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Lord Henley: My Lords, obviously, like the noble Baroness, Lady Scotland, I am in the hands of the House on this matter. I intervened because I sensed that it was time to move to a resolution of the issue—I think that I have the support of some of your Lordships—because we have now been discussing it for jolly nearly four hours. By the time I have made my brief remarks and the noble Baroness has spoken, it will certainly be over four hours. As the noble Baroness, Lady Symons, put it, we are all pretty familiar with the arguments. I will therefore be very brief in running through the lines which I took when we debated this for over two hours in Committee as to why it is wrong to move from 28 days to 90 days—or, for that matter, the extension to 60 days proposed by the noble Lord, Lord Sewel.

First, we believe that it is wrong in principle; it is equivalent to a six-month custodial sentence and tantamount to imprisonment. Okay, we have moved from seven days to 14 days to 28 days, but a further move to 60 or 90 days would be much greater; therefore, one can argue that it is wrong in principle.

Secondly, it is arguable that it is contrary to Article 5.3 of the European Convention on Human Rights. The noble Lord, Lord Carlile, said in his report:
 
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"I question whether what is proposed in the Bill would be proof to challenge under the Human Rights Act given the length of extended detention envisaged".

The same would apply to 60 days; some have argued that even 28 days might be a breach. I understand that the noble and learned Lord, Lord Steyn, has also stated that it could be in breach of Article 5.3. We have even heard rumours that the noble and learned Lord the Attorney-General has expressed certain doubts, but perhaps the noble Baroness can touch on that in due course.

Thirdly, as argued today by others better qualified than me, the provision could be a recruiting sergeant for terrorists. Even one case of an individual being detained for three months would cause further radicalisation in the community.

Fourthly, we believe that the problems highlighted by the police relate just as much to resource and not to law. Intelligence, not legislation, is the key to successful counter-terrorism, a point made very effectively by my noble friend Lord Hurd and others at Second Reading and re-emphasised by the noble Baroness, Lady Kennedy, in Committee.

Fifthly, there are alternatives. We could amend the bail or police and criminal evidence provisions to get the accused back for post-charge questioning having imposed control-order-style conditions on him. That was a suggestion from Liberty.

Sixthly, there is the alternative of charge with a lesser offence and in the mean time gathering alternative proposals.

The key argument against 60 days' detention is that it is Parliament's duty as the legislature to temper the demands of the various parts of the executive and its agencies—in this case, the police—and not to accept their demands without question. Blind reliance on advice from any government agency is not a healthy way of legislating. The Government's central argument, repeated today, was that they were acting on police advice. The issue of balance between public security and the rights of individuals is for Parliament not the police. My noble friend Lord Hurd articulated that at Second Reading as follows:

"But Ministers should not suspend their own powers of judgment, or come to Parliament telling us that it is the view of the police or the agencies so we must accept it. Nor should the police urge Parliament to suspend its views or judgment, but that is what has been happening".—[Official Report, 21/11/05; col. 1402.]

I hope that the House will resist the amendment in the name of the noble Lord, Lord Sewel.

6.30 pm

Baroness Scotland of Asthal: My Lords, yet again, we have had an extraordinary debate in which there have been some very powerful speeches. I reassure the noble Lord that when the Government put forward the 90 days proposal they did so because, on the evidence placed before them from all sources, that was the Government's view on the most appropriate response that should be made to keep this country safe. The evidence was powerful; it was referred to extensively in Committee. Today we have had it
 
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highlighted once again in some very powerful speeches, not least that of the noble Lord, Lord Sewel, who opened the debate in an exemplary manner.

Noble Lords who have said that there is no one perfect solution to the conundrum in which we as a nation find ourselves are quite right. There is a huge debate, a proper debate on where the line should be drawn between the security and safety of our people as a nation and the rights and freedoms that we as individuals have rightly come to expect. All those voices that have argued that individual freedom should not be capriciously or inappropriately curtailed are right. That principled approach has been maintained in the stance taken by the Government. This Government, contrary to what some may assert, have been unfailing in their adherence to the rule of law and to the promotion of individual civil liberties. We have seen that in the introduction of the Human Rights Act, the data protection legislation, freedom of information legislation and many other provisions that have been brought forward under this administration. I hope no one in this House doubts that the Government have taken these issues very, very seriously indeed.

We also take into account the concerns that have been so powerfully expressed by my noble friend Lady Kennedy of The Shaws, among others, and the words of the noble Lord, Lord Condon. However, we know from the evidence that we have that it would be right to look at practitioners such as the Assistant Commissioner, Andy Hayman, who, as the most senior anti-terrorist police officer, has the current onerous responsibility of discharging, on behalf of our country, the security investigations that are necessary to keep us all safe. That evidence is powerful and cogent.

The Government, as your Lordships know, argued strongly in the other place that 90 days was the appropriate time for investigations to take place. Taking on board the things that were said by a number of my noble friends, not least by my noble friends Lady Symons and Lady Ramsay and others, that is to be reviewed appropriately every seven days. However, the other place spoke. It did not agree with the proposals put forward by the Government. In the other place, my right honourable friend the Home Secretary undertook that the Government would not seek to overturn that decision and I do not resile from that tonight. This side of this House has a free vote. Your Lordships will have to decide how that is exercised. Noble Lords opposite will take their own course. I should make it plain that I and those who sit on the Government Front Bench will not vote on this matter. We will abstain.

I shall answer a few questions that have specifically been raised with me. There was the suggestion that the provisions now before your Lordships are simply a response to the events of 7 July. I make it plain that they are not. Noble Lords will remember that we had a number of debates before 7 July when these issues were contemplated and we agreed that we would bring forward legislation as soon as reasonably practicable to consider these matters. We also argued on a number
 
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of occasions that the circumstances in which we found ourselves in 2005 were very different from the circumstances that had prevailed two or three years earlier and that we would need to respond creatively to those changes. The Government would argue that the proposals that we put forward are proportionate and right.

I reject absolutely any suggestion that this country and what we have done could properly and fairly be compared with the situation that prevailed in South Africa.

Lord Joffe: My Lords, I want to make it absolutely clear that never for a moment did I compare the UK Government with the South African Government. I compared the similarity in the legislation that they have both passed. There is no comparison whatever between the South African Government, who were evil, and the British Government, who are a fine government.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord for that very generous acknowledgement. I say to him that even in terms of the 90 days, the comparison cannot be made because here we have the Human Rights Act and we have a vibrant and robust judiciary which has demonstrated time and time again its resilience, courage and independence and it has not hesitated to disagree when it felt it was appropriate.

I say to the noble Earl, Lord Onslow, that unfortunately I fundamentally disagree with him on the comments that he made about the way in which our police forces have responded in these very difficult times. We need to honour what they have done on our behalf. The strenuous efforts that they have made, and continue to make, make this country a safer and securer place than if we had many of the police constabularies that other countries have. I say as strongly as I can on behalf of the Government that we thank and applaud the police for the efforts that they make on our behalf.

It is now for the House to determine what stance it wishes to take on these matters. The House should understand that the Government's position was that the 90 days was the right balance.

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