That the draft order laid before the House on 18 May be approved. 16th Report from the Joint Committee on Statutory Instruments.

My Lords, the Government agreed during the debates on what became the Terrorism Act 2006 that there should be a requirement for the annual renewal by Parliament of the 28-day time limit. Section 23 of that Act extended the maximum period of detention of terrorist suspects before charge from 14 days to 28 days. Section 25 of that Act says that the period of detention will revert to 14 days unless the 28 days are renewed by order for a period of up to a year. The order maintains the 28-day maximum limit for a further period of one year, beginning on 25 July 2009.

Terrorist investigations can be immensely time-consuming, and the increase from 14 days to 28 days was necessary primarily as a result: first, of the greater use of encrypted computers and mobile phones; secondly, of the increasingly complex nature of terrorist networks that have to be investigated—they quite often run through many, many countries; and, lastly, of the increasingly international nature, as I say, of terrorist networks. There are huge language difficulties and there is great difficulty in getting this evidence from abroad, which all adds to the complexity.

The potential consequences of a terrorist attack are of such magnitude that it is imperative that the police have the powers to arrest terrorists before they can achieve their goals. The current threat level remains at severe, where an attack is highly likely. Jonathan Evans, director-general of the Security Service, has recently stated that there is enough intelligence to show intent to mount an attack and that it could happen at any stage.

When a terrorist plot is uncovered, due to the likely severity of an attack, law enforcement agencies often have to intervene at a much earlier stage in the investigation than they would like. I have to say that I encourage them to do that. As a result, at the point of arrest the information that the police have available to them may be based more on intelligence than on admissible evidence. This is one of the fundamental ways in which terrorism is so different from other crimes. Therefore, unlike other forms of crime, proportionately more work needs to be done on the investigation after an individual has been arrested.

The decision to extend pre-charge detention from 14 days to 28 days in the Terrorism Act 2006 took account of these practical difficulties, and it has been justified by subsequent events. It means that we have been able to bring prosecutions that might otherwise not have been possible. Since the power came into force in July 2006, 11 people have been held for more than 14 days, and six people have been held from between 27 and 28 days; of these six, three were charged with terrorist-related offences. The last person to be held for more than 14 days was held on 30 June 2007 for 18 days, 17 hours and 48 minutes, which shows the flexibility of the length of time for which people are held.

I should point out that the existing application for an extension is a very rigorous process. Those who are arrested can be detained for 48 hours, after which the police or the Crown Prosecution Service may apply to a judicial authority for a warrant of further detention. This is to a designated magistrate for applications for up to 14 days’ detention, and to a High Court judge thereafter. A Crown Prosecution Service lawyer makes the application for extensions beyond 14 days. Defence solicitors are provided in advance of each application, with a written document that sets out the grounds for the application.

At the extension hearings, the senior investigating officer is present, and the applications are usually strenuously opposed and can last for several hours. The officer may be questioned vigorously by the defence solicitor about all aspects of the case. Applications to extend the detention period may be made for up to seven days at a time or quite often for less; it may be a matter of only a day or two. Suspects can be held only for the purpose of obtaining evidence in relation to criminal offences. They cannot be simply detained for public safety reasons. This means that once the police have exhausted their questioning of a suspect, the person must be either released or charged regardless of how many days they have been detained for.

A recently published report by Her Majesty’s Crown Prosecution Service Inspectorate highlighted that the Counter Terrorism Division of the Crown Prosecution Service,

“treat the extended power of detention very carefully. Applications are only made if properly justified and careful consideration is given to the further period required to complete the enquiries”.

As I have already noted, all 28 days have been proved to be necessary, and while the full 28 days have not been needed over the past 24 months that does not mean that they might not be needed again in the near future. The threat level cannot be ignored, and it is simply not possible to predict what might happen over the next 12 months. All of us on all sides of the House appreciate the seriousness of the terrorist threat that we face and the importance of having the right measures in place to counter that threat. Terrorism is a huge international challenge, but it is a particular challenge for democracies, which must strive to protect individual liberties while ensuring collective security. It is vital to strike the balance between protecting the rights of the detainee and ensuring that an investigation proceeds properly and effectively, enabling the police to deal with the complexity of modern terrorism investigations. I hope that the House agrees that this order achieves this, and I commend it to the House.

Amendment to the Motion

As an amendment to the above Motion, at end to insert “but this House regrets Her Majesty’s Government’s decision to maintain the length of pre-charge detention at 28 days given other methods available to help to bring a charge at an earlier stage, such as a more flexible threshold test, post-charge questioning, better resources for the security services, and the recommendations of the Privy Council Review of Intercept as Evidence, published on 30 January 2008.”

My Lords, I thank the Minister for introducing the order. At least this year we are debating it without any other confusion, such as the proposition to extend detention to 42 days. We now see that that proposition, which we on these Benches strongly resisted, was absolutely unnecessary. I am sure that even the Minister and the Government can accept just how unnecessary it was.

Today we consider whether we should simply renew the 28-day detention with barely a murmur or a question. Every time we consider these special and extraordinary provisions, we must be clear that the goal is to return to what we all accepted as normal pre-9/11: that no one could be held without charge for longer than four days. I want to highlight how different things are now. It is important to remember that we are at seven times the normal limit.

I will not dwell on some of the other details that we have rehearsed many times in your Lordships’ House. The Minister touched on a few of them, including the issue of the suspect’s access to a lawyer and what that lawyer may address. I am sure that my noble friends may touch on those issues. I should like to emphasise the importance of the steps that we make to return to normalcy. I ask the Minister to prove today that reverting to 14 days pre-detention as laid down in the Terrorism Act 2006 is neither desirable nor even, it seems, the goal that the Government seek to attain. The Minister said himself that, in the past 24 months, neither 28 days pre-detention nor anything like it has been used. In fact, the statistics in the independent assessor’s report bear out the fact that a return to 14 days is a practical proposition.

I should like to question the reasoning that the Minister laid out for the 28 day maximum. The Government should provide the evidence to back up the assertions because the statistical evidence is pointing the other way. I will take the Minister’s assertions one by one. He says that there is an increasingly complex nature of terrorist networks. He would accept the strategy—because he, with his department, wrote it—that vastly increased resources are going into counterterrorism. At the time he published the strategy the figure was £2.5 billion, rising to £3.5 billion in 2011—and a Security Service personnel that has doubled in size. The Government impressed upon us that they had a new strategy and better targeting when they launched that strategy in March this year. So, while the terrorist networks may be more complex, the tools that the Government have are increasingly more substantial.

The Minister mentioned the increasingly international nature of terrorist networks, meaning greater language difficulties and a greater need to gather evidence from abroad. I am sure that the Government maintain a good network of interpreters and translators. That is never going to be a sound reason for having such a departure from our normal rules of law and justice. I am not sure whether the Minister mentioned in the Explanatory Notes the difficulty of entering premises to search for evidence where it is suspected that chemical, biological, radiological or nuclear material may be present. Legislation allows access to premises. The technological challenges, if they are that severe, are not likely to disappear on day 28.

The Minister mentioned the need to intervene early in some terrorist investigations due to the public safety consequences of a successful terrorist attack. We had an example of that this year with the arrests in the north-east after Bob Quick inadvertently let slip information about the operation when his papers were photographed. The people were arrested early and released without charge well before 14 days. Then there is the question of the encryption of computers. As the noble Baroness, Lady Kennedy of The Shaws, mentioned some time ago, when we were debating 42 days, that is an issue of getting more computer experts to bear on the problem. Again, it is not a sound argument.

It was very useful that the Joint Committee on Human Rights published its report today at five o’clock. We have the benefit of its views. The Joint Committee believes that it is impossible for it, or for Parliament in general, to assess whether the 28-day limit is necessary without a proper independent investigation of whether those who have been held for more than 24 days could have been released or charged earlier. That has been mentioned to the Government before. Although the report on the operation of the Terrorism Act was published in June this year, and although it contains useful statistics, it does not contain any sort of qualitative assessment to give us an indication of what we are dealing with.

This suggests that the Government do not intend to move away from 28 days at any time in the near future or, indeed, ever. Liberal Democrats are deeply unhappy at this rubber-stamp renewal. We were equally unhappy with the automatic renewal of control orders, in respect of which the Government’s approach was found wanting by the Law Lords. If the Government pursue this order today, we believe it will mean that exceptional legislation stays on the statute book year after year. Doubtless the terrorist threat will not go away for a generation. I am not underplaying the serious nature of that threat. However, given the Government’s approach, we are looking at keeping 28 day detention for a generation. We do not accept that is a desirable position. We urge the Government to develop their thinking and to return with a plan, and the actions necessary, to move us back to at least 14 days before this provision is renewed again. I beg to move.

My Lords, I am sure we are all agreed that during the past two years no one has been held for more than 14 days. I suspect that we all also agree that the fact that this power has not been used is not in itself an argument that it is not needed. However, to uphold the system of justice that we hold so dear and that we are determined, as it is crucial to our society, that terrorists and extremist will not take away from us, it is essential to be certain that that power is necessary.

This point was accepted by the Secretary of State for Justice in a recent lecture at Clifford Chance on 12 May, where he argued, I understand, that UK counterterrorism law was,

“built up in the wake of the 9/11 attacks on New York and the 7/7 attacks on London, should be reviewed and may need to be scaled back”.

He was reported as saying:

“There is a case for going through all counterterrorism legislation and working out whether we need it. It was there for a temporary period”.

This debate is important because it would be absolutely disastrous if we slipped into an easy habit of making temporary legislation de facto permanent and, thereby, in my estimation, giving the extremists a victory, which would be very unfortunate. I am one of those who believe that one of the things that we are defending in our society is our system of justice.

What is the justification for extending it to 28 days again? I noticed today that the Joint Committee on Human Rights has produced a report that raises some important questions in this respect. I wish that it had done it a little earlier. I know, because I have heard him say it, that my noble friend takes the findings of the Joint Committee on Human Rights extremely seriously. I am therefore a little surprised that he did not refer to its report. I hope that, before we conclude our debate, he will take up the points in its report and deal with them in detail.

One of the questions that the Joint Committee raises is whether the procedure by which the judge who authorises detention up to the maximum period during the 28 days provides sufficient, robust and adequate standards. Information can be withheld from the suspect and his lawyer and they can be excluded from hearing it. Another specific question that the Joint Committee on Human Right raises is whether this is compatible with the UK’s human rights obligations.

My Lords, I support what the noble Lord, Lord Judd, has just said, with which I agree very warmly. The Joint Committee on Human Rights has criticised this order. It has not said unequivocally that the order is improper, but it has indicated that whichever Government are in office this time next year they must produce a stronger case if they wish to renew the 28-day detention power. The present Government are likely to be in office for at least the next nine or 10 months. Will they therefore begin to undertake the reviews that have been recommended by the committee in paragraphs 25, 29 and 36 of its report?

My Lords, last year we debated this order when the Government proposed to extend the period of pre-charge detention to 42 days, as the noble Baroness, Lady Miller, reminded us. Having been defeated, the Government still have on the stocks, it is important to remember, what they call the temporary Bill to extend pre-charge detention to 42 days, which they have not submitted to pre-legislative scrutiny. I note that, because it is in the background of the Government’s proposal that they should retain the 28 days. There is a desire in certain circumstances to go further.

I want to reiterate the point that I made last year; namely, that the need for Parliament to renew Section 23 of the Terrorism Act 2000 on an annual basis demonstrates that the extension from 14 to 28 days maximum is already an exceptional power, as the noble Lord, Lord Judd, just said. We scrutinise it frequently because it is such a dramatic departure from normal practice. Certainly, the object on these Benches is that the period of pre-charge detention should be reduced. We have great sympathy with the amendment tabled by the noble Baroness, Lady Miller. We agree with her that other methods should be used to bring charges at an early stage; she detailed a number of them. I add the possibilities for a more flexible threshold test than already exists, the post-charge questioning possibility and the increased resources that certainly, as she rightly reminded us, have been provided to the security services.

One might legitimately ask if the power is still needed based on its use to the present date. A number of the previous speakers have mentioned the statistics. The Government’s statistical bulletin on terrorism arrests and outcomes since 2001 shows, as has been said, that in 2006-07 10 people were held for between 14 and 28 days, of whom seven were charged and three released without charge on the last day of the 28 days. In 2007-08, one person was held for more than 14 days before being charged on the 19th day. Since March 2008, no individual has been held longer than 14 days. So, as the noble Baroness, Lady Miller, said, the statistics do not of themselves demonstrate a continuing need. That certainly shows the importance of review.

However, the statistics are only one part of the debate that we need to have. We on these Benches certainly recognise that the terrorist threat is increasingly complex. There is no argument about that. Even though the power has not been used in the past two years, that does not of itself demonstrate that the extension to 28 days is no longer necessary, as the absence of evidence is not evidence of absence. However, it is imperative that the Government make the case, as has been said by other speakers.

In their Explanatory Memorandum to the order, and as repeated by the Minister, the Government put forward five reasons to justify the need for extension to 28 days. These reasons are based on the evolving and ever increasing complexity of the terrorist threat and include: the greater use of encrypted computers; the increasingly complex nature of terrorist networks; the international linkages in plots and the need for putting everything together; and the difficulty of entering premises—these are all matters to which he referred. The fifth reason, of course, is the need to intervene early in some terrorist cases, which results in the investigators having less time to gather admissible evidence prior to arrest. These are all relevant considerations, as are the points made by the noble Baroness, Lady Miller.

On thinking back to the 12 arrests in Manchester recently, I find it worrying that, following an investigation based on what was said at the time to be strong intelligence into what the Prime Minister described as a serious terrorist plot, the police have not been able to present sufficient evidence even to lay charges against any of the arrested, let alone obtain convictions. There has been no explanation for this and what happened unavoidably gives rise to questions about the procedure followed. It is also the kind of episode that has the potential for greatly increasing communal tension in this country.

We on these Benches have called on the Government to increase the range of evidence admissible in court in terrorist cases to include that derived from intelligence sources, which would help underpin a greater number of successful prosecutions. This call is reflected in the amendment of the noble Baroness, Lady Miller. Yet despite the recommendations of the Chilcot review that it would be in the interests of national security to develop an acceptable way of bringing intercept evidence to court, frustratingly there is still no sign of the completion of the work of the follow-up committee. It would be helpful to know from the Government whether Sir John Chilcot, with his new responsibilities for the Iraq inquiry, will be able to find time in the near future to complete the work that has already been undertaken.

We are all agreed that one of the greatest deterrents to terrorism is getting the guilty behind bars. We should therefore not go on handicapping ourselves unnecessarily by restricting the evidence that is admissible and instead lengthen the period of pre-charge detention to increase the chances of finding other cogent evidence. That is precisely the opposite of the policies followed by common-law countries in similar situations. We on these Benches take the view that we cannot go on indefinitely like this.

As with control orders, we give the Government fair warning that our continued tolerance of extended pre-charge detention on the present basis is wearing thin, and these are the reasons. First are all the points that I have just made about the need legitimately to strengthen the hand of the prosecution in terrorism cases to reduce the resort to derogations from fundamental provisions. Secondly, there is the somewhat elderly information put into the public domain about the nature and extent of the terrorist threat. The reasons put forward by the Government for extending pre-charge detention are certainly not irrelevant, as I have already said, but they are general propositions likely to be more or less valid for a long time to come. They tell us little about the evolving threat or the current security situation and, as has been pointed out, lead to the danger of simply renewing these orders, year after year, without real examination.

The point of the sunset clause is to enable legislators to take an informed view on a periodic basis—and I mean informed. This House needs more information than the Government have provided on the terrorist threat and the security situation. As part of today’s proceedings we should be debating a report from the Government on the current threat and the security situation which informs us and the country about its evolution. The noble Baroness, Lady Manningham-Buller, who is not in her place, helped to move us in this direction when she gave a speech to Queen Mary College in November 2006 on the terrorist threat to the UK; her successor, Jonathan Evans, likewise did so in a speech in November 2007 and, as was quoted today, made the odd further obiter dictum. However, the assessment that we have is now getting on for two years old and these two speeches should not be the end of the information put into the public domain on a considered basis; the Minister should be willing to update us.

As I say, as part of today’s proceedings we should be debating lessons learnt from previous terrorist investigations. The Joint Committee on Human Rights has noted for many years one way in which this could be achieved. It has called for an independent review of the practice of detaining people for between 14 and 28 days, conducted by an appropriate body such as the Crown Prosecution Service Inspectorate, to see whether those charged after being detained for more than 14 days could have been charged any earlier. Other noble Lords have made reference to this and it is an important recommendation which the Government should take seriously.

I note that the report published today states that:

“The Government has provided some statistical analysis which is helpful, but it is not enough to allow us to assess whether the extension beyond 14 days pre charge detention is needed”.

Other noble Lords have said this. There seem to me two reasons. There is certainly the need to examine the efficacy of the procedures and, as I said earlier, we need to know more about the security situation.

The Government have not really provided sufficient evidence in their Explanatory Memorandum either to support or reject their reasons for the extension. That brings me to my third point, which is the unsatisfactory nature of the legal framework surrounding the extension of pre-charge detention as it affects the rights of defendants in particular. This, I know, is something that the Joint Committee on Human Rights always looks at, and last year the committee’s report on pre-charge detention was published the day before we considered a similar order. This year it was published a few hours ago. I wish that the Government would time the debate better, when they know that a report of this kind is going to come to your Lordships’ House, so that it enables us actually to consider the committee’s conclusions and enough time to really absorb its contents.

My Lords, I am grateful to all those who have contributed to the debate. I know that this House appreciates the seriousness of the terrorist threat that we face and the importance of having the right measures in place to counter that threat. That has been reflected in the excellent contributions that have been made.

To the noble Baroness, Lady Miller, I say that of course we would like to return to four days. This was mentioned by a couple of other speakers. We all want to get back to that position, but we are still in extremely unusual circumstances. I hope that over time CONTEST 2, which I will come back to, will move us in a direction that will allow us to do that. These are not measures that we use willy-nilly, though: just 11 people have gone over 14 days in the time that this has been in force. We do not just go and use this in a random way; it is tightly controlled and conducted. As I said, I would love to be able to move back via 14 days to four days, but at the moment a return to 14 days is something that the police and the agencies would be very much against, and they advise strongly against it.

The noble Baroness touched on the issue that I talked about, the increasingly complex nature of terrorist attacks, and the answer is that they are indeed more complex. Even allowing for our increased expenditure, which has been quite remarkable—from £1 billion to £3.5 billion—they are still highly complex and getting more so all the time. I have to say, too, that they are also getting cuter; they rapidly pick up all the techniques that we use. The moment that any of these techniques are exposed in any way, we find, when we are trying to track these people down and bring them to justice, that they are using their knowledge of those techniques to make it more difficult for us.

With regard to the international aspect, the real difficulty is moving through different jurisdictions. We often find, particularly with the way that computer users have been connecting, that they have gone through country after country, and going to those jurisdictions and going through the mechanics of getting hold of information takes a very long time.

The noble Baroness raised an issue that I had not raised in my opening speech, for which I am grateful to her: CBRN. That is a real issue. Luckily, I am glad to say, we have not come across a plot that has caused us a real problem, but I am sure, and I have said it a number of times in public, that in those areas it is not a question of if there is an attack of that type but, I am afraid, of when. That is why we put so much effort in CONTEST 2 into countering those. There is a real problem. Think of that incident with the polonium attack—when trying to get into an establishment where something radioactive and unpleasant has been, time is finite, and it adds time to get forensics in there.

A couple of speakers raised the issue of moving quickly. We need to move quickly; we are talking about a real danger. These are people who wish to kill hundreds or, if they could, thousands of innocent people. We absolutely cannot take that risk. When we have intelligence of a level that shows us that something is happening, we have to move. It would be much nicer to wait in the old way until there was a body and the chap who had done it had thrown his knife down and run for it. That would be perfect, and we could do it all in 48 hours—it works beautifully. That is why these systems were set up many years ago. However, we are just not in that position now. We know, from some of the plots that we have uncovered and some of the ones that we have managed to disrupt, that they are looking at killing huge numbers of people, and we just cannot take that risk.

The noble Baroness mentioned computers and suggested we need more experts. It is not as easy as that. I thank her for raising the 42-days issue; I am scarred by that particular incident and I think I have a Guinness book of records award for the defeat in it. At the time we dealt with that issue, I looked in great detail at the question as to whether we could expand our high-tech unit within the Metropolitan Police Service. But there are narrow choke points and it does not matter whether you have 200 or 2,000 people doing it, because you are tied to working your way through that one thing, and it just does not resolve that bottle-neck. All of those reasons remain and make this necessary.

I agree with my noble friend Lord Judd. He is absolutely right—it was touched on by the noble Baroness, Lady Neville-Jones—that the fact that we have not had an example for two years, does not mean that it is wrong that we still do this. Indeed, I believe the power is still necessary. Certainly, the police and the agencies absolutely believe that we need this.

The JCHR report was mentioned by my noble friend Lord Judd and also by the noble Baroness, Lady Neville-Jones, and the noble Lord, Lord Goodhart. As regards the timing, I am not sure how exactly this happened; I do not know how much it is due to the House authorities or to us. It is not very satisfactory. I have not had the chance to go through the JCHR report in detail.

One of its points is about better information so Parliament can decide whether to renew the power. That is a good point made by a couple of noble Lords. We already have the important independent oversight of the annual reports of the noble Lord, Lord Carlile, on the operation of terrorism legislation. The noble Lord, Lord Carlile, is an authoritative and objective voice of scrutiny on all these issues. He recently announced that he will be conducting a review of Operation Pathway arrests in north-west England, which was touched on. As part of this, he will look at circumstances surrounding the detention of the individuals involved; we will be looking very carefully at that report. Due to his impartiality and his unrivalled access to details, it may possibly be the catalyst for looking at further detention issues, including any individuals who are detained beyond the 14-day period.

We are considering the impact of the judgment on the question of compatibility with the right to a judicial hearing. But the Government do not accept that there is an automatic read-across to all other proceedings involving the use of closed material. Closed hearings are used very rarely in pre-charge detention extension hearings. They are certainly used less frequently in the later stages of detention beyond the 14 days

It raised the very important point of the impact on suspects and communities. During the 42-days debate, a commitment was made to undertake a review of the impact of all counterterrorism legislation. Work on the scope of that review has been ongoing and, while the review will not be specifically about pre-charge detention, it will encompass it. Extensive scoping work means that this assessment has been delayed. A broad research project on the community impact is being progressed and we are committed to deliver this research by November 2009.

As regards the presumption of innocence, that is a matter for the Director of Public Prosecutions to consider. In regards to ensuring that court cases are not prejudiced by external factors, such as the media, this already happens in appropriate cases, albeit via the Attorney-General rather than the Crown Prosecution Service.

We are addressing these issues. I am sorry I do not have a more comprehensive response, but as was pointed out, I was first aware of this at about 5 pm this evening.

The noble Baroness, Lady Neville-Jones, raised the issue of how important it is that we reduce pre-charge detention and talked about the flexible threshold test and post-charge questioning. These issues have been looked at in detail. The police and the CPS still do not believe that these actually meet the Bill and I have been through this in some detail. There is a dispute. There are some people who believe it does, but there is quite a large number that does not believe it does. The noble Baroness also pointed out, as did my noble friend Lord Judd, that the fact that this has not been used for two years does not mean that it does not have any value. She is absolutely right on that issue.

As regards the Manchester incident, I hope the point that I made—that it is being reviewed by the noble Lord, Lord Carlile—covers it. It was another case where there was intelligence of such a level and nature that, when it was put together, we just could not take the risk. I am absolutely certain of that because I was aware of that intelligence. But, as I say, it is fleeting, and it is not the same as evidence. I cannot say much more about it because there are issues in the case that are still being followed through.

My Lords, I am immensely grateful for the detailed and careful analysis of the noble Baroness, Lady Neville-Jones. She gave us a very useful list of headlines that the Government need to address. If I had wanted to move instantly to abandon the order, I would have tested the opinion of the House tonight. However, I tabled a non-fatal amendment to encourage the Government to move incrementally backwards to 14 days. For all the Minister’s expertise, I did not hear him express an aspiration to approach that. It sounded to me as though he still felt that my aspiration was naive, because there was such a tremendous risk.

We on these Benches accept that there will always be risk. The need to balance our values of justice with the necessity to minimise risk was eloquently expressed by the noble Lord, Lord Judd. What the Government are not doing—I did not hear the Minister say that he would be moving towards it—is producing evidence for us. This creates frustration. I heard it from the noble Baroness, Lady Neville-Jones, and we on these Benches feel it, too. The Minister knows what he knows, but at the moment not enough evidence is produced—I am aware of the constraints—for Parliament to make a reasonable assessment based on what the Government are saying. Before we have the debate again this time next year, the Government must try harder and take on board the recommendations of the Joint Committee on Human Rights to produce that qualitative evidence. In the mean time, I beg leave to withdraw the amendment.