asked Her Majesty's Government:

Whether they will take steps to ensure that the archives of major British authors are retained in the United Kingdom and are not acquired by overseas institutions.

My Lords, the Government agree that it is important to find ways to ensure that archives of major British authors remain in the United Kingdom. A number of measures are already in place to help to achieve that. The British Library set up a working party under the chairmanship of my noble friend Lord Smith of Finsbury—who, unfortunately, cannot be in his place this afternoon—to look, among other things, at ways in which living authors can be encouraged to deposit their papers with UK public collections.

My Lords, I thank my noble friend for that Answer. Will the Government stem the brain drain to American universities of the literary papers of living British authors by adopting the proposals made by my noble friend Lord Smith of Finsbury, which would modify inheritance tax and capital gains tax and the acceptance of in-lieu-of-tax schemes to encourage British authors to leave or to sell their papers to British universities, therefore making them available to British academics and to the wider public?

My Lords, my noble friend has asked and answered his Question. The committee chaired by my noble friend Lord Smith has discussed with the Treasury the possibility of extending to living authors tax incentives which currently are available to their estates only after their deaths. Last month, there was a meeting and apparently the Treasury needs convincing that this is an important area, as many noble Lords feel, and further discussions will take place with the DCMS, the Treasury and other interested parties such as the Society of Authors and the national art collection.

My Lords, the Minister mentions the committee chaired by the noble Lord, Lord Smith. We all applaud the initiative of the noble Lord, Lord Smith, and the Poet Laureate for raising the issue originally. Should not the DCMS show leadership in this area? After all, the 10-year rule of the Heritage Lottery Fund and the 50-year rule of the national export reviewing system both militate against purchases of such collections. There is also the Treasury. Is the DCMS making representations about VAT on loose manuscripts?

My Lords, I can assure the noble Lord that the DCMS is making representations on these matters to the Treasury. There is a very strong feeling that our most valued cultural tradition is our literary heritage and it is essential that we stem the flow of manuscripts from this country to American universities, which are paying huge amounts of money for them. The DCMS recognises that we have to do something about it and various significant groups in the literary scene in Britain are giving the DCMS their full support in its discussions with the Treasury. However, it has to be kept in the public eye.

My Lords, I declare an interest as chairman of the Reviewing Committee on the Export of Works of Art. Am I right in understanding from the Minister's reply that the DCMS is firmly of the conviction, which is also held by a majority of the Members of this House, that the present arrangements are unacceptable and that changes need to be introduced to safeguard these important documents?

My Lords, the fundamental problem is that many of the procedures in place to stop works of art and manuscripts leaving this country have a time limit. For example, documents have to be 50 years old. We are facing a new problem which is that young, living, British authors are selling their archives to American universities that are paying huge amounts of money for them. Our only hope is that, if the tax incentives are accepted, the gap between what an American university offers and what an author would get from, say, the British Library, would be narrower so the inclination of the author would be to give the material to a British institution.

My Lords, does my noble friend accept that, given all the pressures on the budgets of universities and local authorities, it is extremely difficult for them to maintain archival services at an acceptable standard? Unless the Heritage Lottery Fund is able to sustain its contributions at least at the level of the past decade and to have the greater freedoms to which noble Lords have already referred, the prospect of acquiring important archives of major British authors is almost non-existent. Will my noble friend reassure the House that the Government have no serious plans to raid the resources of the Heritage Lottery Fund?

My Lords, the Government have no plans to raid the Heritage Lottery Fund. In the years 1999-2004, the Heritage Lottery Fund provided more than £34 million to archive projects. The will is there; for example, the National Archives received £38 million direct from the Government in the past financial year. It is a question of making sure that everyone realises that there is a new problem to deal with, which is the problem of living authors selling their archival material to American universities.

My Lords, I speak as a member of the Roxburghe Club. While the Government are considering this matter, will they bear in mind the efforts made between the two wars by Colonel Isham, a United States citizen who acted for Yale University, to rout out the Boswell manuscripts which were scattered throughout England, Scotland and, particularly, Ireland? After he got them to Yale, they were published beautifully by the British firm of Heinemann. The Boswell collection, one of the best in the world, is now published in England thanks to the help of Colonel Isham and Yale.

My Lords, I agree with the noble Lord. Many American universities have acquired material for a lot of money and have done a wonderful job in cataloguing and displaying it. However, we are left with the general problem that it is not good for our cultural heritage for so much of this wonderful material to go across the Atlantic.

asked Her Majesty's Government:

What is their response to the British Airports Authority's proposal to introduce a £5 charge to drive into Heathrow and Stansted Airports.

My Lords, there are no formal proposals. The air transport White Paper noted that the scope for some form of road user charging at Heathrow should be considered. That is currently being explored as part of the work to review possible development options. BAA is preparing a planning application for a second runway at Stansted. Its proposals for surface access improvements may consider the need for any potential demand management measures.

My Lords, I thank the Minister for that reply. Can he indicate whether the Office of Fair Trading is happy with what some consider to be the effective monopoly that the British Airports Authority holds over major British airports?

My Lords, that is a little different from the Question. The Question is about a potential congestion charge and traffic management around Heathrow. If the noble Lord is saying, through his supplementary question, that he is critical of the role of British Airports Authority, let me say that we have faith in its ability to develop both Heathrow and Stansted to meet reasonable potential demand and to relate to local communities to guarantee that such improvements are affected through local consultation to minimise the difficulties for local people.

My Lords, is there anywhere in the world where entry access to airports is met by any charge whatever?

My Lords, I cannot think of one, but no airport in the world is as busy as Heathrow and no airport in the world remotely of its size is quite so close to a major conurbation, which is London. Therefore London Heathrow presents unique and challenging issues with regard to traffic.

My Lords, would the Minister care to comment on the fact that the plans which BAA has put forward this week for Stansted envisage a huge development and that, with developments it has in mind at Heathrow, unless some form of congestion charging is put in place, it will be impossible to access these places easily? In fact, the places will be so severely congested that they will be thoroughly unpleasant to use.

My Lords, that is why in the White Paper we anticipated that the British Airports Authority ought to address traffic management around Heathrow. Everyone will be acutely aware not only of the difficulties of getting into the airport on occasion, but also of the consequent problems for the M4, which hit the headlines fairly frequently. The noble Lord is right that we cannot see the development of Stansted at the level being proposed—although that is still open to consultation—and the concomitant development around that part of Essex, Cambridgeshire and north Hertfordshire, without recognising that there are significant traffic management issues.

My Lords, I declare an interest straight away as Leader of Essex County Council. It seems that the development of Stansted will be funded on car parking charges. It is already the largest car park in Europe. Would it not be better to improve the train service? The Stansted rail service breaks down and stops about a dozen times. Surely, we need a decent train service to Stansted before one considers even the remotest possibility of further extension.

My Lords, the noble Lord is right; we need to improve the rail link to Stansted. Part of the proposals will involve that. But if the noble Lords is bemoaning the fact that Stansted has remotely adequate car parking, he should see the complaints from those people who use airports where there is insufficient car parking.

My Lords, is the Minister aware that newspapers are carrying reports that all car parking spaces at Heathrow are likely to be booked up already for the Christmas period? Therefore, the imposition of a £5 charge is likely to make little difference to people who are, notwithstanding good public transport facilities out to Heathrow, quite determined to take their cars there? Is it not important in the longer term for the country's economy and for the south-east that we try to get air pollution at Heathrow down so that we can continue to develop Heathrow in a sustainable fashion?

My Lords, I did not choreograph the approach of the noble Lord opposite with that of my noble friend, but my noble friend has produced the riposte to the problem with Heathrow: the inadequacy of parking. Car parking charges are quite high at airports, including Heathrow, but the traffic that may be transferred more readily to public transport—I agree that we need to enhance public transport access to Heathrow—may be what is referred to in the trade as the kiss-and-fly trade: those who say farewell to people who they drop off at the airport before taking their cars away.

My Lords, do the Government really think that the congestion charge of £5 will relieve congestion at those two airports? If so, and a congestion charge is necessary, why is it not applied elsewhere?

My Lords, the congestion charge is applied elsewhere, with noticeable effects on traffic flows in central London. There is no congestion charge of £5 at Heathrow or Stansted; there is a newspaper report to the effect that there might be. If such a charge came into effect—at this stage, I have no idea whether it will—I would be amazed if the figure arrived at was £5.

My Lords, my noble friend said that there might be a charge because of congestion. However, is he aware that soon the number of trains going to Stansted airport will double, but that one railway operator—I am not sure whether its name starts with W or O—is reducing rush-hour trains through Stansted Mountfitchet, where my daughter lives, which will force many commuters on to the roads, which will defeat the object of the exercise?

My Lords, I am aware that the new timetable for that line has not won overwhelming approval. However, it is clear that the expansion of Stansted—which, as I said, is still very much under consultation—cannot take place without significant improvement in public transport.

asked Her Majesty's Government:

What impact the new financial system of payment by results is having on the National Health Service.

My Lords, in 2005–06, payment by results applies mainly to elective admissions. At this stage, the emphasis is on learning how to operate successfully in the new system. We are doing that in a managed way, introducing the tariff incrementally and limiting the financial impact. We will bring more services within the tariff from next April. By 2008, the tariff will apply to the vast majority of acute services. Early indications are that organisations are paying more attention to productivity, financial management and better information.

My Lords, I thank the Minister for that reply, but is not payment by results a misnomer as it is payment by activity, regardless of quality? Hospitals whose reference costs are below the national tariff increase their income by admitting and treating patients. Does the Minister share my deep concern at the 50 per cent rise during the past 10 years in Caesarean section rates? What financial incentives are there to promote natural birth?

My Lords, I do not share the noble Baroness's concern about payment by results generally. That system will improve productivity and quality of services. International evidence from similar payment schemes shows that the benefits include increased use of day surgery and a reduction in length of stay. On the specialty that she mentioned, I share her concern about the rise in Caesarean operations but, under a tariff scheme, we can adapt the tariff over time to ensure that best clinical practices are pursued through the tariff.

My Lords, is the Minister aware that primary care trusts are now worried about payment by results because the projected increase in payments to hospitals, which comes from primary care trusts, will further increase if hospitals increase their activity? What advice would he give to primary care trust boards for them to balance their budgets? Should we restrict the type and amount of activity of hospitals?

My Lords, payment by results is being introduced over a four-year transition period, during which the year-on-year income changes for baseline activity will be capped at 2 per cent for individual providers, so there will be a limit on how much income people can use. The noble Lord asked what PCTs should be doing. They should pursue stronger commissioning in how they take forward their agenda and incentivise practice-based commissioning so that GPs are more in the driving seat.

My Lords, why is payment by results being introduced for most things in the health service yet being taken away from dental treatment? There has always been payment by results in dentistry and everyone viewed that as a treadmill. Why is that stopping just when everything else is changing over to payment by results?

My Lords, I wondered when the noble Baroness would get dentistry in on this Question. She knows as well as I do that we are introducing the changes in dentistry to respond to what dentists have complained about: their treadmill of an item of service payment. Payment by results is not an item of service payment; it is an adaptable system that can take account of different case mixes as we are doing in dentistry.

My Lords, one of the more difficult areas is chronic diseases, such as diabetes, rheumatoid arthritis and so on. Those are treated predominantly in the community by GPs but occasionally they need hospital care and there is a delicate balance between the two. Can my noble friend reassure us that the new system will allow sufficient flexibility for that to happen and not disadvantage patients?

My Lords, the whole purpose of the change is to benefit patients. For the chronic and long-term conditions that my noble friend has mentioned the answer lies in improved practice-based commissioning and commissioning generally by PCTs, so that they can have more of those services supplied in the community. That is where they need to concentrate their efforts. We have begun reducing the number of avoidable admissions to hospital for people with chronic conditions by giving better services in the community.

My Lords, if there is a successful operation but the patient develops an infection, how is that counted?

My Lords, the payment by results system is based on episodes of treatment, which can vary on the case mix. As the noble Baroness knows, we are tackling the issue of infections separately. One of our targets is to reduce infections significantly, and that is taken into account in the performance assessment of the individual hospital trust.

My Lords, I think that I heard the Minister say that he would extend payment by results to acute services. How can one determine whether people are going to become acutely ill? If an area is peculiarly healthy, how will the hospital manage, if it is paid only when people become acutely ill?

My Lords, I hope that I did not mislead the House—I do not think that I did. I said that we were applying payment by results on the whole to elective surgery and that next year it would be applied to most services in acute and general hospitals. By "acute services" I meant those provided in acute and general hospitals.

My Lords, are the administrators paid by results, and, if not, why not?

My Lords, we take account of the performance and success of the many senior managers in the NHS at a modest level in terms of the salary arrangements operating.

asked Her Majesty's Government:

What steps they are taking in co-operation with countries in east and south-east Europe to prevent the trafficking of people, and particularly women, into the United Kingdom.

My Lords, the Government are committed to tackling trafficking in human beings and we are working closely with several eastern and south-east European source and transit countries to improve preventive measures and increase prosecutions. The new EU action plan on trafficking, drafted by the UK presidency and adopted on 1 and 2 December, includes actions to prevent trafficking from outside and within the EU.

My Lords, I thank the noble Baroness for her reply. I expect that she is aware that the International Labour Organisation reported that 1,000 victims of trafficking had been helped in just one year while, in London, one criminal gang, when convicted, disclosed that they had brought into this country for exploitation about 600 women. Does that not show the scale of the problem and that trafficking is big business? Does the noble Baroness agree that prevention is far better than dealing with the problem here and that that involves economic development?

My Lords, I absolutely agree with the noble Lord that this appears to be big business. I am delighted that the arrests made recently were made so efficiently and effectively. Obviously the work that we are doing enables that to happen. But I also agree absolutely with the noble Lord in relation to prevention. He will know that it is for that reason that Reflex has worked very hard on operations. There were 343 operations during 2004-05 which resulted in 1,456 arrests. We are working with Romania, Bulgaria and the Balkans, and we have made substantial contributions in those countries to assist them to assist us and them in dealing with this problem more effectively.

My Lords, does the Minister share my concern arising from the previous reply that the latest threat assessment from NCIS states:

"While there have been some law enforcement successes in targeting the traffickers, it appears that prostitutes who are arrested or deported can be replaced within a week"?

My Lords, of course that is very distressing, but it is absolutely right that we should continue with the trenchant work that we do through Reflex and through working very carefully and closely with our European and other partners to drive this offence away. The real investment that we have made is having very good results, which, as I have just indicated, are very impressive. We of course must do more.

My Lords, is my noble friend not aware that most of the women who are trafficked by these criminals land up in the sex industry? We are very glad when the criminals are arrested, but what happens to the women afterwards? Very often, deporting them back to their country of origin is not appropriate because they will fall into the hands of a criminal mafia again or their families may regard them as dishonoured. Is it possible for them to receive care and rehabilitation in this country since many of them are very young indeed?

My Lords, of course my noble friend is right to express the sympathy and concern that we all feel in relation to victims. My noble friend will know that we have published a best practice toolkit on trafficking, which will be a guide for immigration officers, police and others potentially dealing with trafficking. In particular, it will raise awareness of the difference between trafficking and smuggling and help those concerned to treat trafficking victims fairly. Noble Lords will know about the POPPY scheme, which is managed by Eaves Housing for Women in London. We are certainly learning from that. We will evaluate it and see what more can be done.

My Lords, what are the Government doing on co-ordination in this country as well as abroad in relation to some of these youngsters? They are children and should not be called prostitutes because they are too young to have put themselves into that position. I know that the noble Baroness will know that work is going on, but many of these are young immigrant children who, after they are seen at the ports, disappear from care and other safe houses. Will she say more about what are we doing to protect those children?

My Lords, as the noble Baroness knows, the Government are committed to tackling effectively all aspects of human trafficking, while its prevention is an important part of our strategy. A UK action plan on our trafficking strategy is being developed, for which a public consultation exercise will be launched in the new year.

The noble Baroness is right to point out that children are particularly vulnerable, and we impose stringent penalties on those who exploit them. In addition to the specific trafficking offences set out in the Sexual Offences Act and the Asylum and Immigration Act, both of which cover the trafficking of children, a range of other relevant offences applies. The prevention of human trafficking forms a key element of our justice and home affairs agenda and we will continue to work with the relevant agencies. Since 17 October this year, a team has been operational which involves the following agencies in some capacity: the Metropolitan Police, the Immigration and Nationality Directorate, the Department for Education and Skills, social services and the NSPCC. They are working in particular on Operation Paladin, a Reflex-funded operation being undertaken by the Metropolitan Police.

My Lords, we now have the proceeds of crime legislation on the statute book. What arrangements are being made either to recover or at least to get money out of people who have been convicted? Although some heavy sentences have been imposed, it is not clear how much money the police have been able to recover from those who exploit women.

My Lords, the noble Lord is absolutely right. Seizing assets from those people is a way of deterring them from proceeding. Reflex has been successful. In 2004–05, some £4.5 million of criminal assets were seized, which is a good start. Obviously we want to do as much as we can to ensure that criminals do not profit from this very evil trade.

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.).)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 19 [Consents to prosecutions]:]:

moved Amendment No. 105:

Page 17, line 41, at end insert—

"( ) Permission under subsection (2) shall not be given if—

(a) there are reasonable grounds for believing that the government of the country has committed or encouraged in its territory genocide or crimes against humanity or grave breaches of human rights, and

(b) the person against whom proceedings are contemplated is not alleged on reasonable grounds to have aided, committed, or encouraged, or to have been a member of an organisation which has aided, committed or encouraged acts involving the deliberate killing of members of the public."

This amendment addresses an issue that has come up repeatedly in our discussions on the Bill. Members of the Committee will recall that in our discussions, one of the most difficult problems we have had to deal with is that while in some countries a person would be called a terrorist, in other countries he would be referred to as a freedom fighter; in other words, what are the clear limitations on the use of force against a government and on what grounds might such force be justified?

Let me begin by saying briefly that this amendment addresses the issue of the circumstances under which the Director of Public Prosecutions could bring a case against a foreign power where an offence has been committed which is partly or wholly of concern to that power. Perhaps I may make a very clear distinction between those governments who have legitimate channels to express opposition, such as our own and those of most democracies in the world, and those governments who do not. We should be very careful indeed of being recruited into what is sometimes described as a "war against terrorism" which fails to make that crucial distinction.

I remind noble Lords of the great example we have often discussed in this House, which of course is that of apartheid South Africa. I refer to the famous remark made by Nelson Mandela from the dock at the Rivonia trial in 1964:

"All lawful modes of expressing opposition to this principle, the principle of white supremacy, had been closed by legislation and we were placed in a position in which we had to either accept a permanent state of inferiority or to defy the government".

That is often treated as the classic case where sabotage against property as distinct from terrorism against innocent individuals could very powerfully be justified.

But there are other examples nearer home—for example, the overthrow of the democratically elected government of Greece in 1973 by what we now know as the Greek colonels. Their initial two actions were, first, to ban all political activity; and, secondly, to announce that anyone who held any official position and came from a party opposed to the government would lose that position and be suspended from office. It was a sweeping ban on democracy. The question arising from that was about the methods that the Greek opposition could use to undermine a military regime that had been established in a coup and had overthrown the democratically elected government of Greece.

Those might be described as relatively mild forms of oppression. There are yet more serious methods of oppression involving what have now become clearly defined as crimes against humanity, ethnic cleansing, genocide and other barbaric activities that sometimes deface the civilisation of which we consider ourselves to be part. It is in only too recent memory that we can all recall the massacre in Rwanda and the Srebrenica massacre in Serbia. We could draw up a list of governments who are treated as legal members of international organisations—from the United Nations through to other bodies—but which, nevertheless, have perpetrated the most terrible crimes against innocent citizens within their own countries. We do not usually describe that as terrorism. Although increasingly the definition of "terrorism" as crimes that involve the capricious killing of innocent individuals is accepted in the case of non-state actors, many of us recognise that there are state actors who can fall, if not within this category, certainly within the category of those who use unacceptable and illegal force against their own people.

It is interesting that the United Nations has trodden carefully down the line to which the amendment addresses itself. On the one hand, it could not have put more strongly its total opposition to any form of terrorism. I quote again from the United Nations High Level Task Force introduction by Kofi Annan, the Secretary-General, which states:

"Attacks that specifically target innocent civilians and non-combatants must be condemned clearly and unequivocally by all".

I believe that all noble Lords on the Benches of this House accept that sweeping, absolute condemnation of terrorism against innocent civilians.

In the same document there is another quotation from the task force which shows the limitations. It might be described as the decision that no extra-parliamentary or extra-constitutional act can ever be proper. It states:

"We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law".

The amendment addresses these issues. It begins to do so by setting out that the Director of Public Prosecutions should not bring a prosecution in a case where a government have allowed themselves to be involved in acts against humanity or in the acts listed by the United Nations. But the amendment is a moderate one and goes further. It makes it plain that if the person involved in the offence is someone who has been engaged at any point in terrorism involving the death of innocent civilians, then that is a reason why the prosecution should be permitted to go ahead.

I believe this to be an extremely important amendment. It sets limits to what we would regard as legitimate opposition, short of terrorism, against governments who are profoundly oppressive. One need only look at countries such as North Korea, Uzbekistan and various others to see that there are such governments and that they are profoundly oppressive. The amendment would simply tell the DPP not to bring a prosecution on the discovery of an offence against a government of this kind. It makes it clear that that would also exclude anybody who engages in terrorism involving the capricious deaths of innocent civilians.

I support the amendment very strongly. I will be brief, because much of what I wish to say has already been said by the noble Baroness, Lady Williams.

My support is based on my experience of living in South Africa under apartheid rule and during years of emergency from the mid-1980s onwards. At that time, even wearing a T-shirt in the colours of the ANC made you liable to arrest and arbitrary detention, and certainly to a roughing up in the streets by the security forces. It is important that one has in the Bill the kind of protections that the amendment affords. There are so many despotic governments in the world and the forces of democracy often have no other way forward in trying not only to obtain democratisation in their country but also to inform people, who are so severely suppressed and oppressed and have no access to information, that an active movement is doing something to try to liberate them and to remind the outside world that that force is alive and well.

The amendment causes me deep concern. I agree with a lot of what the noble Baroness, Lady Williams, said about human rights, but the amendment seeks to limit the circumstances in which the Attorney-General or Advocate General could give such consent. Consent could not be given where the country concerned was believed to have a poor human rights record and the person to be prosecuted was thought to have been involved in or to have encouraged action other than a deliberate killing of members of the public.

There is no attempt to define what constitutes grave breaches of human rights; I can see lengthy arguments in court on this very point. It is not just a theoretical point; in the context of the UK/US extradition treaty, the noble Lord, Lord Goodhart, and some of his noble friends have often been very critical of the human rights records of the United States, or certain states within it—so presumably it would be intended that that should be covered by the exclusion as well. It is so wide that it would make extradition virtually impossible in many cases.

Could my noble friend the Minister say whether the existing provision provides more safeguards than exist in similar situations in France and Germany? Signing a memorandum of agreement and the subsequent monitoring of the situation allow us to shine a light on the human rights record of the regime involved, as well as allowing us to provide human rights training in the legal system of the recipient country. So I would certainly feel uncomfortable if the amendment was passed.

I support my noble friend Lady Williams in moving the amendment to which I have put my name.

The very wide definition of terrorism in the Terrorism Act 2000 means that anyone using serious violence against person or property to put pressure on their government is guilty of acts of terrorism. So however brutal the government and however justified the cause of the opponents, any serious act of violence by those opponents is defined as terrorism. That runs contrary to what many of us see in respect of a number of movements that have fought for freedom or independence in past years. The most obvious case is that of the African National Congress, as my noble friend said.

There have been brutal dictatorships in the recent past; a very obvious example is the extremely brutal dictatorship of Saddam Hussein in Iraq. There are some brutal dictatorships still in existence—for example, in Myanmar or North Korea—and there well be more in future. We believe that it is wrong that those involved in fighting brutal tyrannies of that kind should face prosecution in the United Kingdom.

Clause 19(2) gives some protection by requiring the consent of the Attorney-General and the Director of Public Prosecutions to any prosecution, but that is simply not good enough. It is wrong to have to rely on the good will of the Attorney-General and the DPP to avoid prosecution of people who are fighting legitimately for a cause that they and we believe to be right. So the Bill should be amended to exclude prosecutions in cases of support for acts carried out overseas when they are directed against an oppressive government. It is not of course easy to decide where that boundary lies.

When drafting this amendment, I did so cautiously. Two conditions must be satisfied to rule out prosecution: first, that the government against whom the acts are directed must be guilty of,

"genocide or crimes against humanity or grave breaches of human rights".

It should be possible for a court to decide whether that condition is satisfied. Genocide and crimes against humanity are now pretty well defined in international law. Human rights are identified in a number of international documents—for example, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which the vast majority of countries have now ratified.

The noble Lord, Lord Mackenzie of Framwellgate made a fair point in saying that it was more difficult to decide what a grave breach of human rights is. The test—although I admit it may be somewhat circular—may be to say that "grave breaches" are breaches that are so serious as to justify or at least excuse armed resistance in the views of reasonable people not connected with either side. I certainly do not feel that that would apply to the USA, serious as are the criticisms which a number of people including myself have made in recent years.

The second condition is that the prospective defendant has not encouraged the killing of innocent civilians and is not a member of an organisation that kills or encourages the killing of innocent civilians. The killing of innocent civilians is wholly inexcusable in support of any cause, however justified that cause may be. That condition, of course, would not apply to the killing of agents of the government such as police or soldiers.

This amendment would rule out prosecutions in cases where there is a clear justification for armed resistance but not in any other case. It would not, I believe, prevent ratification of the Council of Europe convention on terrorism. It seems to me that we must have something of this kind in order to prevent the risk of prosecution against people who are fighting in a cause that they believe is just and that reasonable people in this country would also see as just.

Perhaps I may ask a question about a matter that worries me regarding the consent of the Director of Public Prosecutions. That is an exercise of discretion. Is it an absolute discretion or is it challengeable, if irrational, on judicial review? I do not know the answer to that. The amendment seeks, unfortunately, to open to challenge in the courts every exercise of discretion by the Director of Public Prosecutions. If that is the case, where do we stand?

I am grateful to the noble Lord for giving way. On what grounds does he suggest that a decision of the DPP would not be challengeable by judicial review?

It is an exercise of the DPP's discretion. As I understand the position having appeared in some of those cases, though admittedly too long ago, it would have to be an irrational decision. How are you going to deal with this situation? If it is open to challenge because it is irrational, so be it; but if you introduce this amendment, you invite a challenge on every decision that has been made.

Our names are not added to this amendment but that does not mean to say that we do not applaud the intention that lies behind it. Our difficulty lies in how it has been drafted. I say that not to criticise the drafting style of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, but merely to reflect what I imagine will be a view held by a number of your Lordships—that trying to enshrine the Mandela situation in legal form is extremely difficult. We all know what we mean by this concept; but to translate it into words which will stand up in every situation is exceedingly difficult. Indeed, we think it is impossible.

I thank the noble Lord for his brilliant summing-up of the debate so far. I agree with him—I am afraid that the amendment is fatally flawed for all the reasons that have just been given. I, too, fully understand the import of the concern expressed by the noble Baroness, Lady Williams, and the noble Lord, Lord Goodhart. However, my noble friend Lord Mackenzie made a very powerful point, driven home by the noble Lord and, indeed, by the noble Lord, Lord Campbell of Alloway, who rightly says that if you were to allow this, in all probability you would have an attempted judicial review in relation to every single exercise of discretion. I know that that is not what anyone would want.

The second limb of the amendment is equally problematic. It effectively excludes all attacks on property, so consent to prosecution would never be given in such cases. Of course, attacks on property are never as bad as attacks on people but I do not think any of us could, or perhaps should, forget the attacks made by the Provisional IRA on the City of London in the 1990s. They caused damage amounting to hundreds of millions of pounds and were unquestionably terrorist attacks. Similar acts in the future would deserve to be treated as terrorism.

Of course, they would clearly be terrorist acts within the definition, but theoretically they would not escape prosecution because you could not say that the United Kingdom was a country which practised genocide, crimes against humanity or grave breaches of human rights.

I understand that that is the way in which the noble Lord and, indeed, the noble Baroness framed the measure, but it comes back to the question that has already been raised in Committee as to how we define what those grave breaches are and who falls within and who falls without them. If one looks at the situation in Guantanamo Bay mentioned by the noble Lord, Lord Kingsland, one sees the difficulties of that situation. I understand entirely the concern expressed by the noble Lord and the noble Baroness. Indeed, that is why, in using the definition in the 2000 Act, we have all said that we need to look at the definition of terrorism. That is why the noble Lord, Lord Carlile of Berriew, is looking at that issue. There has to be a wider debate about it. For the time being—and we all know that this Bill is not the end of this issue—it is a better course to keep the definition that we have in the 2000 Act and proceed on that basis. For those reasons, we do not feel able to accept the amendment, and we invite the noble Baroness to withdraw it.

I cannot give an assurance that we will not return to this issue on Report, and I will explain very briefly why. I share the admiration of the noble Lord, Lord Kingsland, for my noble friend Lord Goodhart's extraordinary abilities as a draftsman, and I have little doubt that he may turn his mind further to this issue in the light of some of the criticisms that have been made. Let me put squarely to the Committee the reason why, if we can possibly find drafting that would meet the objections raised by the noble Lord, Lord Kingsland, and by the noble Baroness, it is worth persisting.

To be identified with oppressive governments, and to be identified with governments who offer no other channel of legitimate opposition—I repeat "no other channel of legitimate opposition", which cannot possibly be a proper description of the United States—is to put oneself in an alliance with those who oppose movements for change, movements for constitutional reform, and in some cases movements against some of the greatest methods of oppression that can be thought of. With great respect that is the answer to the noble Lord, Lord Mackenzie. My noble friend mentioned Iraq, but other cases come to mind. We have to find some way in which our opposition to terrorism is expressed as support for democracy, support for constitutional government and support for legitimacy.

Frankly, I think like the United Nations Task Force, it is not beyond the capacity of human beings to make a distinction that shows that we are not taking the view that any government who exists should be supported. That can be done by a redefinition of terrorism, and the Minister has been kind enough in earlier debates on the Bill to make it plain that she recognises the limitations of the definition of terrorism in the Terrorism Act 2000. It is a very sweeping definition. I hope that she will therefore at least give a fair wind to the attempts to define terrorism in such a way as to exclude those acts that are involved in attempting to find a means of expressing opposition in those states and societies that make that legitimately impossible. I beg leave to withdraw the amendment, without a promise that we will not return to it.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [Interpretation of Part 1]:]:

[Amendments Nos. 106 to 112 not moved.]]

moved Amendment No. 113:

Page 18, line 43, leave out subsection (7).

This amendment seeks to leave out Clause 20(7). It may just be worth reading that subsection to give your Lordships a reason why. It reads:

"In this Part references to conduct that should be emulated in existing circumstances include references to conduct that is of a description of conduct that should be so emulated".

I have tried for a very long time to work out what that means, and I have failed. I hope that the Minister in replying will be able to explain it to me and to the Committee. I beg to move.

I hope that I can be as brief as the noble Lord, Lord Elton, and perhaps as elegant in my wording. This issue was raised in another place, and it was dealt with in correspondence by my ministerial colleague Paul Goggins on 9 November. The amendment seeks to amend the drafting of Clause 20 to remove the reference to,

"conduct that is of a description of conduct that should be so emulated".

The current formulation in the Bill allows for references to conduct in the Bill to include references to more generic conduct. As a practical example, it could refer to conduct such as praise for those who become suicide bombers on public transport, rather than specifically on the London Underground. The Bill is drafted as it is for that reason. I trust that that explanation will satisfy the noble Lord and that he will be able to withdraw his amendment.

If I may say so with the greatest respect, that has not made things any easier. I do not wish to get in my noble friend's way, but the noble Lord has rather added to the difficulty. I do not know whether the noble Lord feels himself excessively guided and influenced by what was said by a Minister in another place, but whoever handled the matter in the other place cannot be said to have added in any way to the clarity of the situation. The cryptic and well concealed meaning here ought not to be repeated. I hope that the noble Lord will be inclined to take the matter away and see whether he can inject a crumb of meaning into the lines, which contain nothing. I am sure that my noble friend will feel the same.

Is this not so much gobbledegook? Is there not a way in which the concept can be put in plain English?

I hope that, if I retain my seat for long enough, the Minister will be tempted to leave his.

Tempted I might be, but not to add more, I am afraid. The noble Lord will have to be satisfied with the explanation.

On the contrary, if the noble Lord has nothing more to say, it means that he understands the provision no more than I do. Therefore, although I shall withdraw the amendment, I hope that something a little more lucid can be granted to us at the next stage. I repeat that it is almost impossible to put meaning into the provision, but I shall not go on about that; Members of the Committee can have a happy hour or two before Report working it out for themselves. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clause 21 [Grounds of proscription]:]:

[Amendment No. 114 not moved.]]

moved Amendment No. 115:

Page 19, line 43, leave out from "communication" to end of line 44 and insert "consisting of sounds, images, letters or numerals or any combination thereof"

Again, this is a probing amendment in search of clearer meaning. The definition in the Bill falls between the two stools of being very concise and referring to what everybody knows is a message, and of being full and describing anything that could convey meaning in whatever form. The present drafting seems to exclude some possible forms, so I ask the noble Lord for an explanation, with slightly better hope of satisfaction this time. I beg to move.

I thought that the provision was a model of concision. The amendment seeks to change the definition of a statement within the changes that Clause 21 makes to Section 3 of the Terrorism Act 2000. Currently, the definition we have provided states that a statement,

"includes a communication without words consisting of sounds or images or both".

The noble Lord might be familiar with that if he followed, in quite the same detail as some of his noble friends, the Electronic Communications Act 2000, which makes it clear that a statement can include video and sounds without words, as well as statements of a more traditional nature. I leave him to imagine what such statements might be.

The amendment makes it explicit that letters and numerals are included in the definition. The Government are always happy to look at whether their drafting can be improved, but in this instance I am not sure quite what the amendment seeks to add. We have made clear that a statement that is defined as,

"an expression of something in a speech or writing"

includes communications without words consisting of sounds or images or both, which we thought would put that matter beyond doubt. The Oxford English Dictionary defines images as, defines images as,

"a representation of the external form of a person or thing".

We believe that must include numerals and letters.

I am grateful to the noble Lord for giving us the opportunity to explain that, but I hope that this time my explanation will enable him to withdraw his amendment with greater pleasure.

Must a "statement" have a human source or not?

Yes, I would have thought so.

I would have thought that it would originally have had a human source, but it might be propagated by other means afterwards.

The noble Lord will have satisfied me if he is convinced that letters and numbers are covered by "images". With that understanding, I happily beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 21 shall stand part of the Bill?

I oppose the Motion that this clause stand part of the Bill.

Section 3(5) of the Terrorism Act 2000 provides that any organisation which "promotes or encourages terrorism" can be banned by an order of the Secretary of State. That banning is called "proscription". Proscription is a very valuable tool. It was not at first thought so by the Home Office. It thought that proscription would serve little purpose, but happily the Home Office changed its mind. At the time of 9/11 I remember feeling a tremendous sense of relief on looking at the list of organisations that had by then been proscribed and finding that al-Qaeda was at the top.

While proscription is a valuable tool, it should be handled with the greatest of care because members of an organisation that has been banned are automatically guilty of an offence by the mere fact of their membership of that organisation. I have no doubt that proscription, when it first entered into law in the 2000 Act, was intended to catch organisations like al-Qaeda that are committed to violence. It was never intended to catch non-violent organisations, however unattractive they might be. I am concerned that Clause 21 will do just that.

Why is Clause 21 liable to catch non-violent organisations? The answer is that it expands beyond all reason the meaning of "promotes or encourages terrorism" in Section 3 of the 2000 Act. The effect of the clause, if enacted, is that an organisation that "glorifies" an act of terrorism—whatever that may mean, and we know the problems involved with that word—is to be deemed to promote terrorism, even though the organisation has no intention of doing so, if there are persons anywhere in the world who might reasonably be expected to infer that they should "emulate" the act of terrorism in question.

That at once leads to all the difficulties that were discussed in Committee on Monday last week in relation to Clause 1. But Clause 21 is worse than Clause 1. At least under Clause 1, in order to secure a conviction, the prosecution would have to prove intent or recklessness. But under Clause 21 the Home Secretary could proscribe an organisation, even though that organisation was completely innocent, merely because its pronouncements were liable to be misunderstood. I am sure that it will be said that the Secretary of State would never prosecute other than in a clear case, and no doubt that is so; and no doubt it will be clear to him if he does proscribe an organisation, but it may not seem so clear to the organisations themselves.

I have in mind a letter which I received last week from Hizb ut-Tahrir—a letter that I suspect many noble Lords will also have received. Hizb ut-Tahrir is a Muslim organisation with a huge following of young and old, and Clause 21 has caused its members very grave concern. I think that most people would regard that organisation as extremist, as I suspect even its own members may do. But it is a great mistake to confuse an extremist organisation with a violent one or one that promotes or encourages violence. One has only to think of Gandhi. Many would have regarded his policies as extreme but surely no one would ever have regarded him as being committed in any way to violence.

If Hizb ut-Tahrir were a violent organisation, it could already be proscribed under the existing Section 3 of the 2000 Act. If it is not a violent organisation, as its members maintain, surely there is a great danger that it would be caught by Clause 21. The mere fact that it might be caught by the clause will surely do great harm to community relations.

Like other provisions in the Bill and in other Bills brought forward by the Government, in all probability this provision will do no good at all. But it may also do great harm. For that reason, I oppose Clause 21.

My name also appears on the Marshalled List in opposition to Clause 21. The noble and learned Lord, Lord Lloyd, has fully explained the background and I do not think that I need to go into it again. He also referred to the organisation Hizb ut-Tahrir—an Islamic political party operating internationally and priding itself on advocating non-violence. It denounced the London bombings and the New York and Madrid bombings as well. However, it calls for the return of the caliphate—that is its aim—and, worse than that, it calls for Mr Blair to step down from office for lying about Iraq's non-existent weapons of mass destruction and for authorising cluster bombing in Iraq and Afghanistan. I think that that gives the Committee a little flavour of the nature of its political involvement.

The noble and learned Lord, Lord Lloyd, referred to Mr Gandhi, but I suggest that there is a British parallel which may illustrate the problems of this legislation. If Clause 21 captures Hizb ut-Tahrir, surely it will capture Plaid Cymru, the Party of Wales. In the history of the party on its current website is a celebration of Saunders Lewis, the party's president from 1926 to 1939. Although he was a noted writer and dramatist, he was not, it says, an ivory-tower academic. The website states that he,

"along with . . . Lewis Valentine and DJ Williams, took part in the celebrated burning of the Penyberth bombing school. This symbolic gesture sought to highlight the evils of militarism and to draw attention to the threat posed by military developments to the cultural and linguistic integrity of the Llyn peninsula".

The website goes on to say that a Conservative government could secure a conviction only by having these three men tried at the Old Bailey in London. They describe the trial as a watershed that sowed the seeds for the future. It certainly did. I have no doubt that it indirectly encouraged the activities of Mudiad Amddyffyn Cymru, who blew up the reservoir at Clywedog in the 1960s, put a bomb inside the Temple of Peace in Cardiff in 1968 and were responsible for the bomb on the railway line at Abergele during the Prince of Wales's investiture when the two men who were carrying it were killed. I am also sure it was the inspiration behind Meibion Glyndwr, to whom I referred at an earlier stage of the Committee, who claimed responsibility for burning more than 200 cottages in the 1970s and 1980s. They even targeted the noble Lord, Lord Hunt, when he was Secretary of State for Wales in 1990. Yet the trial of the Penyberth Three is still on the Plaid Cymru website. Is that not unlawful glorification as defined in Clause 21?

The Government may think Plaid Cymru is a dangerous party. Currently, it sponsors the Impeach Blair organisation and, like Hizb ut-Tahrir, accuses our Prime Minister of lying to Parliament and it wishes to impeach him for high crimes and misdemeanours in relation to the invasion of Iraq. Perish the thought that that should happen. Of course, Plaid Cymru has always—

I am losing track of the noble Lord's argument. Is he suggesting that to call for the impeachment of the Prime Minister is glorifying an act of terrorism?

I am suggesting that this is a party that eschews violence, embraces peaceful and democratic aims, but glorifies terrorism that has happened in the past. The Government, not liking its current stance, could decide to proscribe it for glorifying Saunders Lewis. I am sorry that the noble Lord does not understand. Perhaps I can explain it more clearly.

I understand part of the noble Lord's argument but I do not understand the relevance of the remarks he made about the organisation quoted by the noble and learned Lord, Lord Lloyd of Berwick, and its opposition to our current Prime Minister. I do not see how that relates to the glorification of terrorism. He has introduced that in respect of that organisation and in respect of Plaid Cymru. I do not see the connection.

I am sorry if the noble Lord is unable to follow my argument. Those two organisations both espouse peaceful political means, yet both of them glorify terrorism within the meaning of this clause and may not perhaps be the most popular organisations in the eyes of the current Prime Minister. I am using this only as an illustration, to show what happens should Plaid Cymru be proscribed and to give the Committee some idea of the scope of the Bill.

The consequence of that party being proscribed would be that every member of Plaid Cymru would be liable to imprisonment for a period of 10 years. Any person organising a meeting of Plaid Cymru or addressing Plaid Cymru would be liable to the same penalty. Anyone carrying a flag or wearing a T-shirt which could give rise to the inference that he was supporting Plaid Cymru would be liable to a term of imprisonment of up to six months.

I hope the Committee will see that when I bring this matter down to something with which we are familiar—a peaceful, political party which has never advocated violence but nevertheless glorifies violence that has happened in the past which has actually been emulated—we get to grips with what this clause is all about: the glorification of terrorism. I hope this translation of the terms of British politics will bring home the fact that this is an extraordinarily powerful weapon that is being put in the hands of this or any government, and we oppose it.

I would never presume so far as to suppose that anything I say in the House would be memorable, but it was only yesterday afternoon that I expressed my concern not about what the Government think a clause means but about what some busybody will subsequently claim that it means. I gave an example of a victim who I was sure was not intended by Ministers: the poor lady who was reciting a list of British casualties in Iraq from the steps of the Cenotaph and found herself escorted away by no fewer than 10 policemen. That is an example of what vagueness can do and this clause is extremely vague.

As a matter of interest, I would like to know whether the word "organisation" is defined in the Bill. Is one person capable of being an organisation? This is an important matter.

I wonder whether the Minister has considered how the technical use of the word "glorification" might be open to challenge. I am inclined to agree with the noble and learned Lord, Lord Lloyd of Berwick, that that word is an enormous hostage to fortune. It has a very precise meaning in theological terms, but that is clearly not the meaning being used here. The definition, which includes any form of praise or celebration, is much wider than the technical definition and is liable to give rise to a good deal of confusion.

My second point, which is not unrelated and which leads me to be inclined to support the noble and learned Lord, Lord Lloyd of Berwick, is that there is a real danger of proscribing groups whose relation to terrorism and terrorist activities is so loosely defined, especially if they advocate non-violence. Such measures may well increase sympathy and support for radical movements, without doing anything much to prevent terrorism. I hope that the House will think hard about this measure and be inclined to express its mind by some show of support for the noble and learned Lord, Lord Lloyd of Berwick.

I shall briefly endorse the warning given by the noble and learned Lord, Lord Lloyd, that one should be very careful before extending the grounds for proscription. In addition to the reasons he gave, I suggest that the penalties that follow—not the criminal penalties, but those from being put on the proscribed list—are very serious and impede what should be accepted as reasonably possible activities in a democratic community. They include the difficulty of publicising the ideas of the organisation or raising funds, as well as the risk of being guilty of a criminal offence once an organisation is proscribed. Therefore, one should be very careful before extending the grounds for proscription.

The second reason why this warning is apposite is that it is very difficult for an organisation to get off the list once it has been proscribed. The courts are reluctant to interfere because they think that a tribunal has been specially set up for that purpose. We have seen organisations that claim to be in no way violent and not to have advocated anything that would be prohibited or forbidden in a democratic society having the greatest difficulty in getting a case before the appropriate tribunal to get their names removed. I fully understand the reasons why the Government want to go further, but I suggest that this clause, as now proposed, is not a satisfactory or sufficiently precise model to be adopted in this area.

I am aware that it is extremely unwise for Members of the House who are not legally qualified to get entangled in this debate because we all know that those with legal training have acquired all sorts of knowledge and skills way beyond those of us who have merely qualified in economics or science. I find the arguments that we have heard expressed in respect of Clause 21 very difficult to follow. For example, I find it very hard to understand that the conduct of Plaid Cymru could be such that people,

"could reasonably be expected to infer that what is being glorified, is . . . conduct that should be emulated in existing circumstances".

A description of what happened in the past, coupled with the fact that Plaid Cymru makes it clear that it is pursuing its ends through non-violent means, seems to me to make it very difficult for any reasonable inference that what is being glorified is conduct that should be emulated in existing circumstances. I find that argument rather difficult to follow.

If the argument is that somehow the wording is not as precise as it might be—something that we have already debated at great length in the Chamber, and no doubt will refer to again before the Bill passes—that might be a legitimate approach. But simply to strike out the clause from the Bill seems to be taking the argument somewhat far.

No doubt we would all agree that the principle of proscribing organisations engaged in terrorism is the right one. No doubt we would all agree—I hope we would—that those organisations which seek to facilitate the creation of funds for terrorism ought to be proscribed. Why then should we be so reluctant to proscribe organisations which are trying to procure a flow of individuals to take part in terrorism, as somehow being organisations that should continue to exist? It seems to me that the clause is trying to deal with those organisations which, because of what they say about terrorism and about those who engage terrorism, are encouraging young people, or maybe old people—all sorts of people—to engage in terrorism. Surely, that is exactly on a par with those seeking to facilitate the flow of funds toward terrorism.

Like the noble Lord, Lord Harris, I am not legally qualified; but I advise him not to get too involved in the intricacies of Welsh political life. It can be most difficult.

My worry is that terrorism is a moving target. One day we may very well be condemning terrorism or a particular terrorist group and the next day we may be treating with them. That is the case, for example, with the IRA. At one time it was the terrorist. We would have nothing to do with it. We did not want to talk or negotiate with it. But the next day we found that we could talk to it and that we could negotiate with it. Therefore, it ceased to be a terrorist organisation.

I turn to Iraq. When it was in the interests of Britain and the United States to support Saddam Hussein when he was attacking Iran, those people who wanted to get rid of Saddam, who would have been considered by the Saddam regime to be terrorists, were considered to be terrorists by the British and the United States governments. Then, when the policy changed, anybody who wanted to get rid of Saddam Hussein was considered to be our friend. So difficulties can arise, because one day the terrorists are considered to be enemies and the very next day, or perhaps the next year, they will be considered to be friends. So, when building up legislation like this, we have to be careful with what we are doing.

The noble Lord, Lord Peyton, put his finger on it: there is the law of unintended consequences. Ordinary citizens in this country are now beginning to feel the lash of some of the laws passed in this Parliament by the present—I suppose I have to call it Labour—Government.

We have to be careful about what we are doing and listen to those people, particularly those who are legally trained, because they have a lot of experience, when we are passing legislation such as this, which may prove difficult to ordinary citizens of this country.

Before I finish, I say one more thing to the noble Baroness and the noble Lord sitting on the Front Bench. They have now been sitting there constantly for the past 24 hours and more. They could not have got home before midnight or one o'clock this morning. By the time that they have finished today and got home, they will almost have exceeded 48 hours. I hope that they are not in breach of the European Working Time Directive. They deserve congratulation nevertheless for putting in a magnificent stint on that Front Bench for so long.

I rarely agree with the noble Lord, Lord Stoddart of Swindon, but I want to underline two things that he said. First, legislation of this kind—which, by the by, carries extraordinarily draconian penalties; it is worth reading just how major are the penalties associated with various provisions of the Bill and, if I may say so, the Identity Cards Bill that we discussed yesterday—rests on how far the law is clear to the citizen who is likely to be caught up in it and could end up being very heavily penalised for a breach of it. With the best possible will, no one could read Clause 21 without being extremely confused by it. The definition of glorification to include more forms of praise and ceremonial and the extraordinary definition of a statement as including communication without words but which consists of sounds or images or both, even slightly altered, raise huge questions about the exact meaning of the Bill.

If I accept that there have been drafting difficulties, I must still ask whether the clause could not be drafted much more precisely. My noble friend Lord Thomas gave a description of how Plaid Cymru might be caught. I did not find that all that difficult to understand. The noble Lord, Lord Stoddart of Swindon, raised the position of the whole Northern Irish nationalist movement, which has in recent years glorified terrorism and spoken in terms of great praise and celebration of its achievements and standing and, until very recently, suggested that it should be emulated.

I find myself in great difficulty with the clause, not least because we will shortly consider another Bill that will remove previous penalties on Northern Ireland terrorism. This becomes more and more obscure. It is possibly clear to lawyers, but it is certainly not to citizens and is certainly frightening because one may want to keep the law but will no longer be sure exactly what the law is.

We have rehearsed the arguments about the glorification of terrorism several times. The noble and learned Lord, Lord Lloyd of Berwick, is quite right when he says that extremists or extremist organisations may not be violent individuals or violent organisations. But incitement to violence through the glorification of terrorism does as much—arguably more—harm as the incitement to raise money for terrorist organisations. That was a point that my noble friend Lord Harris made.

There is a real problem here. I am bound to say to the noble Lord, Lord Thomas of Gresford, that his argument was a reductio ad absurdum. Organisations that call for the impeachment of the Prime Minister or that describe past activities, as Plaid Cymru's site does, are clearly not through that action in and of themselves glorifying terrorism. I did not find the noble Lord's argument difficult to understand any more than the noble Baroness, Lady Williams, did; I just found it completely and utterly unconvincing. It did not deal with the real world of what has happened in the past few years in relation to terrorism or with the problem that all of us recognise we have. I felt that the noble Lord, far from getting to grips with Clause 21, had lost touch with the very serious argument of how terrorists today are recruited and sustained.. Organisations that call for the impeachment of the Prime Minister or that describe past activities, as Plaid Cymru's site does, are clearly not through that action in and of themselves glorifying terrorism. I did not find the noble Lord's argument difficult to understand any more than the noble Baroness, Lady Williams, did; I just found it completely and utterly unconvincing. It did not deal with the real world of what has happened in the past few years in relation to terrorism or with the problem that all of us recognise we have. I felt that the noble Lord, far from getting to grips with Clause 21, had lost touch with the very serious argument of how terrorists today are recruited and sustained.

The noble Baroness referred to my argument as reductio ad absurdum. That is exactly what it was intended to be, in that the clause could catch an organisation such as a political party acting with perfectly peaceful intent, for the very reasons that I have explained.. That is exactly what it was intended to be, in that the clause could catch an organisation such as a political party acting with perfectly peaceful intent, for the very reasons that I have explained.

I do not believe that the law is that absurd and I am dismayed to hear a celebrated practitioner express the belief that it is. Terrorism today is spread, at least in part, through glorification of acts of carnage and destruction. Suicide bombings are simply not like the terrorism of the 1980s and the early 1990s. Terrorists seek their own death because that is what glorifies the acts they perpetrate. They seek their own death, not as the inevitable by-product of their act of terrorism, but as part of that act. It is part of the seeking of glorification, which, in itself, is a recruiting sergeant.

I thank the noble Baroness for allowing me to intervene. Were not such things as the hunger strike by Bobby Sands and the attempt to commit suicide by the Price sisters which took the form of taking no food at all, in a sense about glorifying terrorism, regardless of their own lives?

I think that we all accept that there may be ways in which past acts were glorified at the time. The problem, though, that the noble Baroness and all those who support her argument have failed to address is what one does about how young people today are recruited and how terrorist organisations are sustained through individuals and organisations that glorify terrorism. As noble Lords on the other side were not continually interrupted, perhaps, as apparently one of very few speaking in support of the clause, I might be allowed to finish a couple of my points at least.

Through the glorification of their own deaths terrorists have a very potent recruiting sergeant, which they believe can not only gather in young people but also sustain the arguments for others to support them. Of course some terrorists may be directly recruited by individuals who incite them to participate in particular acts of terrorism but many, many others are recruited indirectly, through what can only be described as glorifying the terrorist acts of others. All too often, there are not recognisable structures or hierarchies of command and control in terrorist movements and among those who support them. They are movement-based and seek to inspire others to carry out acts portrayed not as the inevitable actions of military-based organisations but as the glorious actions of those inspired to act as martyrs, and those acts, in and of themselves, can be celebrated and enjoyed.

I know that those who object to the clause—the proscription of organisations and movements—do so for the best of all motives, because they cite democracy, freedom of speech and human rights. But in any society we have to accept that there are some restrictions on our freedoms in those crucial areas where they are necessary for the greater security of innocent civilians. Such restrictions are the everyday currency of what one might call the "social contract" that we all enter into as part of a secure society. The restriction of prohibiting an organisation from glorifying or celebrating terrorism is a very small price to pay for making our buses, streets and trains safer places for people to carry out their daily business.

The noble and learned Lord, Lord Lloyd of Berwick, cited the Terrorism Act 2000. I do not believe that that is enough. Of course organisations can be proscribed if they are concerned with terrorism or if they are involved in committing or participating in acts of terrorism, but we all know that that is not the same as glorifying terrorism, which is why the noble and learned Lord objects to the clause. Perhaps I may remind Members of the Committee that this was very specifically part of the Labour Party manifesto on which this Government were re-elected earlier this year.

For a restriction to be a restriction to which we can all subscribe, it has to be proportionate. I accept that entirely, but I remind those Members of the Committee on the Liberal Democrat Benches that the noble Lord, Lord Carlile, in paragraph 52 of his report, said that this clause was,

"a proportional limitation on the freedom of association in relation to the . . . public good".

No one welcomes a restriction that is not necessary, but, sadly, some restrictions are. The public good has to come before the freedom of some organisations to celebrate the murder of innocent people.

Perhaps I may ask the noble Baroness to elaborate a little. I am more of a layman than most who have spoken in this debate. As I understand it, where there is a question of intent and it can be shown that a statement or communication of any kind was made with an intention to encourage terrorism, that is covered by existing law. We are talking about cases where intent—participation in preparing an act—cannot be proved. We are simply talking about an act of glorification.

Let us follow not the legal point, but the point that the noble Baroness has just made. We are talking about an audience perhaps of young people—Muslims up and down the country—who may be tempted to take part in terrorist activity. Does the noble Baroness really think that the safety of our streets will be enhanced by watching such an audience and guiding the young people's conduct accordingly? Will our safety be enhanced by a prosecution or a proscription of a body which they may be tempted to join? Does the noble Baroness think that from a political point of view that will add to safety, rather than taking on these arguments in an open way and trying to defeat them? If she does, I disagree.

Of course arguments have to be taken on in a proper way. I am in no way suggesting that one should not deal with the arguments or those who have sympathy over some of the issues around terrorism, which are obviously very difficult issues. But I ask the noble Lord to cast his mind back to what happened after 9/11; to what happened about the glorification of terrorism; and to the numbers of young people who have participated in terrorist organisations, and who have said that they were recruited through the examples of others and the way that those examples were glorified. I use the word glorified because it is in the Bill. They were inspired and found the celebration of those acts in themselves and of themselves inspiring.

Yes, I do think there is an issue that we have to confront here. I am as much a layman as anyone else, but I am not prepared to sidestep this issue on the basis of some clever arguments about Plaid Cymru. It is important to deal with the fact that there are individuals and organisations which seek to recruit young people and to inspire them to carry out acts of terrorism. This Bill needs to deal with them.

I can be telegraphic about our position. We agree with the Government to the extent that, if the Bill changes the law, it will be necessary for the Government to reconsider the current rules about proscribed organisations. It is very rare that the Opposition do not support an amendment tabled by the noble and learned Lord, Lord Lloyd; and we owe him an explanation as to why we do not do so this time. We oppose the notion of glorification and therefore three-quarters of the text of Clause 21; but we agree with the Government that there should be an offence of indirect encouragement. However, that is only as long as it is tightly defined, or at least defined in such a way that it is clear to someone about to make an encouraging statement what they are in for. In other words, that it would be compliant with Article 7 of the European Convention on Human Rights. That is why, as an alternative to the proposal tabled by the noble and learned Lord, Lord Lloyd, to expunge Clause 21 entirely from the Bill, we prefer our Amendment No. 114, which provides a taut but, we believe, effective definition of the offence of "indirect encouragement".

These amendments were tabled before the Joint Committee on Human Rights published its report. Some noble Lords may be alarmed to learn that the policy laid down in our amendments is endorsed completely by the committee's report. I simply draw the attention of the Minister to two paragraphs. The first is paragraph 63, from which I shall quote one sentence:

"In our view extending the grounds of proscription to cover organisations glorifying acts of terrorism is unlikely to be compatible with the right to freedom of expression in Article 10 ECHR or the right to freedom of association in Article 11 ECHR for the same reasons as those given in relation",

to the definition of the offence of glorification of terrorism. The Minister might like to ponder those words in the context of the certification given to this Bill in your Lordships' House.

I also draw the attention of the noble Baroness to an earlier passage in the summary of the report from the Joint Committee on Human Rights set out on page 3. The first sentence of the section entitled "Encouragement and glorification of terrorism" reads:

"The Committee accepts, on balance, that the case has been made out by the Government that there is a need for a new, narrowly defined criminal offence of indirect incitement to terrorist acts".

So there we have it: an offence either of indirect incitement or of indirect encouragement to terrorist acts, yes; but not one based on the definition of glorification that the Government have in the Bill. I hope that, between now and the Report stage, the noble Baroness will consider very carefully both the definition of glorification in Clause 1 and the way in which it has been deployed in Clause 21, and comes up with something that reflects not only our view, but that of the Joint Committee on Human Rights.

I am grateful to the noble Lord, Lord Kingsland, for his explanation of the position of the party opposite. I am equally grateful to him for indicating that he does not support the proposal—or perhaps more grateful to him for the latter than for the former; I record that.

I agree with the assessment of my noble friend Lady Symons of Vernham Dean about the likelihood of Plaid Cymru being included in the Bill. It is not included. That is not the way in which the Bill is constructed. I accept, of course, that the noble Lord, Lord Thomas of Gresford, might have mischievously cited Plaid Cymru to excite our attention and our interest—I am grateful to him, as always—but it is fundamentally flawed and unnecessarily causes a deal of misplaced anxiety.

As to organisations, I remind the Committee that the definitions in relation to organisations and terrorism are the same as the definitions found in the Terrorism Act 2000. For example, "organisation" is defined in Section 121 of the Terrorism Act 2000, which this clause amends, as including,

"any association or combination of persons".

The right reverend Prelate the Bishop of Salisbury raised the issue of organisations, as did others. We are simply continuing the definition that is already there, which is well understood and has been used.

I very much agree with the analysis of my noble friend Lord Harris. I should say to the noble and learned Lords, Lord Slynn of Hadley and Lord Lloyd of Berwick, that although I understand the difficulties they contend there are in relation to a lack of precision, we believe that the legislation is precise. I shall try to explain why I say that. The Terrorism Act allows for an organisation to be proscribed if it is "concerned in terrorism". That is the basis on which proscription under the Act takes place. An organisation is concerned in terrorism if it commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism; or is otherwise concerned in terrorism. That is the context in which we have to consider Clause 21.

Additional organisations can be added to the list of proscribed organisations by order subject to the affirmative resolution procedure. Any proscribed organisation can appeal against its proscription to the independent Proscribed Organisations Appeal Commission. We have to remember that. It is not a situation where you go on a list and cannot come off, and there is no basis upon which one can protest. One can, people do, and they come off just as they go on. The decision is based on evidence.

As my noble friend Lady Symons of Vernham Dean said, proscription is an important weapon in the fight against terrorism. I think the noble and learned Lord, Lord Lloyd of Berwick, absolutely accepts that, as does the noble Lord, Lord Carlile of Berriew, in his report on the Bill published on 12 October. I agree with the quotation given by my noble friend in that regard.

As noble Lords are aware, for all the reasons set out in our debates on the first day in Committee, the Government believe that the glorification of terrorism should be an offence. It is right to remind the Committee that, as my noble friend Lady Symons said, this proposition was not only a part of the manifesto but was twice endorsed in Divisions in another place. I appreciate that not all noble Lords agree with the proposition and that Members of another place may have to deal with this matter in due course if the Committee comes to a view contrary to the view that they have taken.

I am sure that I do not need to repeat all the conditions of intent that apply to the glorification offence and the safeguards and defences that it attracts. We dealt with that on the first day in Committee. If we are outlawing glorification of terrorism by individuals, the same should apply to organisations. The clause allows the proscription of a group if its activities include the unlawful glorification of terrorism or are carried out in a manner that ensures that it is associated with statements containing unlawful glorification of terrorism. That is very important for us to recognise.

If it is possible to identify individuals who glorify terrorism, it may be possible to prosecute them if they meet the tests in the legislation. I am conscious that that will cause difficulty. However, the clause is aimed at organisations which glorify terrorism and thereby create a climate in which terrorism can flourish. If an organisation passes at its annual conference a resolution glorifying terrorism, it may not be possible to identify the individuals behind it nor may it be practical to seek to prosecute all the individuals who attended the meeting, but it would be possible to identify that organisation and prosecute it. I cannot believe that Members of the Committee would disagree with me about the propriety of so doing.

However, the Government believe that it should be possible to take steps against such a body whose statements might be influential among young people and encourage such people to carry out terrorist threats. We cannot delude ourselves into believing that individuals have not been so influenced. There is fairly cogent evidence, not least highlighted and elucidated in the report of the noble Lord, Lord Carlile, which tells us that that is the case. Clearly, this would require something more from the organisation than simply an individual member making a glorifying statement. Rather, the clause is designed to catch those organisations which are closely associated.

It is important to stress that the glorification of terrorism is covered only where the audience can reasonably be expected to infer that what is being glorified is being glorified as conduct which should be emulated in existing circumstances—not in old, historical circumstances, but in existing circumstances. In other words, glorification of terrorism itself is not sufficient grounds for proscription. Organisations that glorify terrorism create a climate which others may emulate.

I hear what the noble Lord, Lord Kingsland, says about the committee's report and of course we will look at it later, but our initial view is that these provisions are compliant and are capable of being supported. I commend the opportunity we have had for this very vibrant debate, but I invite the noble and learned Lord to withdraw his opposition to Clause 21.

With regard to the aspect that the noble Baroness has just raised and the comments of my noble friend, I am a member of the Joint Committee on Human Rights, and we gave a lot of attention to this issue. If the noble and learned Lord presses his opposition to Clause 21 standing part, I would support that, not for the reason he has given but because of that given by the committee. The Minister said that she may look at this again. Will that reservation save me in the position that I am in? It is a difficult situation.

I cannot give the noble Lord any comfort—and he will understand that—as a result of the consideration that there will be a material change in the glorification provisions. I have outlined that clearly. The intent provision has already been changed in terms of how the offence under Clause 1 will be dealt with. We have made the change to "subjective intent" from "objective intent"—which we all accepted was a very material change. We believe that the provisions are now compliant. But of course it would be imprudent not to look further at the committee's report to consider what we think, as the noble Lord has invited me to do, between now and Report, and to express a view on Report. I take on board the noble Lord's own position, which is that on Report, having heard what I have said in response, he may take whatever decision that he deems to be appropriate. We appreciate that that is his position. The noble Lord, Lord Campbell of Alloway, may like to reserve his position till Report for the same purpose.

I should like to question the Minister on one matter and follow up a point raised by the noble and learned Lord, Lord Lloyd of Berwick, whose views on this matter we fully support. He mentioned the case of Hizbut-Tahrir, a Muslim organisation that has a somewhat unusual objective. Its main purpose is to recreate the caliphate. Historically the caliph was the religious and political leader of the entire Muslim community. Although the title did not disappear until 1924, it is fair to say that there has been no universal recognition of an individual as a caliph for about 1,200 years, so the aim of restoring it is plainly unrealistic. But as far as I am aware, and judging from the organisation's public statements, Hizbut-Tahrir advocates that its objective should be achieved purely by non-violent means. In those circumstances it has been suggested that one of the Government's aims in Clause 21 is to proscribe Hizbut-Tahrir. Obviously, I cannot ask the Minister what the Government's objectives might be, but does she believe that as matters now stand Hisbut Tahrir is an organisation that could be proscribed under Clause 21?

It would be wholly improper for me to make any comment from the Dispatch Box in response to that inquiry.

I accept the scourgings of the noble Lord, Lord Harris, and the noble Baroness, Lady Symons, that my analogy was farfetched in referring to Plaid Cymru. Indeed, it was intended to be far fetched, to demonstrate two things: first, the vagueness of the wording of the clause and, secondly, the seriousness of the consequences.

Under the regime set out in Part 2, the Secretary of State proscribes organisations only if he believes that the organisation is concerned in terrorism. As the Bill was originally drafted, there were four examples of being concerned in terrorism: committing or participating in terrorism, preparing for terrorism, promoting or encouraging terrorism, or otherwise being concerned in terrorism. The amendment expands the meaning of promoting or encouraging terrorism. I believe that the Committee will agree that promoting or encouraging carries along with it the concept of intentionally doing so. Intentionally promoting—that is what promoting is all about, as is encouraging.

Having recognised that what he was stating was rather far fetched, does the noble Lord not agree that it does not recognise the realism that is portrayed in the Bill and this clause and that he is entering into a rather academic comparison rather than a realistic one?

I do not agree with that. I think that there are two problems: the problem of terrorism and the problem of causing a proportion of the population of this country to be set apart from the rest of us. In other words, if you proscribed organisations that are peace-loving and said to its members—and I was referring to the consequences—"If you are or have been a member of this organisation, you have committed an offence and you could, in a trial by indictment, be sent to prison for up to 10 years; or you could no longer support this organisation or address any of its meetings", then there is a danger of causing people who would otherwise be perfectly law-abiding in their ordinary way to feel that the state is against them. That is what I am driving at. The problem of having a vague definition of promoting and encouraging terrorism, which means glorification in the form of "praise or celebration" without intention—and intention is the key, as the noble Lord, Lord Hurd, said—is that it will be a bad thing if it brings one into conflict with the criminal law and the possibility of punishment to the extent that this legislation provides. That is the purpose, as the Committee will understand, of my opposing the clause.

I start by saying to the noble Lord, Lord Harris, and the noble Baroness, Lady Symons, that if an organisation promotes terrorism, it ought to be banned, and is already covered under Section 3 of the existing Act. If an organisation recruits young people with a view to their becoming terrorists, then of course it ought to be caught, and it already is caught. So there is no need to do anything about that situation, which I think was mostly concerning the noble Lord, Lord Harris, and the noble Baroness, Lady Symons. The problem that I have and I think perhaps others in the Committee have regards the organisation which is admittedly an extremist organisation but which does not advocate violence and has no intention of advocating violence, but which, according to the involved language of this provision, is to be deemed as promoting terrorism because it is guilty of something that is called unlawful glorification. For me, that is the sticking point.

The noble Lord, Lord Kingsland, seemed sorrowful that he could not support the amendment. But he went on to say that he is in favour of an offence of indirect incitement, but not based on glorification. That is exactly my position. I am in favour of an offence of indirect incitement, as I made very clear in my Second Reading speech, but I am totally against the concept of unlawful glorification whether applied to individuals under Clause 1 or to organisations under Clause 21. If anything, it is worse in respect of organisations. The noble Baroness says, "Perhaps that does not matter all that much because they can always apply to de-proscribe"; but in the mean time every member of that organisation has been guilty of a criminal offence. I do not regard that as a satisfactory solution. I do not regard this as a necessary provision. It is very difficult to understand, as I think we all accept. Therefore, although I seek leave to withdraw the amendment at this stage, I shall certainly want to bring it back.

The noble and learned Lord does not need to seek leave to withdraw an amendment because the Question before the Committee is that Clause 21 stand part of the Bill.

Clause 21 agreed to.

Clause 22 [Name changes by proscribed organisations]:]:

moved Amendment No. 116:

Page 20, leave out lines 23 to 27.

This is intended to be a probing amendment only. An organisation may be proscribed through being listed in Schedule 2—that is, under Section 3(1)(a) of the Terrorism Act 2000. It may be proscribed if it is an organisation which operates under the same name as a listed organisation, so if an organisation has one name in the schedule but also has another name, it is still proscribed. That seems very sensible. The Secretary of State may provide by order that if an organisation is operating wholly or partly under a name which is not listed, that organisation may be treated as another name for the listed organisation—that is the new subsection (6). I understand that—that the Secretary of State may by order say that a named organisation may be treated as a proscribed body.

However, as I read subsection (9), which I seek to remove, a liability may attach to the organisation even though it is not listed in Schedule 2, and even though there is no order in being, if it is proved to be the same as the organisation which is listed. I do not understand that and I would welcome an explanation. I would like to know what proof is required. It appears to mean that a member of a party, club, mosque or, indeed, any organisation may be liable to imprisonment simply for being a member of that organisation even though the organisation is neither listed nor subject to an order made by the Secretary of State and therefore he has no notice of the fact. I appreciate that this is a somewhat technical matter and one that is difficult to explain. I welcome an explanation from the noble Baroness. I beg to move.

I am grateful to the noble Lord for his indication that he understands and, indeed, agrees with the import of Clause 22 in as much as it enables us to identify an organisation which has a number of different names. I thank him for that acknowledgement.

The organisation may cease to be known by one name. It may subsequently be discovered that the organisation has adopted another name, unknown prior to investigation into its activities. Clause 22 adds an important flexibility to the existing proscription regime. It entitles the Secretary of State to make an order certifying an organisation as being the same as one that is already proscribed. Normal appeal rights will apply, enabling organisations to raise the matter at the Proscribed Organisations Appeal Commission. That is an important addition of some degree of flexibility to the proscription regime. I give the noble Lord an example. Members of the Committee will remember that this was a provision which the noble Lord, Lord Carlile, described in his report as "entirely practical and sensible" in its current form. I respectfully agree with him, and I would not seek to alter it. The amendment would create uncertainty; but I understand that the noble Lord is raising the amendment only to allow us the opportunity to have this debate.

The situation that one needs to consider is one in which a new organisation has sprung up from the ashes of one that was proscribed. It is not clear at this stage that the organisation is the same as the one that was proscribed, but in routine investigation of a common crime evidence emerges that proves that the organisation is indeed the same as one that was proscribed, and the identities of a number of members are revealed. At this stage, the police must act and arrest the members of the organisation in case a terrorist attack takes place. However, unless they are clearly entitled to argue independently in a court of law that the organisation is the same as the one that was proscribed, they cannot arrest those individuals, as there would be no basis on which to charge them. In order to charge, as no doubt noble Lords are aware, it is required that there is a reasonable chance of a conviction. Without the clear chance to argue that an organisation is indeed the same, the prosecution cannot consider that there is a reasonable chance of conviction, so the individuals will remain free and will probably flee the country before an order could be issued by the Secretary of State identifying the organisation as the same as one proscribed—so it is entirely practical.

It is almost like a tracing that one would do in civil proceedings, where you would say, "Here they are; I traced them over to the next circumstances and they are indeed the same people". They cannot avoid detection simply by calling themselves by another name. This enables the prosecution, when the police obtain those facts, to act in a way that I am sure all noble Lords would wish them to. That is the reason why it is framed as it is. It has sufficient flexibility, but it allows people who should be caught to be caught.

I am most grateful to the noble Baroness for her exposition, which was clear as ever. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 [Extension of period of detention of terrorist suspects]:]:

moved Amendment No. 117:

Page 22, line 7, after "Scotland," insert "the Lord Advocate or"

This amendment is grouped with Amendments Nos. 118 and 125 in my name, and with the leave of the Committee I shall speak to all of them. They seek to remove infelicities in the provisions of the Bill affecting Scotland that demonstrate errors in an understanding of court procedures in Scotland. Amendment No. 117 seeks to provide that in Scotland the Lord Advocate, in addition to a procurator fiscal, can apply for a warrant extending detention or for the extension of the period of such a warrant. At present, new sub-paragraph (1)(b), in Clause 23(2), allows only for,

"in Scotland, a procurator fiscal".

Section 41 of the Terrorism Act 2000 provides that:

"A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist",

and:

"Where a person is arrested under this section the provisions of Schedule 8 (detention: treatment, review and extension) shall apply".

Clause 23(2) seeks to amend sub-paragraph (1) of each of the paragraphs 29 and 36 of Schedule 8 to the 2000 Act. Those paragraphs enable a police superintendent or above to apply to a judicial authority for the issue of a warrant for further detention. Paragraph 29(4)(b) of the 2000 Act provides that in Scotland the judicial authority is the sheriff.

Clause 23(5) amends paragraph 36. As amended, that paragraph would provide in brief that certain applications only—those defined in new sub-paragraph (1B)—would be made to a judicial authority, but that in any other case the application would be made to a "senior judge". Subsection (9) amends paragraph 36 to define "senior judge" as,

"a judge of the High Court or of the Court of Session".

I seek in Amendment No. 125 to leave out "Court of Session" and insert "High Court of Justiciary", it being the superior criminal court in Scotland and the one before which the Lord Advocate, and not a procurator fiscal, brings criminal proceedings. I made that point during the debate last Wednesday on Amendment No. 53, reported at cols. 675-76 of the report of our proceedings. The Government may already recognise that Amendment No. 125 is well founded, and therefore will agree to it. I only remind the Minister that the Court of Session is the superior civil court in Scotland, and the distinction between its jurisdiction and the criminal jurisdiction of the High Court of Justiciary is properly recognised in paragraph 7(b) of Schedule 2 to the Bill, which declares that forfeiture proceedings by virtue of the schedule are civil proceedings and may be instituted,

"in Scotland, either in the Court of Session or in the sheriff court".

By contrast, the sheriff, of course, exercises both a civil and a criminal jurisdiction.

Proceedings of the nature of applications made under paragraphs 29 and 36 of Schedule 8 to the Act can only be criminal proceedings. The existing provisions of Schedule 8 clearly indicate that proceedings under it are criminal; they arise following an arrest in terms of Section 41 of the 2000 Act. In terms of paragraph 5, the status of the detained person is that he is,

"deemed to be in legal custody throughout the period of his detention".

Where a person is detained in Scotland, his rights are set out in paragraphs 16 to 20. While the rights there specified are declared to have effect,

"in place of any enactment or rule of law under or by virtue of which a person arrested or detained may be entitled to communicate or consult with any other person",

in certain circumstances the provisions of the Criminal Procedure (Scotland) Act 1995 specifically apply to the person detained—for instance, those relating to a child and the procedure for taking certain prints and samples. The person so arrested and detained is thus vested with rights which he can invoke. These are just such rights of a kind which the High Court of Justiciary is under a duty to protect, as was stated by Lord Justice General Emslie in Hall v v Associated Newspapers in 1979, a contempt of court case in which the Lord Advocate intervened. in 1979, a contempt of court case in which the Lord Advocate intervened.

Where applications in criminal proceedings in Scotland are to be made to the sheriff, it is entirely appropriate that the application be made by the procurator fiscal. It is done day and daily in matters concerning warrants. That such is the case is recognised in Schedule 5 to the 2000 Act, which concerns terrorist investigations. In part II of the schedule—it applies only in Scotland—paragraphs 22, 28 and 30, which deal respectively with applications for orders for production of material, for a search warrant and upon a person for explanation of material, provide that such orders are made by the procurator fiscal to the sheriff. Similar provision is made in respect of an application in Scotland for an order under paragraph 1 of Schedule 6 in relation to financial information. The sheriff is on these occasions exercising his criminal jurisdiction, not his civil jurisdiction. However, where an application is made to a judge of a superior court—whether it be of the Court of Session, which is the superior civil court in Scotland, or the High Court of Justiciary—it is not appropriate that a procurator fiscal should make it. Such applications should properly proceed in the name of the Lord Advocate.

For those reasons, Amendment No. 117 seeks specific recognition that it is the Lord Advocate who alone is the proper party to make such applications to a senior judge. At the same time, Amendment No. 125 seeks to substitute reference to the High Court of Justiciary for the Court of Session, to make it clear that such applications are being made in criminal proceedings.

Amendment No. 118 is designed to remove from police officers in Scotland the right to make applications for a warrant extending detention or for the extension of the period of such a warrant. When introducing my Amendment No. 103 at the end of the second day of Committee last Wednesday, at col. 734 of the Official Report, I set out in some detail the constitutional position of the Lord Advocate as head of the system of prosecution and investigation of crime in Scotland. I do not wish to repeat what I said then, other than to emphasise his statutory powers to instruct the police in the investigation and reporting of crime under Section 17 of the Police (Scotland) Act 1967 and Section 12 of the Criminal Procedure (Scotland) Act 1995., I set out in some detail the constitutional position of the Lord Advocate as head of the system of prosecution and investigation of crime in Scotland. I do not wish to repeat what I said then, other than to emphasise his statutory powers to instruct the police in the investigation and reporting of crime under Section 17 of the Police (Scotland) Act 1967 and Section 12 of the Criminal Procedure (Scotland) Act 1995.

These applications arise only after the first 48 hours of detention and during that time, of course, reviews will have been carried out by the review officer in accordance with paragraph 21 and subsequent paragraphs of Schedule 8 of the 2000 Act. There is thus no urgency of the kind that gives rise to the provisions under paragraph 31 of Schedule 5 of the 2000 Act which allow a police officer of at least the rank of superintendent to give by written order to a constable the same authority as that given by a search warrant granted by a sheriff to the procurator fiscal under paragraph 28, on the ground that the case is one of great urgency and that immediate action is necessary.

By paragraph 27(4) of Schedule 8 the requirement on the prosecutor under Section 135(3) of the Criminal Procedure (Scotland) Act 1995 to bring an accused person before the court after his arrest, not later than in the course of the first day after he is taken into custody, wherever practicable, is specifically disapplied. In matters so potentially serious, involving, as they do, the investigation of suspected terrorism, it is be expected that the police would advise the procurator fiscal of the fact of the arrest and detention of a person under Section 41 of the 2000 Act as soon as possible after the event. Consequently, there should be no difficulty in securing that any application for continued detention was made, and timeously made, by the procurator fiscal, with the additional advantage that the reasons for the continuation could be independently assessed by the procurator fiscal prior to its presentation to the judicial authority.

Likewise, in advance of an application to a senior judge it would be expected that the fact of the arrest, detention and continued detention would have been reported to the Lord Advocate and Crown counsel at a very early stage. Again, there should be no difficulty in securing that an application for an extension was timeously made to a senior judge. At the same time this would enable the grounds for such an extension to be scrutinised at the highest level prior to the application being presented.

I have already pointed out that for the purposes of terrorist investigation under Part II of Schedule 7 of the 2000 Act, it is the procurator fiscal, not a police officer, who applies to a sheriff for orders for production of material, for searches and for explanations, except in the case of an urgent search. That last exception is not affected by this amendment. I should also draw noble Lords' attention to the terms of paragraph 2 of Schedule 6 which deals with the matter of procedure in relation to financial orders under paragraph 1 of that schedule. It states:

"An order under paragraph 1 may be made only on the application of—(a) in England and Wales or Northern Ireland, a police officer of at least the rank of superintendent or (b) in Scotland, the procurator fiscal".

That is to say, the police officer does not have the capacity to seek such orders in Scotland. Indeed, I understand that in Scotland an application at present made under paragraph 29 of the Schedule 8 to the 2000 Act is normally made by the procurator fiscal with the assistance of senior police officers. Perhaps the Minister could confirm that such is the case. If so, this amendment would cause no difficulty in practice and would have the advantage that an application would be independently assessed at all important stages of the revised detention procedure.

I hope that the Minister will recognise that this amendment makes the Scottish provisions in the 2000 Act, as amended, consistent throughout. I recognise that at a later stage there would require to be a consequential amendment to Section 41(5) of the 2000 Act to insert reference to a procurator fiscal in place of a police officer as the appropriate person in Scotland to make an application for a warrant under paragraph 29 of Schedule 8.

I should add that I am very grateful to the Minister for a letter which I received from her about the matter raised earlier. She at least intimated that she was also looking at these amendments. I hope that, in that frame of mind, she will understand that there is in the Bill a misunderstanding of the procedures in Scotland and that these amendments are well founded. I beg to move.

I am most interested to hear the views of the noble and learned Lord, Lord Cameron of Lochbroom. I apologise to the Committee that I was not able to be here during last Wednesday's debate on these matters. That was not due purely to the lateness of the hour; I am afraid that I had other unavoidable commitments. However, I read what the noble and learned Lord, Lord Cameron, said, and I also read the response from the Government. Having listened to what he has said today, I am equally interested to hear the Government's response on this occasion. It seems to me that he has re-emphasised some of the points that he made previously and that he remains to be convinced of the Government's argument.

I am grateful to the noble Duke, the Duke of Montrose. As always, we missed his voice on Scotland and I was glad that the noble Baroness, Lady Carnegy of Lour, was in her place; otherwise we would have been quite lost. She is not here today but she normally is.

I say a special thank you to the noble and learned Lord, Lord Cameron of Lochbroom, who did me the great courtesy of writing to me on these issues. I am able to tell him that I am very happy to accept Amendments Nos. 117 and 125. There is an argument about whether they are absolutely necessary but we think that it is right to accept them because they add a degree of precision and clarity which we think is welcome and necessary for the reasons outlined by the noble and learned Lord.

However, we will resist Amendment No. 118. It would be inappropriate to accept it as it would prevent senior police officers applying for extensions to detentions under Schedule 8 to the Terrorism Act in Scotland. That would reverse the current arrangements under which police officers can apply for such extensions. We see no reason why we should reverse the existing situation or create an arrangement in Scotland which is different from that in the rest of the UK. However, I assure noble Lords that that is not just the Home Office view; indeed, the current Lord Advocate takes the view that it would be inappropriate to have powers in Scotland which are different from those in the rest of the UK in this respect. As the noble and learned Lord knows from his time as Lord Advocate, we take very seriously the advice given to us by the Lord Advocate in such situations and we believe that the current balance in that regard is right.

I repeat that I am extremely grateful to the noble and learned Lord for his ongoing scrutiny of this Bill, which has been very helpful. I am pleased to support his Amendments Nos. 117 and 125, but I respectfully suggest that he should choose not to press Amendment No. 118, bearing in mind what his brother Lord Advocate has to say about the issue.

Before the noble Baroness sits down, I am certainly aware that before the Bill came before this House—indeed, perhaps before it was put before another place—these provisions, so far as they affect Scotland, were placed before the Lord Advocate for his comments. I am well aware that at that stage he intimated a view that has been repeated to your Lordships this afternoon.

I can assist the noble and learned Lord further. As I anticipated, in view of the concern raised by the noble and learned Lord on the previous occasion, and the reasons that he has given, this issue was raised again with the Lord Advocate, who has indicated that he has not changed his view. As the noble and learned Lord has taken such trouble in his exposition of the detail about why he comes to a different view, I would be more than happy to ensure that the Lord Advocate has the benefit of reading Hansard to see what the noble and learned Lord has said. I invite the noble and learned Lord to consider that, unless and until that position changes, it looks as though he has a 2-1 victory. to see what the noble and learned Lord has said. I invite the noble and learned Lord to consider that, unless and until that position changes, it looks as though he has a 2-1 victory.

I am grateful to the noble Baroness. A term for reflection is needed. Perhaps the noble Baroness will advise me whether the Lord Advocate, having had an opportunity to read Hansard, has changed his mind., has changed his mind.

On Question, amendment agreed to.

[Amendment No. 118 not moved.]]

moved Amendment No. 119:

Page 22, line 27, at end insert—

"( ) In paragraph 32 (grounds for extension) omit the words "whether by questioning him or otherwise" in sub-paragraph (1)(a) and after that sub-paragraph insert—

"(aa) further questioning of him will be confined to the prevention of harm to the public, or in the interests of justice, to the relevant evidence so obtained or preserved, and"."

In moving Amendment No. 119, I shall speak also to Amendments Nos. 127 and 128. It may be helpful to our discussions on Amendments Nos. 121 and 122 if I set out the background in which these amendments are to be considered. I remind the Committee of the tradition of criminal investigation and charging in this country as opposed to continental systems. The police or other investigating authorities make all the necessary inquiries to put a prima facie case together. Once that has been done, there are reasonable grounds for arrest. After arrest the common law approach is to interrogate the suspect about the evidence so collected. Within a limited period—usually 48 hours but it may be extended a little by the court—the person who has been arrested is given an opportunity to explain the evidence that is put before him. If he satisfies the investigators, he is released. If his interrogation casts doubt on the strength of the case, he will usually be bailed to return to the police station when further investigations have been completed. That is the system of police bail. If he fails to give any explanation at all or an explanation that casts doubt upon the case that the police have put before him, he is charged and certain safeguards necessary to a fair trial are put into effect. That is consistent with the presumption of innocence which I have not heard any Member of this House challenge.

The person who has been charged is brought before a district judge to determine whether he be remanded in custody or released on bail by the court. The decision about bail depends upon the judge's assessment of the seriousness of the case, the risks of the defendant not turning up for trial and so on. In any event, the evidence and the documentation will be fully disclosed to him, and from the moment that he is charged, or very shortly afterwards, he is no longer in the custody of the police, except in the very unusual circumstances when the gaols of this country are full.

In every serious case, it is customary for the police scientific and technical investigations to continue after charge. There may be a misapprehension that they stop at that point, but they do not. A person may be questioned—there is no absolute bar to a person who has been charged being questioned further after charge—but only on the basis set out in this amendment; namely, to prevent harm to the public or in the interests of justice. By this time, the person has usually been remanded in custody to a prison and, from time to time, the police go to the prison for further questioning. If such further questioning takes place, it will be closely scrutinised at trial to see whether it was truly for the purpose of preventing harm to the public or in the interest of justice or whether it was oppressive. During the period between remand and trial, notices of further evidence will be served in which the product of, for example, overseas investigations, telephone evidence and DNA and other scientific evidence, such as fingerprints, will be disclosed to the defence. This happens all the way up to trial and, indeed, on occasion, after the trial has begun.

The system that we depend upon for a fair trial copes with all of this. Once there is enough evidence to charge somebody, a great deal of the prosecution case will be put together after charge and before trial. There is no upper limit to the time during which these investigations continue. Further evidence, whether scientific, technical or whatever, may well be collected, collated and served in 14, 50, 100, 200 or 300 days if necessary. It depends entirely upon the nature of the investigation and the sort of evidence that has to be obtained.

By reason of the serious threat posed by terrorism, this system was adapted, in particular by the Terrorism Act 2000. Section 41 of the Terrorism Act permits a constable to arrest without a warrant a person whom he reasonably suspects of being a terrorist. When the 2000 Act was passed, it initially stated that the person must be released within 48 hours of arrest, but designated district judges could issue a warrant of further detention under the powers given by Schedule 8 to the Act.

At first, that warrant of further detention, which is the subject of all the conflict in this Bill, was for a period of further detention of seven days. In the Criminal Justice Act 2003, against a great deal of opposition, that was extended to 14 days.

In order to issue a warrant for further detention, whether for seven, 14, 28 or whatever days, the judge has to be satisfied that there are reasonable grounds for believing that the further detention is necessary, "to obtain relevant evidence"—I stress those words because one of my amendments goes to the definition of "relevant evidence—

"whether by questioning him or otherwise".

That is the first thing: is the detention necessary? He must also be satisfied that the investigation is being conducted diligently and expeditiously.

The proposal to amend the period of further detention, and to extend it to 28 days, has been decided in another place. As I indicated at Second Reading, we do not propose to contest that. It would obviously be unacceptable for a person who is detained for such an extended period like that to be subject to daily interrogation on a wide basis. It is precisely that sort of questioning—if a person is questioned day after day—which leads to oppressive methods of questioning; indeed, it may even be torture. It is no coincidence that the major miscarriages of justice, which have caused people to doubt the criminal justice system in this country and its ability to protect the innocent, have occurred in the area of terrorist crime. Although lawyers are attacked from various quarters in the Chamber, some of us have experience of terrorist cases—none more so than the noble Baroness, Lady Kennedy of The Shaws.

The purpose of Amendment No. 119 is to give judicial oversight to the nature of any further questioning that may take place after charge and during a period of extended detention. A policeman, a superintendent or another investigator, who applies for a warrant of further detention for 28 days, will have to explain to the judge that any further questioning will be of the nature set out in that amendment—if my amendment is accepted. In other words, it would be,

"confined to the prevention of harm to the public, or in the interests of justice, to the relevant evidence so obtained or preserved".

So the purpose of my amendment is to say that if you extend the period of detention, the person detained cannot be questioned widely during that period, but he can be questioned about any matters—whether it be scientific evidence or whatever—which those investigating have turned up. The judge would make an order extending the period of further detention to 28 days on the basis that the questioning would be of that order.

Amendments Nos. 127 and 128 are designed to exclude the limited definition of "relevant evidence", which pops up in Part 2 of Schedule 8 of the 2000 Act. For the purposes of Part 3, where we are dealing with extended periods of detention, the nature of the relevant evidence is defined. It is precisely, as Members of the Committee will see if they look at that amendment, the evidence which the Government have said it takes time to collect and to collate. It includes investigations abroad, telephone evidence, computer files and forensic and scientific evidence. It does not include evidence obtained from witness statements and from routine police investigations, which should have gone on beforehand in order to build up the case against the arrested person before he is charged.

Why the push to extend the warrant of further detention to 90 days, as was the Government's original intention? I hope that the Committee has heard my outline and appreciated that there is no logic to that. The figure of 90 days is not magic at all. The investigation may continue for all of the period up to trial, which could well exceed the 90-day period; it could extend for more than a year. Almost 500 people who were released without charge of the 850 arrested under the Terrorism Act were released within 14 days. We have no evidence that any one of those released would have been charged if the police had had more time. So far as I am aware, not one of them has been picked up later following further investigation, arrested and charged.

Is not the 90 days a maximum, not a norm?

Of course it is, because, as I say, if there is sufficient evidence to charge, he must be charged. The point about the 90 days is that if it elapses and he is not charged, that is effectively internment. Then you release into the community, as 500 people have been released, a person against whom there is insufficient evidence to charge, having been arrested.

I am sorry, but perhaps there is a misunderstanding. The noble Lord is suggesting that someone has been held for 90 days and then released who is innocent. The whole purpose of the exercise—is it not?—is that there is sufficient suspicion and the evidence must be compiled to secure a conviction. It involves only those people who are likely to be there for 90 days.

I hesitate to intervene, but we have strayed a long way from the material that is relevant to this group of amendments. I am also conscious that the 90-day or 60-day debate follows from this, but I hope that the Committee will constrain its debate in a rather more disciplined way.

I certainly accept the noble Lord's criticism and I should not have gone on as long as I have had I not been invited to comment on that question. We will come to that in due course.

I have fully explained the purpose of the amendments that I propose. I beg to move.

If I may, I shall constrain my comments to those that arise from the amendment, as opposed to the debate about 90 or 60 days, which we shall come to next. I am of course grateful to the noble Lord, Lord Thomas of Gresford, for tabling the amendments. They relate to the grounds on which continued detention may be authorised in terrorist cases and what may happen while a person is detained.

I hope to make some clear statements to try to put to rest some of the concerns that have arisen concerning the Police and Criminal Evidence Act and other provisions. We will shortly come to the thorny issue of for how long a person can be detained in total. As I said, I do not want to stray into that territory. However, it is right for me to remind the Committee of the safeguards that exist.

All detention beyond 48 hours must be authorised by a judge. Another issue that we shall address shortly is the level of the judge but, whatever the level, the test is the same. The judge can authorise continued detention only if he or she is satisfied that the investigation is being carried out as expeditiously as possible and that further detention is necessary to obtain relevant evidence or to preserve relevant evidence. That is the test. Those are significant conditions that judges apply scrupulously when deciding whether to grant an application for continuing detention. It has never been suggested by any Member of this House or elsewhere that the provisions are not applied by the members of our judiciary fairly, firmly and effectively.

Amendment No. 119 provides that judicial authority could authorise continued detention only for questioning where such questioning was designed to prevent harm to the public or to the relevant evidence obtained during continued detention, where that would be in the interests of justice. I cannot see the logic of so doing, bearing in mind the tried and tested approach that we currently have. We must let judges decide. If they think that the case for extension exists, applying the tests in the legislation, they should be allowed to grant it. We think that we can trust our judges. I make it absolutely clear that I do.

More than that, I fail to see the mischief that the amendment is intended to address. What is the harm in questioning a person about anything that may be relevant to the cause of the investigation? I assume that the thinking behind the amendment is that a person may eventually crack if he is kept for long enough and that the police would somehow contrive to achieve that result. The noble Lord, Lord Thomas of Gresford, may be harking back to days before PACE, when concerns of that nature arose from time to time. I respectfully say to him that he ignores the protections that now exist. The suspect has the right to have his lawyer present, who would certainly ensure that no unwarranted confessions or statements were extracted. Interviews are recorded, so a proper record exists and it would be possible to tell if undue pressure had been exerted. I recall that many years ago—more than 20 years ago—it was common practice for some defendants to put "STUP" at the end of their statement, which meant "statement taken under pressure". We dealt with that through PACE.

Finally, the Government have made a firm commitment to introduce a separate code of practice under the Police and Criminal Evidence Act 1984 governing pre-charge detention in terrorist cases. At present, detention of terrorist suspects is governed by PACE code C, which deals with pre-charge detention generally. That commitment is a further guarantee of proper, decent treatment for those detained. I know that that is something that the noble Lord wants and I can reassure him that we also want that.

The remaining amendments in the group refer to Clause 24; I am grateful for the opportunity to say something about that clause. The purpose of Clause 24 is not to change things but to put beyond doubt what had until recently been believed to be the case.

The position was thrown into doubt by an application for judicial review in Northern Ireland. In that case, an individual who was held while DNA samples were being analysed challenged the legality of his continued detention. In that instance, on the advice of senior Crown counsel, he was released.

Prior to that, it had been thought that continued detention for that kind of purpose was lawful—that remains the view on the mainland—but we want to put the matter beyond doubt. Clause 24 therefore clarifies the position by providing that detention pending the outcome of an examination or analysis of relevant evidence, or an examination or analysis to obtain relevant evidence, is a specific ground on which detention can be justified. That would cover issues such as analysis of DNA material. The other grounds on which detention can be allowed are to obtain or preserve relevant evidence.

I see no reason why we should limit that as suggested by Amendment No. 128. It seeks to limit the grounds on which extended detention can be authorised by limiting the meaning of relevant evidence. Under the amendment, evidence would be relevant only if it was obtained from investigations abroad, telephone networks, encrypted computer files and forensic examination and analysis.

I appreciate that the Liberal Democrats have said that they find only some of the arguments that the police have put forward for extended detention compelling but we can trust the judiciary to weigh that up and get it right. As I have said before, if a judge believes that the case for extension exists applying the tests in the legislation, he or she should be allowed to grant it, whether or not the reason happens to be one of the factors that the Liberal Democrats happen to find compelling. Our judiciary have been very good at dealing with that, and I feel absolute confidence that we can allow them to continue to do a very good job. As I have indicated, substantial safeguards exist and I think we can rely on them rather than seeking to impose artificial obstacles that might hamper the progress of investigations.

Perhaps the noble Lord simply wished to elicit from me all those guarantees. If that was his purpose, I am only too happy to have been given the wonderful privilege and opportunity to oblige.

I think that the noble Baroness misunderstands. Amendment No. 119 follows the wording of PACE code C—paragraph 16, I think, but I could be corrected—and is designed to ensure that, although a charge is deferred as it would be under our warrant for further detention up to 28 days, questioning cannot continue widely after judicial involvement. At the moment, after a person has been arrested, interrogated and charged there can be further questioning. The Bill pushes the charging back. It is in the period between judicial intervention and either charge or release that I suggest we should follow the wording of PACE, with which I am pretty familiar, to ensure that questioning remains fair and is not oppressive.

I understand the noble Baroness's concerns about Clause 24. The purpose of Amendment No. 128 was to confine relevant evidence as set out. I can see that the Government want to keep it wide and undefined. We shall consider that at a later stage, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 120:

Page 22, line 28, leave out subsection (5).

This is a probing amendment, tabled in the hope that the Minister might think again about involving the senior judiciary in the process of extending detention, now that, at least for the time being, the period of three months has been reduced to 28 days. I am deeply conscious that it may be restored to three months as a result of the next amendment.

I remember much discussion before the 2000 Act, only five years ago, on the procedure to be followed if the police wanted to increase the period of detention from four to seven days. One suggestion at the time was that the simple way to do that was to involve the senior judiciary, in the hope that that might provide an answer to the decision of the European Court of Human Rights in Brogan v v United Kingdom, which said that a period of four days and six hours did not comply with Article 5. But that suggestion was deeply resisted by the Government, who said that to involve the senior judiciary, especially those in Northern Ireland—I remember this very well—could undermine public trust in the judiciary and that that was to be avoided at all costs. I could give the quotation if necessary., which said that a period of four days and six hours did not comply with Article 5. But that suggestion was deeply resisted by the Government, who said that to involve the senior judiciary, especially those in Northern Ireland—I remember this very well—could undermine public trust in the judiciary and that that was to be avoided at all costs. I could give the quotation if necessary.

That was followed by my 1995 report, in which I suggested as a possible alternative to the senior judiciary the involvement of the judiciary at a much lower level. The obvious candidate was the chief metropolitan magistrate, as it would fit in very easily with his existing duties. That solution was adopted in the 2000 Act and worked very well when the period of seven days was increased to 14 days, as recently as 2003. There had been no suggestion of any change at that stage. It continued to be the suggestion until this Bill was presented in the House of Commons, where it was still to be determined by what was then called a district judge rather than the chief metropolitan magistrate. If I can say so without disrespect to district judges, they are on the whole lowly compared with High Court judges.

Like the noble Lord, Lord Kingsland, it is very unusual for me to be in the position of opposing an amendment moved by the noble and learned Lord, Lord Lloyd of Berwick. The reason we put forward the use of a High Court judge for this function is because in terrorist cases there is a very considerable pressure that does not exist in the ordinary case. If it is a terrorism offence, public interest will be high. The arrest and questioning of a suspect is carried out in the full glare of publicity and there are pressures which do not normally arise during criminal investigations. We feel that for the satisfaction of the public, so that they know the public interest is being properly looked after, a High Court judge with all the authority that his office holds should be engaged in doing what is a very unusual thing: extending a period of detention to up to 28 days.

If that is the only argument, surely it would apply to the initial 14-day detention period as well. But it has never been suggested that it should.

This is the first occasion I can recall on which we are going to disagree with the noble and learned Lord, Lord Lloyd, for the second time in the course of an afternoon.

The noble and learned Lord described the procedure between arrest and charge as a "purely administrative" one. If the noble and learned Lord is right about that, why do we need a judge at any stage? He tells us that it is perfectly all right to have a district judge, but it is not perfectly all right to have a High Court judge. A district judge, however modest in rank, is, nevertheless, a judge. With respect to the noble and learned Lord, there is a certain illogicality in his argument for retaining a judge for a procedure that he regards as wholly inappropriate for the judicial process.

The second reason why I am at odds, in the friendliest possible way, with the noble and learned Lord is because I do not think that this procedure is administrative. Someone being detained in prison without charge is someone who is experiencing a loss of freedom—a loss which goes to the root of our principles of constitutional liberty. He is in custody, but he has not the faintest idea why he is in custody. Therefore the longer he is held in custody in those circumstances, the more intense must be the examination every time he comes to court.

I am conscious that I am supporting the Government's position here. When we get to a certain number of days, we move from the district judge to the High Court judge. The degree of surveillance required, as the period of detention without charge grows longer, must be more demanding. So I think that the position in the Bill is exactly as it should be.

Very briefly and with the same reservations, I support the need for a High Court judge. I do not think that this is an administrative procedure. It is rightly given to someone who stands far from the administration and who is a judicial authority. For short periods it can be a comparatively modest judicial level such as that of a district judge, but here we are dealing with what in our lifetime are entirely exceptional periods of detention before trial. That requires a strong personality. I agree with the noble Lord, Lord Thomas of Gresford, who observed that huge pressures are brought to bear in terrorist cases. I have personal experience of watching the unwinding of terrorist cases which have given rise to grave miscarriages of justice. In those circumstances, we need someone with the authority, personality and intellect of a High Court judge to maintain effective supervision.

I do not say that there are not district judges who would do it beautifully; I am sure there are some of great personality and strength of character, but in general we need those qualities along with the long judicial experience and sense of confidence of a High Court judge. It is necessary even to test whether the police are getting on with the investigation expeditiously. It is quite difficult for a fairly junior judge to test that, but if counsel—these things would always be done by counsel—has to explain the situation to a senior judge, they had better get it right. That is a protection for the liberty of the individual.

While I understand entirely what causes the noble and learned Lord to test this matter—he is right to probe it—there are good answers and I hope that the Government will stick with the provisions.

I was tempted simply to say in response that the noble and learned Lord knows how incredibly difficult it is to get all three sides to agree on anything in this Bill. Having achieved that rare feat, far be it from me to seek to unpick it.

However, I am provoked to say a word or two by the comments just made by the noble and learned Lord, Lord Lyell. In case any of Her Majesty's district judges who have hitherto been involved in this work read this account, perhaps I may say that I fundamentally disagree with the comments made about personality. The personality, substance and robustness of the district judges who have undertaken this work honourably for so long are beyond question. They have skill, acuity and knowledge that is second to none. Therefore I have the utmost confidence in our district judges, but I am also a realist.

I should say to the noble and learned Lord, Lord Lloyd, that my right honourable friend did not leap to this conclusion because he too has the strongest regard for our district judges. However, we wish to see comity. Noble Lords on the Liberal Democrat Benches, noble Lords opposite and, indeed, many noble Lords on our Benches felt that it was right and proper to have, at the second stage, the additional scrutiny of a High Court judge. To that we acceded and I, on behalf of the Government, do not seek to resile from that agreement now—not least because I have no desire to cock a snook at the other place after it has expressed its view so clearly and there has been unanimity on all three Benches.

The noble Baroness called herself a realist; I do myself, too. I can see there is no support for the amendment—I am a lone voice, crying in the wilderness. I am not convinced but, nevertheless, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 121:

Page 23, line 5, leave out "28" and insert "90"

I thought I should begin my introduction of the amendment by explaining why I and others feel it is right to move it before I argue the precise case for 90 days.

I consider it important that parliamentarians in this House should be given the opportunity to demonstrate to the country that they were listening and giving careful thought to the views of experts on counter-terrorism, as expressed by those experts in the Metropolitan Police, ACPO and ACPO Scotland, and confirmed by the considered judgment of the independent reviewer, the noble Lord, Lord Carlile of Berriew. All commended 90 days to the Government.

While I recognise, of course, the primacy of the elected House of Commons, it should, in what are unusual circumstances, be given the opportunity—once—to think again. The effect of the amendment would be to reinstate in the Bill 90 days, instead of 28, for pre-charge detention. This would have the effect of allowing a suspect to be held for up to 90 days before charge, with a senior judge reviewing the situation every seven days, and, of course, with a sunset clause.

The gravity and nature of the terrorist threat now facing us differs significantly from anything we have had to deal with before. The complexity and difference of the current danger necessitates a complex and different response from previous counter-terrorism measures. We are faced by fanatics aiming to wreck maximum havoc of death and injury without specific warning, and ready to sacrifice themselves in the process. They are often part of a network of complex terrorist organisations, with international links and contacts scattered over many countries. They use advanced new technology, including computers with encryption, and other new tools of the trade in the ever advancing world of IT.

The more normal police practice of letting plans for a crime run until evidence accumulates to incriminate the suspects has to be curtailed because no one would dare to risk losing contact and a terrible terrorist event resulting. The international links, whether organisational or individual, mean there is inevitable delay as these are tracked and are usually dependent for speed on foreign liaison services of all kinds, some less efficient than others, some less co-operative than others. Foreign help is often required to establish accurate identity, in some cases even of those in custody, let alone of contacts. The provision of an adequate supply of interpreters and translators to deal with the huge volume of material, as well as to guarantee the civil rights of the suspects by providing adequate interpretation, all slow the process.

As Assistant Commissioner Andy Hayman of the Metropolitan Police points out in the impressive and detailed seven-page attachment to his letter of 6 October to the Home Secretary, it is not just a question of resources because the procedures—some of them inevitably consequential—will inevitably take a considerable time. The points made by Assistant Commissioner Hayman are very much echoed in paragraphs 57, 58, 59 and 60 of the report of the noble Lord, Lord Carlile. I find the arguments very compelling, in contrast to others such as the right honourable David Davies and the honourable Dominic Grieve, who were much quoted a few weeks ago as finding them not compelling. They must give a meaning to that word different from mine. Anyone with professional experience in the field of counter-terrorism would immediately recognise the time-consuming problems recounted by Assistant Commissioner Hayman and would realise how magnified these are in the special circumstances now being faced by our counter-terrorism forces.

In paragraph 61 of his report, the noble Lord, Lord Carlile, said:

"On the basis of my own inquiries and processes as independent reviewer I am satisfied beyond doubt that there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of the time limitations placed on the control authorities following arrest".

He concluded in paragraph 62:

"I share the view that as a maximum three months is probably a practicable and sensible option, all other things being equal. I recommend that the proposal for that maximum should be so regarded".

I agree with that. As I said at Second Reading, I cannot find that up to a maximum of 90 days'—"up to" a maximum of 90 days'—pre-charge detention, with every seven days a senior judge having to be satisfied that there is justification for holding for a further seven days, and with a sunset clause, would be an unjustified infringement of civil liberties.

I also cannot see how when you ask professional experts from the Met, from ACPO and from ACPO Scotland for their opinion—and when they give it—you can override it unless you have overwhelming and compelling reasons. I have heard no such reasons from anyone. On this most serious of issues—our national security—the Government tried to listen to the experts who recommended 90 days. In my opinion, that was correct and 28 days is insufficient and wrong. I beg to move.

The case for the amendment has been brilliantly argued already. I shall only add that, first, such is the complexity and often quantity of the evidence which needs to be evaluated that the police need to know that they can rely on more time provided they can justify it to the judge week by week—as has been said, 90 days means "up to" 90 days and no more—and, secondly, the potentially serious nature of the possible crime, the public interest and the possibility of a threat to life if the suspects are not arrested and held should outweigh the case of the individual.

Is it so terrible in the context of a serious threat to deprive someone of liberty for a limited time under conditions that are strictly monitored? They are held in decent conditions; their lawyers have full access; they are not going to be interrogated under intolerable conditions, nor for days at a time; they can exercise their right to silence; and their lawyers can make representations and do so weekly. We are not speaking of Guantanamo Bay or a Syrian gaol, or even of the many months unchallenged under which they could be held by a juge d'instruction under the French system. under the French system.

As has been said, the noble Lord, Lord Carlile, describes the maximum six months as,

"probably a practicable and sensible option, all other things being equal".

He is mainly concerned, as we must be, about the adequacy of the safeguards for the suspect against arbitrary or over-long detention. The amendment does not preclude further safeguards or, as the noble Lord, Lord Carlile, advocates,

"a more searching system to reflect the seriousness of the state holding someone in high security custody without charge for as long as three months".

The amendment in no way precludes allying the 90-day provision with careful judicial control and scrutiny. Our first consideration must surely be that justice should be done, and threats to the state, and the people, need to be countered by allowing the police the best possible chance to defend the country. Control orders are no substitute for custody and investigation.

Our proper concern—that no convictions should risk being based on possible torture-related evidence from other countries—should not prevent us giving our own system a real chance to operate. In the last war against Germany, our interrogators were notably successful. They did not use torture, but they needed time to elicit information through long, patient, persistent, repetitive questioning, and the occasional use of a salient fact to jolt the confidence of the prisoner. Our police need that time, too, and time to find those essential key facts with which to challenge the suspect. That means time for those crucial facts to be extracted from a mass of evidence, and there are only a limited number of people with the specialised technical and linguistic skills to do so. We really must give our system a chance to secure that evidence.

The report of the Joint Committee on Human Rights sets out the police argument very clearly. It says that the problem was not one of resources and that,

"although more resources would help, they could not solve the problem entirely, because there is an irreducible amount of sequencing involved in any complex investigation, involving discrete stages in the collection, retrieval and analysis of information which then has to be incorporated into an effective interview strategy for the detainee".

The prisoner has human rights, but I submit that the public have them too. Is it really such a hardship to spend up to—and only up to—three months in custody, protected from abuse by the whole force of the law, if you have given the authorities reason to believe that you are a possible threat, and a great deal of possible supporting evidence exists that must be examined? We must not, in fighting for the rights of the individual prisoner, forget that the police are doing what society requires of them. They, too, are innocent until proved guilty. I support the amendment.

The amendment to Clause 23, relating to the period a suspected terrorist may be held before charge, is one of the most important clauses in the Bill. If the 28 days agreed to in another place is accepted, and the maximum of 90 days, with weekly robust judicial oversight, as originally proposed, is not permitted, it must be accepted, by the police, by the press, by politicians, and thereafter by the public, that some terrorists who are actively planning death and destruction may go free and innocent lives may well be lost. However, it must be conceded that there is also a risk, however small it might be, that an innocent person is held for up to a maximum—an absolute maximum—of 90 days in custody before charge, trial or release.

The balance between the risk of incarceration of an innocent person and thereby the denial of that person's human rights must be weighed against the awful risk that failure to allow the investigating body the opportunity fully to investigate suspected terrorists or information about planned terrorist acts could result in the deaths and maiming of those who should also have the human right not to be killed or disabled for life. I respectfully draw the Committee's attention to the man and the young woman who lost lower limbs in the terrorist acts of 7 July in London and will spend the rest of their lives in wheelchairs, as will some of those who survived the bombing of the train in Madrid some two years ago. Is this what we are prepared to gamble with for our children and relatives?

As will be appreciated—

The noble Lord has not yet finished.

My apologies.

Thank you. I ask noble Lords to come with me on a very short imaginary journey that closely reflects the problems frequently encountered by anti-terrorist investigators. Imagine that you are the senior anti-terrorist squad investigator. You receive information via a telephone intercept that a group of men in various parts of the country are planning terrorist attacks on the Houses of Parliament and British embassies in a number of Asian and African countries. Despite the valiant efforts of the noble and learned Lord, Lord Lloyd, and other noble Lords, this intercept information cannot be used in evidence. CBRN possibilities have been discussed between the two main conspirators and the attacks are to be carried out in three months' time. The information, I think you will agree, cannot be ignored and must be acted upon to prevent possible large-scale loss of life. Surveillance is started on two of the suspects and during the next eight weeks they meet various other people; all unknown to the security services or police in this country. Five key addresses have been identified, but it is not known where the explosives are stored or from where they have been obtained, although the suspects' conversations indicate they may be from abroad. The men are thought to be illegal immigrants and each is living on two false identities.

The police officers working under your direction arrest 15 people under Prevention of Terrorism Act warrants in six different areas of the country. Each arrest requires time-consuming custody procedures, transportation to a secure custody suite in London, the forensic examination of prisoners and the taking of evidential samples. Each of the 15 prisoners has at least one false passport. The initial procedure takes about eight hours for each person and, although some of the procedures can be carried out simultaneously, the booking in with the custody officers must be done individually. The fingerprints are sent to five different countries but, as an experienced investigator, you know that the earliest reply will come in something like two to three months and will be two little letters—"u/i"—which means "unable to identify".

In this journey I cannot be specific, for obvious reasons, about other countries' swiftness of reply, but I ask your Lordships to imagine your view—as a senior investigating officer—if the countries are, say: Algeria, Tunisia, Bangladesh, Kashmir and Indonesia. I am sure that you would be most unhappy about that. The example, I stress, for obvious reasons must be purely hypothetical, and is given only to help noble Lords to understand some of the time constraints and extreme difficulties with which investigators are regularly faced. But you are not finished yet!

Two firms of solicitors represent all the detained men. Their representatives are not available immediately and police wait four hours for one and five for the other. The initial consultations with each of their clients lasts, on average, four to five hours; each disclosure package given to the legal representatives requires lengthy consultations with the detainees. This is essential procedure to which the detainees are fully and rightly entitled. The clock did not stop running while the detainees were with their legal advisers, but it has taken up much valuable time then available to the officers to conduct their own interviews and inquiries. All the men say that they need an interpreter. Reliable interpreters are a scarce resource and some of the men speak in a dialect not easily recognised or understood by the interpreters. In addition, all the men need to be allowed to observe prayer five times a day. You are informed that a vast amount of material has been recovered from the addresses in various parts of the country. This is being properly labelled with the date, time and place where it was discovered and the name of the officer making the discovery who will be required to make a statement. Some 90 disk drives have been recovered and much of the content has been encrypted. The relevance of some 200 pages of documents cannot be assessed until they are translated and analysed for evidential value. It cannot be known at this stage which suspects, if any, they should be put to until they have been translated. The interpreters are human and they are very tired, having been working almost non-stop on translation and interpreting duties for the past two weeks. Although you yourself have been working day and night since day one of the investigation you no longer look at the clock but at the calendar and, as you do so, you receive a request from the Commissioner or Chief Constable asking how the inquiry is progressing and reminding you that, despite the fact that three more suspect addresses have been located and will need to be searched, tomorrow is the 29th day of the investigation.

Now I ask your Lordships to state your action. Do you consider public safety first, as the police must, or do you respect the civil rights of the suspects and release them? Give full reasons for your action, noting that it will be subjected to many intellectual and judicial debates in public, in the press, and, of course, in Parliament, at some time in the future when you are trying desperately to wrestle with yet another and even more compelling terrorist investigation.

I finish only by emphasising that to apply to keep a suspect in custody for longer than a month and, maybe, for up to 90 days, will apply only in the most exceptional and complex cases. The police do not actually like keeping people in custody, and certainly not those who are innocent. That is not only an infringement of that person's human rights but also spells trouble for the officers. The police, I am assured, fully support and, indeed, welcome, the prospect of robust judicial oversight of any applications for extended detention before charge. I urge your Lordships to support the amendment in the names of the noble Baronesses, Lady Ramsay and Lady Park, to which I have also added my name.

I commence by apologising to the noble Lord, Lord Imbert, and to the Chamber, for my initial impetuousness in standing during his speech.

If the noble Lord votes the right way, I shall forgive him.

I am extremely grateful for that, especially as I support what the noble Lord has just said.

As will be appreciated from my Second Reading contribution, I view very seriously the question of detention for terrorist suspects, and it is only on this amendment—to extend the time to 90 days—that I shall be speaking. The amendment certainly is not simple, but it is straightforward and fundamental.

We have heard a great deal about how the 28-day provision was decided in the other place, but it should be remembered that the 90-day proposal was supported by nearly 300 Members of the other place and was defeated only by the action of a relatively small number of Labour rebels, a number of whom were, I suspect, more concerned with giving the Prime Minister a black eye than with the issue that was before them. However, I shall concentrate largely on the attitude of Her Majesty's loyal Opposition and my own Front Bench, because I find little if any consistency in the stance of the Liberal Democrats, save in one thing—their obsession to replace the Conservative Party as the official Opposition. They often give the impression that they lead members of the Conservative Party through the Lobby, especially in this House, with a ring through their noses.

As we all know, the police requested 90 days as a maximum, not a norm. The Government provided for any detention to be reviewed by a judge every seven days and the legislation to be subject to a sunset clause, under which the law has to be re-enacted again in 12 months. Following the events of 7 July this year, we can no longer have a leisurely academic debate on this matter. What happened on 7 July created an urgent situation. More than 50 of our people died, more than 300 were injured, and thousands of body parts were strewn across large areas of London. We must do all in our power to prevent such a tragedy happening again.

I am implacably opposed to this amendment, not because I wish to deliver one black eye or two black eyes to the Prime Minister or cover his body with bruises, but because I believe that if we are going to surrender any part of our civil liberties we need to be absolutely sure that there is a proper justification for that change. In my view, what is happening here is that, without any serious argument, we are about to surrender one of the most important parts of our civil liberties for no real justification at all.

For reasons that do not matter, I spent a large part of my schooling time in South Africa. A number of my contemporaries were detained under the Suppression of Communism Acts for 90 days because they adhered to the quaint idea that, in the sight of God, all races were equal. Such detention seemed to me to be an absurdity. The only Marx they knew was Groucho, not Karl; but they were detained under the so-called Suppression of Communism Act, which meant that as long as you were opposed to the appalling apartheid regime of South Africa at the time, you were a communist. It was as simple an equation as that.

I see absolutely no justification for the extension of a power of detention for 90 days without trial, and I do not care—I am sorry that the noble and learned Lord, Lord Lloyd, has gone—whether it is with or without judicial control. That seems to me quite an intolerable state of affairs, and that remains my implacable view.

I am delighted to say that he is not in the Chamber this evening, but the son of a Member of your Lordships' House hacked into the Pentagon in an evening. I really cannot believe that it takes the police forces of the United Kingdom, and particularly the Metropolitan Police, 90 days to work out encrypted messages in whatever language they are. I would be very surprised if they cannot work out in 36 to 48 hours what is there and what is of evidential value. I would be astonished if they cannot do that. And I am absolutely confident that within 28 days—

I am grateful to the noble and learned Lord for giving way. I have discussed precisely this point with a number of senior officials in the Metropolitan Police. They report that some of the material—in one instance 650 gigabytes of material was seized—is so heavily encrypted that the best code-breaking experts in the country cannot find a way of getting into it on the sort of timescale that is required. It is a very slow, long and laborious process. The technical skills that are now involved and the technical skills that are now available to those who are planning and organising terror are of such a level that it is not simply a question of applying the crossword-solving brain that may have been appropriate in the past. This is about very high levels of encryption with very complicated keys that cannot simply be broken on the basis of a few hours' work.

I would suggest that the Metropolitan Police might employ a few more 10 year-olds. As far as I am concerned, they are very much more capable of doing the encryption work which seems to be desirable. I agree that there has to be some encryption work and I am very familiar with what encryption skills are needed. I simply do not believe that 90 days is an appropriate period. The only justification that has been given for 90 days is not that one needs to ask people questions or ensure that they are there for any length of time; it is only because of that so-called encryption point. I simply do not believe it. I heard about the difficulty only when noble Lords such as the noble Lord opposite raised the point. I simply do not believe it. I believe that if really serious people who understood encryption techniques were to deploy themselves in these matters, matters would be resolved.

I am opposed to this. I will oppose it now and I will continue to oppose it. If it is the convention that the Government Front Bench are not going to vote on it, that seems an entirely right decision. After long debate in another place, 28 days was resolved as being appropriate and was agreed upon. That is where we ought to hold our position in this House. That is where I shall hold mine.

Perhaps I may say to my noble and learned friend that although I entirely respect his view if he does not agree with 90 days, I strongly dislike his implied comparison between police in the apartheid regime of South Africa and our police here. It is a wholly unfair comparison.

All I will say to the noble Baroness is that it was 90 days. That is what I remember it as being. That is what my contemporaries went to prison for—it was for 90 days. I am sorry, but I really do not buy into the argument. I can well recognise, as the noble Lord, Lord Imbert, says, that the police may not want 90 days' detention. But the fact is that we will be allowing for the first time in our country people to be detained for 90 days without trial. That is an abuse of our fundamental civil liberties. I believe it to be quite outrageous and I will resist it.

I find quite outrageous what the noble and learned Lord, Lord Fraser, said about South Africa. This Government should not be compared to a South African apartheid regime, and our police force should not be compared to the South African police force which operated at the time to which he refers.

As someone who comes from Northern Ireland I feel I ought to say something about this matter in relation to terrorism. The noble Lord, Lord Imbert, referred to a hypothetical situation. However, the situation in Northern Ireland is not hypothetical. Where the Government are going wrong is in not doing everything else in their power to help our police and anti-terrorist forces do what they have to do. They have done nothing about the inadmissibility of telephone and radio intercept, which could be of great help. Indeed, it could result in people not having to be held for so long. It is up to us in this House—although already we can see that the Government will not give way easily—to provide extra safeguards. If we require this limit—and it is a limit—it is up to us to ensure that the safeguards are there so that that limit is not abused. The High Court judge constitutes one of the safeguards.

I have spoken to somebody in Northern Ireland who has had to appear before a judge to justify holding a person for an extended period. He was very worried about that as he considered that it could constitute emotional blackmail. The evidence is produced as they have it then, but it is not the evidence on which the person could be held and charged. However, he feels that he can persuade judges of a certain level to permit things to go further—and therefore a High Court judge should be involved. I believe that this amendment should be put into the Bill but I also believe that we must ensure that, as undesirable as it is to have the measure in the first place, we provide the safeguards to enable it to work properly.

The noble and learned Lord, Lord Fraser, said that he had heard no justification at all for a period of detention of up to 90 days. All I can say is that he could not have listened to the noble Lord, Lord Imbert. The noble and learned Lord may have been in the Chamber but he clearly did not have his ears open. We heard what the noble Lord, Lord Imbert, said. No one in this Chamber or in the other place will vote with enthusiasm either for the Terrorism Bill or, indeed, for any period of detention without trial or charge. The whole point of the detention is to ensure that at its end there is a charge that you can apply—that is what the period is for. When I hear the noble Lord, Lord Imbert, one of the most senior former police officers in this country, give us chapter and verse for justifying keeping someone detained for up to 90 days—not 90 days full stop, but up to 90 days—I am totally persuaded by what he said. We should listen to someone like the noble Lord, Lord Imbert, who has far more experience of policing than probably anyone else in this Chamber, although other distinguished senior former police officers are Members of this House.

I said on Second Reading that, had I been at the other end of the Palace at the time, I would have supported the 90 days measure. I would have done it with some reluctance because one is always concerned about the infringement of people's civil liberties. It might involve an innocent person being detained but it is a matter of judgment and balance. It is far less hazardous to detain an innocent person than to allow guilty people to get out of the country or escape critical examination and go on to perpetrate crimes of violence, or to support crimes of violence, in this country and elsewhere. It becomes a matter of balance and judgment; that is what we have to decide upon.

I might add that the principle has already been conceded. To be perfectly honest, if you are innocent to be detained for one day is an infringement of your civil liberty. Members at the other end of the Palace have agreed a limit of 28 days. So it is not a matter of principle; it is a matter of balance and judgment. On the evidence that I have heard, and because I do not want to take risks with other people's security, I support the amendment. It is all very well for people who sit in this Chamber; we are all protected and safe, but when I think of what is happening outside, I do not want to take risks with other people's security and safety. On that basis, I entirely support this amendment.

I have no expertise to offer in this debate. I listened to the noble Baronesses, Lady Ramsay of Cartvale and Lady Park, and to the noble Lord, Lord Imbert, with close attention, but I am not fit to make the judgment which they make on the basis of so much expertise. I rise to make one very old-fashioned point only, the relevance of which the Committee will judge. I had the very great honour of serving under James Callaghan in No. 10 Downing Street when he was Prime Minister of our country. We think nowadays of Jim Callaghan as the great statesman he turned out to be, but he was a pretty wily politician too. I think back to those days. Let us suppose that Mr Callaghan had been faced with a situation such as faces our country today. Let us suppose that, after due consideration and reflection, and after consulting as widely as was necessary, including with the opposition parties, he had said to Parliament that in his considered judgment a detention period of 90 days was the right one for the country. It is frankly inconceivable that Parliament would have turned him down. Some noble Lords will think that change in our society has been for the better but I am afraid that I do not.

I really do not think that the late Lord Callaghan, who was, indeed, a great Prime Minister, would have been foolish enough to bring such a proposition to the House of Commons. The House of Commons would not have needed to deal with that. I fear that the import of this change has not been understood. At present a person can be held for a maximum of 14 days, after which he has to be released unless he is charged with something or other. What the Prime Minister and the Government proposed was that that should be increased by 600 per cent from 14 days to 90 days in one fell swoop. That is an enormous step. If they had done it in steps to see how we got on at the various stages it might have been more acceptable, but to increase it by 600 per cent at one fell swoop invited opposition, and they got opposition. Far from being criticised, the people in the Labour Party who had the courage to oppose an oppressive increase in detention without trial or charge should be congratulated. Indeed, they have given this House the opportunity to have a discussion about the whole matter.

Noble Lords have said here today that the police recommended 90 days. The police were quite entitled to recommend 90 days, so were the other forces entitled to recommend 90 days, but the Government have the duty to consider what is said and to decide what they believe is good in a democratic society. The Government do not have to agree to everything that the police propose; that is the way to a police state, and that is why it is correct and absolutely essential that the views of Parliament and the decisions of Parliament are taken into account.

If we are to go along this line, if the amendment is carried and if the House of Commons accepts it, we are not likely to improve the apprehension of terrorists or the prevention of terrorism; we are likely in fact to exacerbate terrorism, because the terrorists are observed to be just one section of our society. They will feel, under this regime, that they are being targeted and they are the ones who risk being put in prison for three months, because that is what it amounts to—

You said, "terrorists".

You say that they are terrorists—

No, you said that they are terrorists!

I thank the noble Lord for the correction. The alleged terrorists will be held for three months, which is equivalent to a six-month sentence, and they will usually be one sort of person. That would increase the anger among that community, and it would drive them into the hands of terrorism. Those were the arguments that were used about the IRA. Those arguments were used in Ireland about detention and holding people in an area when they wanted to be somewhere else. I really do believe that if the amendment is carried it will be counterproductive. I hope that this House will agree with the House of Commons in this instance; I certainly shall do so. Far from the Government abstaining this evening, they have a duty to do what the House of Commons wants them to do, which is to leave the detention time at 28 days rather than 90 days. I oppose the amendment.

I wonder whether I could make a brief contribution from these Benches, although I speak entirely in my own capacity; words such as "Daniel in the lion's den" come immediately to mind. I pay tribute to those who have brought the amendment before the Chamber and in doing so have enabled the debate, not least because it is parallel to some extent with the debates that we are having on the Identity Cards Bill and those that we will have on Monday in the incitement debate in the Racial and Religious Hatred Bill. We are at a point in our society where we must make difficult choices about the balance between civil liberty and protecting our citizens. We have always had to make those choices; one thinks of the 2,000 or 3,000 deaths on our roads each year, when we could easily take decisions greatly to reduce those. They have been reducing gradually in an incremental way, but laws could be passed to restrict the use of motor cars, to limit speed, or to have draconian punishments.

It is, as the noble Lord said, a matter of balance. The argument is strong on both sides. It is one of those situations where it is wrong to say that the truth is on one side, and it is one of those cases where you genuinely have to balance very strong arguments. At the heart of it is the mystery as to what terrorism is and what it will mutate into in the future. The discussions about avian flu in a way cast some light for me on the nature of modern terrorism. It is a curious mixture of old-fashioned religion and modern nihilism, allied to technological advances that none of us would have thought of 10 or 15 years ago. None of us quite knows how the terrorist threat will mutate. I could quite believe that at some point, with a heavy heart, we will need to legislate for longer than 28 days. There is some wisdom in going incrementally for 28 days at this point. The other House was wise on that point, but we need to leave the issue open in the longer term. I am persuaded that the balance of 28 days is right at this stage, because there is a real danger of spooking our society with rather draconian laws in the face of an uncertain threat and over-reacting, and the media encourages that all the time.

Perhaps when she replies the Minister can confirm that even after 28 days, as I understand it, if there is sufficient evidence to establish a control order putting certain restrictions on people, an investigation can continue beyond 28 days and restrictions can be placed on people even if the evidence does not stack up to make a charge viable at that point. Part of the evidence that persuades me that on balance 28 days is right is that there is not a strict cut-off at 28 days. It is 28 days of detention without charge. Investigations can go on in fairly controlled circumstances after that date.

The right reverend Prelate has sparked a thought in my mind. I could not vote for 90 days if it was 90 days that everyone had to undergo. We are talking as if 90 days is what all those who are arrested will have to undergo; and that is not the case. Most cases will be for a week or a fortnight. We are talking about a few cases, and the Government have got to clear that up. Under certain circumstances, by going in front of a judge and saying what further evidence they have got or they would like to get hold of, they would then be likely to hold someone for longer, up to a maximum of 90 days. That might well involve three people. It is completely unlike the South African situation—completely.

Hear, hear!

In recent weeks I have spent a lot of time not talking but listening. I have listened to TV and radio broadcasts about the situation, and they get it wrong as well. We are not talking about people being held for 90 days; we are talking about a maximum of 90 days. Make it 28 days, and then go to a judge to get more. I could not vote for 90 days; that would be silly. It is being expressed badly, and the Government can stop this debate and the silly votes that will take place at the end, with the Liberals supporting the Tories and the Tories supporting the Liberals and the rebels and people with black eyes. What a way to carry on in the face of people in other parts of the world suffering, and we are behaving like—we are behaving like the House of Lords.

Oh!

It is with great reluctance that I find myself unable to wholeheartedly support the amendment put forward today and, on a day of unusual disagreements in your Lordships' House, I add to the unusual circumstances by finding myself for the first time in my life not wholeheartedly supporting something put forward by the noble Lord, Lord Imbert. I also apologise for not making this point on Second Reading, where I had hoped to speak, but I was recovering from a hospital admission and was unable to travel.

The reason why I am reluctant to support the amendment—noble Lords may think it strange as I am a former commissioner—is that I fear that on balance, and it is a very fine balance, it may be counterproductive in the sense of encouraging martyrdom rather than preventing it. That is my fear. As other noble Lords have said, when asked, "How can we improve the fight against terrorism?" the police service was absolutely right to advocate what it believed was right—an extension of detention without charge. I make no criticism of my former colleagues; I believe that they were sincere, they were well motivated and they were right to advocate what from their point of view was the right thing to do.

However, as has already been said this afternoon, the question for your Lordships' House and the other place is a wider question: having heard what the police and intelligence agencies are advocating, what does this House and the other place feel is in the long-term benefit of the country in the fight against terrorism? Even though in one, two or three individual cases an extension to 90 days may help, my fear is what that might generate in terms of helping in the propaganda of terrorism.

Often there is a misunderstanding about what al-Qaeda is. It is not a finite list of several hundred people and, once we have ticked them off and got them before a court and convicted, we will not have stopped terrorism. In Arabic, al-Qaeda means many things. One of its main meanings is a way of looking at life and doing things—a series of tenets and principles, advocating the witness of martyrdom through violent means.

The huge publicity that has surrounded this debate has already generated enormous fear in law-abiding communities in parts of this country. If we now go back and make it look as though we are going to challenge yet again the point of 28 days that we have reached, I fear that it will play into the hands of the propagandists, who will encourage young men and women—to all other intents and purposes, they are good people—to be misguided, brainwashed and induced into acts of martyrdom. This may be only a small part of the tipping point that leads them to martyrdom. But those who advocate terrorism and challenging the values of the West will point to this provision, if we go to 90 days, as illustrating why they must challenge our values and norms.

Also, I fear that the debate is almost being portrayed as our either having up to 90 days or doing nothing. This is not a static debate; we do not freeze the action at this point. I encourage the notion that we try up to 28 days, and look at what other measures we can bring to bear to support the police and the other agencies. We need to revisit the admissibility of intercept evidence, and the police and criminal evidence rules on interrogation. We can look at many other innovative ways of supporting the fight against terrorism without playing into the hands of the radical fundamentalists.

I am listening very carefully to the noble Lord. What would persuade him that up to 90 days was justifiable?

Up to 90 days can be justified in individual cases; that is not the point that I am making. My point is that, on balance, it may be counterproductive. This is not about detecting, incriminating and putting behind bars a finite number of people; this is a philosophical struggle that will endure in my children's lifetime and my grandchildren's lifetime. I do not want us to do anything that will be counterproductive. The 90 days would have enormous tactical advantage in the short term, but my fear is that, longer term and strategically, it could be counterproductive. It is a very fine balance, but at this point, as a former commissioner, I am not persuaded that to advocate the 90 days is in the long-term benefit of this country.

Of course the noble Lord is right that this is a philosophical struggle; unfortunately, it has very real practical outcomes where we fail to protect people. It is on those outcomes that some Members of the Committee might focus a little more. Like many, I found the comparison with South Africa made by the noble and learned Lord, Lord Fraser, incomprehensible, but maybe enough has been said about that.

Perhaps I can say something from a slightly different point of view—that of my experience as a Minister who, until May, had responsibilities for how we deal with counter-terrorism in our relationships overseas. I talked about the issues on the strategic basis with a number of governments but, on occasions, of course I had to discuss individuals who were a real concern to us in this country, maybe in their country of origin and very often in more than one country at a time. From my practical experience, I endorse what my noble friend Lady Ramsay of Cartvale and the noble Baroness, Lady Park of Monmouth, said. Let me say categorically to the noble and learned Lord, Lord Fraser, that this is not just a question of encryption. Of course the arguments around encryption are important but, from the point of view of dealing with the issue on a practical basis, we often deal with countries that have a very different perspective on their constitutional responsibilities. That is often the starting point of any discussion on what to do about individuals suspected of terrorism. The question is the sovereignty of that country—why we are going to talk about individuals who are their nationals, when they want to maintain their sovereign jurisdiction over them.

We are also not just dealing with police-to-police or agency-to-agency discussions. When we deal with those countries, we often have to deal with a range of different politicians and ministries—obviously foreign ministries, interior ministries, and justice ministries. Often, we have to go round three different sets of political views before we manage to make any progress over an individual. Then we get into the issue of police jurisdictions. Practice varies between not only ourselves and the country in question, but a number of countries that have a mutual interest in an individual. Then there is the whole question of what is permissible evidence between those different jurisdictions, not to mention dealing with foreign lawyers. As I have learnt, it is sometimes a handful dealing with the lawyers in your Lordships' House, let alone dealing with some foreign lawyers as well.

Will the noble Baroness give way?

Oh, I knew that I would not get through it.

The noble Baroness paints a very dark picture. Does she agree that those problems could not be solved within 90 days at all, and that therefore the need for the continuing investigation—it goes on whether a person is charged or not—is essential?

Ninety days gives us a much better shot than 28.

I have not even touched on the points about the fiercely independent different security systems that run around all the countries in question. We in the United Kingdom are peculiarly well placed; perhaps we do not recognise it as much as we should. We have brought together our agencies—the SIS, the DIS, GCHQ and the listening agencies, the Home Office, the Foreign Office, and the police—to deal with terrorism on a joint basis in a pool of expertise, working together day by day. That resource is unparalleled in any other jurisdiction, certainly in any of those with which we deal, even when they are very sophisticated. On the basis of my experience, 28 days is completely inadequate—not to deal with encryption, but to deal with a serious discussion about individuals who are of real concern to us.

We have to ask ourselves what our real alternatives are. Like many Members of the Committee, I have experienced a number of terrorist incidents. As a Minister, the question that always arose was, "What did the Government know about the possibility of this terrorist action?". People have a right to expect that their government are in a position to do everything that they can to secure their safety. I dread the question of what the government knew being answered, "The government actually knew a great deal, but could not adduce the evidence within the 28 days that they were permitted". I am bound to say that that is a completely unrealistic target.

This is a very interesting debate, and I am glad to follow the views expressed by the noble Lord, Lord Condon, who was commissioner of the Metropolitan Police when I was Attorney-General. This is a difficult question. We have all agonised over the right balance between the existing 14 days, as it was before the Bill was introduced, and the 90 days proposal that was put on the table during the course of the discussion, but were not on the table initially. It has not been an easy matter within government—that is perfectly clear. It is clear that the Home Secretary had to agonise over these matters, and large numbers of proposals of between 14 and 90 days have been seriously and rightly discussed. It is significant—and I commend them on it—that, as I understand it, the Government have not switched their position to the 90 days. We are in an area where one very much needs a lead from government if one is to take a decision on these highly tricky balances, and one then seeks to hold the Government to account and to test all the arguments.

I fully understand the strong reasons that have been expressed by some former leaders of the police. I listened with great care and attention to what the noble Lord, Lord Imbert, said. Plainly we ask our police to do—as I remember very well from my days in office—an extremely difficult job. In those days that was principally in the context of terrorism in Northern Ireland. I remember my noble friend Lady Park saying that she detested the way that we rather downgraded the dangers of Northern Ireland. They were very real and hundreds of people were killed in appalling atrocities carried out by terrorists.

It is essential to get the right balance between protection of society and the liberty of the subject, because it is important to be just. Justice in our society and the belief that our society is so constructed that we will achieve justice is one of the great strengths of our free society. I mentioned the chief justice of Israel, who reminded his country, in the terrible situation in which it has been living for decades now, which has of course been exacerbated in recent years, as it is for us, by the new phenomenon of suicide bombing, that none the less it is right to keep that balance.

It is not only the liberty of the subject that is important. One does not want to go over the top, as the noble Lord, Lord Condon, rightly said, and thereby alienate those very communities from which we need the friendship and co-operation, which we largely have, which will produce the intelligence that will be one of our strongest weapons in this very difficult battle.

I looked carefully at the reasons helpfully given by Assistant Commissioner Andy Hayman for seeking the 90 days. I respect him for coming forward. It is that kind of detail that we need an opportunity to look at. There were nine reasons and the first was that terrorism is different and that it has spread world-wide. Yes, suicide bombing is different, but when we look at the dangers that afflict our society—and I happen to have been reading my grandparents' letters during the First World War, and one casts one's mind back to the Second World War—are we in a wholly different ambit of risk from those days?

Yes.

Of course there is the danger of a nuclear weapon being infiltrated into London. That is too horrific to think about and I hope that it will not happen. But none the less, my judgment is that while we must take this issue extremely seriously, we must not get carried away and possibly damage our society by our efforts to protect it.

Moving on to other reasons, the use of forged and stolen identity documents will not stop with the Identity Cards Bill. In Israel there are half a million forged identity cards on the loose in a country which is smaller than ours. There are some other serious reasons which have been mentioned such as the lack of interpreters and the need for skilled decryption teams. There is no doubt that we must spend time, money and effort gathering a full cohort of necessary interpreters. We ought to have those in our society. One of this Government's strengths is that they are inclusive, that they are seeking to draw all sections of society, all ethnic minorities and communities into our British society. I hope that we on this side of the House are learning from that, but one of the ways of doing that is to make quite sure that we have enough interpreters so that they are not exhausted.

I listened carefully to the noble Baroness, Lady Kennedy of The Shaws, who pointed out in the context of encryption and the deciphering of computers, that the Metropolitan Police, or possibly the City of London Police, had only—

It was our police nationally. In the anti-terrorist squad's high-tech unit, there are only eight officers with the required computer expertise. I have that information from the mouth of an anti-terrorist squad police officer. That is a doubling of the number that there were only two months ago. Our universities are producing very skilled young people with such computer expertise and the idea that we employ only eight is quite ridiculous.

I am most grateful to the noble Baroness and am glad that she weaved that in. That was exactly the point I had in mind.

Could the noble and learned Lord say how many such people there are in GCHQ and whether he has been in GCHQ?

No, I have never been in GCHQ and I cannot answer that question. I hope that we have plenty. If we do not, it is the duty of any government to ensure that we do. That is the right way to defend ourselves.

One of the reasons, which was not quite so strong, among the nine given by the assistant commissioner, although I stand to be corrected, was that it took a fortnight to get into the bomb factory in Leeds. My recollection of Northern Ireland was that we had highly sophisticated and very well staffed forensic units that were capable of getting into any bomb factory in a very short time indeed. We need to ensure that we have that capability.

The reason for taking two weeks to get into the bomb factory was that, having sent in the automatic probes, with which the noble and learned Lord will be familiar, it was seen on video—which I have seen—that there was a bath tub full of suppurating gunk that was clearly an unstable explosive mixture. For the safety not only of the officers concerned but of all those in the surrounding streets, it took two weeks before it was possible safely to enter those premises and to carry out the necessary searches.

The noble Lord is extremely well informed. I now recall him explaining that in a previous debate, quite rightly. But my point is that you must contrast that with the level of expertise which we developed not in Leeds, where obviously we need to develop it, but in Northern Ireland, where I am confident—although I will be corrected by those in this House with closer experience, but I have visited the forensic units—that we were much more up to speed on this important area at that time and we need to get up to speed.

The point is not that there was a lack of expertise in Leeds, it was a matter of physical safety. The best experts in the police service were deployed and they were working with the best experts from the Army. Their combined judgment was that it was not safe to go into those premises for a fortnight.

I respect their combined judgment, but I must comment that I do not think that we fought like that in the Second World War. I think that we were better equipped and I would take some convincing that we could not bring our abilities in the explosives field when dealing with what were after all home-made explosives up to a higher pitch than they happened to be at that time. If we cannot, no doubt it will be explained to us; but at the moment I would need some persuasion.

So far, the noble and learned Lord has not said anything about senior judicial invigilation, which is quite different from the present situation. Would he like to address that point?

I shall certainly do so, although it comes slightly out of turn. As the noble Lord may have heard, the noble and learned Lord, Lord Lloyd, considered whether it would be as well to leave the matter with district judges. I join the noble Baroness in saying that I have every respect for district judges. They do a magnificent job. For a long time, we called them stipendiary magistrates, and they are very able people. But we have a hierarchy in the judiciary in which it is thought by our society that those who become High Court judges have something above and beyond. However, I can think of dedicated district judges whose vocation it is to be district judges and they are superb. There is a greater degree of protection in going before a judge.

Perhaps I may meld my answer into my next points because that is where the answer lies. It is not the case that there is no protection in having a senior judge look at the matter; it is a proper and right protection, but that does not fully answer the point. It is a safeguard. Mobile phone usage, the religious rights of detainees and the lack of defence solicitors are problems, but I believe that they are currently well covered by the 28-day provision. We have to form a judgment, but I do not think that those were the strongest points. Indeed, vis-à-vis mobile phones, I remember from our earlier debates that it is possible to get an answer from mobile phone companies almost within minutes. That is not one of the major problems. mobile phones, I remember from our earlier debates that it is possible to get an answer from mobile phone companies almost within minutes. That is not one of the major problems.

As another noble Lord said in this debate, the 90-day period is not the end of the matter—very often the investigations go on far longer. It is worth remembering that 23 people were kept in Belmarsh for up to three and a half years. It may have been thought that it was not worth prosecuting them but not one of them was prosecuted, despite the very much longer period of detention.

In the context of the 90-day period, it is said that only a very small number of cases will be involved. The noble Lord, Lord Carlile of Berriew, who is not in his place—I am sure that he will read this debate—has said on different occasions that there would be two or three cases a year and, most recently, that there would be only one or two cases a year. That has to be balanced against what you do if you do not detain or arrest, which obviously puts a heavier burden on the security services. I listened carefully to my noble friend Lady Park, who said that it took 30 people—I am sure that she is right—to tail one person full time. I would much prefer to put in extra resources to have an additional 30, 60 or 300 people in the security services, if we can gather them. If the newspapers are remotely correct, I understand that they are recruiting, and rightly so. But we are talking about a small number of cases and whether we would really benefit from a 90-day period. The noble Lord, Lord Imbert, gave the vivid example of 15 people being arrested. How does that tie in with the view that there will be only one or two cases?

Such difficult and controversial topics remind me of the old Victorian joke about a baby, in which it is said, "Oh well, it was only a little one", and you work up from there. You have to be very careful about making wrong judgments or they will take you down the wrong route.

I end where I began. This matter requires very careful judgment. The Government are absolutely right to have listened carefully to the House of Commons and so are not seeking to alter the provision. We should lift this issue away from party politics. We should remember that there is a real downside to locking up too many people as well as the possible upside of holding a person for a bit longer. I very much hope that the Committee will agree to keep the position as it was left by the other place.

I oppose the amendment. But, first, I apologise to the Committee that during the Second Reading debate I mentioned that 23 people were charged. Actually they were convicted and not charged, but I mentioned that more than 800 people had been arrested under the Terrorism Act. I apologise and I understand that the Minister has sent a letter to correct my slip of the tongue.

I oppose the proposal for 90 days, first, because of civil liberties and, secondly, because I am not convinced that 28 days is not sufficient when the police can place people on bail with conditions, take their passports and impose a lot of conditions, including the requirement to report and so on. But, more importantly, I agree with the noble Lord, Lord Condon, who, in his excellent contribution, said that this proposal would be counter-productive. Members of the Muslim community already feel that the legislation now going through Parliament—whether it is the Terrorism Bill, the Immigration, Asylum and Nationality Bill or the Identity Cards Bill—is targeted at them. We can argue all day about whether that is the case, but other people are telling them that this legislation is targeted at their community.

I have listened to passionate speeches in which it has been said that there is a threat of terrorism. I agree that the Government have a duty to protect our citizens, and the police have a very difficult job working under extremely difficult circumstances. We know that the police asked for 90 days, but ACPO also said, "Do not close down places of worship". The Government have not taken much notice of that. When we have trouble at football grounds, pubs and other places, we do not close down those premises but we lock up the criminals.

I feel that some noble Lords are taking things out of context and saying that, whenever the police ask us for something, we have to deliver. The police will not solve complicated criminal cases just because they are given a 90-day period or any period of extra time. They need the support and co-operation of the communities. I feel bad because members of the Muslim community feel that they are under attack and that this legislation is targeting them. I believe that many more people will be giving excuses for those who do not want to co-operate.

This country is at war. We are discussing the terms on which that war is fought. This House and this Parliament are committed to seeing that we win. In order to do that, we have to divine the prime objectives of the enemy. The prime objective of the enemy is to divide our nation and bring a part of it into fealty to a power outside it. The noble Lord, Lord Condon, put in police terms what the noble Lord, Lord Ahmed, put in civil terms in explaining why, if we up the ante from 28 days to 90, we shall be playing into the hands of the enemy by enabling them to tell one part of our community that it is being victimised. That would be a strategic error. I accept that there is a tactical advantage in having longer to deal with individual cases but, in the end, the strategic loss would outweigh it enormously. That is why I cannot support this amendment.

We are engaging in a lot of guesswork. As a lawyer, all my professional life I have been involved in civil liberties. At one time, I was very active in the National Council for Civil Liberties. I remain of that point of view. But we are facing a novel threat—a threat that we have not faced before. Someone prayed in aid the situation before and during the war but, in my view, that was quite different.

When I came to this debate, I was not sure whether I would support 60 days or 90 days. I confess that like everyone else I am engaging in a certain amount of guesswork. On the other hand, the protection that is afforded invigilation by senior members of the judiciary is quite different. We have never experienced such a situation before and it should not be underestimated. They are not idiots; they are trained people who care about civil liberties. We have seen that in recent days, when the judiciary stood up to be counted. Therefore, in my view, what has been said by the noble Lord, Lord Imbert, and others should be taken into account.

Very few terrorists will be subject to imprisonment for three months—maybe one or two. At all times, the opinions of members of the senior judiciary have to be sought every seven days, which is a valuable protection. But we are struggling with the unknown. We simply do not know what is better, 28, 60 or 90 days. The protection that is built into that is of inestimable importance. Of course, we have to apply a balance. We are called upon to do a very difficult thing, but the dilemma that has been posed by the noble and learned Lord, Lord Fraser—a friend of mine of many years—is unreal.

I do not think that this country should be compared with South Africa, particularly with apartheid South Africa. It is quite different. I simply cannot accept the view put by my noble friend Lord Ahmed that the Muslim community is being put at particular risk. I do not believe that and I would not support that. I believe that their civil liberties are as important as anyone else's. When it comes to an inspired guess, it is better to go for 90 days rather than 28.

Is my noble friend aware that out of more than 800 people who were charged under the Terrorism Act, more than 500 have been released without any charge? What does my noble friend have to say to the families of those 500 people?

That is an appalling thing. There has been a great deal of "chancing of the arm" by the police force. On the other hand, 300 people have been properly detained.