgment.
I, working with Roy Jenkins in 1974, was involved in fashioning the first prevention against terrorism Bill. I was much involved also with advising him, as he recalls in his memoirs, on effective steps to counter terrorism. The notion that those who disagree with the Home Secretary’s judgment are prepared to ignore the terrorist threat is preposterous. I am very sorry that that was said. I very much hope that that is brought to her attention by her admirable advisers.
This amendment seeks to introduce a limited but further form of natural justice into the procedure. I shall not make a long speech, but, as everyone knows, it is a cardinal principle of our system of justice that you are entitled to know the case against you, to have a fair opportunity to rebut it, to have proper access to legal advice and to be sure that there are reasonable grounds for the conduct of which you are suspected to have been guilty.
My only direct experience of these procedures was on the related issue of the proscribed organisations procedure where I once represented a body which was trying to avoid proscription. As its advocate, I am bound to say that a very nasty taste was left in my mouth when it said, “We are going to withdraw from the proceedings because we do not believe any longer in British justice”—and it did. Having talked to some of the special advocates, I know that there is considerable concern among many of them about the present procedure.
What this seeks to do is obvious to anyone reading Amendment No. 34, in particular, and I shall not add to it. We would be very interested to know the current view of the Home Office. Although we will not divide the Committee today, this probing amendment is important for the future.
In his speech on Amendment No. 29, the noble Lord, Lord Thomas, mentioned an incidence of what we dislike in the clause and why we wish to change it. I think I am right in saying that he spoke of extensions for four different people, all submitted with exactly the same wording basically along the lines of, “We think he’s done something naughty and we need to go on”. Those were not the exact words, but the implication of what he said. We really must get out of the habit of not telling people what the charge against them is. It is an ancient liberty which should be protected, and I hope that when the noble Lord comes to reply, he can give us some satisfaction on this point. If not, we will have to go back to the barricades on Report.
Amendments Nos. 35 and 36 are in this group. Amendment No. 36 provides for the:
“Lower threshold for charging in terrorism cases”.
I am not a lawyer, although I see quite a few legal eagles around the place who will either put me right or shut me up, but it seems that this would make the threshold charge clear to anyone who reads it. To me this clause is a pretty clear statement of what one wants the threshold charge to be. Obviously as I put my name to this amendment, I support it and wish to draw the attention of noble Lords to it.
As a non-member of the Joint Committee on Human Rights, I express my sympathy for my noble friend’s amendment. I have long been worried that the judge who has to make the decision to extend the period of detention does not really have the material on which to make a proper decision. My solution to this quite important problem would be to create a new appointment of an independent commissioner who would be entitled to attend interviews at Paddington Green in all terrorist cases. His function would be similar to that which was once fulfilled by Sir Louis Blom-Cooper at the holding centres in Northern Ireland, and proved extremely effective. This new commissioner—I do not know what he should be called—should be entitled, whenever he wants, to attend interviews at Paddington Green to see how well the police are getting on the with the job with which they are charged. However, the important point is that he should also be entitled to attend the hearing before the judge at which the prosecution makes an application for an extension of time. From his independent position, he would then be able to put the judge in a position to say how well in his view the police were getting on with the job.
As the noble Lord, Lord West, will remember, I suggested this idea many moons ago. At first it received what I would almost say was a good deal of support from the government Benches, but when I pressed it, it somehow did not get any further. But in the light of my noble friend’s amendment, I have thought seriously that I might bring this back at a later stage because it would be a simpler and probably cheaper way of achieving the objectives that she has in mind.
I follow what my noble friend Lord Lester said. We welcome the noble Lord, Lord Mandelson, into our midst today, but it appears that he has brought with him some of the spin that we so deplored in the Administration of the previous Prime Minister. When the Home Secretary says, “I deeply regret that some have been prepared to ignore the terrorist threat for fear of taking a tough but necessary decision in relation to our deliberations today”, it is clear that spin has come back into the Government’s armoury. I deeply resent the suggestion that we have ignored the terrorist threat by our decision. I have made the point over and over again that we oppose the proposals put forward by the Government because we believe that they would increase the terrorist threat by alienating a significant part of the community of this country. We feared that what they were doing was more likely to increase terrorism than otherwise. We on these Benches have no fear of taking tough and necessary decisions and I suggest we have an election so that we can be over there to take those decisions.
I apologise to the Committee. I came in late, listened to the interesting and wise words of my noble friend Lord Onslow—there are more to come—and I was delighted to hear from the noble and learned Lord, Lord Lloyd. My noble friend referred to Amendment No. 36. Subsections (3) and (4) of the proposed new clause seem to put this issue in lay-man terms. As my noble and learned friend Lord Mayhew knows, I am a mere chartered accountant so I have no major or professional interest in this part of the Bill. However, I was interested to see that proposed new subsection (4) encapsulates much of what we were discussing and voting on earlier. It is particularly important and I am sure the Minister will be able to give major consolation to both my noble friend and the noble and learned Lord, Lord Lloyd.
Let me make it clear that I am not attacking the noble Lord, Lord Mandelson. I shall be very interested to hear his maiden speech. I am attacking the introduction, once again, of spin as the Government try to explain away the decision that we took today.
There are more important things to discuss tonight than that, but I cannot understand why the noble Lord mentioned my noble friend Lord Mandelson at all if he was not proceeding to attack him. Certainly the juxtaposition of his criticism of spin and the name of my noble friend Lord Mandelson seemed to be very close indeed. He is not going to win that discussion.
Amendment No. 71 is concerned with granting bail in terrorism cases. As I understand it, bail cannot be granted in terrorism cases. The point of the amendment is to probe what the Government have to say in response to a suggestion that in certain and, I am sure, limited circumstances it might be appropriate for the court to order pre-charge bail. It may not happen very often and would have to be handled sensitively—clearly, for the most serious offences it would not be appropriate—but there might be a situation when it would be sensible. I hope my noble friend will comment on it when he replies.
First, I share some of the sentiments that have just been expressed by the noble Lords, Lord Lester and Lord Thomas, and I shall give more of our reaction tomorrow when the Statement is repeated in this House. Secondly, some of the amendments we are discussing, which are based on the work of the Joint Committee, are very interesting and the noble and learned Lord, Lord Lloyd, made an interesting suggestion. We will think about these and come back to them on Report.
On the basis of some experience in Northern Ireland, I support the suggestion made by the noble and learned Lord, Lord Lloyd, about a counterpart to the commissioner appointed to review procedures in the holding centres in Northern Ireland. That post was established in my time and was held by Mr Louis Blom-Cooper QC, who at a very early stage established the full confidence of all concerned. It was effective, it was cheap and it worked extremely well. I add that as an addendum.
I hope that I have never given the impression that I have had any view in this House other than that all of us have the interests and the safety of our nation and our people in mind. I might have different views as to how that should be achieved but that is very healthy and is what happens here. I would be horrified if I thought that any of us thought otherwise. I hope that I have never done anything to give that impression and I would be shocked if I had.
Will the Minister please inform the Home Secretary that that is his view, with which I completely concur? She was not exactly polite and rather disingenuous in what she said; I am being polite and House of Lords in the way in which I criticise her.
While I appreciate that the Minister usually expresses very positive sentiments, he said something which surprised me. In his summing up, he said that it was all very well for those who would never be in government to vote like that. Perhaps he was referring to the Cross Benches or perhaps he was taking a particularly optimistic view of his own party’s position. However, that statement was not one which I would normally imagine him making.
The noble Baroness should not assume that I automatically meant her party. Something I have come across throughout my career is that people who have responsibility for something often have a slightly different view of it. That was all I meant.
The noble Baroness, Lady Stern, said that the amendments were exploratory, and I shall take them all together. On Amendment No. 34, we believe that extension hearings are already fully adversarial and that most of the proposals put forward in the amendments are already covered in existing provisions on the extension of detention in Schedule 8 to the Terrorism Act 2000.
It is already a requirement that public authorities act in accordance with the ECHR under the Human Rights Act 1998. Nothing in Schedule 8 might require a judicial authority to act in any way other than compatibly with Article 5.4 or any other convention right, so the proposed new paragraph 29(7) is completely unnecessary. The extension hearings are a mechanism by which we give effect to Article 5.4. They provide a judicial hearing under which the lawfulness of the suspect’s detention is reviewed.
Schedule 8 to the Terrorism Act 2000 already provides for the detained person to make written or oral representations and be legally represented. Extension hearings apply only to people held on suspicion of terrorist offences or involvement in terrorist activity in any event. The prosecution must demonstrate to the judge that there are reasonable grounds for believing that the further detention is necessary, that the investigation is being conducted diligently and expeditiously and why more time is needed to obtain, preserve, examine or analyse relevant evidence.
Sometimes an ex parte hearing—closed part—is required during the application process to authorise the withholding of information from the detainee. These are not routine and can be ordered only on limited and proportionate grounds. They are only a part of the process and are closed for a reason: for example, to prevent evidence being destroyed or that others might be alerted to the detail of the investigations. The judge may also exclude the detainee from part of the application hearing itself under paragraph 33. The grounds on which this exclusion may be made are left to the discretion of the judge. This process has been endorsed by the House of Lords in the case of Ward v Police Service of Northern Ireland. The detainee may need to be excluded where, for example, the judge wants to examine with the police what further lines of inquiry they wish to put to the suspect in interview. The police are entitled to withhold this information from the suspect until the interview itself; therefore, only by excluding the suspect could the judge examine the legitimacy of this reason for why further detention is necessary.
Conducting this examination is in the detainee’s best interests; it ensures that there really are proper lines of inquiry left to conduct. However, it is important to note that closed hearings get rarer as time goes on. In fact, in extension applications for 17 individuals after the 14-day point, only one ex parte hearing has been conducted by the prosecution.
We continue to believe that extension proceedings are currently fully adversarial. The one that I saw at Paddington Green was amazingly thorough. It gave the man the opportunity to know what was going on and gave the judge the opportunity to really see what the police were doing; indeed, the judge gave the police a hard time and granted them only a small extension. The suspect is entitled to legal representation and to be present at the open part of the hearing.
The Minister describes the process as fully adversarial, but am I right in thinking that a fully adversarial procedure would entitle the suspect to, as subsection (3) of the proposed new clause says,
“a statement of the suspicion which forms the basis for the … original arrest and continued detention, and … the gist of the material on which the suspicion is based”?
I am not talking about the evidence. I quite understand the reasons for excluding the person, for closed hearings and for all the rest of it, but am I right in saying that the procedure is not in any normal sense fully adversarial, as what is mentioned in subsection (3) is not at the moment provided to the person concerned?
This is a matter of natural justice. We are not concerned whether there is a full court of law, but am I not right in saying that the suspect does not have,
“a statement of the suspicion which forms the basis for the … original arrest and continued detention”,
and that he is not given,
“the gist of the material on which the suspicion is based”?
I will not go on, but I am not talking about details. The amendment refers to,
“the gist of the material”.
In other words, it is a summary, which does not have to disclose chapter and verse. However, the suspect is not given that at the moment, is he?
Is the noble Lord aware that, in the Italian case to which he referred in our previous discussion, the statement of what was alleged against the person concerned was available from the preliminary judge within a week of that person’s arrest? The noble Lord was making the point that the person had been held for a year, as though that were before charge, when in fact that person had the opportunity of knowing what was alleged against him and of addressing that.
I do not know the full details of that case but, as I said earlier, I am wary of making comparisons, because the situations are so different. When we wish to interview someone who is a terrorist suspect in another country, it is interesting to note how long they have sometimes been held. Even though the rules in that country might make it clear that they can be held for only four or five days, they still seem to be there the following year. I do not think that there is any merit in going into that detail, because the situations are so different.
In this case, the suspect’s lawyer is able to cross-examine the investigating officer to challenge the application rigorously. A senior judge oversees proceedings and ensures that the tests for further detention are satisfied before any extension is granted.
I am sorry to interrupt the Minister again, but is he aware that the Crown Prosecution Service view is that the detainee’s lawyer is not entitled to cross-examine the officer who is bringing the application for extension? He may be allowed to do so in order to assist the judge—that is how it is put—but he has no right to do so. Will the noble Lord research that and perhaps tell us at a later date whether the CPS view is correct?
Will the Minister also look into how you can cross-examine effectively if you do not know the basis of the suspicion and the gist of the material? How can you ask relevant questions when you do not know the substance of the case that you are questioning?
The JCHR heard evidence—I am trying to recall it and I think that I am right—from defence solicitors that their ability to challenge in front of the judge was extremely limited. It is emphasised by what the noble Lord, Lord Thomas, said on Amendment No. 29. Furthermore, if the police have said merely, “We suspect you of terrorism”, it is so broad that it could be anything. If the officer says, “I suspect you of terrorism”, it is jolly difficult even to begin to run an argument against it because it is so broad and so inchoate.
Enough data are available for the judge to ensure that proceedings are fair, which will normally allow the detainee or his lawyer to cross-examine the investigating officer. The extent of questioning is controlled by that judge to ensure that it is directed only to relevant matters and does not trespass on undisclosed or more difficult matters. The judge whom I accompanied at Paddington Green was extremely thorough. He went into considerable detail to make sure that it was appropriate for the man concerned to be held while further investigations were going on. He gave them only a very short time. That chap was charged and found guilty later. I was rather impressed by how that was done. I will certainly take away the point of the noble Lord, Lord Thomas of Gresford, and look at it.
Video links are often used for the suspect’s appearance as both the security risks and resource implications justify such an approach; in any event, video link is routinely used in other judicial hearings. The judge may order the suspect to be present in person if there is reason. He or she does not always do that: it is often to do with security or movement of people. Such hearings without special advocates comply with human rights, but should in a particular case the judge consider that fairness requires a special advocate to be appointed, he or she could do so.
In relation to the point that the existing grounds for issuing a warrant for the further detention of a suspect beyond 14 days should be amended to include a requirement that there are reasonable grounds for believing that the person has been involved in the commission, preparation or instigation of a terrorist offence, it is implicit in any successful application for a warrant that the initial arrest was lawful and that there are reasonable grounds for suspecting the person has committed a terrorist offence.
The test for a lawful arrest under Section 41 of the Terrorism Act 2000 is that the constable reasonably suspects that the individual is a terrorist as defined in Section 40 of that Act. This reasonable suspicion is an implicit prerequisite for the test which is currently required to extend pre-charge detention. If a court is to be satisfied that there are reasonable grounds for believing that further detention is necessary for the purposes of obtaining relevant evidence, there must inevitably be a reasonable suspicion that the person committed the offence. The minimum standard that the prosecution or police must demonstrate is that there are reasonable grounds on which to suspect that person. Conversely, without reasonable grounds to suspect that person, the prosecution or police could not even commence an application for further detention on grounds of securing relevant evidence.
Therefore, it would not be possible for a court to authorise detention of a person under Schedule 8—or indeed under PACE, which also does not expressly require the court to consider the issue of reasonable suspicion—for any period without the reasonable suspicion required by Article 5.1(c). The extension of the maximum period to 42 days—if we were going that way—does not change this position as the test for continued detention remains the same.
Finally, I point out that, in relation to legal aid, the arrested person is entitled to be legally represented at the application—and the person certainly was when I was there—and is entitled to legal aid for representation by a solicitor in the case of hearings relating to detention up to and including 14 days, or counsel in the case of hearings relating to detention for more than 14 days. I therefore resist that amendment.
The purpose of Amendment No. 35 is threefold: to replace the independent reviewer of terrorism legislation with a panel of reviewers; to provide that the Motion approving the order for annual renewal of the 28-day limit cannot be made until a minimum of one month after the annual report on the operation of the Terrorism Act 2000, and Part 1 of the Terrorism Act 2006, has been published; and to provide that the Secretary of State cannot appoint the independent reviewer unless he or she lays a report on the appointment process before Parliament and it is agreed by affirmative procedure.
In our response to the JCHR on 6 June, we made it clear that we do not consider it necessary to replace the independent reviewer with a panel of reviewers and that the noble Lord, Lord Carlile, has done, and continues to do, an excellent job. We do not accept that his post is too heavily loaded for one person. The appointment of the noble Lord, Lord Carlile, was renewed for a further three years in October 2007. We do not believe that it is necessary for Parliament to agree a report on the appointment process, as this is unnecessarily bureaucratic. Having a statutory requirement to publish the annual reports a month in advance of the renewal debates would be difficult. Where possible, we ensure that the report made by the independent reviewer is available in advance of the annual renewal debates, but this cannot be guaranteed. I therefore resist this amendment
I am unable to accept Amendment No. 36. It seeks to put the threshold test used by the Crown Prosecution Service on a statutory footing, but only for cases with a terrorist connection. It would also require that defendants be informed which test had been used; the courts to set timetables regarding evidence; and annual reports by Her Majesty’s Crown Prosecution Service Inspectorate on the operation of the threshold test for cases with a terrorist connection.
In rejecting this amendment, I have taken into account the fact that there is already a statutory requirement for the Director of Public Prosecutions to issue formal published guidance on charging under the Prosecution of Offences Act 1985 and the Criminal Justice Act 2003. This statutory framework emphasises the independence of the Crown Prosecution Service and recognises the need for regular revision by the Director of Public Prosecutions to take into account changes to the law or circumstances. Both those factors make the charging test unsuitable for primary legislation. It would be particularly inappropriate to enshrine only one of the charging standards in statute and only in relation to terrorism offences, when the threshold test is available for other offences.
The current version of the code for Crown prosecutors was issued in 2004 and is the fifth edition. The code is laid before Parliament whenever it is revised, but the contents of the code are not statutory, although it is binding on prosecutors. The code was the subject of public consultation when it was last revised in 2004 and sets out two tests—the full code test and the threshold test. Both these tests have two stages—the evidential stage and the public interest stage. Interestingly, the amendments laid here do not mention the public interest test. Only if the evidential stage is met does the prosecutor go on to consider whether it is in the public interest to prosecute the case.
Under the full code test, a suspect can be charged where there is a realistic prospect of conviction and it is in the public interest to charge that suspect. By contrast, the threshold test requires Crown prosecutors to decide whether there is at least a reasonable suspicion that the suspect has committed an offence and, if there is, whether it is in the public interest to charge. In deciding whether there is a reasonable suspicion, prosecutors must also make a clear evidential decision. They are directed under the code to consider the evidence already available and the reasonableness for believing that further relevant evidence will become available within a reasonable period sufficient to meet the full code test.
Under the code, the threshold test is applied only to those cases in which it is not appropriate to release a suspect on bail after charge but the evidence to apply the full code test is not yet available. Obviously such circumstances may apply not just in terrorism cases but in other serious criminal cases as well.
The threshold test is applied only for a limited period. The charging decision is kept under review by the prosecutor and the full code test must be met as soon as reasonably practicable. In addition, I should point out that Her Majesty’s Crown Prosecution Service Inspectorate already carries out thematic inspections of charging across criminal case work, and that includes the threshold test. A statutory requirement to inform the defendant which evidential test has been applied would not add value or safeguard the rights of the defendant.
The criminal process already enables the defence to be informed of the evidential basis of the Crown’s case at the first court hearing. In most cases, the first hearing will take place within 24 hours of the charging decision. At that stage, there will be clear consideration of the evidence in relation to the bail application. The Bail Act 1976 specifically requires the strength of evidence justifying retention in custody to be considered. The legal process already allows the court to set time limits for the service of further material. It also permits applications to the court to be made for the case to be dismissed due to lack of evidence at an early stage in proceedings.
The Bail Act and the custody time limit regime further ensure that courts must consider the strength of the evidence against the defendant and the conduct of the prosecution when making a decision on whether the defendant should be bailed or remanded in custody. Advising the defence at the point of charge what test they have been charged under would not assist the defence or add any extra safeguards to the extensive ones that already exist. On the basis of what I have said I ask noble Lords to withdraw the amendment.
On Amendment No. 71, we have considered the option of allowing terrorist suspects to be released on bail and have consulted the police. They did not recommend making police bail available for terrorist suspects because of the risks to public safety that might be involved. There is also a risk, which we are unwilling to take—
The Minister says that there is a risk to public safety involved in giving bail to terrorist suspects. However, some terrorist charges are quite minor, and when we visited the police, they seemed to have no objection in relation to those. Surely there would be an objection to bail if there was any suspicion of danger to the public, and it would be completely reasonable for bail to be refused. But if there is no suspicion of danger to the public—the person may have turned Queen's evidence or been co-operating considerably with the police—I would have thought that bail would be perfectly reasonable.
All I can say to the noble Earl is that the police considered that making bail available to terrorist subjects would risk public safety. They were also concerned that there was a risk, which we were unwilling to take, that evidence could be tampered with or, worse still, destroyed.
The Minister has rightly stressed again today the independence of the judiciary, the value of the judicial process and the way in which one can trust judges to make wise judgments in the public interest. I enthusiastically agree with all of that. However, given that that is the Government's position, I do not understand why one should not at least empower the judiciary in exceptional cases to be able to grant bail. The Joint Committee recommended a provision,
“to make court-ordered pre-charge bail with conditions available in relation to terrorism offences … the availability of bail with conditions would enable the police to continue their investigation of those suspected of terrorism offences who do not pose a risk to public safety or a flight risk, while at the same time maintaining some control over them through bail conditions”.
Why can we not trust the judiciary with such a power to be able to protect the rights of liberty in those rare and exceptional cases referred to by the Joint Committee?
I have some sympathy with the noble Lord’s point. The necessary requirement test in paragraph 32 of Schedule 8 ensures that each case is assessed on its merits. If the test is not met, the court has the power to release the suspect rather than grant continued detention. I shall take this away and look at it, because there might be some room for flexibility. I would rather do that because, as I say, I respect the sense of our judiciary in some of these cases. However, in most terrorist cases, I would be very concerned about suspects being released on bail.
Those of us on the JCHR are just as concerned. Nobody is saying that anybody whom anybody thinks is a risk to public safety should be released on bail. We are saying that if there is a risk it can be put in front of the judge, who will not give bail.
Then I think that we are probably on the same wavelength. I will take the amendment away and look at it, because I think that one can generally rely on the common sense of the judiciary in these areas. In the mean time, I ask that the amendment be withdrawn.
The noble and learned Lord, Lord Lloyd, mentioned the independent commissioner, and he is absolutely right. I thought that that seemed like a very good idea indeed, though I admit that I have not had the full answer from all of my officials on it yet. I know that they have said that they do not think that it is necessary; that the noble Lord, Lord Carlile, reviews it; and that independent visitors can visit—all of which are good points. However, I would like to pursue this a little further as well. There may be administrative or other reasons why it is impossible, but I would like to be certain that that is the case. I hope that I have answered the other questions. If so, I would be grateful if the amendment were withdrawn.
I have listened to the Minister’s reply on Amendment No. 35 with some interest. I make it clear that, as my noble friend Lord Carlile mentioned in the earlier debate, he and I have been close friends and colleagues for 37 years. I do not for a moment doubt his integrity or—although I may disagree with him—the reasons why he puts forward the views that he has expressed today. However, I wonder whether it is appropriate that the independent reviewer should have an office within the Home Office itself and be serviced by Home Office officials, which is the current position. This does not just apply to my noble friend Lord Carlile but to anybody who may hold that office in the future. If we are to have an independent reviewer, he should be seen to be independent, have his own office and staff, and, when he comes to give his view to both your Lordships and to Parliament as a whole, we should know that it comes from somebody who is in no way influenced by the views circulating in the Home Office at any particular moment. It may not be my noble friend, but his successor.
On Amendment No. 36, there is a great deal of sense in having a statutory basis for the threshold charging. As I pointed out in my speech earlier today, the guidance issued by the Director of Public Prosecutions to his prosecutors was not published and did not come to light until February of this year. For a period of two to three years, the public were unaware of the nature of the threshold charging going on in terrorism cases. That involved not only a reasonable suspicion that a person had committed a terrorist offence but that there was a likelihood that more evidence would come to light. Further, that decision could be based on inadmissible evidence—intelligence or intercept evidence. It seems to me that we ought not to encourage the Director of Public Prosecutions to give guidance to public prosecutors that is not absolutely transparent and known to everybody concerned in this field. I respectfully suggest that the Minister takes that on board and returns to these issues at Report.
I hope I may make a couple of points that are pleasant for the Minister to hear. First, I pay tribute to the appointment of the new Director of Public Prosecutions, Keir Starmer QC, who is one of the most outstanding human rights lawyers at the English Bar. The fact that he succeeds Ken Macdonald, a most impressive holder of that office, is a most important safeguard. I always believe that people are more important than rules or legal structures and the fact that Keir Starmer QC will hold that office constitutes a confidence-building measure.
Secondly, I thank the Minister for his very full reply. I am sure that the Joint Committee on Human Rights will need to look with great care at everything that he has said this evening when deciding what response is called for. Thirdly, I personally am sympathetic to the use of the special advocate procedure, and indeed I have said so consistently. People forget that it originated in a case in Strasbourg and was a Canadian procedure recommended by Amnesty International which came to be used in the Special Immigration Appeals Commission. I well understand why that is a desirable compromise between full adversarial justice and inquisitorial justice. However, it is vital to think very carefully about any further safeguards against abuse that one can build into the system, always accepting that nothing should be done to enable a suspected terrorist to gain access to information which might then be leaked or used by terrorist organisations. Speaking for myself, I very much welcome the spirit in which the Minister has spoken. As I say, I am sure that we shall want to look with great care at what he said.
I thank everyone who has spoken to these amendments. I very much appreciate the well informed support that they have received. I also thank the Minister for his extremely helpful and thoughtful replies. It was good to hear that closed hearings are getting rarer, as we did not know that. It was encouraging to hear that the Minister sat through a hearing at Paddington Green and saw for himself what happened. That builds our confidence in discussing these matters with him as he knows exactly what issues are involved.
Matters have emerged in the debate that are worthy of further thought. We are all grateful to the Minister for agreeing to take away the point about bail. Some of the police with whom members of the Joint Committee spoke thought that it was a very sensible idea. I hope that some of the other points we raised about the clear and evident independence of the reviewer will be strengthened. However, as I said, these are probing amendments. We may wish to return to some of these matters on Report, but in the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 35 and 36 not moved.]