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Baroness Scotland of Asthal: My Lords, I thank the noble and learned Lord for his compliment on my Scots. I think it was the noble and learned Lord, Lord Mackay of Clashfern—who I see is in his place—who made it plain when my noble friend Lady Kennedy of The Shaws and I were appointed on the same day to Silk that he had appointed one because he knew that she was a Scot and the other because he believed that she was one. I have thankfully taken some lessons.
I am grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for tabling Amendment No. 74. I am also grateful to him for the letter he sent to me setting out his interest in more detail. It is always helpful to be given advance notice of particular concerns and I hope I will be able to address each and every one of them.
We have already benefited from the noble and learned Lord's careful scrutiny of the Bill and have made changes to it as a result of the assiduous way in which he has examined it. However, as I explained in Committee, these matters have been considered very fully with the Lord Advocate and he did not believe them to be necessary. The noble and learned Lord, Lord Cameron, has explained that he needs to feel assured that the Lord Advocate has read the Hansard account of the relevant debate. I can confirm that he has done so and is still of the same view. The Hansard account of the debate on 13 December 2005 is at cols. 1145 to 1150.
The Lord Advocate has had the opportunity to consider the arguments put forward by the noble and learned Lord, Lord Cameron of Lochbroom, but is still of the view that it would be inappropriate to accept this amendment. The Lord Advocate is grateful to the noble and learned Lord, Lord Cameron, for his careful scrutiny of the Bill—and, on his behalf, I express that gratitude. He also has some sympathy with the noble and learned Lord's arguments in that the Lord Advocate is the head of the systems of prosecution and investigation of crimes and has statutory powers to instruct 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. Despite this, under the existing provisions in the Terrorism Act, police officers can apply for extensions to detentions under Schedule 8 to the Terrorism Act in Scotland.
In practice, because of the protocol that exists between the Crown Office and Procurator Fiscal Service, on one hand, and the Association of Chief Police Officers in Scotland, on the other, applications
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are made only with the agreement of the procurator fiscal. They are generally signed by a police officer of at least the rank of superintendent, but the procurator fiscal will attend the relevant hearing with the police officer and will speak to the application. The Lord Advocate would like to retain the possibility that police officers might apply for extensions to detentions. He does not believe it would be appropriate to reverse the existing arrangements in this respect. In addition, the Lord Advocate is still of the view that it would be inappropriate to have different powers in Scotland from the rest of the United Kingdom.
Finally, in the letter that the noble and learned Lord, Lord Cameron of Lochbroom, kindly sent to me, he courteously asked me for figures to show how frequently the police apply for extensions to detentions under the Terrorism Act 2000. I can confirm that in 2005 in Scotland, four people were held for longer than 48 hours, of whom three were subsequently charged. The applications to extend the detention times were carried out in accordance with the protocol which I have described.
I am most grateful to the noble and learned Lord for his ongoing scrutiny of the Bill. I hope he now fully understands why the Government prefer to allow the Bill to stay as it is, not least because we want to pay proper deference to the current Lord Advocate, whom, after all, we rely on so fully in these matters. I hope the noble and learned Lord will concur with the current Lord Advocate's view. With that explanation, I hope he will feel content to withdraw his amendment.
Lord Cameron of Lochbroom: My Lords, I am most grateful to the noble Baroness for her response, in particular for dealing with the points I put to her. In the circumstances, I am grateful to her, despite the fact that I had hoped that Burns Night might have warmed her in advance of what may yet be to come. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 75:
"( ) In paragraph 34(1) (persons who can apply for information to be withheld from person to whom application for a warrant relates) for "officer" substitute "person"."
The noble Lord said: My Lords, I am sure the House is aware that Clause 23 provides that in the interests of flexibility it should be possible for a Crown prosecutor—or in the case of Scotland, as we have heard, a procurator fiscal, and the DPP for Northern Ireland—to make an application to a court to provide for the extension of the detention of a suspect detained under Schedule 8 to the Terrorism Act 2000. At present, all such applications must be made by senior police officers. We want to introduce this measure of flexibility because in some cases it may reduce the burden on the small teams of officers working on terrorist cases who might otherwise easily find their investigation bogged down by the casework required to repeatedly make such applications. The change also
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recognises that prosecutors work very closely with the police from an early stage of investigations and are well placed to judge whether the criteria for continuing detention are or are not met. This was debated and agreed in another place.
Amendment No. 75 is a very minor, consequential amendment stemming from that change. It alters and changes a reference in Schedule 8 to the Terrorism Act from "officer" to "person", to reflect the fact that a wider group of personnel than simply police officers may now make applications for extended detention. The reference it deals with relates to requesting that certain specified sensitive material is withheld from the detained person and anyone representing him. Without making this amendment, the full extent of the powers of the police in making these applications to the court will not be conferred on any Crown prosecutor or procurator fiscal, which may well discourage them from making such applications. This would undermine the important flexibility, agreed to by the other place, to add to Schedule 8 to the Terrorism Act. On the basis that this is a sensible, necessary and consequential amendment, I invite your Lordships to agree to it. I beg to move.
On Question, amendment agreed to.
Lord Sewel moved Amendment No. 77:
The noble Lord said: My Lords, this amendment returns us to a central theme of the debate on the Bill: where the balance should properly be struck between individual rights and collective rights, between liberty and security. Indeed, to what extent can the liberal state act illiberally to defend itself? All Members of your Lordships' House will make that calculation for themselves, and I will not criticise those who strike the balance somewhat differently from me. We on this side of the House have a free vote on the matter, but to tell the truth I do not think that that will make much difference to the outcome. I do not think that I stand a chance of persuading my noble friend Lady Kennedy of The Shaws to support my side of the argument.
The Lord Bishop of Oxford: My Lords, I urge the noble Lord not to give up hope because not only is it Burns Night, it is also the feast of the conversion of St Paul.
Lord Sewel: Hope springs eternal, my Lords. To use the phrase of the noble Marquess, Lord Salisbury, when he was Leader of the House, and perhaps more especially when he was Leader of the Opposition, this is the kind of issue where the Whip applies relatively lightly in this House.
At Second Reading and in Committee we rightly heard arguments to the effect that the liberal state is in danger of undermining its own values if in its defence it resorts to illiberal means. Those are very powerful and necessary arguments but there are equally powerful counterarguments. The past century of European history bears witness to how democratic states can be
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destroyed if they lack the constitutional competence or the political will to defend themselves from the enemies of the liberal state. Today terrorism based on a corrupt and perverted fundamentalism is as much the enemy of the liberal state as fascism and communism were in the last century.
One of the most powerful arguments against the 90-day amendment was put in Committee by the noble Lord, Lord Condon. In summary, he argued that 90 days might bring some significant gains in security in the short term but runs the risk of incurring the cost in the longer term, because of its disproportionate impact on members of the Muslim community, of heightening and increasing social fragmentation. That is a powerful argument, but however persuasive it may appear it fails to recognise that the terrorism we face, by its indiscriminate individual impact and by its attack on the values of a plural society, is as much a threat to our Muslim citizens as it is to wider society.
When the Bill was first published, I was not sure in my own mind where the balance should be struck, because in such cases there can be no objective, single right answer. There is certainly no formula that can be applied to produce a magic number; it is a matter of judgment. I can only say that the more I have listened, the more I have read and the more I have heard, the more convinced I have become that the appropriate number is most likely to be somewhere between 28 and 90 days.
The arguments in favour of a number greater than 28 days have been made persuasively by my noble friends Lady Symons of Vernham Dean, Lady Ramsay of Cartvale and Lord Harris of Haringey, among others, and by the noble Baroness, Lady Park of Monmouth, and the noble Lord, Lord Imbert. I shall not repeat them in detail, but I believe that we have to give attention to the argument that the international nature of terrorism makes the collection of evidence much more complex and requires co-operation and collaboration across jurisdictions that may not necessarily share a similar approach or common culture, both in relation to investigatory and judicial processes. That is enormously time-consuming to pursue properly and competently. There is also little doubt that the technological sophistication of present-day terrorists is such that formidable challenges exist in the form of deep encryption and other technological barriers to speedy investigation.
4.45 pm
Terrorism is a crime where it is not possible to wait until the deed has been done or is close to being done. The risks are too high. It is necessary for the police to intervene in the process at a much earlier stage than is the case with other crimes. That in itself makes the investigation and the building of a case more difficult and, again, more time-consuming. These are the principal factors that have led me to the conclusion that terrorism presents particular difficulties for the investigating authorities, but I find chilling the words
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of the noble Lord, Lord Carlile, who said in his report—these words have been used before in your Lordships' House but they bear repetition:
"On the basis of my own enquiries 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".
We would do well to reflect long on those words.
Finally, there is one other argument that persuaded me to table this amendment: our parliamentary process. Although an amendment for 60 days was put down in another place, it was not voted on. We know that there was not a majority for 90 days in another place, but there was a majority for 28 days. We simply do not know whether a majority exists for 60 days. I believe that that is such an important question that it deserves to be tested. At the moment we do not know where, in parliamentary terms, the majority lies. Given the importance of the subject matter before us, I believe it is perfectly proper and indeed right for this House to give the other place the opportunity, quite explicitly, to test whether a majority exists for 60 days.
In Committee, the noble Lord, Lord Stoddart of Swindon, argued that this House and the Government have a duty to support 28 days because the other place has already decided and the other place is rightly supreme. I confess that I was a little surprised to hear that argument coming from the noble Lord who, in my memory—if it serves me right—has from time to time over the years felt perfectly justified in voting against measures coming before your Lordships' House when the other place has already expressed a view. I believe that the noble Lord's position is profoundly mistaken. The role of your Lordships' House is to consider legislation coming from the other place, to scrutinise it, to review it and, if necessary, to amend it, so inviting the other place to think again. The supremacy of the other place comes into play, and decisively so, when it has thought again and returned the Bill to your Lordships' House. For us to draw back at an earlier stage does no good for the role of this House and it does no good for the legislative process.
A strong case exists for extending the period of detention without charge from a maximum of 28 days to a maximum of 60 days. I believe that with the safeguards already built in, that gets the balance just about right between security and liberty, between collective rights and individual rights. I believe also, given particularly the confusion over whether a majority exists in another place for 60 days, your Lordships' House would be acting entirely properly in inviting the other place to think again, but that it would be wrong to persist with any challenge once the other place had thought again. I beg to move.
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