My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
29: Before Clause 22, insert the following new Clause—
“No extension of pre-charge detention
For the avoidance of doubt, nothing in this Act allows the Secretary of State to extend the maximum period of pre-charge detention beyond 28 days.”
The noble Lord said: On 8 July this year, your Lordships gave a Second Reading to this Bill in proceedings that lasted seven and a half hours. Almost 50 noble Lords spoke; most concentrated on the issue of 28 days’ detention; and the overwhelming majority was opposed to the extension. It was big news at the time; indeed, it was very big news. Since then nothing of any consequence has arisen that might alter the arguments. Of course, world economic news dominates the agenda, and despite our preoccupation with the economy, I suggest that this issue remains one of prime constitutional importance, bearing considerations of national security and the civil and legal rights of citizens. The arguments—or battle lines—are clearly drawn.
Importantly, we are all agreed on one thing: the threat to western democracies from extremist groups and terrorists is higher now than it has ever been. The suicide bomber has changed the security landscape. The police often have to intervene much earlier in the process than they once would have done, and by doing that they are trying to protect the public from undue risk. At the same time, the evidence available to them is much less than would have been the case elsewhere. It is often incomplete. The investigations are often much more complex. Terrorist groups are often highly sophisticated. They are certainly surveillance conscious and can see all their communications networks with very great skill and at very great depth. All that leads to difficult and protracted investigative processes. I need hardly say that investigators often work under great pressures of time. So, we can all agree to this point.
The Government now suggest that the present limit of 28 days’ detention for those arrested for terrorist offences may be too restrictive. They say that sooner or later more time will be needed to complete a proper investigation. They say that the law needs amendment to give the prosecution in some circumstances up to 42 days in which to complete the investigation—a process that was described in a newspaper by one commentator back in the summer as having something in the “legal back pocket”, just in case. That is a clumsy phrase but perhaps it encapsulates the essence of the argument being advanced.
I shall outline briefly six solid reasons why I take issue with this and why I have tabled the amendment. First, there is no evidence to date that we have ever come close to running out of time within the present 28-day limit. The DPP is very clear on this point. Hitting the 28-day buffers is not seen by him or his staff as likely in the foreseeable future. To date, most charges have been brought at or before 14 days. In those cases where charges were preferred closer to 28 days, we are told that evidence was often already available to prefer the charges earlier, but the authorities delayed just in case further, more serious evidence was forthcoming.
Secondly, no other country in the western world that has a common law system like ours—an accusatorial rather than an inquisitorial system—has extended detention without charge to 42 days. In fact, no country has gone as far as 28 days. The nearest comparison is Australia with 12 days, and all the rest of the comparable countries operate with single figures. I need hardly remind your Lordships that in America it is two days and in Canada it is one day. So why the marked disparity? Those countries often face a threat similar to our own. How is it that they manage and we apparently cannot?
I understand that the detainees in Guantanamo were arrested outside the USA and its jurisdiction.
Thirdly, there is almost universal opposition to what the Government propose. It almost beggars belief that any Administration could embark on such a course. Just look at the list of those who oppose the Government: the Law Society; Amnesty; Liberty; Justice; the previous Attorney-General; the previous Solicitor-General and Lord Chancellor; and successive Directors of Public Prosecutions. There are many others, but perhaps the most important person to note in that list is the Director of Public Prosecutions. DPPs are uniquely required to evaluate evidence as it comes in during the investigation, make a professional judgment on the adequacy of the material and watch the time on the judicial clock. The police and the security services have conducted some outstanding operations in recent years, but the DPP alone is the best judge, arguably the only judge, of the evidential state of play. The police have a view, of course, but the DPP is the one who we should listen to on this point, and successive directors have opposed the proposed changes.
The official position of the police via the ACPO is now merely that the extension to 42 days would be advantageous, and it would be from the standpoint of purely investigative procedures alone. However, I have to tell this House that numerous chief constables have told me privately that they see no reason for the extension and that they do not support it. As an aside, I can only say would that some public servants were less afraid of speaking out openly.
Fourthly, as for the suggested mechanism by which the Government would seek to extend from 28 to 42 days—it is set out in Clause 23 and thereafter—frankly, I have nothing but scorn for it. It is a Byzantine procedure that seeks to give Parliament a quasi-judicial role and runs grave risks of breaching sub judice arrangements. It has been roundly condemned, in particular by Mr Andy Hayman, who until recently was the assistant commissioner in the Metropolitan Police charged with co-ordinating all national counterterrorism operations. In a long article in the Times on 6 October, he wrote a number of things in virtually rubbishing this Bill. He wrote:
“The Bill is about politics and it won't work”.
He also wrote that,
“the Government's current proposals are not fit for purpose: they are bureaucratic, convoluted and unworkable”.
I invite noble Lords to agree with me that he should know what he is talking about.
Does the noble Lord not agree that Andy Hayman also made it very clear that he still believes that more than 28 days is necessary? Andy Hayman is concerned about the administration and the points that have been put into the Bill, but he still believes, as he believed when he argued for 90 days, that we need more than 28 days.
I am grateful to the noble Baroness for telling me that. I knew it, and I was going to comment on it later. Andy Hayman said that the mechanism to try to move the timescale from 28 days to 42 was, I repeat,
“not fit for purpose … bureaucratic, convoluted and unworkable”.
He went on to say of the proposals that,
“just trying to understand them gives me a headache”.
The full text is in the Times of 6 October, and I refer the noble Baroness to it.
Andy Hayman was making the same point as ACPO, which said that it would like some sort of mechanism that took us into an area of certainty if we were running up against the 28 days. That was my next point: to ask your Lordships why we should embark on such a course, if we were ever to face running out of time at 28 days, when the existing law can come to our aid. One can use existing law. As it is almost inconceivable that we would hold anyone in custody at the 27-day—not the 28-day—point without there being some evidence against them, one should simply charge them with the lesser offence under terrorism legislation. There are many possibilities—membership of a proscribed organisation, possession of material, preparatory acts and so on—that one might call the second division of terrorist offences, falling short of the gravest of those offences.
One therefore charges the lesser offence and continues the investigation, and if evidence of a more serious offence comes to light, one charges that later. The point is that at the time of the first charge, the 28-day clock stops running. In fact, all clocks in that judicial sense stop running. The defendant now has access to legal representation and appears before a court. In short, he is in the normal judicial process. The noble and learned Lord, Lord Lloyd of Berwick, will shortly propose an amendment that will allow post-charge questioning in circumstances with a judicial overview, and I shall support him. Again, the existing law, with only a very slight amendment, can quite adequately give us the flexibility that we need without adding the inflammatory words “42 days”.
That is my fifth point; those words would most certainly be inflammatory, and would almost certainly give ammunition to those who seek to justify acts of terrorism against us—those who, in other words, seek to recruit others to oppose what they contend is our repressive regime—and it would be an act of sheer folly to provide them with such a gift.
I have made five points so far: we have never come close to running out of time, and if we did we could use the existing law; no other common-law country has more than a 12-day limit; there is massive opposition to this suggestion from some of the most influential and respected quarters; the suggested mechanisms, or procedures, are unworkable; and there is a risk of a fundamental backlash. This legislation is fatally flawed, ill thought through and unnecessary.
I said that I had six points. My sixth point is that, perhaps worst of all, the legislation seeks further to erode fundamental legal and civil rights that have been the pride of this country for centuries. Simple mathematics will tell us that 793 years ago Magna Carta declared in one line:
“'To no one will we sell, to no one deny or delay right or justice”.
We have recommended that principle to the rest of the world and have in part fought wars to preserve it. It set our legal system apart from the world for many years and it was held up as an exemplar. We have gone far enough. There is no proven case for change. This attempt to appear tough on terrorism is a shabby charade that is unworthy of a democratic process, and we should reject it. I beg to move.
I support the amendment. Many Members of the Committee will have seen the report in the Times on 6 October, which said that the Government have effectively dropped the proposals to extend pre-charge detention to 42 days and that they would,
“effectively confine the controversial proposal … to the legislative dustbin”.
So why are we debating this again? It is a criminal offence to waste police time and I wonder whether that offence also extends to wasting the time of your Lordship’s House.
This debate is an unhelpful distraction. It distracts us at a time when we should be concentrating our energies on more pressing issues: that is, the economy; other sensitive parts of this Bill, such as inquiries and inquests; post-charge questioning, which we on these Benches would like to see play a useful role in terrorist investigations, but with suitable safeguards; or things that will really aid us in the prosecution of terrorism, such as the use of intercept evidence, a measure that should be in the Bill, but is not.
The proposal to extend pre-charge detention fails on three significant grounds; namely, necessity, desirability and practicability. Let me be clear: the proposal is unnecessary, undesirable and unworkable. I shall address each of those points briefly. When the Government first put forward the proposal to extend pre-charge detention from the current 28-day limit, we made it clear that there needs to be evidence to support that; that we would need to see this evidence; that the Government need to make the case; and that we would consider it seriously. On these Benches, we take the terrorist threat to this country every bit as seriously as do the Government. As I said at Second Reading, there is no difference between us on that. Wherever possible, we strive for agreement on security matters.
But the Government have signally failed to demonstrate need. What they have relied on is a hypothetical scenario—what they call “pragmatic inference”—to make the case. Sir Ian Blair has said explicitly,
“We have never put forward a case that there is evidence of a need for an extension”.
The Government have relied primarily on the complexity of modern plots and, therefore, the difficulty of investigation. If that constituted overwhelming justification, one would expect that those who had to mount the prosecution would indicate their support for the measure.
But just the opposite is the case. The Director of Public Prosecutions has made clear that he does not think that it is necessary. The prosecutors do not perceive any need for the period of 28 days to be increased. He collapsed the Government’s case for a hypothetical situation. He said:
“It is possible to set up all sorts of hypotheses. Anything is possible. The question is whether it is remotely likely”.
Many other experienced figures have similarly said that it is unnecessary, including the noble and learned Lord, Lord Falconer, a former Lord Chancellor, the noble and learned Lord, Lord Goldsmith, a former Attorney-General, the Lord Advocate and many former Lord Advocates, some of whom are here today. In its report dated 8 October, the Joint Committee on Human Rights commented that it is hard,
“to see how the Government can plausibly claim that there is a pressing necessity to extend further the maximum period … when the existing power to detain for more than 14 days … has only ever been used in a small number of cases and has not been used at all for well over a year”.
So the Government’s case is not good enough as grounds for taking power to keep people in detention for periods much longer than any other comparable democracy thinks necessary to confront the terrorist threat, a point just made by the noble Lord, Lord Dear. Moreover, Parliament must balance the evidence for this measure, such as it is, against its desirability—my second point—and against its wider effects. In his very powerful intervention, the noble Lord, Lord Dear, repeated a remark he made some time ago to the effect that the previously described proposal to extend pre-charge detention to 42 days was a propaganda coup and a recruiting sergeant for al-Qaeda. The Home Office’s own risk assessment for the proposal stated,
“It puts at risk the flow of community intelligence”.
That is the Government’s own department. Community intelligence is a priority area for counterterrorism work. We have not got it quite right yet, but these proposals will hinder us unnecessarily in trying to get it right, and I personally attach a great deal of importance to the development of community intelligence. Let me be clear: these are security warnings. The proposal to extend pre-charge detention has real potential security drawbacks.
Let us assume for a moment that if this proposal was desirable and necessary, which it is not, would we consider it workable? The answer is no. The former Home Secretary, Charles Clarke, made clear his view that the procedures to be established are so cumbersome that the police and the prosecuting authorities will be most unlikely to seek their extension. And as the noble Lord, Lord Dear, mentioned, Mr Andy Hayman, the former assistant commissioner for special operations, wrote recently that the process the police and the prosecution would have to go through just will not work. We have to take the comments of the police in this respect seriously since they will be involved in trying to make these procedures work. Indeed, Mr Hayman went further and wrote that at the height of a terrorist investigation it would distract efforts to solve or prevent the crime by forcing the police to prepare a “politically acceptable” case for an extension. The last thing we need in such circumstances is the taint of spinning.
That leads me to the final objection to this proposal. The apparent safeguards the Government have put in place not only make the proposal unworkable, they also make it constitutionally worrying. The Constitution Committee said that they run the risk of conflating the roles of Parliament and the judiciary. They will place on Parliament demands to act in a quasi-judicial manner. The safeguards are also inadequate to attain their ostensible objective—the prevention of the abuse of power. The excessively broad drafting of these provisions could actually lead to such abuses. Were Parliament able to conduct the sort of scrutiny of an order for the reserved power that it should if it were to provide a real safeguard against the abuse of executive power, it would be in great danger of prejudicing any subsequent trial, with all the adverse consequences for justice that could entail.
On the other hand, if it were to avoid that danger, Parliament would be prohibited from conducting real scrutiny. The Secretary of State has herself said that much the greater part of the material aspects could not be debated by Parliament, so it would not provide any real safeguard. Indeed, it would put itself in danger of conniving with acts over which it had no real control. That would not be worthy of either House, nor of our democracy, and the Government should not put forward proposals which risk the reputation of Parliament in this way. As the noble Baroness, Lady Manningham-Buller, said in her maiden speech, we are all trying to facilitate the work of the police, intelligence and security services to detect and counter terrorism, and we are all agreed on that. But to fulfil our constitutional role, we must ensure that our laws in this sensitive area of national life are relevant and proportionate. The proposal to extend pre-charge detention to 42 days fails on both grounds, and that is why we oppose it.
We on these Benches support the amendment so powerfully moved by the noble Lord, Lord Dear. Anyone who has travelled from British airports over the past two years will know that they have had to carry their toothpaste, shaving cream and toiletries in a clear plastic bag and they have been reduced to carrying one item of luggage. It has not been the easiest time for travellers.
This is a result of Operation Overt. Twenty-four suspects—young Muslim men—were arrested on the night of 9 August 2006. After 12 days, on 21 August, 11 were charged with conspiracy to blow up aeroplanes in flight by mixing liquids together, carried, it is said, in Lucozade bottles, into an explosive concoction. An application to extend time beyond 14 days was granted in respect of another nine. Of these, six were subsequently charged—two on 15 August, some 16 days after arrest; three on 30 August, after 21 days; and three were released after being held for, respectively, 24 days, 27 days and 27-and-a-half days. Of the 21 who were charged, only eight eventually faced trial some 18 months later. On 8 September, only four weeks ago, two years after the original arrests, the jury, after more than 50 hours of deliberations, was unable to agree any verdict against seven of the defendants relating to the plot to blow up aircraft. Three were, however, found guilty of other conspiracy to murder charges; one was acquitted entirely. So the total bag out of the 24 who were originally arrested was three convictions unrelated to the airline plot. I say no more about it for the reason the intervention was made just now. I am told that there may be retrials and that the Government are facing expensive civil litigation from airlines who lost millions from the restrictions imposed upon them.
But would the outcome of these trials have been any different if those people had been kept without charge for 42 days? The period for detention in Spain is 14 days. Twenty-nine suspects were arrested for the Madrid bombings and there were 21 convictions. I made the point at Second Reading that the charging of a suspect does not for a moment inhibit the continuing investigation of an alleged offence. So there is no case whatever for suggesting that 42 days will bring about a conviction when 28 days will not. The Home Office agrees because, in its consultation paper, Options for Pre-Charge Detention in Terrorism Cases, published in July 2007, it acknowledged that there has been no case in which a suspect was released but a higher limit than 28 days would definitely have led to a charge.
My noble friend Lord Carlile put it more elegantly in his evidence to the Commons Home Affairs Committee in October last year when he said,
“in an intelligent argument on this issue a number of days is entirely arbitrary, so that you cannot say with logical empirical analysis that 14 or 28 or 30 or 56 or 90 days—or any particular number of days—is actually the perfect cut-off ”,
although he recognised that Parliament would impose a cut-off. His sayings and writings have been pored over on the Government Benches with a zeal matched only by Scotland’s famous son, Alexander Cruden, when he created his 1737 concordance of the Bible. But they seem to have missed this one. I sincerely hope that my noble friend Lord Carlile will develop the argument he advanced last October for a proper and fully human rights-compliant system of judicial control of detention before charge. He does not need any help from me.
A fundamental concern arises from the proposition that a young Muslim—and they all have been young Muslims—should be arrested on nothing more than the words of an officer, “I believe you to be a terrorist”. According to the highly experienced defence barrister, Ali Naseem Bajwa, who gave evidence to the Joint Committee on Human Rights, detainees are taken to the police station and told nothing for many days of the basis upon which they are there. In Operation Overt, it emerged that disclosure was virtually non-existent for the first week of custody. Disclosure is, of course, where the police tell the defence solicitor, if there is one, of the nature of the matters about which they intend to question the suspect. Over the first four days of their detention, there were only three hours, on average, of total questioning of each detainee—three hours over four days each. Rather than being about any offence they may have committed, the questioning was mostly about their personal circumstances and background. Those who were charged after 15 days—the first group—were interviewed in total for 13 to 14 hours each. That is rather less than one hour a day. Those who lingered on to the end of the 28-day period before being released spent only the same amount of time overall—13 to 14 hours—in interview. Many days of their last 15 passed without any interview at all; the average was for 10 minutes a day. So extending time limits for questioning suspects seems to encourage a very leisurely approach.
The essential thing to remember is that if a detainee is held without charging, it means that the police have no reasonable suspicion that he has committed any terrorist offence at all, even the mildest form of terrorist offence—that of preparation for committing a terrorist offence. If they do have such evidence, they are under a legal duty to charge him.
In September 2005, the Director of Public Prosecutions, Sir Ken Macdonald, issued to prosecutors an explanatory guide on the application of the threshold test, which allows the prosecutor to charge where there is no more than a reasonable suspicion that an offence has been committed. In terrorist cases, that reasonable suspicion may arise on evidence which would be inadmissible in court—for example, intelligence or intercept evidence. That guide was, however, not made public. Indeed, it does not seem to have reached its intended target for some time: Deputy Assistant Commissioner Clarke, head of the Met terrorist branch, told the Home Affairs Committee in February 2006 that he did not think the threshold test was at all applicable to these cases. However, Sir Ken Macdonald, the retiring DPP, told the Home Affairs Committee last December that,
“given the nature of the threshold test, the evidence is only required to demonstrate a reasonable suspicion that the defendant committed the offence. I can only say to you that our experience so far has been that we have managed and managed reasonably comfortably”.
In my Second Reading speech, I outlined the practical reasons why detention without charge will lead to a drying up of intelligence to the security services, upon which all investigation depends, and how that will inevitably increase terrorism and diminish the security of the people of this country. Today I focus upon the weaknesses and the so-called extension hearings, where the DPP or a Crown prosecutor acting with his consent, can apply to a senior judge for extensions of time. Those extensions will continue to be governed by Schedule 8 to the Terrorism Act, which the Bill seeks to amend.
Those weaknesses are these: the applications to extend time beyond the original 14 days may be made ex parte. In other words, the hearing, or part of a hearing, may be held between the prosecution and the judge in private and in the absence of the accused, or of anybody representing him. Secondly, information may be withheld from the detainee or his lawyers so that he is not told the state of play in the investigation against him. Mr Bajwa described how in one case he was given three applications, identically worded, to support three applications for more time in respect of the same detainee—the same wording for seven to 14 days as from 14 days to 21 and 21 to 28. In other words, nothing further was disclosed as to the state of the investigation.
Thirdly, the detainee has no entitlement to be brought in person before the judge. He may be dealt with by videolink from the hallway of Paddington Green police station. The judge, who is supposed to be monitoring his welfare, has the opportunity to see the detainee only on television. It is a brave person who complains about the circumstances of his detention when surrounded by his jailers.
Fourthly, according to the Crown Prosecution Service, cross-examination of the senior investigating officer to test the strength of the application is not a legal entitlement. The senior officer who is making the application is not required to answer questions by the detainee or his lawyer on the reasonableness of the application that he is making.
It is therefore no surprise that no application for extension has ever been refused and there has been only one occasion on which the number of days has been reduced. You can see why. The police tell the judge that they have plenty of irons in the fire. They say, “The investigation’s going well. You must trust us. If anything should turn up in our investigations, we want the detainee there so that we can question him about it”.
These are not proper, full, adversarial hearings. As the Joint Committee on Human Rights put it in its ninth report, issued on 7 February, the Bill contains,
“no additional judicial safeguards … and the existing … safeguards do not provide a proper opportunity, at a truly judicial hearing at which the parties are on equal terms, to challenge the reasonableness of the suspicion on the basis of which they are detained”.
In other words, the Government are using the judiciary as a convenient cover to give an aura of respectability to what is essentially executive detention.
I will not weary the Committee with pointing out the innumerable breaches of the European Convention on Human Rights; the injustice and the lack of fairness are obvious. Nor do I propose to dwell on the farce of asking Members of Parliament to vote on whether an individual should be held in custody on the basis of a redacted statement provided by the Home Secretary to the obvious prejudice of any future trial, which is not just unconstitutional but contemptible. I join all noble Lords who care for fairness and justice in calling for these proposals to be thrown out and for our real security to be maintained by sticking to the values on which the civilisation of this country depends.
It is not a comfortable or happy position to find myself speaking and in due course, I trust, voting against my own party, but I have added my name to the amendment because the proposals in Clauses 22 to 33 are dangerously wrong in principle and wholly unnecessary in practice. In the Bill, we are in real danger of sacrificing something of real importance for no good reason—indeed, totally unnecessarily. As the noble Lord, Lord Dear, reminded us, our constitutional safeguards, which took centuries of struggle to achieve, are fragile. I am afraid that an important element of them could be destroyed in the eight minutes that it takes to vote in this House.
I apologise. I certainly did not support 28 days because there is a principle, and 28 days is beyond it. I hope that I shall come shortly to the point raised by the noble Lord.
It is surely an essential ingredient of living in what we still call a free country that we are free from the fear of being locked up without charge. On occasions—I think that this is the point of the noble Lord, Lord Foulkes—we accept that it is necessary in the interests of public safety to restrict that principle. When it is, it is surely once again the mark of a free country that we do so for the minimum time possible. We should not throw away any of our liberties as we are asked to do by the Bill just in case it may become necessary in future or for no compelling reason or as a result of speculation, because, once we go down that path and unless someone says “Stop”, that road leads on to indefinite detention, which others to their shame have followed.
Another important principle of living in a free society is surely that the law should not only apply but also be seen to apply equally to everyone. As the noble Lord, Lord Ahmed, and the right reverend Prelate the Bishop of Chelmsford said at Second Reading, these provisions are viewed by many in the Muslim communities, which do not support terrorism, as a confirmation that those in power make special rules for them and regard their freedoms more lightly than those of ordinary criminals, for whom the limit of detention without charge is lower. In the war against terrorism, as the noble Baroness, Lady Neville-Jones, has indicated, these provisions are an own goal.
Attempts have been made to persuade both Houses that this legislation contains meaningful safeguards, but, as others—notably, the noble Lord, Lord Thomas—have pointed out, it does nothing of the sort. There cannot be effective judicial oversight before a person is charged because there is no sufficient evidence for a court to test. If there were, the detainee would have had to have been charged. Nor can there be effective parliamentary oversight, because, as others have already said, Parliament cannot examine individual cases pre-trial because the result would be prejudice, which would prevent the trial ultimately taking place. The so-called safeguards therefore have as much substance as the back of the envelope on which they appear to have been drafted in order to push these measures past a vote in another place.
There is a major difference, which the noble Lord, Lord Clinton-Davis, will recognise, between somebody who is detained without having been charged and then can apply for bail, and somebody who is detained not knowing the nature of the allegation against them. I take that to be a major distinction and at the core of what we are talking about here.
Just before I rose to speak, I noticed the noble and learned Lord, Lord Falconer of Thoroton, straining like a greyhound in the slips, and I am sure that he will speak shortly on this matter because he has done so most eloquently both in this Chamber and in the media.
These proposals are wholly unnecessary because the CPS has changed the basis on which most terrorist suspects are charged. We have already had some indication of it from others, but perhaps I may spell it out: most criminal charges are brought only if the prosecuting authority considers that, on the evidence currently available to it, there is a greater than 50 per cent chance of a successful prosecution. That decision must be made within 14 days of detention, except in terrorist cases, where, as a result of the earlier legislation which this Chamber passed with the assistance of the noble Lord, the authorities have 28 days to make the decision. However, the Crown Prosecution Service has adopted a different basis of charge in the majority of terrorist cases and now uses what it calls the threshold test, which permits a detainee to be charged where the evidence to show a greater than 50 per cent prospect of conviction is not yet available but the authorities on reasonable grounds believe that it will be available before trial, and where they believe that the suspect, if released, would be a danger to the public. In practice, therefore, the time available to the police and the Crown Prosecution Service is not 14, 28 or 90 days—it is the whole of the period up to trial, which is commonly a year to 18 months. During that time, investigations can and do continue and evidence can be served on the defence right up to the end of the presentation of the prosecution case in court. As the noble and learned Lord, Lord Falconer of Thoroton, said at Second Reading,
“there is no need for an artificial deadline”.—[Official Report, 8/7/08; col. 645.]
I am bound to say that I wonder what on earth we are doing here. It is very hard to see whether there is some perceived political gain—I hope that that is not the reason—or whether somebody is afraid of backing down for fear of appearing weak. I hope that that is not the case either.
I always have the utmost respect for my noble friend’s arguments. Would she not agree that the time that is needed to investigate the complexity of future terrorist plans may be virtually as long as she has said it takes to go to trial? This is a matter of life against death, and the threat of death involving computers and their operations may be such that the investigation may require—that is all that is being said—a very long period indeed.
I totally accept that, but I believe that that period is currently available and practice is showing that that is exactly what is happening. But what I believe we are being asked to do in this Committee today is to destroy some important principles underpinning our freedoms, which are under threat here for no good reason. Whichever side of the Chamber one sits on, I believe that this is one of those occasions when we all need to say “Stop”, and say it loudly.
I remind the Committee at the outset of my remarks of my interest in this matter as independent reviewer of the Terrorism Act 2000 and of other statutory provisions. The noble Baroness, Lady Mallalieu, who has just spoken, knows my very considerable regard for her, both as a Member of this Chamber and as a lawyer. She, I am sure, will accept that although I disagree with her on this occasion we are aiming at exactly the same end—the same free society, in which the same people, the general citizenry of this country, can move about freely and without danger to their lives, while at the same time protecting individuals who may be wrongly accused from arbitrary action by the state. That is the difficult balance that we are trying to sustain in this debate and many others under the counterterrorism laws.
I did not speak at Second Reading because I was absent abroad as independent reviewer, for which I apologise. I am anxious not to abuse my position as independent reviewer by repeated speeches and will not do so; this may well be the only speech that I make in Committee, but I feel that I must set out my views on this important subject. I should add that I have a self-denying ordinance never to vote on these subjects, because I regard it as taking too much advantage of my position.
Consistency is not always a virtue, but I have remained consistent, publicly and privately, on these issues throughout recent times. Of course, I recognise—and I remind the Committee—that my opinion is but one among many, albeit one that is briefed and refreshed, if necessary, on a daily basis, and which I try to keep up to date. I shall try to assist your Lordships, or those at least who may possibly still be open-minded about this issue, of whom I am sure there are a great many, by setting out my views and judgment on the matter. If it is rejected, so be it.
Not a day has passed since this proposal was first made without my debating it in my own mind, taking into account the views of the many who are opposed to my opinion on this matter and whose opinions I respect. I acknowledge that for many this issue is difficult because their knowledge of changing terrorism issues and the changing picture will not necessarily be up to date. I value this debate. It is healthy for our law and democracy that serious people can disagree seriously about serious issues, as long as we keep it at that level of seriousness, which has not always been the case.
As a lifelong Liberal—I choose that word with great care and the largest “L” that I can find—it is uncomfortable to disagree with those with whom I would instinctively expect to agree. It would be so much easier if I could wake up in the morning and turn to my noble friend Lord Thomas of Gresford, whom I have known since 1971 as a very close colleague, and say, “Martin, you are right”. Life would be so much simpler. But I fear that some of the arguments that I have heard—not today but in earlier debates on this subject, in and out of this House and the other place—must be disposed of because they are disqualified from serious debate. After Second Reading, I heard one Member of this House say, “No serious person could ever support these proposals”. I disqualify that on the grounds of arrogance. I have heard it said that this is a disaster for civil liberties. For reasons that I shall illustrate, I disqualify that on the grounds of disproportionality and loose logic.
I have heard it said that this is a breach of Magna Carta. I disqualify that on the grounds of misrepresentation and over-reliance on a document that, although of its time, by today's values is sexist and racist. I would expect Liberty to be marching in the streets against it. It proposes a situation that is far worse—
I absolutely agree with my noble friend. Later, I shall say that in my view these proposals are within the European Convention on Human Rights. I welcome his intervention.
The next argument that I disqualify—and there is a shameful advertisement by Liberty in today's Guardian—is that we propose a situation far worse than that in the United States, France and other comparable countries. Does anyone in this House really believe that charging someone with association de malfaiteurs is an adequate basis for keeping people in custody for a year and longer? I do not. Does anyone in this House believe that the French system of arresting people, not informing their lawyers and interviewing them without a tape recording is a proper basis for interrogation? A leading French juge d’instruction smiled when he described it to me as—I will not attempt to imitate his accent—“a very productive period of interrogation, monsieur”.
As for the United States of America, the noble Lord, Lord Dear—I say this to him with great respect—misrepresented the position in a country in which at least one citizen has been deprived of his citizenship rights and has been kept in custody for years, and where executive witness detention—not executive defendant detention—can keep people in custody for up to a year at a time. Let us make fair comparisons. I am always willing to meet fair comparisons, but not the traducing comparisons that we sometimes see.
I have also heard it said that those of us who broadly support this proposal are proposing internment. I wrote a report on the definition of terrorism and studied every terrorism law in the known world. I have looked at the history of internment over the past 70 years. Perhaps I can simply dispose of that argument by saying that I hope that everyone in this House, including those who have looked at the most recent record of internment in this country, shares Churchill's description of internment as,
“in the highest degree odious”.
I shall now explain why, with one significant misgiving, I support the proposal that we are debating. I have five main reasons. The first is the range and complexity of the risk that we face, which is changing all the time. The risks of violent jihadist terrorism that we face now come from many places and countries. Some are domestic and home grown. Terrorism of that kind threatens places of mass public aggregation in this country—for example, the safety of our children as they get on the bus to go to school in central London, or young people around the country who gather in, if your Lordships will forgive the old-fashioned expression, a dance hall to enjoy themselves.
However, the risk of terrorism is now potentially far more pervasive. Terrorism potentially involving al-Qaeda supporters now spreads anywhere in the world. It includes, for example, a significant threat—noble Lords should listen carefully to this because it is true—to humanitarian efforts in what is sometimes called the “deep field”. Aid and development are seen as support for apostate regimes, hence the attack of 11 December 2007 on the United Nations headquarters in Algiers. All this is planned in an extremely complex international network, part of which is likely to be in this country and will be very difficult to unravel.
The manifestations of terrorism around the world now include piracy in the Horn of Africa—on which the French Government have been rather firmer than the United Kingdom Government—and franchised al-Qaeda activities, as they are sometimes called, in north Africa, with global planning connections. It is now clear that most al-Qaeda networks have some element of contact between them. The word “unravelling” is entirely apposite to the kind of evidence that the authorities may have to deal with after arrest. In addition it has to be said, recognising what is happening in Pakistan, that the less than stable new Government of Pakistan are thought by many experts to represent an increased and significant security threat not just in Pakistan but to Europe and to its citizens in their own countries.
The final point about risk is serious; it is about regeneration. There is evidence, which I think that those who are expert in the field and fully up to date will recognise, that some networks have regenerated themselves repeatedly after disruption. It is important to be able to penetrate the evidence about such networks in order to prevent regeneration.
I turn next to evidential challenge. We have already heard something in this debate about computers, and a noble Lord opposite helpfully intervened to point out how complex these cases can be. As has already been said, the risks of which I have spoken are posed by determined and often clever people. Al-Qaeda will be listening to every word of this debate to see how much quarter is given by this Parliament. It is sometimes thought that its ideas cross the world at high speed, and they do. But the problem is that its ideas cross the world not only at very high speed but at very slow speed, too—on foot, on ships, on planes. It is difficult for the authorities to bring together those strands of plotting that put the public at risk. It is, as has been said, highly trained in counter-intelligence, and it is learning all the time. It would be unwise in a debate such as this one to describe what it knows or to speculate what it does not know, but it does not require much imagination. One problem with an evidential challenge is that its desire to succeed is driven by a religious imperative, albeit a heretical one, in which reason can disappear into the long grass.
As has been said, making the linkages of evidence can be painstaking. We need to have appropriate and fair means to avoid releasing prematurely those who are determined to regenerate their activity and who will set out to achieve their ends come what may. Without going into detail, there really is evidence of that.
The potential for damage can be stated in a few words: deaths between the tens and the thousands, with the numbers likely to be increased by suicide bombing. The authorities in this country have been fantastically successful in disrupting this activity. Putting it at its lowest, many hundreds of lives have been saved by them through such disruptions. The maximum of an extra 12 days, controlled as it would be, could in my view assist those disruptions.
The enduring integrity of the law is very important to me. The one thing I dread is a horrendous event in which an airplane or a huge bomb is driven into a crowd of thousands, resulting in a huge number of deaths. We can imagine the headlines the following day. We can imagine the understandable reaction in the elected House. There would also be a very strong reaction in this House, although it would undoubtedly be more measured. I want to see an end to the constant introduction of new counterterrorism law. I want us to have a counterterrorism law that we can consolidate, and I mean consolidate formally if at all possible—a codified, robust counterterrorism law which is good enough to endure, and which would endure a massive atrocity. If, heaven help us, such an atrocity takes place, I want to be able to stand up as independent reviewer and say to the Minister, as he faces pressure from his own Back-Benches in both Houses, “We need no more because we’ve done the job already”.
We have heard it said that we are talking about the thin end of the wedge, but I see no such argument here. I see finality in the law of detention with appropriate protection from the judges. I say to my noble friend Lord Lester that one needs only to look at what the judges have done in relation to counterterrorism law to see the level of protection that they give. I spend a lot of time talking to officials in the Home Office and a few judicial names trip off their tongues on a daily basis, knowing that they face being tested on that daily basis by those judges. I cite as an example a case at first instance, not an appellate case, R (I) v City of Westminster Magistrates’ Court and the Chief Constable of Manchester Police, decided on 28 August this year by Mr Justice Collins, as one of many examples of the courts being robust in testing the law, but saying that it complies with the European Convention on Human Rights. I believe there is no real evidence that it does not comply with the European Convention.
We should also bear in mind that we have been here before. The noble Lord, Lord Newton of Braintree, chaired a committee of Privy Counsellors some years ago. I apologise for taking so much of the Committee’s time, but I feel that I should speak once. The Newton committee spoke of giving the judges more inquisitorial power. That is exactly what we have done.
As regards proportionality, how many people are these new proposals likely to affect adversely? Let us assume that the overall effect is adverse in terms of keeping people in custody. I believe that these laws might affect a maximum of five or six people in the next four or five years. This is not the end of civil liberties as we know them. They could save many lives at home and abroad, including those of people in the humanitarian camps which the United Nations and other bodies maintain abroad. I believe, in fact, that these laws could have the effect of reducing the detention periods of some people. It is undoubtedly the case that judicial rigour would be strengthened as a result of these enactments, and I would expect the judges, in an increasingly inquisitorial role, to keep detention to a minimum.
I turn finally to my misgivings. I have real misgivings about the parliamentary role as set out in the Bill. I do not believe that the parliamentary part of this adds anything useful whatever to the provisions. It does not make them better; it does not make them worse; it does not make them safer and it does not make them less safe. They are a fig leaf. In my view, nothing would be lost if it simply disappeared from the Bill.
Will the noble Lord permit me to intervene to ask two questions? He said that he wants to see finality and consolidation. Is he really saying that 42 days is so wonderful that it will solve the problems for all time? Is he further saying that the enormously complicated system in the Bill—perhaps with the removal of the point about Parliament that he has just referred to—is a system onto which we wish to consolidate for all time?
The noble Lord and I have been around in Welsh politics together for a very long time, and Cassandra is an honorary Welshwoman. We shall have to wait and see; I hope that there are not snakes coming from my tongue at this moment.
This is not my Government. If I thought that the Government were wrong, as I have on many occasions, I would immediately be critical of them. I have criticised many things in counterterrorism law. There is the use of the word “glorifying” as part of a criminal charge, which frankly I deprecate; the long duration of some control orders, which makes me extremely uncomfortable; and the excessive use, in the tens of thousands, of stop and search without suspicion. I am concerned about the inquest proposals as they stand and I am sympathetic to the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, in relation to post-charge questioning, which is no quick fix and is actually quite a tricky proposal that may need further detailed consideration.
On this proposal, the chorus of disapproval is misdirected. I say to the noble Baroness, Lady Mallalieu, that, if necessary, I am prepared to stand with her on the barricades. We could be the last man and woman standing to preserve civil liberties in this country, even if we have a slightly different view of the balance. The way in which she presented the threat, as she would have it, to the balance is misdirected.
Before I sit down, I shall refer briefly to the threshold test, the effect of which is to charge people on a lower standard and keep them in custody for months, if not years. How is that more civil-liberties compatible than a maximum additional detention period of 14 days, subject to these safeguards?
Before the noble Lord sits down, it is important that lay Members of the Committee understand this as well as legal Members. I have not heard the noble Lord reply to the comment of the noble Baroness, Lady Mallalieu, that under the existing law it is possible to continue looking for evidence until the minute before the trial.
I thought that I had just replied to that point. My point is that if you charge people by a lower standard than is normal, the threshold test, you can keep them in custody for as long as you like. Of course they can make a bail application, but even the noble Baroness, with her persuasive skills, would have trouble persuading a judge at the Old Bailey that someone charged under the threshold test with a serious terrorism offence should have bail. The chances are that they would remain in custody for a multiplier of the extra 14 days maximum allowed by the Bill.
That is what I think, what I believe and what I advise. I hope that it will have been of some value in this debate. I apologise for taking so much time.
I have the privilege of being a member of the Joint Committee on Human Rights, which is extremely ably chaired by a Labour Member of another place. My colleagues in this House are the noble Baroness, Lady Stern, the noble Lord, Lord Lester, my noble friend Lord Bowness, and the noble and learned Lord, Lord Morris of Aberavon. The JCHR has published 13 reports on this issue. Unlike on one or two other occasions, it has been absolutely solid, like the shield wall at Thermopylae—although on this occasion there was no Theban shepherd to take the Persians around the back. We have been unanimous and strong in saying that 42 days is unnecessary.
It is interesting that the amendment has not been moved by the normal gang of civil libertarians, such as the noble Baroness, Lady Kennedy, or myself, but by “serious plod” and “serious Bond girl”. They are serious people who are not mucking about; they know exactly what the threat is and see no need for this extension. The noble Baroness, Lady Manningham-Buller, made a totally non-controversial speech at Second Reading and said the extension was unnecessary. The Director of Public Prosecutions says it is unnecessary. In a minute, the noble and learned Lord, Lord Falconer, will say it is unnecessary. He did not say that last time, when he said that 90 days was necessary. One is entitled to say that there is great joy in heaven when one sinner repenteth. The noble Lord, Lord West, agreed, too, until he was kneecapped by the Prime Minister at a breakfast meeting before going on the wireless.
As I have said, our committee published 13 reports on this issue, all of which have said the same thing. Since the most recent report, there has been opposition from the Parliamentary Assembly of the Council of Europe (PACE), the United Nations Human Rights Committee, and the European Committee for the Prevention of Torture—
I remind the noble Earl that the Parliamentary Assembly of the Council of Europe has done no such thing. I was heavily involved in the debate in the Legal Affairs Committee at the Council of Europe and in the debate in the plenary session the week before last. It produced a draft report, and the noble Earl should look at the only conclusion in that draft report.
Even the UN Human Rights Committee and the European Committee for the Prevention of Torture commented adversely on the proposal. PACE states that 42 days are incompatible with the European Convention on Human Rights. Her Majesty's Government have said that there is a growing threat of terrorism that is greater than last year. The noble Lord, Lord Carlile, produced a string of horrible possibilities, all of which we accept. We do not disagree that those possibilities are there. We have asked the Home Secretary several times, “Please can you give us evidence that the threat has grown?” and answer came there none. In December last year, we wrote to Jonathan Evans, the director-general of the Security Service, and he has not even bothered to answer the letter.
The use of the 28-day period has already been referred to. In the past year, no one has been detained for more than 14 days and before that very few people were detained beyond 14 days. The noble Lord, Lord Thomas of Gresford, set out with great eloquence and accuracy exactly what has happened to people under the 28-day period. Therefore, there is no need to extend the period because there is no increased threat.
I refer the noble Earl to the speech made publicly by the head of the Security Service, MI5, about the huge increase in the threat. In addition, we have doubled the number of people working for the security services. Why would we do that if there were not an increased threat? What the noble Earl said just now is manifestly wrong, as were all his previous remarks.
I shall stick by the evidence that we heard in the Joint Committee on Human Rights and by the unanimous agreement of my colleagues that what I say is accurate. I reiterate that we have asked the Home Secretary several times for evidence of an increased threat and she has not given any.
It is not for me to accept the evidence; it is for the Government, when they make a statement saying that the threat has increased, to give the evidence that it has, and they have not given any for me to accept or not accept. It is all right for noble Lords to witter on over there saying that they disagree with me—I know that they do—but I am telling the Committee what we heard in the Joint Committee on Human Rights, and all of us in the Joint Committee will agree with that.
I come to the matter of parliamentary scrutiny. It is worth reading out what tests have to be applied. They are,
“to obtain relevant evidence, whether by questioning him or otherwise … to preserve relevant evidence, or … pending the result of an examination or analysis of any such evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining such evidence ... to obtain, whether by questioning or otherwise, evidence”.
Those are all questions that have to be asked by a court and by judges. They cannot be debated in Parliament because the moment they are, there will be interference in the due process of law when the chap comes up for trial. The result will be not a conviction but the release of someone because of interference by Parliament. Is that what the noble Lord wants? It is not what I want. I want the person who is guilty of an offence to be charged, locked up and sent away for a long time. That is right and proper, and it is the way that I hope we do things in this country.
I am addressing your Lordships on the part of the Joint Committee on Human Rights. We all agreed that I should make this speech—at least, that is what I assumed and it is what the Clerk said—and, in any case, I am précising the JCHR’s report for your Lordships.
I hear the noble Earl’s comment that my successor did not reply to his letter. I say merely that just because the Joint Committee on Human Rights has not seen what it would like by way of evidence of or intelligence on the increased threat does not mean that such a threat does not exist and has increased.
I have been saying that we asked for evidence and have not had it. Of course, the successor of the noble Baroness does not have to reply in detail to what we ask. I accept that, but he could have said, “I am very sorry, I cannot answer your letter”. Not to reply to a parliamentary Joint Committee seems odd.
We have been through the lack of evidence and the inability of Parliament to supervise properly, so I hope that with a resounding majority your Lordships will reject this ill thought-out and bad proposal.
If I thought that this provision for 42 days would make any difference in the fight against terrorism I would unhesitatingly support it. I agree completely with what the noble Lord, Lord Carlile of Berriew, said about the level and nature of the threat. The speech of the noble Earl, Lord Onslow, although delivered in good part, did not have the ring of authority that the intervention of the noble Baroness, Lady Manningham-Buller, had. We should not treat the situation as being one in which you have to prove the level of the threat.
I approach the debate on the following basis: there is a very substantial threat that is a danger to the whole community and, if extending the number of days would assist in bringing terrorists to justice, we should do it. Unfortunately I do not accept that proposition. I accept what has been said by the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Carlile, both of whose speeches were excellent—although I disagree with the final conclusion of the noble Lord, Lord Carlile—about a huge amount of work having to be done involving the computers, the foreign element, and making intelligence into evidence that can be produced in court. Anyone who has been involved in these cases, such as the noble Baronesses, Lady Kennedy and Lady Mallalieu, and the noble Lord, Lord Carlile, has seen the piles of paper reflecting the huge amount of work. The critical point was made by my noble friend Lady Mallalieu—that we have recognised that you cannot possibly get that material together in 14, 28 or even 90 days. I supported both privately and publicly the increase to 90 days because I believed that the computer problems, the international problems and the fact that you had to arrest early for fear that people might be killed if you did not do so justified the extension to give the intelligence services, the police and prosecutors as much time as possible in which to construct a case.
That proposition was rejected. What happened subsequently? A pre-existing provision in the prosecutor’s code—the threshold test, which my noble friend Lady Mallalieu described—allows you to bring charges when you have a reasonable suspicion and a likelihood that you will get the evidence within a reasonable time. As the noble Lord, Lord Carlile, said, the basis on which it operates has changed in practice. That has worked. I listened incredibly carefully to what he said, because I hold him in the greatest respect, and he also has the knowledge, having been the independent reviewer. If he had said, “Well, I don’t think it would work”, I would have been influenced by that. Instead, he railed against the threshold test. He said that it is a bad thing. It may be a bad or a good thing, but it is there. It is the law that prosecutors currently operate. The idea that extending it from 28 days to 42 days is going to make a difference is utterly fanciful.
I have read the Home Office’s documents very carefully to seek to justify the extension from 28 to 42 days. The Home Office accepts that the threshold test is now used extensively in terrorist cases and that where there is a reasonable suspicion and a likelihood of getting the evidence it is not necessary to have a 51 per cent chance. However, it says that there is a gap when it might not be possible to get the evidence “within a reasonable time”. I have thought very carefully about what that could mean. Are there judges in this country who, when they are told that the evidence could be obtained over the next six months, will be influenced by the fact, and say that if you had had 14 days more they might allow the prosecution to continue? It is utter nonsense.
I have experience of working with the Home Office, and I have the greatest possible admiration for Home Office officials. They write with great clarity, and if that is the best they can do to defend 42 days, it is clear—just as it was clear from the speech made by the noble Lord, Lord Carlile, when, instead of saying that the threshold test does not work, he railed against it—that we do not need this extension from 28 to 42 days. Therefore, with a heavy heart, because I am utterly sympathetic to the Government's fight against terrorism and I completely agree with the analysis made by the noble Lord, Lord Carlile, of how big the threat is, I say that there is no benefit in this. It does not help at all. With a heavy heart, I am going to vote against the Government.
My noble and learned friend speaks with as much facility as Home Office officials draft their responses. I have spoken to senior police officers, and surely the point about the threshold test is that it is necessary to demonstrate that you reasonably expect evidence to appear. If you are still wading through masses of computer printouts and masses of data, how can you certify to a court that you reasonably expect that evidence to appear? Therefore, the threshold test does not apply in these circumstances.
But the reasonable suspicion is that somebody has appeared in particular circumstances and is clearly associating. There are clearly issues that require further investigation, but the evidence is going to emerge only by careful analysis of some of the material that has been seized.
No. The reasonable suspicion is the reasonable suspicion that the person has committed a criminal offence. That is what justifies the continued detention. There is a misunderstanding about what those senior police officers are saying to my noble friend.
I hope I may at least reduce the temperature by a few degrees. I believe the Committee will already be very familiar with my views on pre-charge detention. I opposed the original increase from seven days to 14 days back in 2003 because it did not seem to me then that the police had made out a case for so large a distinction between terrorist cases and all other cases. I would remind your Lordships that in all other cases, however complex, the maximum is four days—not seven days, not 14 days, not 28 days and not 42 days. Terrorist cases are not the only cases in which the police have to analyse computer records. I opposed the original increase, I opposed the increase from 14 days to 90 days, as it was in the original Bill, and I now oppose the increase from 28 days to 42 days for all the reasons given so eloquently by my noble friend Lord Dear.
Would not a distinction between the normal limit and this one be that, if one is wrong, the consequences are quite horrific? This is not long firm fraud or a matter of that sort of complexity; multitudes of people could be killed and even more killed as a result, for example, of an al-Qaeda cadre obtaining dirty bombs.
That is the right question. However, I put back to the noble Lord the sort of harm that can be done by the failure to interrupt, to analyse and to break up an international conspiracy for the importation of hard drugs, which in the long run can, although not as dramatically, cause exactly the same number of casualties.
For the reasons given by my noble friend Lord Dear and most powerfully by the noble Lord, Lord Thomas, I oppose the increase to 42 days.
I wish to make only two points today. The first relates to the basis of the Government’s argument for extending the period of detention beyond 28 days, which is that 42 days might not be enough in exceptional circumstances. The trouble with that way of putting the argument is that it has probably given the impression that, in all ordinary circumstances, 28 days is acceptable. I merely remind the noble Lord, Lord West, of assurances that have been given by all his predecessors, including the noble and learned Baroness, Lady Scotland, who was in her place earlier, that the norm remains 14 days, not 28 days. I very much hope that the noble Lord, when he comes to reply, will repeat loud and clear that that is the position. It is important because judges, believe it or not, pay attention to what Parliament says. They even pay attention to what Ministers say. It is important that judges, who have the task of deciding whether to extend the time beyond 14 days, should realise that the view of this House is that 14 days, not 28 days, is the norm. I look forward to a further assurance on that point.
My second point is that Ministers often use the increased threat as a justification for extending pre-charge detention. The noble Lord, Lord Foulkes, has already made that point. However, I see no connection between an increased threat and the length of time a suspect is kept and questioned in police custody. An increased threat, assuming it to be so, is surely justification for increased vigilance on the part of the Security Service, the police and all the others. It might even be justification for increased sentences as a deterrent, but surely an increased threat, assuming that it exists, does not touch on the question that we are discussing: whether the length of pre-charge detention should be extended. Surely it cannot be the government case that extending the length of pre-charge detention will act as a deterrent. Indeed, exactly the opposite must surely be the case; so far from being a deterrent, it is a step that is positively inflammatory—the word used by my noble friend Lord Dear.
I am most grateful to the noble and learned Lord. His argument is as usual very persuasive, except that, in a complex and detailed universal organisation of death to those whose security we in this country are responsible for, is not a longer period needed to investigate the computers and other mechanisms, the languages, the geography and the nature of the threat?
Yes, and I understand the reasons. First, most of my friends supported indefinite detention without trial in Northern Ireland. Clearly, a matter of 42 days is not an absolute matter of conscience for them. Nor can I understand how conscience or judgment, despite the quite remarkable speech of the noble and learned Lord, Lord Falconer, would allow a man to support a 90-day limit while in office, but not a 42-day limit when out of office.
There are three substantial, practical objections to what the Government propose: first, the proposal is now so hedged about with conditions that it could verge towards being unworkable, which is a serious consideration for the Government to take in mind; secondly, it is likely to be abused by the Government and would worsen relations with minority communities from which terrorists might come; and, thirdly, it is simply not needed or wanted. As I have said, there is some force to the first objection, but if that is so, the Government can come back in a year’s time to improve those procedures. On the second point, the Government have, certainly at times, tended to misuse anti-terrorism laws for other purposes, but I do not see even this Government sweeping up and detaining people with no cause whatever—other, perhaps, than that they might be Muslims or something of that kind—and holding them for 42 days without good cause before releasing them just for the fun of it. I simply do not believe that that is likely to happen. Nor do I believe that moderate Muslim opinion in this country would be inflamed by the fact that we have taken these measures against terrorism—not against Islam, but against terrorism. That is the most important point we have to get across. Because this legislation is subject to review, it is possible for us to strike it down in the future.
What is the positive case for the Government’s proposals? There is no doubt that tracking down the evidence against a suspect from computer discs and hard drives—possibly using encryption and foreign languages—across continents and requiring the co-operation of foreign intelligence agencies can take time. It has been suggested that those things can take time against other criminal acts. Of course they can, but there are moments when the police are in a position where they have to decide whether to make an arrest to prevent the commission of a crime before they have begun to amass the kind of evidence that could be put to court in a prosecution. If that crime is a bank robbery—ça va. A bank robbery is a very bad thing, but a terrorist crime, as the noble Lord, Lord Carlile, pointed out, could be a much more terrible thing.
We have to agree that it is undesirable that even a single individual should be unjustly treated or detained, which might happen under any circumstances, whether the time period is 7, 14, 28 or 42 days. But we have to consider what is in the other balance of the scale; that is, what the noble Lord, Lord Carlile, called proportionality. If the lack of this provision causes the police to fail to prevent a major terrorist outrage, what then? It might mean multiple fatalities, a strike against economically important infrastructure with great consequences, or it might mean that we fail to prevent an outrage as great as the detonation of a dirty nuclear device in a city centre, leaving it uninhabitable for years. We have to take into account that things are changing, that what was unforeseeable a while ago has become terribly foreseeable in terms of the world economy. What was also unforeseeable a while ago is that there is a very weak and potentially bankrupt Government in Pakistan, a country which is a nuclear power with all the dangers that that may bring to us. The weights in the scales are simply disproportionate.
It is very difficult indeed to rectify the injustice which has been done to a dead terrorist victim. Victims have human rights just as much as suspects. Finally, I should say to my noble friends on the Front Bench—to whom it will come as no surprise that I am going to support the Government today—that I do so for one other reason. Let us think about the dilemma if the Government are denied these powers tonight, but at some time in the future a Conservative Administration conclude that they need them. How would that Administration go about coming back to Parliament and asking it to grant those powers? My party might come to rue the day if it wins this vote. So although I find myself in strange company—not least in the company of the noble Lord, Lord Carlile, with whom, as he well knows, I do not always agree, and with many Peers on the opposite side of the Chamber with whom I do not often agree—when I vote with the Government tonight it is partly with the thought of protecting my friends in my party from the position in which they may find themselves if they are in government in the reasonably near future.
It is a great pleasure to follow in the wake of the speech of the noble Lord, Lord Tebbit. He and his family of course have suffered as much from the barbarity of terrorism as anyone. He speaks with great passion and authority, and I respect what he has said. I think that there is no dispute among us that the threat of terrorism is extremely serious.
As the noble Baroness, Lady Manningham-Buller, pointed out in her intervention, we do not need further evidence of the fact that the threat of terrorism is extremely serious, and those of us who are in favour of this amendment need no lectures about it. We all appreciate the very serious threat of terrorism. If we thought that an extension of the power to detain without trial from 14 to 28 days, and then from 28 to 42—or from 42 to 90, or from 90 to, as far as I can understand those on the other side, an indefinite period—would actually cope with the problem, then we might need to reconsider it. As a liberally minded person I believe that the spirit of liberty is the spirit that is not too sure that it is right. Indeed, I say to my noble friend Lord Carlile of Berriew that I hope that, as a Liberal, he shares that uncertainty and not the dogmatism on this question.
We all agree that the threat is very serious, but the question is whether the means being proposed by the Government are going to be effective. What we have not heard is evidence from anyone that the extension from 28 days to 42 days is necessary. That is the evidence that the Joint Committee on Human Rights was concerned to discover. None has been forthcoming.
In considering the question which is now before us, it is important to consider the reputation of this country throughout the world for the effective protection of human rights and upholding the rule of law. The noble Lord, Lord Tomlinson, was a member of the parliamentary assembly that discussed this issue and passed a resolution which is summarised, as the noble Earl, Lord Onslow, said, in the Joint Committee on Human Rights report. For those who want to read the summary of resolution 1634, it is on page 9 of the report. It sets out the substantial objections to what the Government are now proposing.
The situation is well summarised in the series of reports by the Joint Committee on Human Rights, which explains why we unanimously, from all parties and beyond, consider the proposed extension to be wrong in principle and unjustified in practice; why it lacks a sense of proportion; and why there are alternative adequate means of tackling the problem. It is unnecessary to bore the Committee with the detail; it is all in our reports. The proposal stains the good reputation of the Government and the UK in the wider world in upholding the rule of law and ensuring respect for human rights.
In his trenchant article in today’s Guardian, the noble and learned Lord, Lord Goldsmith, explained that he could not be here, but in summarising his view, he summed up the position for me. What he termed “this pernicious provision” is,
“not only unnecessary but also counterproductive; and we should fight to protect the liberties the terrorists would take from us, not destroy them ourselves”.
The noble and learned Lord pointed out, as is the case, that the proposal,
“has been rejected by two former directors of MI5; the experience of prosecutors is that 28 days is sufficient; it has been condemned by former … lord chancellors”—
including, of course, the noble and learned Lord, Lord Falconer of Thoroton—
“and by senior police officers”.
With great respect, the noble Lord, Lord Carlile, has not provided any evidence to suggest that they are wrong, nor has he answered the detailed reasons by the Joint Committee, nor has he explained why the lawyers who have advised throughout are wrong in saying that this would lead to serious violations of the European Convention on Human Rights.
Is there not a difference of view between police officers? Some support what the Opposition are saying and some oppose it. Is the noble Lord rejecting altogether the advice of those police officers who say that the Government are quite right in what they are proposing?
I am not rejecting anything at all. Of course reasonable people may disagree about the appropriate means in the difficult situations that we are discussing. Of course it is right that different police officers will take a different view. We understand that even the noble Lord, Lord West of Spithead, took a different view until he was persuaded to the contrary. That is a perfectly sensible approach in life.
Does the noble Lord agree that the 30th report of the Joint Committee on Human Rights proposes amendments whereby this Bill could be brought into accord with the European convention? That is a most valuable contribution to the debate, which he now appears to be denying.
I think that the noble Lord, Lord Wedderburn, misunderstands. Our report firmly opposes the extension from 28 to 42 days for the reasons it explains. It then goes on to seek further safeguards whether or not there is an extension to 42 days, dealing with matters such as derogation, post-charge questioning and so on. Some of that is designed to make prosecutions and evidence-gathering more effective in order that terrorists may be brought to book. We are not unrealistic or part of an irresponsible lobby; instead, we are seeking to deal with a serious problem by appropriate means.
Will the noble Lord help me regarding the incompatibility of these proposals with the European Convention on Human Rights, which seems to rest primarily on the number of days? If that is the case, why is it that in Perugia—in a totally different, but European, member state—two people are being held in relation to a murder that was committed very nearly a year ago? They have been held without charge for that period. I understand that there are two different approaches—the investigatory and the accusatory or confrontational—but to the lay person that seems to be a very thin justification. The point is that in other states covered by the convention, there are nevertheless people who are held in detention without charge for periods greatly in excess of 42 days.
I do not know whether the procedures of the Committee envisage such arguments. May I conclude by trying to deal with the point of the noble Lord, Lord Sewel?
There is a significant difference between post-charge and pre-charge detention, and that is the difference with which we are concerned. It is not an academic difference; once one has been charged and is being detained, as is the case on the Continent as well as here, a different set of safeguards arises. The noble Lord is perfectly right that in some of the continental systems, people are detained for very long periods after they have been charged. The same, of course, is true here. The question is whether pre-charge detention periods should be extended.
The noble Lord, Lord Tebbit, referred, quite correctly, to internment in Northern Ireland. That was a classic example of detention indefinitely without charge. To those noble Lords who say that the threat of terrorism is so appalling that we must do anything to counter it, logically their position is—or should be—in favour of internment, without any time limits, until the evidence has been forthcoming. That is what, at the height of the Second World War, Winston Churchill described as,
“in the highest degree odious”,
and I think he was right. We are now facing a serious threat, but no greater than when we were fighting the Nazis in the Second World War. That is why this Committee has a peculiar responsibility today to strike a fair balance, as has been said, between the need to protect the lives of our people against a serious threat of terrorism and the need to uphold our tradition as a country which respects the rule of law.
I have come to the conclusion, even after listening with an open mind to the noble Lord, Lord Carlile of Berriew, that that Government have made a classic mistake. The Minister is a distinguished Navy man; perhaps he will forgive me for making a comment as an Army man. I was taught in the Army that it is a classic mistake to dig a trench, to be flushed out of it, to dig another trench, be flushed out of that, and then to be on the run. I believe that that is exactly the Government’s position: they dug a trench which was indefensible; they were flushed out of it on the question of 90 days; and now they are trying to defend 42 days without, I believe, any objective justification for doing so. I very much hope that this evening’s debate will be the second mutiny at Spithead, but that this one will have a better and quicker resolution.
Although I have heard much genuine concern about the human rights of suspects, as is right, commendable and essential, I have not heard enough concern about the human rights of victims and, just as important, potential victims—those who are yet to lose their lives or their legs, arms, sight or hearing.
I have been in contact with three of the senior officers who, following the 7 July 2005 terrorist attacks, were responsible for supervising the rescue operations and collection of evidence, which included the ghastly task of retrieval of body parts from trees, railway tracks and gutters. One of these officers has forwarded to me 17 foolscap sheets giving particulars of those who have no human rights at all, as they are all dead. He sent more pages giving details of the dreadful injuries to others, one of whom is a young woman who, some might argue, theoretically retains her human rights. The pity is, however, that she has no legs and, as for others who lost eyes, limbs and internal organs, that is how she will spend the rest of her life. Nothing became any better after 28 or 42 days; the pain and suffering get worse. These are the people about whose human rights I also care.
I do not accept the argument that I have heard noble Lords making that asking for an extension of maybe just hours beyond the present 28-day limit of detention would be a recruiting sergeant for al-Qaeda. The recruiting sergeant for al-Qaeda was the invasion of an Islamic country by the USA and Britain and the fact that our troops are still in occupation. However, I concede that, if we continue to talk about 42 days’ detention before charge as though it were the norm and not an exception, that will both confuse and help to radicalise some impressionable young Muslims.
It is a pity in many ways that this is a government Bill, as that certainly seems to have united the opposition to it. It is also unhelpful that the “42 days” epithet has, I believe, confused many people. Even some police officers who have not studied the Bill have been persuaded that, if a person suspected of a terrorist offence were arrested, that person could be detained for up to 42 days. That, of course, is totally incorrect.
The police did not ask for any magic figure of 42 days to be included in the Bill. The extension in the most exceptional of circumstances could be for just 24 hours or perhaps for two days. However, it seems that in an effort to make any extension more acceptable the Government chose to limit that to an absolute maximum of 42 days. Therein came the opportunity to confuse; it has been a classic “shooting oneself in the foot” job.
The senior police officers to whom I have spoken have assured me that the proposal for 42 days was not made at their request. They are as aware of the civil rights of suspects as they are of those of past and possibly future victims and they will work to the best of their abilities within whatever parameters Parliament sets. None the less, Assistant Commissioner Bob Quick, the senior officer responsible for the counterterrorism command at New Scotland Yard, his predecessor, Assistant Commissioner Hayman, and the latter’s operational deputy assistant commissioner, Peter Clarke, are firmly of the view that the time is coming when, because of the most horrific possibilities of a terrorist attack aimed at achieving maximum deaths and casualties, an extension to the present 28-day limit of detention before charge is most likely to be necessary. However, I concede that Andy Hayman was concerned, as my noble friend Lord Dear said, about the bureaucratic system that would have to be employed before such an extension were allowed.
I am not a politician and admit that I often fail to understand politicians’ motives or agendas, so, to prevent my falling into the same trap as one of my successors as Commissioner of the Metropolitan Police seems to have done, perhaps I should declare that my support for much of this Bill is not political, and I believe that public protection should rank much higher than political opportunism.
I was a working policeman for 40 years, and I believe that I was invited to become a Member of Your Lordships’ House to use my years of operational experience to highlight the practical difficulties that some legislation might pose to those whom we expect to keep us safe from the criminal and the terrorist. I believe that it was known that I could bring a wealth of practical, feet-on-the-ground experience to Your Lordships’ discussions and that, having left the field of play, I would not indulge myself by standing on the touchline and chucking intellectual toilet rolls into the goalmouth.
I urge noble Lords to consider most carefully before supporting the amendment. Will noble Lords unequivocally support the amendment while not knowing at this stage what the exceptional circumstances might be—perchance a plot to assassinate the Queen, or to blow up fuel dumps or a fully loaded gasometer situated within yards of a block of council flats? Will they regardless, as in the amendment, say that there can never be an extension? I make it clear that I am not advocating 42 days, but there must be provision for a properly supervised extension when the most exceptional circumstances prevail. To agree to the amendment could be dangerous and might in time lead to the further loss of lives.
Osama bin Laden and his disciples could not have made it plainer that they are at war against us. Their methods of warfare include a peculiarly ruthless terrorism whereby people who willingly embrace their own deaths attempt to kill maximum numbers of unsuspecting civilians. They also seek to disrupt and undermine our lives by any means possible. They operate with technical virtuosity across the globe, using sophisticated telecommunications and computing, with layers of encryption and in obscure languages. They operate powerful propaganda systems through the internet. They are not susceptible to reason, argument or negotiation. They are patient. They are implacable. They will use the most powerful weapons that they can obtain. Bin Laden has decreed that:
“It is the duty of Muslims to prepare as much force as possible to terrorise the enemies of God”.
If they think, as they well may, that western hegemony is now on the wane, if they detect a weakening of our self-confidence, their contempt for us and their determination will be intensified. They cannot be deterred except by being found out and disrupted. They cannot be defeated by traditional means. I am sorry if all this sounds melodramatic, but I learnt, during four years of serving on the parliamentary Intelligence and Security Committee, that it is the reality.
Given the vast and increasing complexity of intelligence operations in a time of multiplying computer power and the need to collaborate with agencies in other countries, notably Pakistan, whose speed and reliability may not match our own, we must surely accept that there may come occasions, possibly soon, when an investigation will require that a suspect is held in pre-charge detention for longer than 28 days. It is mere prudence to create a reserve power to extend pre-charge detention for a reasonable additional period. It is better also to legislate for such a contingency in advance, calmly and carefully, than to try to alter the balance between security and liberty following a terrorist outrage in the midst of a crisis. That is what the Government, rightly, seek to do.
The defence of the realm and of the safety of our people is the most basic responsibility that our Government have. Our commitment to liberty, passionate though it is, is, in extremis, subordinate to that primary duty. Of course, we should not surrender—
I thank the noble Lord for giving way. I presume that he, like everybody else in this Committee, is here with one thing in mind: to protect our country. Having outlined the long list of things that form the threat that we face—and I accept that we face a grave and real risk—would he not accept that the only real and sustainable way in which to deal with this challenge of extremism that we all face is by making sure that the majority of Britain feels that they are part of big-tent Britain? Would he not say that this is not a simple argument between the rights of the victims and human rights of the terrorist? This is an argument about how we have a long-term solution to the challenge of extremism, and locking people up for 42 days will alienate the very communities that we need on board to support us in facing this challenge together.
I agree entirely that, if there is a long-term solution, it has to be though winning hearts and minds—but, in the mean time, we have to defend our people. Of course, we should not surrender more than the minimum necessary of liberty and we should at all times be vigilant on behalf of our liberty, but the balance between liberty and security has always been recalibrated in time of conflict.
I respect the professional experience and judgment of noble Lords who have been very senior police officers, headed the Security Service, chaired the Joint Intelligence Committee or served in government as Attorney-General or Lord Chancellor. However, I am puzzled as to how they can be confident that, as technology and other complexities develop and we find ourselves in uncharted circumstances, it will never be necessary, in the interest of the safety of the public, to hold anyone in pre-charge detention for more than 28 days. What if, as my noble friend Lord Harris of Haringey asked at Second Reading, the police cannot start to question a seriously injured suicide bomber for some time, or it takes some time to make safe for investigators premises where biological or radioactive materials have been kept? When an early arrest is needed in the interest of public protection or when there is more than one plot requiring simultaneous investigation, it may be necessary to hold suspects for longer before charging.
The call by the Opposition Front Bench and the Joint Committee on Human Rights for evidence of the need to extend pre-charge detention seems unreasonable. You cannot have evidence about what has not yet happened. There can be pointers, however; if we extrapolate past trends, we are assuredly led to conclude that longer periods of investigation before charges are preferred in terrorist cases may be needed.
We were asked by some noble Lords at Second Reading, and by my noble and learned friend Lord Falconer again today, to accept that the threshold test for charging removes the need to extend pre-charge detention, and to draw comfort from the new provision for post-charge questioning. I am not a lawyer and I may misunderstand them, but I find both those arguments less than satisfactory. I am encouraged to raise these questions by the important speech of the noble Lord, Lord Carlile.
If investigators do not yet have the admissible evidence to prefer a charge convincingly, how content should we be that a charge is none the less slapped on the suspect to legitimise continuing detention during the search for more evidence? The noble Lord, Lord Dear, suggested that it would be satisfactory to use what he termed “second division” or holding charges. As my noble and learned friend Lord Falconer reminded us, the threshold test requires that there be no more than reasonable suspicion. It may be there and may already be provided for, but that does not make it a good thing. The suspect, after being charged on the basis of a threshold test, can then be detained for months longer—far beyond 42 days. Why is that preferable to the continuation of pre-charge detention up to a maximum of 42 days, authorised by a senior judge who is persuaded that there is sufficient prospect of the fuller evidence needed for a charge being found?
The whole point about charging the lesser offence first is that detention without trial disappears immediately. The moment that you are charged in those circumstances, you have access to a lawyer, you know what the charge is, you are put before a court and you are in the normal judicial process. Will the noble Lord comment on that?
I remain uneasy about it. It is rather like the French system, which the noble Lord, Lord Carlile, described to us. It makes me decidedly uncomfortable.
If the Government insist that an adverse inference may be drawn from a suspect’s exercising the right to silence under post-charge questioning, how confident can we be that the interests of justice are being served? If that insistence is not maintained, there remains the problem that continued questioning of the suspect in detention fails to secure the balance between defence and prosecution that procedures in a trial are designed to safeguard. Threshold charging and post-charge questioning will no doubt make the need to extend pre-charge detention beyond 28 days rarer, but they are not flawless means to justice. We are in the disagreeable situation in which the means to secure liberty and justice and the means to secure safety are inescapably in tension.
Like all noble Lords, I do not want Parliament to grant excessive powers to government or their agencies to curtail civil liberties. Our enemies indeed seek to destroy the freedoms that we cherish and that we are proud to claim distinguish our political culture. To overreact to terrorist threats would indeed be to allow our enemies a victory. I agree with that argument. But I do not think that the Government are overreacting in the provision for 42 days.
The Government have sought strenuously to ensure that civil liberties are protected in this Bill. Contrary to the noble Baroness, Lady Mallalieu, I believe that the safeguards are substantial. The Bill is in no sense a charter for arbitrary government. The Bill would make contingency provision only for the extension of pre-charge detention, which would be exceptional and never routine. The Bill does not allow the Home Secretary to invoke the power other than in circumstances of a “grave exceptional terrorist threat”. It does not even allow the Home Secretary to take the initiative to activate the power. The reserve power to extend pre-charge detention beyond 28 days could be activated by the Home Secretary only after she had received a joint report from the DPP and a chief constable setting out reasonable grounds for it in the existing situation. The Home Secretary must then take legal advice to ensure that all the legally prescribed conditions for activating the power have been met. Parliament would have to approve the activation of the power within—now—seven days. The Home Secretary's decision to activate the power would still be subject to judicial review. The Independent Reviewer of Terrorist Legislation, the noble Lord, Lord Carlile of Berriew, would subsequently report to Parliament within six months on the propriety of the Home Secretary's activation and use of the power and Parliament would debate his report. If the reviewer and Parliament found fault with the Home Secretary, the Home Secretary could not survive politically. That is certainly not the “subjective, unfettered discretion” for the Home Secretary that the noble Baroness, Lady Neville-Jones, claimed it to be in her speech at Second Reading.
The Bill also contains powerful safeguards once the power is activated. It would not be for the Home Secretary to commit individuals to detention, but for a judge following application by the DPP to do so. It is not the case, as some seem to suppose, that the Government are demanding that Parliament give the Home Secretary the power to bang up anyone as a suspected terrorist at the suggestion of the spooks and the cops. Just as under existing legislation no individual can be detained beyond 48 hours without the approval of a district judge, and beyond 14 days without the approval of a senior judge, so under this Bill no one could be detained beyond 28 days without the DPP having approved the application being made and a senior judge having authorised the extension of detention. Detention could only be extended at any point after the first 48 hours for up to seven days, and after 14 days a senior judge would have to approve each period of extension for up to a further seven days. The whole power to extend pre-charge detention beyond 28 days up to 42 days would lapse after a maximum of 60 days from inception.
Unlike the noble Lord, Lord Thomas of Gresford, who anticipated that the judges would be manipulated by the Executive, I am confident that the judges would not give their approval if they were not truly convinced that an extension of detention was genuinely necessary in the interests of securing evidence to bring an appropriate charge. We can expect the judges to be sceptical and rigorous. They have a fine record of defending civil liberties against the wrongful use of power by successive Home Secretaries. In the field of terrorism, we have seen the judicial challenge to control orders.
I have rehearsed these points, which must be well known to your Lordships, because I do not think that they have been given sufficient weight in the estimation of some noble Lords who are critical of the Government and because I am not always sure that the Government’s critics outside Parliament are fully aware of them. Forty-two literary celebrities have taken the Liberty whip. Can such a quantity of intellectuals—and quantity is presumably as important as quality here—be wrong? It is not inconceivable. After all, 364 economists who write to the Times were wrong about the 1981 Budget. Have all the celebrity writers, as good citizens of the democracy they wish to defend, studied the detailed provisions of the Bill?
There may be flaws in some aspects of the Bill—we shall need to examine the provisions for parliamentary oversight—but those issues are for other debates. The issue now is simply whether there should be a power of any kind to extend pre-charge detention beyond 28 days. I believe that, with suitable safeguards, there should, and that the amendment is misconceived.
Briefly, I bring to the attention of the Committee the role of Parliament envisaged in Clause 28, and point out that it cannot work well and should therefore be revisited. Your Lordships’ Select Committee on the Constitution, in its report of 5 August, said that, in seeking ways in which Parliament may be involved in decision-taking about police detention of terrorist suspects, the Bill risks conflating the roles of Parliament and the judiciary—the noble Lords, Lord Thomas and Lord Carlile, alluded to this—inviting Parliament and the judiciary to ask and answer similar questions; placing on Parliament tasks it cannot effectively fulfil; and risking undermining the right to a fair trial of the individuals concerned.
Under the Bill, an order declaring the reserve power exercisable will, like normal legislation, be expressed in general terms and will, on the face of it, merely permit the DPP to seek warrants for further detention from a court. However, the reality would be that the order would be made in relation to investigations into particular individuals. As the Home Secretary has acknowledged, the debate on an order is likely to include the “outline of the plot” and,
“the what, why and when”.—[Official Report, Commons, 11/6/08; col. 400.]
Your Lordships’ committee found principled and practical difficulties with this arrangement. Members and Select Committees of both Houses would have to tread a tightrope between exercising parliamentary privilege and duty of free speech to ensure proper scrutiny while, on the other hand, avoiding remarks, individual or collective, that might serve to prejudice fair trails and threaten the independence of the judiciary. Effective debates in Parliament would need not only to avoid touching on potentially prejudicial matters but also to ensure scrutiny commensurate with the fact that individual liberty would be at stake. Parliament would operate without knowing the full factual background. The Home Secretary’s legal advice would be redacted to remove material the disclosure of which might damage the public interest or prejudice a prosecution.
The noble Lord is arguing, as have others, about the impracticality of these provisions. Is it not ironic that these provisions were put in as concessions to the critics of the Bill? Is the noble Lord now agreeing with me that it would be better for the Government to go back to its original proposals?
I am afraid that I am not agreeing with the noble Lord, whose knowledge of irony is unparalleled.
Your Lordships’ Select Committee asked the Minister in correspondence to provide details of what matters would be appropriate or inappropriate for debate in Parliament on a resolution to affirm a reserve-power order. No such further details have been provided. Your Lordships’ committee is unconvinced that the Government have properly thought through the proposed scheme. It expressed concern that, under the Bill, Parliament would be asked to make decisions that, in the circumstances, it is institutionally ill-equipped to determine. Far from being a system of checks and balances, the proposals before us are, in the view of your Lordships’ committee, a recipe for confusion that places on Parliament tasks that it cannot effectively fulfil and which could undermine the right of fair trial for any individuals concerned. This proposal should therefore be resisted.
For any substantial change in our fundamental rights, we should endeavour to find a consensus. I have tried with my colleagues over a number of years to find a way forward. I fear that the Home Office is not listening, and its stubbornness will end in defeat.
The loss of liberty has been progressive. At Second Reading, the noble and learned Lord, Lord Mackay of Clashfern, reminded us that he was wrestling with the concept of four to eight hours when he was Lord Advocate. When I was Attorney-General for Northern Ireland, I got by with seven days. I was persuaded by Mr Andy Hayman of the complexity of modern terrorist cases, and that they posed new challenges. I regret that further and more detailed investigation later proved to me that there are other means of achieving probably the same results.
It is clear that the present 28 days have proved adequate to date. In an imperfect world, one cannot be absolutely certain that there will never be new challenges. If they ever have to be met—I hope that that will not happen—the Bill is not the means of doing so; rather, there should be a wholly judicially supervised solution. The very safeguards that the Government have sought to insert wholly undermine its workability. Confusing parliamentary and judicial functions is a recipe for disaster. The more detailed the material provided, the more prejudicial it will be. The Home Secretary suggested topics for debate, but I fear that they lack intellectual rigour: the outline of the plot, the number of suspects detained and the “what, when and why”—whatever that means. What better support can I have in saying that the system is unworkable than the same recent verdict from former Assistant Commissioner Hayman, referred to by the noble Lord, Lord Dear, that the Bill is not fit for purpose and is unworkable?
I am grateful to the Minister for seeing me. Despite the fact that the noble Baroness, Lady Manningham-Buller, had shot the Government’s fox at Second Reading, he prefers those with experience in the job of prosecuting; that is, ACPO. The noble Lord, Lord Dear, has brought us up to date this afternoon and told us that there is more than one view among the police. Perhaps Mr Hayman’s recent views in the Times may temper his assertion. What is strange is that no one at the coal face was consulted before legislation was introduced—
Yes they were.
Four ex-law officers who actually have been in charge of prosecutions in this country, and who have opposed this measure, were not consulted. The DPP, who at the time of giving evidence to the Select Committee had not met the Home Secretary, the Prime Minister or the Metropolitan Police Commissioner, was satisfied with the situation as it was. “It suits me nicely”, he said. What about those at the coal face whose job is to prosecute these cases from day to day? I have conducted my own investigation and I do not accept that we can proceed without a much more detailed consultation with persons such as the DPP and Treasury counsel who have to present cases to juries.
The key to the refinement of my views was referred to in detail by the noble Baroness, Lady Mallalieu—I shall shorten it—namely, that adequate machinery is available, particularly in the form of the lower threshold of charging, which has been in operation since 2004. Instead of charging on a realistic prospect of conviction, it is sufficient to have a reasonable suspicion that a suspect has committed an offence. That is the lower standard. We should spell out what happens very carefully. If the second lower standard has been adopted, the crucial stage then is the bail application or an application to dismiss before a judge. By this time, at least an outline of the case will have been served on the defence. The strength of the evidence will be rigorously considered by the court and, after determination of this application, the case will have to pass the full code test within a reasonable time. There is no target of 28 days and I am confident that, as regards the reasonable time issue, the judiciary will act correctly and interpret that provision properly. The case will be reviewed by prosecutors at regular intervals and in the mean time the investigation can continue and, when available, notices of evidence supplementing and overtaking the outline will be served.
All this time the defendant will be subject to the jurisdiction of the court. This will inevitably involve staged service of distinct sections of evidence. The evidential case continues to develop until the full case is served, but often beyond that as terrorism cases are frequently large and wide-ranging. I ask the Minister one crucial question: is there any evidence that such a formula has failed, or is likely to fail, on the threshold test?
A criminal case is an ongoing process with various important and well established hurdles to be jumped on the way. It is our duty to preserve both the liberty of the subject and the security of the state, or, as I prefer it—the old fashioned words—the “Queen’s peace”. I fear that I cannot support the Government on this issue in the Lobby.
I am most grateful for the opportunity to follow the noble and learned Lord, Lord Morris. He could not have put the matter more clearly or more succinctly. I shall be brief and concentrate on the key point because I agreed with every word he said. He has done the Committee a great service. I, too, support the amendment in the name of the noble Lord, Lord Dear. I agree with what he said and I certainly agree that we are faced with a very grave threat. If the case were made out for doing what the Government are asking us to do, I think that we would all do it, but it is not.
The key reason for rejecting the 42-day extension on which I wish to concentrate is simply that it is not necessary. Sir Ken Macdonald, the outgoing Director of Public Prosecutions, has made this clear from the outset. I wrote to him personally on 20 May this year, asking for further information about the threshold test. I wrote because I had precisely the anxieties which motivated—although I disagree with the result—the rather passionate words of the noble Lord, Lord Carlile of Berriew. I wanted to find out whether the threshold test was sensible and worked properly, and exactly how it operates. On 4 June I received an extremely helpful five-page reply, which can be found at appendix 3 on page 28 of the report of your Lordships’ Select Committee on the Constitution. It well repays reading because it probably answers most of the questions that have arisen. It shows that we have a satisfactory system in which all relevant cases have been charged well within 28 days. Only eight cases have gone beyond 14 days, and of those only four have had to use the threshold test for charging. This is the test of reasonable suspicion that a terrorist offence has been committed with a prospect of further evidence within a reasonable time as opposed to the full test of the code for Crown prosecutors, which is that there is already sufficient evidence to give a realistic prospect of conviction. The DPP’s letter is absolutely clear that no case will go on to trial unless the prosecutor—very experienced prosecutors are assigned to these cases—is satisfied that there is a realistic prospect of conviction.
The point is that in all terrorist cases, as soon as the suspect is charged he is brought immediately before the court in accordance with Article 5 of the European convention, and questions of possible bail and timetables for delivery of evidence by the prosecution, justification for any delay being sought as a result of the need for further inquiries or examination of laboratory results and a detailed timetable and summary are all presented to the court by an experienced Crown prosecutor and closely monitored and decided by a High Court judge in accordance with the terrorism case management protocol. Thus, all the safeguards, some of which have been bolted on to the proposed 42-day procedure, already exist and are in place, decided upon not by Parliament or the Executive but by the independent judiciary, properly informed by the independent Crown Prosecution Service.
I therefore believe that the whole House can be satisfied that all the proper procedures are already in place. The extension to 42 days is not merely unnecessary but is disproportionate, as I think is widely agreed in this House. It is likely to cause at least some members of the Muslim community to feel victimised. The so-called safeguards are contrary to principle, almost certainly unworkable and risk damaging the prospects of a fair trial. These are powerful objections and I very much hope that this unwise proposal will be rejected.
Why was that not argued previously in relation to 28 days? Is it not germane? What the noble and learned Lord is arguing at the moment is irrelevant as far as the basic point is concerned. Equally, what he is arguing is relevant as far as the 28 days are concerned.
The noble Lord is right, of course—it is relevant to 28 days. I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick, who expressed his serious worries about our proceeding even as far as 28 days. When you have a threshold test to charge, it is certainly a relevant point, but the Director of Public Prosecutions explains in his letter that only eight cases have had to go beyond the 14 days and only four of them have had to use the threshold test. We are where we are. We have 28 days. We should not go further.
I listened with the greatest of interest to the intervention of my noble and learned friend Lord Falconer, because I remember how supportive he was of me when I moved an amendment for 90 days of pre-charge detention. He has not satisfactorily explained how things have changed.
I have lost count of the times that I have spoken in this House for an increase in pre-charge detention, and the arguments have not changed. They have not changed because the reasons for the need for them have not changed. I am as convinced now as I have ever been that having a maximum of 28 days in our legal system is inadequate for the terrorist challenge that we face. The senior police officers who are—listen carefully to the adverbs that I use— currently, directly and operationally involved in counterterrorism all say that they believe that we need more than 28 days and that they need more than 28 days. What has changed under the Bill is the way in which the Government propose to meet the requirements. This is a reserve power to extend the pre-charge detention limit up to 42 days. The need for this falls broadly under two headings. I shall be brief, because most of the arguments are well known.
First, there is often the need in terrorist cases to intervene early. Secondly, there is the growing scale and complexity of terrorist organisations. Early intervention in terrorist cases is necessary because of the self-evident risk in allowing a case to run to obtain evidence. Police intervention is forced to be much earlier than in other criminal cases. As for the growing scale and complexity of cases, there is no doubt that, pace the noble Earl, Lord Onslow—you only need to look at the recent cases to see this without having to be told—there has been a great increase.
It certainly does not destroy the argument. The fact that the director-general of MI5 has said that in public, and the fact that he does not produce chapter and verse of the proof for the committee that the noble Earl, Lord Onslow, sits on, is not very surprising. The former director-general—who is in her place—enumerated that there was an increasing risk in her time, and the current director-general has also cogently explained that there is an increasing risk. The Home Secretary has also said so. Given those sources, there is no doubt about that. People can see it for themselves in the number of cases that are coming into the courts.
There are at least 2,000 terrorist suspects, with 200 networks or cells and 30 active plots. Is that not evidence, when someone who knows what they are talking about says that? The noble Lord, Lord Carlile, says that he is convinced of an increasing threat. The evidence is overwhelming. I will not enumerate the staggering statistics about computers and disks that have to be dealt with now after any arrest. The sophisticated complexity of the material; the enormous increase in computer product, which is often encrypted; the multiple identities of suspects, whereby it can take considerable time to establish who an arrested person actually is; the global reach of the contacts involved, which often means reliance on foreign security and intelligence services for information and for operational assistance, are all factors.
As I have said in this House before, we are very lucky to have security and intelligence services with a long history of close and successful relations with foreign services, which have often been built up slowly and painstakingly over the years. It is a mistake to think that this is easy or automatic, or that such liaisons can ever be taken for granted. Liaison services have vastly different levels of competence, resources and speed of working. In addition, they will pass on only what does not conflict with their own national interest. All that can mean time-consuming waits for information that our services need to proceed with a case.
As I said earlier, what has changed in the Bill is that the Government are trying to deal with a threat of terrorism that is unprecedented in its nature and severity, while trying to preserve democratic principles and practice. They are doing so by introducing unprecedented safeguards and parliamentary involvement, after a very wide and broad consultation. I said on Second Reading and I now repeat that I have never before known a Home Secretary to consult so widely on a Bill. No one pretends that these attempts to satisfy concerns about civil rights and parliamentary control will be easy to implement; in fact it would be much easier to do without them. I understand the reservations of the noble Lord, Lord Carlile, about parliamentary involvement in this process. In what I consider to be an authoritative and impressive intervention, he made a very powerful case. He gave his reasons, given his absolutely unparalleled experience of being the independent reviewer in the field of terrorism and terrorist cases, and he made the case for why he believes that we need to go to 42 days.
It has already been said that it is ironic that criticism of those very provisions—parliamentary involvement and the safeguards—is coming from those who are most concerned about civil rights. Those provisions were brought in to try to meet the requirements of safeguarding civil rights. This is an honest and brave attempt to balance the operational security requirements of the law enforcement agencies to defend the public with the requirements of civil rights. As such, it deserves our support.
I will make a very brief contribution from these Benches. I have listened carefully to the debate this afternoon. Underpinning the disagreement on the amendment is where the balance needs to be struck between an emphasis on national security and upholding civil liberties. It is understandable that any Government would wish to put great weight on the need for national security, for protecting their citizens is the basic duty of any Government. Those of us not in government can reflect further on the balance that must be struck, particularly if, were we to get it wrong, our national security would be weakened and not strengthened through groups in society feeling that they were being targeted and treated unfairly.
Speaking for myself, I am not persuaded that the case has yet been made for the necessity of extending the detention of terrorist suspects to 42 days. Therefore, I will support the amendment.
I declared at Second Reading that I sit as the Home Secretary’s representative on the Metropolitan Police Authority, with the specific responsibility of providing lay oversight of the police work on counterterrorism. I spent an hour or so today with the senior officer at New Scotland Yard who co-ordinates terrorist investigations. I do not intend to report the detail of that conversation, as that would be inappropriate, but I can say that I am disturbed that there are Members of the Committee who have not recognised the increasing threat of terrorist action. I spend a lot of my time looking at the degree to which the police services, and, I am sure, the intelligence services, are stretched to full capacity in investigations that are graded as high priority. We cannot view that with complacency.
We have also discussed risk, which, in terms of terrorism, has been transformed in the past 10 to 15 years. The objective of the terrorists is not to make a specific point but to inflict mass casualties. There is a desire to do “better” than has been done before. There is also the recognition that the individuals concerned will die in the course of taking that action. That means that the decision when to intervene in any prospective plot is that much more difficult. You have to intervene earlier to avoid running the risk of possibly horrible and appalling loss of life. That is the dilemma that is faced, and it is why it is necessary for the Committee to debate these provisions.
Much has been made of the complexity of the cases. A recent example involved the seizure of some 200 or 300 computers. A modern computer contains a terabyte of memory, which is the equivalent of 50,000 trees, cut down, converted to paper and printed on both sides. If that material is encrypted or is written entirely in Arabic or, perhaps more significantly, if it contains significant material hidden in files which have been given such innocuous labels as “holiday photographs”, it is an enormous task to sift through it. That is why time is needed, because of the relationships that have to be pursued, as my noble friend Lady Ramsay said, in international jurisdictions.
In our discussions, we have heard much about the threshold test. I had a brief exchange with my noble and learned friend Lord Falconer of Thoroton on this point. As I understand it—although I may be corrected by the massed ranks of noble and learned colleagues in this Committee—the decision on making a prosecution, whether or not with a reduced threshold, has to be taken by the Crown Prosecution Service. Before this provision can be implemented, the director of that service has to certify that a prosecution is necessary. This new power is a reserve power which can be used only in the event that things cannot otherwise be dealt with. Because it is a reserve power and because it requires the consent, approval and recommendation of the Director of Public Prosecutions, it can be invoked only in circumstances in which the lower threshold test has not proved satisfactory, or when the other matters that noble Lords have raised mean that the legislation is needed. Those are the only circumstances in which this failsafe will come into force.
The reality is that this proposal is designed to protect in the event of other things failing. It can be implemented only after what has been described as a tortuous and difficult process. It should be a tortuous and difficult process. However, the provision is there for a reason. It is there because, although there may be a threat to civil liberties in any instance where someone is detained for longer than 28 days—and probably for longer than 14 days, and probably longer than seven days—the rule of proportionality states that we must protect this country and its citizens, both here and overseas, from the threat of mass murder. That is what terrorism is about.
I feel that it is the will of the Committee that we ask the Minister to respond to the amendment.
Over the past few hours we have had another passionate, gripping and constructive debate. As a relative newcomer to this place, I can only say that it shows itself at its best when issues such as this are debated. Notwithstanding sniping from some quarters, the nation is fortunate that such a Chamber still exists to air, in a rather less party political and partisan context, matters of crucial national importance. I hope that such debates here allow consideration of the argument rather than the expression of preconceived political ideas.
No one likes holding people in custody without charge. I can assure noble Lords that the police investigate all cases as quickly as possible and that they would not detain anyone for longer than is absolutely necessary. It is disappointing that some Members of the Committee seem to think less of the police than that. Indeed, when applying to the court for an extension of detention, the police have to present strong evidence for further detention. Judges—and I have considerable faith in judges, particularly since the noble and learned Lord, Lord Lloyd, told me they pay attention to Ministers—would not grant extensions of detention where they did not believe that the investigation was being pursued diligently and expeditiously. Judges can, as they have in the past, grant less than the full seven-day extension requested, or no extension at all if they feel that further detention is not justified. All of us would prefer to be in a position where a charge could be brought within 48 hours. But we are in a different world today, as a number of noble Lords have said.
When it comes to terrorism, particularly modern-day terrorism, we cannot always expect to uncover the crucial evidence that can found a charge immediately on arrest. If the police wait until after a crime is committed to make an arrest, we may have scores, hundreds or even thousands of casualties. In securing a successful prosecution, it would often be advantageous to wait and gather further evidence, because conspiracy to commit an act is notoriously difficult to prove. But the risks of waiting too long and allowing another 7/7 or 9/11 are far too great. I would always prefer the police and agencies—and I make this point to them—to err on the side of the safety of our people and not to delay acting because they may be aware of a time constraint when framing a charge.
We as a Government often face the issue that we are wrestling with today in this Committee: balancing the safety of the majority of our population against the freedom of the individual. I am certain where our duty lies. Those who are not in power, and particularly those who are never likely to be in power, have the privilege of arguing in the abstract. They are not faced with the harsh realities of being accountable to the nation for their decisions. However, this Committee has already understood the force of the argument and the necessity to change the legislation, and that it would be inconceivable in the present circumstances to return to 48 hours. Parliament has already accepted the need for 14 days’ detention as the norm and, exceptionally, 28 days’ pre-charge detention in terrorist cases. So today’s debate is not on a matter of principle, on an extension beyond a matter of hours or on Magna Carta; it is more on a prosaic judgment as to whether 28 days is enough to ensure our safety or whether we need slightly more. As the noble Lord, Lord Carlile, said, we may need 12 days or so extra. It does not have to be 12 days; it could be a matter of a day or hours.
Why do experts believe that there may be an occasion when more than 28 days will be required? I have already touched on the need to act quickly. I make no apologies, because it is important, for referring again to what former deputy assistant commissioner Peter Clarke said of the Dhiren Barot case. He said that,
“there was not one shred of admissible evidence”,
at the point of arrest. Barot was subsequently sentenced to 40 years’ imprisonment. After moving quickly, the evidence has to be sought and compiled. The difficulties of doing so are growing exponentially, as a number of noble Lords have understood and spoken about. Again, I make no apologies for reiterating some figures. In 2001, when police investigated the last major IRA case, they had to analyse the contents of one computer and a handful of floppy disks. Three years later in 2004, in the Dhiren Barot case, 270 computers and 2,000 computer disks had to be analysed. In addition, the inquiries extended across eight other countries and jurisdictions. In a recent ongoing case, 30 addresses were searched within two hours and 400 computers, plus 8,000 disks, were seized for analysis.
The terrorists learn quickly from their mistakes and our successes. They make much more use of encryption and different communication devices, and they move across borders using numerous names and numerous countries to store, access and hide material. They have steadily become more aware of all our capabilities, particularly those relating to intercept. The consequence of all this—and I have not even added the extra delays that would be caused by contamination of evidence if the plot involved CBRN, to which a couple of noble Lords referred—is that more and more time is required to gather the evidence and to charge.
We have not required more than 28 days up to now, so what is the reason for the change? That is the question that a number of people asked, including the noble Lord, Lord Dear. The situation was exactly the same when we extended the period from seven to 14 days and from 14 to 28 days. On neither of those occasions had there been a case that required more than the existing time limit, but all the trends showed us that it would happen because of the complexity to which I have referred, and of course Parliament was right on both occasions. Such an extension was required and then used.
In every arm of government and in the commercial world one has to make serious decisions based on predictions and trends. That cannot be avoided. The analysis now leads inevitably to the conclusion that more than 28 days will, before long, be required. But would such powers be used indiscriminately by our police? A number of noble Lords referred to that. I have rather more faith in our police than some people and organisations seem to exhibit, and in this context it is well worth noting that the police have not needed or used more than 14 days in the past 14 months because there has been no requirement to do so. There have been no plots of the complexity that requires that length of investigation. I have to say—this is not giving anything away—that at present all our intelligence indicates that that might not remain the case for long. I digress here and mention the noble Earl, Lord Onslow, who said that the threat has not increased. I am afraid that the threat has increased dramatically, and that has been stated very clearly. We are monitoring 2,000 people, and the things that regularly cross my desk are daunting. There is a greatly increased threat, which we have to manage.
However, I understand the concerns of those who say, “Hang on a minute. If we go down this route we could end up with 300 days, 500 days or whatever”, Indeed, it was concern about how far we should go that led me to express doubts about the 56 days that were talked about last year.
I have no easy answer to this. Rather, it has to be a question of judgment using pragmatism, common sense and knowledge of all the issues. I believe—the noble Lord, Lord Carlile, touched on this as well—that 42 days is about right, bearing in mind that we are looking at going beyond 28 days, and at the moment, using my professional judgment, pragmatism and common sense, I do not envisage additional complexities that would require more than that. I cannot say that that is any more than a judgment—I do not know the exact answer—but it will be only the most exceptional, complex and serious cases that require more than 28 days.
What of those who have been saying that more than 28 days is not required? Most of them of course are interested laypersons and not experts. Many call in aid senior police officers, serving and retired. I can say only that ACPO, the chief constables of all the forces where the bulk of terrorists have been apprehended—not those from some of the shires—and, more recently, retired senior police officers who spent time in post handling these complex operations, rather than those who have been retired longer, all believe that more than 28 days will be required at some stage in the future. Indeed, this morning I had a phone call from Chief Constable Ken Jones. He phoned me to say, “Best of luck. Charge of the Light Brigade”, or something like that, but then he said, “I do hope you manage to get it through because there will be a case where we need more than 28 days”.
Noble Lords have heard from the noble Lord, Lord Carlile, the independent reviewer of terrorism, who, more than any other non-operational person, has access to information on terrorist investigations. He is convinced that at some stage more than 28 days will be required.
Andy Hayman, former assistant commissioner for special operations at Scotland Yard, has been quoted at length. I shall set out exactly what he said:
“As someone who has been deeply involved in every major counter-terrorism investigation since 2005, I am convinced that we will soon need the power to hold suspects for more than the current limit of 28 days—and that we need to legislate for that power now rather than in the middle of an emergency”.
I have to say that I am sure that there will be a need to go beyond 28 days.
My noble and learned friend Lord Morris of Aberavon asked whom we have consulted. I could go into detail on this but over four months we consulted more than 100 organisations, the judiciary, legal organisations, police forces, the CPS and the DPP, and the DPP was consulted before the Bill was introduced.
I asked myself whether there was any way of avoiding extensions by using technology or perhaps using other legislation. These were the very issues that I wanted to investigate last year when I was falsely accused of a U-turn. I was glad to hear the noble Earl, Lord Onslow, accuse me of that again. It was an interesting interlude in my life but at least it brought the new phrase, “Doing an Admiral West”, into the drivers’ lexicon, so it was not all bad.
The short answer to whether technology or other legislation will remove the need to extend is no, and certainly using intercept as evidence or post-charge questioning are not silver bullets to achieve this end. I do not intend to go into detail on using intercept as evidence but we are pursuing the recommendations of the Chilcot review at full speed on a cross-party basis.
I looked at the question of technology but it cannot resolve the time aspects of analysing ever growing amounts of computer data, not least because there are choke points where only a limited number of assets can be brought to bear and the need to go through other jurisdictions and languages is incredibly time-consuming. Some of them do not want to help us; it takes a long time.
So what of using other legislation or other charges? Let us take the threshold test, for example. I think that I have three pages on that. I could go through them or I could say that I am afraid that it does not meet all our requirements. It has been debated at length and I shall spare the Committee those three pages. The threshold test does not achieve what we want.
We have of course looked at whether the Civil Contingencies Act could provide a workable model, but we, the Home Affairs Select Committee, the Joint Committee on Human Rights, the noble Lord, Lord Carlile, and the police have all concluded that it is not the answer. This is primarily because the Act was not designed to provide for extensions of detention in terrorist-related cases and it would give rise to considerable legal and other difficulties if we tried to use it in that way.
The Minister has not yet come to the question of legal difficulties under the European Convention on Human Rights, but can he tell the Committee how he answers the view of all independent legal commentators and of the Joint Committee on Human Rights that there will be serious breaches of the convention without a derogation? Will he be dealing with that?
I did not intend to go into that in detail. I simply say that I see nothing at all in what we are doing here that goes against the ECHR. There would have to be a challenge through the courts to show that but I do not believe that it does; I think that we have all the right safeguards in place.
The noble Lord, Lord Imbert, made very clear during Second Reading that using spurious minor charges and then post-charge questioning was not the correct way to do business in this country, and I agree entirely with that. The DPP is totally against holding charges of the type that the noble Lord, Lord Dear, talked about. They are contrary to our legal system. As a throwaway comment, I have to add that it is ridiculous to say that you are entitled to legal representation post-charge but to suggest that there is no legal representation or access to a lawyer pre-charge. There is.
I am convinced that there will be a complex case in the future where the police will need more than 28 days to bring the appropriate charges, and there is no way of avoiding that stark fact. That is why we are proposing contingency, or what I sometimes call—perhaps somewhat inelegantly—back-pocket legislation, to enable the 28-day limit to be increased in exceptional circumstances, and then only for a very limited period. What is the balance of risk? As a Minister, I have to ask that. If I am wrong—and my goodness, I hope that I am—there will be no such complex plot and the limit will never be extended above 28 days under the powers in this Bill. But if the proposed legislation is rejected and the Government and the experts are right about needing more than 28 days, it could mean that dangerous terrorists are released to commit atrocities or destroy other potential prosecutions. They will not be brought to justice for the terrorist crimes that they have committed.
The noble Lord, Lord Thomas of Gresford, referred to the Overt trial. I have to be careful. I cannot really talk abut this because there are considerable things going on. All I would say is thank goodness that two men were found guilty of conspiracy to murder.
Three, I hear. They could have murdered tens or hundreds—probably not thousands, but hundreds of people could have been killed. We get into the question of scale raised by the noble Lord, Lord Carlile. Is the fact that a small number of people may have been held for whom we could not get a charge to be weighed in the balance against the fact that two or three people could have killed hundreds and were found guilty? I throw that to the Floor.
Is the noble Lord saying that if a person is released, rather than being held in custody at the end of 28 days because the threshold test is not met, that significantly increases the threat of a subsequent terrorist event? Are the public not entitled to expect that in those exceptional circumstances, that individual, once released, would be kept under surveillance to reduce that risk?
The Government will do the absolute maximum to try to ensure people’s safety by ensuring that there are people covering those who have been released, who are after all innocent. Complete checks need to be made all the time as such people will be able to use their phones and perhaps unravel cases that may be going on against someone else. They will not be found guilty of something they intended to do, which is possibly to kill thousands of our people. That cannot be right and we must try to avoid that happening.
My noble friend has said that in his judgment such power will certainly be needed in the future. In the event that the proposal were defeated in this House tonight, would it be incumbent on the Opposition to support emergency and less satisfactory legislation?
I shall come to my noble friend’s point a little later in my response.
As a Government, we feel that the imbalance in that risk is simply too great and not legislating is a risk we should not take with the lives of our population. Having made that decision, how can we safeguard the rights of individuals caught up in this process? There has been detailed consultation across the board on this issue. The noble Baroness, Lady Ramsay, pointed out that she has never known so much consultation by a Home Secretary. The other place demanded a number of extra safeguards, including stronger parliamentary involvement. A number of people from all parties decided that.
I have to be careful what I say, but to my mind the judicial safeguards that already exist are without a doubt the most important to secure an individual’s rights. It is important to remember that a judge may grant extensions for only a few more hours—or maybe a day—over the 28-day limit, but in highly pressured situations where the CPS and police are trying to secure sufficient evidence to charge, those additional few hours may make all the difference. Additionally, the fact that the DPP has to submit a bid in conjunction with a senior police officer to the Home Secretary before the Home Secretary may increase the detention limit adds further to that protection. As we know, the current DPP would look at that in great detail if he were about to do it. The fact that the Home Secretary has to go before the House, as has been pointed out by noble Lords, will focus that Home Secretary’s mind. I do not believe that it will be done lightly.
I was concerned, as are a number of others in the Committee, that the safeguards had become rather cumbersome. Indeed, I was very concerned, so specifically asked ACPO if they were workable. It said, “Yes. The proposal is a bit clumsy but it is workable”. That is good enough for me. As the noble Lord, Lord Tebbit, said, we can readdress it in the future anyway. Some have suggested that there may be confusion between the role of Parliament and the judiciary. I can understand that, but it represents a misreading of the provisions. The role of Parliament is to discuss and, if so minded, approve the order-making power to apply for and grant up to 42 days’ detention. The courts, in contrast, assess on a case-by-case basis whether the police and CPS need more time to collect and examine evidence in order that a charge may be brought. I believe that it is the judiciary that safeguards the rights of the individual.
Concern has been expressed about parliamentary debate being limited. I could go into the things that could be debated, but there is no point, as I identified the key balance between the two. As I have already said, ACPO considers this to be workable, and although it is rather inelegant, it possibly gives more protections for those caught up in the process. Clearly Members from all parties in the other place felt they wanted those, so they got them.
A great deal of nonsense has been talked about global comparisons. First, I should say that as long as our legal system is compatible with our human rights obligations—I am entirely satisfied that the Bill’s proposals are compatible—I do not really care what other countries do. My prime concern is the safety of our citizens and visitors to this country. I am afraid that the noble Lord, Lord Dear, and others, delude themselves if they think that people in these other countries are held for these short times. I am constantly talking to my opposite number. I will not go into detail—I get into enough trouble as it is—but I assure you that you are bloody lucky to live in this country. That is all I would say. I do not intend to go into the detail here, but I might do so on a private one-on-one basis. I also never cease to be amazed how people who despise and hate our country and who are here illegally fight tooth and nail to avoid being sent to any other jurisdiction. I try to send them to all sorts of others, but they do not want to go to any of them.
Finally, and importantly, there is understandable concern that this proposed back-pocket measure will alienate communities. That is an important point. I am particularly proud of the advances we have made in the past 15 months with the “prevent” strand of our counterterrorist strategy. We have done a great deal in that area. In the case of this Bill we have undertaken extensive consultation, including with representatives from Muslim communities and other faith and community groups. It was quite clear that pre-charge detention was in no way near the top of their concerns and we have seen no evidence to suggest that the 28-day limit has undermined their support in dealing with terrorism. However, as we have made clear, we will undertake a review of the impact of counterterrorism legislation on the Muslim community.
I did not say that people had said, “Gosh, we support 42 days”. I said that we saw no evidence to suggest that this undermined their support. My noble friend talks of patronising. I fear that sometimes people are rather patronising on this subject. Muslim communities are no different from any others in that they want criminals caught and prosecuted and want the police to have the powers to do that. Some people patronise them. The Bill contains measures to enhance and protect national security and it is for the greater good of all communities, including Muslims, who are an integral part of our society. I think that they see that as well.
I have spoken at length but make no apology as this is an important matter which, if we get wrong, we could all live to regret. When the need for more than 28 days arrives—and it certainly will—we can either have a well considered and debated back-pocket measure in place ready to make available to prosecutors or we will be forced to release terrorists on to our streets, unless some hurried legislation is passed and we all know that hurried legislation in a period of emergency is bad legislation. I assure the Committee that whoever is in power will find it a very uncomfortable moment.
I therefore ask for Amendment No. 29 to be withdrawn and that Clauses 22 to 32 and Schedule 2 stand part of the Bill.
I shall take no more than two minutes of your Lordships’ time. We are already approaching 11 hours of debate in your Lordships' House, if one includes the Second Reading and today’s proceedings. I am most impressed with the commitment of all sides of the Committee in trying to find a solution. I am also very grateful to the three co-signatories to my amendment, who spoke so well at the beginning of the debate.
I shall pick out only four points and shall give them one line each, as it were. I have heard no evidence of a current need to extend. That is probably given on both sides. I have listened very closely to what successive DPPs said. They do not need it now; neither do they see a need in the future. Please note that they are the people who make the decision on the ground while the clock is running. I have heard no challenge to the suggestion—more than a suggestion—that I and many others have put forward that it is possible to use existing law when running through the 28-day process to charge what, with the greatest respect to him, the Minister called holding charges. They are not holding charges. No one can say that charges of possession of explosive materials or preparatory acts of terrorism are holding charges. They are serious in their own right. If the investigation is continued beyond that point, and the prime offence is charged later, then so be it. We have heard a lot about the threshold test that allows that sort of thing to go forward.
I apologise to the noble Lord for interrupting at this late stage. He suggested that people should be charged with, for example, possession of explosives. Will he give the Committee his realistic assessment of how long they would be likely to spend in custody after being charged with such an offence? Would it be more than an extra 14 days or less?
No, I will not give way.
The difference is obvious. In this hypothetical case of possession of explosives, you charge immediately. I repeat myself for, I think, the third time in your Lordships' House. You charge the offence, you give access to a solicitor, and you tell what the offence is. You are into the judicial process. It is for the courts to decide whether the prosecution is delaying. The courts have many resources for forcing the prosecution to bring the case as speedily as possible—it is no good the noble Lord raising his eyebrows because that is a fact. That is a perfectly justifiable way of going forward.
I was disappointed that the Minister should almost in one line, and getting a laugh in the process, overlook the fact that common-law countries do not even approach 28 days. The nearest is 12 days. The argument follows immediately: if they can make do with 12 days or single figures, why are we looking, in any circumstances, to go to 42 days?
Lastly, ACPO is divided. It agrees with that. Andy Hayman, who is recently out of office as an assistant commissioner, said that the proposals are bureaucratic, convoluted and unworkable. He was supported by a range of law officers in your Lordships' House: the noble and learned Lords, Lord Lloyd of Berwick, Lord Lyell of Markyate, Lord Morris of Aberavon and Lord Falconer of Thoroton, and the noble Lord, Lord Thomas of Gresford. One could go on. If they do not know rather more than ACPO, then I am not sure what we should be debating today.
We have now been going for approaching 11 hours. I am not satisfied that we have heard anything today that causes me to change my mind or to think that this amendment should be dropped. I beg leave to test the opinion of the Committee.
Clause 22 [Grave exceptional terrorist threat]: