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The legislative programme announced by the Home Office is more reasonable in amount this year than the overwhelming flow we have seen during the past 10 years. The Criminal Justice and Immigration Bill is a

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mixed bag. We can support some of it but many parts are questionable and several of my noble friends will refer to those parts this afternoon. On the Counter-Terrorism Bill, all sides would agree that the threat of terrorism is real and that those counterterrorism measures are needed. Where we part company is that we are being asked to pass legislation without the evidence. We cannot in practice be presented with most of that evidence because it is the preserve of Government and the intelligence services. The Government’s July consultation on extending the pre-charge detention period listed reasons for an increase as the severity of the terrorist threat, the international nature of the threat and the complexity of those cases. That is the evidence that must be weighed, but our fear is that in the weighing, the Government’s thumb of power is weighting the balance unduly. The evidence must be weighed against whether implementing such measures makes the situation more dangerous and makes it easier to radicalise young people. We will forensically examine whether a better route can be found. Better routes have already been suggested to the Government and I am sure that we shall spend much time debating them.

The increasing threat of terrorism is something that we take very seriously, but if even a small part of the reason for that increase is in our own hands, in the laws that we pass—I think of laws in their widest sense, for example around faith schools or actions the Government should take but are failing to take—we will use all our efforts to press those arguments. We will part company over the Government’s continuing stubborn refusal to implement some very useful measures such as intercept evidence used in court.

In opening the Home Office debate in the other place, Jack Straw quoted himself back in 1997 as saying:

I thoroughly agree with him that they can, but since 1997 the Government have introduced many laws that have done the opposite, and by no means most of them were introduced on the basis that they were needed to counter terrorism. We on these Benches will do all we can to realise those values of tolerance and a better society through the legislation that we pass. We shall attempt to amend the Government’s legislation to make sure that it does exactly that.

Lord Mackenzie of Framwellgate: My Lords, is the noble Baroness fully aware of the number of times that the use of DNA and modern technology has led to the detection and arrest of many terrorists? Two years ago the July bombers were identified almost immediately as a result of CCTV. Serious criminals such as rapists and murderers who committed their crimes 10 or 15 years ago are identified. The value of this technology is unarguable.

Baroness Miller of Chilthorne Domer: My Lords, when the noble Lord checks my speech, he will see that I was not arguing against taking DNA and using it but against keeping the records for ever.

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3.54 pm

Lord Lloyd of Berwick: My Lords, I shall be speaking on terrorism, a subject on which I seem to have spoken so often before, and in particular on the proposed Counter-Terrorism Bill, which I worked out was the fifth in seven years. However, I bow to the better arithmetic of the noble Baroness, on whose speech I congratulate her. She makes it six whereas I made it five: I have missed one out.

I shall deal with what seem to be the two main points and, if there is any time left over, I shall make some modest suggestions of my own for inclusion in the Bill. First, there is the issue of post-charge questioning. I knew that as soon as ever that idea was floated everyone would jump on the bandwagon and even claim that they had thought of it first. It seems to be such an easy and in a sense obvious solution to what everyone agrees is a difficult problem.

But it will not do. Why not? For the simple reason that if post-charge questioning is allowed, there is a very real risk that the suspect will not get a fair trial. That needs some explanation, along these lines. The courts have always made it their primary function to ensure that trials are fair. That applies not only to the conduct of the trial itself but to what happens before the trial starts. Let me give a recent example. Not long ago, a defendant was brought to stand trial in England by being forcibly placed on an aircraft in South Africa without any judicial process of any kind. The Court of Appeal, to its shame, held that he could still have a fair trial here, even though the manner in which he had been brought here was so obviously unjust. That decision was unanimously reversed by the House of Lords. I could give other examples.

So judges are very much concerned with not only what happens at the trial but what happens in the process by which suspects are brought to trial. It is for that reason that over the years they have formulated certain rules that have always been known as the “judges’ rules”. Two of the best known of those rules are that as soon as there is enough evidence to charge a suspect he must be charged forthwith. The second rule is like unto it and is obviously a corollary of it; that once he has been charged no further questioning is permissible in relation to that offence. The reason for both those fundamental rules is the need to protect a suspect from oppressive questioning. The rules have a long history and they have long had the force of statute. They are currently to be found in Code C of the codes made under PACE—the Police and Criminal Evidence Act 1984. The current code took effect as recently as July 2006. Paragraph 16.4 provides:

It is not very good grammar, but the meaning is perfectly clear. There are some very limited exceptions, which only go to prove how important the rule is.

Those are just two of the rules that underpin our concept of a fair trial. Yet it is now proposed to abrogate the second of those rules in relation to terrorism. But a terrorist suspect is entitled to a fair trial, the same as any other suspect. Our notion of what constitutes

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a fair trial surely cannot depend on what the suspect is supposed to have done. Post-charge questioning is not the easy way out and we should resist it as vigorously as we should resist any extension beyond 28 days.

Even if it were to be allowed, where would it stop—at the door of the court? To allow a defendant to be questioned by the police up to the moment that he goes into the dock would be quite intolerable. No one would seek to defend that; but where else is the line to be drawn, once post-charge questioning is allowed? Of course the police can continue their investigation. Of course the suspect can be re-arrested and questioned in relation to some other offence. But once he has been charged and the case handed over to the Crown Prosecution Service, questioning in relation to that offence must stop.

I come to the issue of 28 days. Two years ago in 2005, Parliament rejected the 90 days for which the police had asked and decided on 28 days. No doubt much had changed between 2000 and 2005, justifying the increase from seven days to 28 days, but nothing has changed since then to justify a further increase. It is common ground that the police have not needed more than 28 days in any case so far. It is common ground that it is only on “rare occasions”—the Government’s words, not mine—that the police will need to go beyond 14 days; 28 days is not the norm. Why, then, are we being asked to consider another increase so soon? It can only be counterproductive, for all the reasons given some years ago in a speech by my noble friend Lord Condon, which noble Lords will remember. It will only alienate still further those whose allegiance we ought to be seeking to secure by whatever means we can, if we are ever to see an end to terrorism.

Those were the arguments advanced in the other place, to which the Home Secretary had almost no answer to offer. Another argument that received little attention was this: Article 5.3 of the European convention—which is part of English law, I remind your Lordships—provides that a person detained on suspicion must be brought promptly before a judge or magistrate. If not, he can claim compensation under Article 5.5. If a person is detained for more than 28 days, he will be entitled under current law to go to a court and claim that he has been wrongfully detained. The outcome of that case will depend on that little word, “promptly”. What does it mean? The court will have in mind the French equivalent word, “aussitôt”. The court will have in mind the decision in Brogan v United Kingdom, in which the European Court of Human Rights held that detention for four days and six hours without charge was outside the plain meaning of that word. The court will have in mind that 28 days is already far longer than is allowed in any other country in the world that I know of.

This question will undoubtedly come before an English court. I do not see how it could possibly say that a suspect charged after more than 28 days had been charged “promptly”. If that were the case, the court would be bound to hold that the new legislation was incompatible with the European Convention on Human Rights. The Home Secretary would then have to think again, as her predecessors have so often had to think on matters in this field. Alternatively, she would have to derogate.

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I add just one other point. The fact that the time has been extended by a High Court judge every seven days does not mean that the suspect has been brought before a judge, as required by Article 5.3. Under our system, that happens when, and only when, he is charged. So the question that I leave with the Minister is: has the Home Secretary been advised by Home Office lawyers or the Attorney-General that detention without charge beyond 28 days is compatible with Article 5.3? If so, perhaps she could let us know in general terms the grounds of that advice, otherwise we will not be able to have an informed debate or make an informed decision when the Bill is brought before us. If not, I do not see how she will be able to certify that the Bill is compatible.

4.05 pm

The Lord Bishop of Liverpool: My Lords, I hope that I shall not be misunderstood if I now shift the ground and congratulate the Government on their legislative restraint in the field of home affairs. After the numerous substantial criminal justice Bills in recent years, it is something of a relief to find only one such Bill before us now. The criminal justice system needs time to assimilate, and adjust to, major reforms if it is to fulfil its objectives.

As one who recently succeeded the Bishop of Worcester to the office of Bishop to Her Majesty’s Prisons, I urge the Government to consider the impact of legislation on our overcrowded prisons. It is clear that the introduction four years ago of indeterminate sentences for public protection is producing a crisis in numbers. We are rightly nervous about releasing dangerous people, but the real problem is that the parole system is having difficulty in processing those who need to be assessed. We must be careful that new enactments do not add to that pressure.

When I look at the proposals in the Criminal Justice and Immigration Bill for violent offender orders to restrict the movement of violent offenders on release, I wonder about the consequences of breaches of those orders, given the extent to which the prison population has already been swollen by various kinds of defaulting. I wonder, too, about the wisdom of non-dangerous offenders who flout their licence conditions being returned to prison for 28 days. I am not questioning the need for effective enforcement of the requirements of the courts, nor am I arguing for sentencing to be determined by prison capacity, but when the Government call for prison to be used as a last resort, it must be right to be cautious about creating new occasions for the use of custody. Appropriate sentencing and capacity must be held together in a consistent overall plan.

My second concern is about youth justice. The past 10 years have seen some welcome innovations in dealing more informally and creatively with young offenders but we are still running a system which fails to take proper account of the differences between young people and adults and gives too low a priority to welfare as distinct from punishment. I welcome the decision to make the Youth Justice Board responsible to the Department for Children, Schools and Families, as well as the Ministry of Justice. I welcome the introduction of a youth rehabilitation order. This should allow for greater flexibility for the courts, working with youth

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offending teams, to tailor sentence requirements to individual young people, helping to address the underlying causes of offending behaviour. Noble Lords will know that there is considerable evidence that many of the 7,000 under-18 year-olds who receive custodial sentences and many of the 150,000 under-18 year-olds who receive community orders have a range of special needs in the areas of education, mental health and drug and alcohol misuse. The emphasis must be remedial and on reducing reoffending.

I am sorry, is it possible to have a glass of water? Speaking in your Lordships’ House is much more demanding than doing “Thought for the Day” on Radio 4, even when sitting in front of Mr John Humphrys.

A late arrival in the Criminal Justice and Immigration Bill is the Government’s proposal to introduce a new offence of incitement to hatred. It is of course essential to protect vulnerable groups in society from malicious and harmful attacks, but we need to ask whether the existing public order law is being enforced effectively and equitably before introducing new offences. Sections 4A and 5 of the Public Order Act 1986 already prohibit “threatening, abusive or insulting” words or behaviour causing “harassment, alarm or distress” to anyone, from whatever group. As we found in the debates on incitement to religious hatred, the offence of incitement brings all kinds of uncertainties about the boundaries of acceptable speech and behaviour. Any new offence will have to balance protection against freedom of expression, so that hateful and inflammatory behaviour towards particular groups is distinguished from controversial argument, for example, about sexual ethics.

I am encouraged that, when questioned in another place, the Secretary of State for Justice confirmed that the government amendment would be drafted carefully to set the threshold of the offence at the right level and that the provisions of the Racial and Religious Hatred Act, which your Lordships’ House wisely amended in the interests of freedom of expression, would provide a starting point for consideration. We must look carefully at what emerges.

The examples of youth justice and incitement to hatred remind us that the criminal law is only one part of society’s response to unacceptable and anti-social behaviour. It is an essential part, but it relies for its effectiveness on the ordinary processes of social cohesion through families, communities and institutions. Coming from the city where Rhys Jones was tragically killed, I cannot overlook the vicious impact of the gang culture and the carrying of offensive weapons. The law on its own cannot change these deadly patterns of behaviour. Behind it must stand families, communities and groups who deal firmly but positively with temptations to act criminally and hurt others. Legislation and criminal justice policy depend on these relationships and social forces to create and maintain a healthy and well-ordered society.

Experience leads me to know that many people now feel unsafe even in their own familiar neighbourhoods. Lawless behaviour is no longer confined to areas of deprivation. I do not wish to be alarmist but young people themselves are feeling the fear as gangs hold greater sway on our streets and in our parks. Gangs are a family substitute. We need to understand the roots of this malaise.

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Those on these Benches wish to work with the Government not only in legislating justly for the offences, but in understanding the begetting of the offender. Offender management is an important development within the criminal justice system, but offender management is secondary to the priority of understanding the conditions and changing the criminogenic culture that gives birth to so many persistent offenders in today’s society.

4.14 pm

Lord Morgan: My Lords, the process of constitutional reform was the most radical and innovative part of what was generally a workmanlike and constructive Queen’s Speech. Indeed, constitutional reform has been perhaps the most radical and distinguished part of the Government’s programme since 1997, so I welcome the fact that this has been continued, particularly under a Prime Minister who has a serious intellectual engagement with the issues involved.

We need more reform for many reasons. There is a lot of unfinished business. Devolution, notably in Wales, is manifestly incomplete: the legislative process is tortuous and unsatisfactory. England remains a black hole in the whole area of constitutional reform, where virtually nothing has been done. We need clarification on human rights legislation to underpin it, although I would not welcome attaching the idea of human rights to nationalism, having a British Bill of Rights that somehow distinguishes British people from others. The process of parliamentary reform is still of course incomplete; the process of House of Lords reform is in an indeterminate condition, to put it kindly. We also have many questions to ask about constitutional relations with Europe.

In some areas there is not merely uncertainty but a real prospect of conflict. For example, the human rights issue has seen judges and Ministers taking different interpretations in a very undesirable way. We have seen devolution and dirigisme in conflict, with possible serious consequences in Scotland. We have different measures which seem to pull in different directions. It cannot be left as it is. However, reform is desirable in itself to underpin our freedoms and to bring our constitution up to date and forward into the contemporary world.

Gordon Brown recently spoke on liberty and derision was heaped on his head, to the effect that he was comparing himself to that great man John Stuart Mill. In one respect at least, Gordon Brown is better than John Stuart Mill. John Stuart Mill was a wonderful man who never ran anything. He was a hopeless Member of Parliament and headed a very large number of campaigns that were totally unsuccessful. Thus it was that in the debate in which some of us took part at the Liberal Democrat conference, the Liberal Democrats thought that he was the perfect representative of liberal democracy, far ahead of Gladstone and Lloyd George who actually had to do things and to run the country. I also think that Gordon Brown is possibly a better democrat than John Stuart Mill, who spent a great deal of his time worrying about the tyranny of the majority.

At any rate, whether superior or inferior to John Stuart Mill, Gordon Brown proposes constitutional

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reform as a linchpin of personal freedom. Like, I am sure, many on these Benches, I welcome many aspects of that, including extending the historic right to petition Parliament, and certainly to demonstrate in the vicinity of Parliament. I also accept with great enthusiasm the clarification of the role of Attorney-General, which produced such difficulty in the totally criminal invasion of Iraq which has stained this Government’s reputation.

I am less enthusiastic about internment without trial. Indeed, the proposal to extend it to anything remotely like 56 days is totally wrong in practice and principle. We have heard devastating attacks from the noble and learned Lord, Lord Lloyd of Berwick, and others. It is totally in conflict with the historic principle of habeas corpus which in some sense has enshrined legal practice in this country since before Magna Carta. The classic statement against detention without trial was, I am proud to say, from somebody else from Aberdyfi, Lord Atkin. During the Second World War he said that,

We have heard no sensible evidence that such provision is necessary. I deplore the attempt to politicise the head of MI5, who has told us of nameless terrors like some latter-day King Lear. The head of MI5 should get back to his day job and not engage in politics to help the Government.

The Achilles heel of what has generally been an admirable Government has been civil liberties: control orders, ASBOs and ID cards. The Minister has perhaps joined the Labour Party more recently than I. I joined in 1955 because I was enthused by the libertarianism of Aneurin Bevan and Hugh Gaitskell. Although they disagreed on other things, they were at one in seeing socialism as the motor of liberty. I say to the Minister that I deeply regret that a Labour Government should even think in these terms. It reminds me of the famous remark of Madame Roland during the French Revolution, “Liberty, what crimes are committed in thy name!”. We are told that Gordon Brown is open-minded, and I trust that he is.

For the rest, I warmly welcome it. I warmly welcome the restoration of Cabinet government instead of the sofa regime we have had for some time, and the new respect for civil servants. I welcome two things in particular. One is the admirable emphasis on citizenship. We do not talk much about citizenship in this country. If you read manuals on constitutional theory, “citizenship” often does not even appear in the index. We are subjects because our tradition is monarchical. We cannot say as the American did in their constitution:

It is admirable that the Government are focusing on citizenship. I hope that they will focus on citizenship not only for people coming to this country but also for those of us who are already here and that they will strengthen our organic relationship with our constitution.

Secondly, I enormously welcome the new status for Parliament. Under Tony Blair, Parliament and especially the Commons became what Bagehot would have called the “dignified” part of the constitution. Indeed, the House of Lords looked rather more efficient than the Commons during the past few years. I welcome the

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fact that Parliament is being strengthened as it is under challenge from many areas including devolution, referendums and relationships with Europe.

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