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Lord Lloyd of Berwick: I oppose the amendment. It is a very good example of how liberties can be eroded without anybody noticing. It is a basic rule of English law that when a man is arrested he is entitled to be told what he has wrong—that is, the offence that he has committed. That has always been the English law. It was put in statutory form in the Police and Criminal Evidence Act. Not surprisingly, it is also law under the European convention as enshrined in the Human Rights Act.

When the constable arrests a person who is suspected by the Home Secretary, what offence will he be told he has committed? Unless he can be told that he has committed an offence, he has been wrongfully arrested. The constable cannot tell him that he has been arrested and will be taken in however short a time before a court because he is involved in terrorism-related activities or something similar. That is not an offence in English law and it is not proposed to be in effect under the Bill. Until there is an offence of that kind, the arrest cannot be lawful.

The Duke of Montrose: This clause on arrest and detention pending a derogating control order has caused some worries north of the Border. The clause appears to allow a constable to arrest and detain an individual if the Secretary of State has made an application to the court for a derogating control order in respect of that individual and the constable considers that the arrest and detention is necessary to ensure that he or she is available to be given notice of the order if it is made. They will have to wait until a letter is delivered or until something similar occurs.

I appreciate that the Government may wish to make provision to ensure that those suspected of involvement in terrorism-related activity are held in custody pending determination of the derogating order, but is the mechanism set out in the Bill the appropriate way to achieve this? I would also welcome clarification of how this will interact with Scottish criminal procedure.

There is in Scots law a clear distinction between detention and arrest. The intention behind the traditional concept of detention is to allow time for further enquiry by the police where there is reasonable cause to suspect the involvement of an individual in the commission of a crime punishable by imprisonment but where there is insufficient evidence to press charges.

The purpose of detention is to assist in the investigation of the matter. As soon as it is clear that sufficient evidence exists to arrest a suspect, detention should be terminated and at that point the person may be arrested.

A person may be arrested when there is sufficient evidence to point to the involvement of that individual in the commission of a crime. The crime must be one which is capable of being punished by imprisonment. In this
 
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subsection, there is no clear reference to the constable suspecting that the individual has been involved in a crime. The basis of the arrest appears to focus on the fact that an application has been made and the ability to serve notice of the derogating control order on the controlled person. It might be more appropriate for the subsection to refer to a belief on the constable's part that the individual is or has been involved in terrorism-related activities and therefore that detention—rather than arrest—is appropriate while further enquiry is going on. If there is sufficient evidence to proceed to arrest, why are criminal proceedings not raised and pre-trial detention considered?

Alternatively, if the purpose of the provision is to ensure that the individual's movements are restricted pending determination of the derogating order, rather than introducing an artificial concept of arrest, a combination of conditions could be imposed on the individual in terms of a non-derogating order which would allow for supervision or monitoring over the period concerned.

I question whether the clause currently takes full account of the devolution settlement. Will the Secretary of State consult Scottish Ministers before police officers in Scotland become involved in the process? If there is sufficient evidence on which to arrest an individual, will the Lord Advocate become involved in the direction of the investigation?

Clarification would therefore be welcomed on the terminology which is used in relation to detention and arrest, especially in the Scottish context; the appropriate basis for detention or arrest—that is, based on suspicion of criminal activity; and, the role of Scottish Ministers and in particular the Lord Advocate in this process. Subsection (4) refers to the power of the courts to extend the custodial period of 48 hours by a further period of 48 hours. It is unclear whether the court will make this assessment ex proprio motu or on the application of the police officer involved.

Viscount Bledisloe: Will the Minister explain how the amendment relates to Amendment No. 80? Under Amendment No. 80 when the Secretary of State applies to the court there is an immediate hearing. If the court thinks fit, it can make an immediate control order. So, if the person is thought to be likely to blow up the Houses of Parliament that evening, the court can make a control order to put him under house arrest. That will detain him and render him available to have the notice served on him.

In what circumstances do you not obtain an immediate control order but you none the less need to arrest the person so that he is available to be given notice? That is my first question. Secondly, as it has now been decided that the court will make control orders of a non-derogating nature, is it intended to extend this new clause in Amendment No. 91 to include non-derogating orders?

Lord Morris of Aberavon: I voted against the Government on the previous issue; I rise to support the Government on this amendment. There is a hole
 
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to be filled by reason of the previous concession of the Home Secretary and the decision taken by the Committee today.

The analysis of the noble and learned Lord, Lord Lloyd, is absolutely right about what has to prevail on all the circumstances that we normally know about. These are unusual circumstances. There is a hole to be filled. There is a need to ensure that a person for whom the Home Secretary wishes to issue an order must be available when that order is made. Therefore, as a matter of common sense, the amendment should be carried.

Lord Carlisle of Bucklow: I find myself slightly concerned with the amendment. I understand entirely and agree with what the noble and learned Lord, Lord Morris, said. Clearly, there must be a power to arrest someone where in the end there will be no ability to try him. I realise therefore that he cannot be told on his arrest the evidence on which he has been arrested or the sources from which that evidence comes.

If I correctly understood the noble and learned Lord, Lord Lloyd, he was saying that the person will not even be told that he is arrested on the basis that there are reasonable grounds for suspecting he is involved in terrorist-related activity. Is that really so? What is the objection to saying to a person, "You have been arrested. The basis for your arrest is that we believe you to be involved in terrorist-related activity"? The man may say, "Tell me what". The constable may say, "I am sorry, I am not prepared to do so", but at least he has been told the general basis on which he is arrested.

The noble and learned Lord was saying that the reason this cannot be done is because there is no suitable offence of being involved in a terrorist offence. If so, is not the answer to make an offence which covers the point, so that he can be arrested in pursuance of that offence, rather than to leave it with him saying, "What have you picked me up for—urinating in the street, being a nuisance at a football match, or what? Or am I said to be a terrorist?". He must surely have the limited right to know that.

5.45 p.m.

Lord Phillips of Sudbury: Perhaps the noble Baroness could afford some elucidation on subsection (1)(b) of the new clause. I apologise for not having given her notice of my inquiry, which may mean that she has to write to me. Subsection (1)(b) says that a constable may arrest and detain an individual if—and this is the point—

"the constable considers that the individual's arrest and detention is necessary to ensure that he is available",

and so on. I am slightly foxed about how a constable will be in the position to form an independent view on the necessity of the arrest in the kind of circumstances that are likely to prevail, which may be that the word goes out to all police cars in a district to arrest the person driving a particular car. I cannot see how that
 
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is compatible with the requirement in the subsection. I should be grateful for any elucidation the noble Baroness may be able to give.

Lord Tebbit: The noble Lord, Lord Carlisle, asked the question which I was almost too shy to ask. What does the constable say to the person whom he has been told to arrest? After all, if a constable came to me and said, "I am sorry, Lord Tebbit, you are under arrest", naturally I would say, "What for?". What does he then say—"I'm afraid I cannot tell you"? What exactly does he say? What are the appropriate words? It would be very interesting to know. I have to assure the Committee, and particularly those Members who are both noble and learned, that the average man in the street thinks that under these circumstances the constable would say to him, "I'm arresting you on suspicion of being involved in a conspiracy to cause explosions", or something of that kind, and take him down to the station. By the time the procedure had gone on for a few hours, days and so on, the order would either be made or not.

So one could drop the charge and then move into the second phase of the order; or if the order was not made, the constable could say to him, "Look, I am terribly sorry, but it was all a ghastly mistake and you are free to go now". What would happen? I shall be fascinated if the noble Baroness will tell us what words the constable would use; why is the approach which the man in the street would expect to be used impossible; or is it that it is a very naughty approach and so we would not like to own up to it ever having been done?

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