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Lord Lloyd of Berwick: My Lords, I had not intended to intervene so early, but it may be helpful at this stage to hear the argument the other way. I did not speak on the subject of this amendment in Committee, but I was present throughout and listened with the greatest care to those who advocated, as they have today, an extension of the detention period from 28 days to either 60 or 90 days. They attached, as do I, great weight to the views of the Association of Chief Police Officers, but I do not think that anyone has suggested that the views of police officers in this matter are decisive. I think that everyone accepts that there is a balancing exercise between the safety of the public on one hand and, on the other, the fundamental rights of individuals not to be kept in custody for lengthy periods without charge. The noble Lord,
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Lord Sewel—in what was, if I may pay him this tribute, an excellent speech moving the amendment—made that very clear.
That is the exercise in which we are currently engaged and I must explain why I attach less weight to the views of very senior police officers than others have done in this respect. I do not think that the point I am about to make has yet been made in these debates. If 90 days is the period that police officers now say they require for carrying out their investigations, why did they not say so when the very same question arose during the passage of the Criminal Justice Bill as recently as 2003? What senior police officers asked for then, and got, was an increase from seven days to 14 days. Why do they now say, only two years later, that 14 days is not enough and that they need 90 days?
The reason cannot be that things have changed by what happened on 7 July. It is true that that was the first occasion when suicide bombers carried out operations in the United Kingdom, but surely the police must have foreseen the threat of suicide bombers in 2003. Indeed, the first British suicide bombers had already been involved in the attack on Tel Aviv in May 2003, so the threat must have been very much in their minds. One may speculate that it was because of that attack by British suicide bombers in May 2003 that Clause 284 was included at the last moment in the Criminal Justice Bill of that year.
Therefore, the advent of the suicide bomber cannot explain the change from 14 days to 90 days. Nor have senior police officers offered any other reason for the increase from 14 days to 90 days, because the reasons they now give are almost word for word those which they gave in 2003. I regret that I am driven to the conclusion—it is certainly the impression that I am left with—that the request for 90 days was simply a reaction to the events of 7 July, in the way in which one so often sees governments reacting to events of this kind, rather than a considered response to a continuing threat, which is what is needed when we are legislating against terrorism.
My second point is that 60 days would have little chance—I would say no chance—of being acceptable under the provisions of Article 5 of the European Convention on Human Rights. It is bound to be challenged—let nobody doubt that. If it is challenged, the challenge will, in my view, succeed. No other country in Europe at the moment requires more than five or six days without charge. We are asking for 60 or, originally, 90 days without charge.
The belief that a challenge under the Human Rights Act is almost bound to succeed is not my view alone. It was the view of the Joint Committee on Human Rights in its report on this very provision. It stated that a case had simply not been made to extend the period from 14 days, let alone to 60 or 90 days. In its view, it would be held that 60 days was not a proportionate response to the threat. Even more important were the views of Louise Arbour, which I quoted on the first day of the Report stage. I remind your Lordships that Louise Arbour is a distinguished Canadian judge who is now the High Commissioner for Human Rights. In
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her letter of 28 November, which many Members may now have seen, she stated her grave concern about how, if the period is extended beyond 28 days,
Those are views to which we really must pay attention.
Reference has been made to the noble Lord, Lord Carlile, but I remind the House that he said that more than 28 days would be acceptable under the Human Rights Act only if it were accompanied by a fundamental change in our criminal procedure. The Government were unwilling to accept that, however, as the noble Lord made very clear at Second Reading. It is very hard for me to imagine how anybody could put forward a case that 60 days would be acceptable under the Human Rights Act, which is, after all, an Act of Parliament to which we all agreed.
It is easy to paint a picture of the devastation which was created on 7 July and it is easy to say that anything less than 60 days' detention would be, to use the expression of the noble Lord, Lord Imbert, "woefully inadequate". It is less easy for most of us to imagine what it is like to be held in custody, day after day, without being told the reason, and then to be released without charge after 60 days. Of course, if someone is guilty of something, they would know why they were being detained, but that begs the very question.
The effect on the individuals concerned of being detained in that way, without discharge, is devastating, as is the effect on their families. I saw that when I visited Pentonville prison immediately after the outbreak of the first Iraq war. My job then was to go and see people in prison who had been detained on information from the Security Service. Yet it is not just about the effect on individuals; there is also the effect on community relations. That point was made in Committee by the noble Lord, Lord Condon, in what I can only call a wise and persuasive speech; I found myself in complete agreement with everything that he said.
The safety of the state has always been used as a justification for undermining civil liberties. That does not happen overnight, but it will happen in the end, unless we are very careful.
5.30 pm
Lord Clinton-Davis : My Lords, the noble and learned Lord, Lord Lloyd of Berwick, holds great affection in your Lordships' House. We also rejoice in his skill. But on this occasion, he is utterly wrong.
There is no doubt that the events of 7 July had a tremendous effect in this country. As far as any challenge from the European Court of Human Rights is concerned, we should await the result of that before making any judgment. At present, we are at liberty to opt for 60 days, if we wish. The court has not pronounced an opposite point of view at the moment.
We have heard some remarkable speeches against the amendment today, but they have not changed my opinion since our debate on 13 December. I am not sure, at present, whether 28, 60 or 90 days offers a complete solution to our problems. However, I have
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come down in favour of the middle ground—the 60 days. It is the most appropriate that we can have at present. Although the other place opted for 28 days, it is incumbent upon us, as has been said today, to give it an opportunity to consider the 60-day solution, if it can be called that, which, by virtue of a procedural situation, it could not debate. When we last discussed this matter, the view of some noble Lords was, undoubtedly, in favour of the 28 days. However, I respectfully suggest that the motivation was rather mixed.
I care about civil liberties, but in my view the test should be not, "What do the police prefer?", but "What is most practical, having regard to fundamental civil liberties?". Nearly everyone participating in this debate is fallible, as I am, but in my judgment 60 days should enable a competent police force to assemble its case more readily than the 28 days which has been supported by another place.
We are dealing here with a fairly new and different type of criminal. We cannot afford to take chances with people's lives. On the one hand, terrorists are increasingly sophisticated these days; internationally connected, and unconcerned about their personal consequences. On the other hand, our society would be ravaged if we permitted these factors totally to destroy our vision. Our concern for civil liberties is paramount but, at the same time, it is equable; no, that is not the right word. Like the noble Lord, Lord Imbert, I have had a stroke and cannot always remember the right word.
Lord Gilbert: Equitable, my Lords.
Lord Clinton-Davis: My Lords, I am reminded by my noble friend Lord Gilbert that the word I was searching for is "equitable", rather than equable. The terrorists, so far we can see, lack any sympathy for such concepts.
I argue, therefore, for the police to be given a reasonable opportunity to prepare their case against the alleged terrorists, but not to ignore the inroads into civil liberties which that concession brings. We are, of course, debating a compromise. Yet it is one which is workable—a compromise not oblivious to the civil liberties which we need to hold dear, especially when they are under attack.
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