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This proposal contains a number of important safeguards, as it should do. First, the reserve power in the Bill can be brought into force in future only where the Home Secretary is able to confirm to Parliament that she is satisfied that it is needed for investigating serious terrorist offences arising out of a “grave exceptional terrorist threat”; that is, an event or situation involving terrorism which causes or threatens serious loss of human life, serious damage to human welfare in the United Kingdom or serious damage to the security of the United Kingdom.

Secondly, the Home Secretary will need to have received a report from the Director of Public Prosecutions and a senior police officer, and both will have had to be convinced that more than 28 days is necessary. Thirdly, both Houses of Parliament will vote on the order making the higher limit available within seven days of it being laid. Fourthly, the reserve power will be in force for 30 days only.

In addition, there are other safeguards. Individual detention beyond 28 days will be authorised by a senior judge, who may issue a warrant of further detention only if he is satisfied that there are reasonable grounds for believing that further detention is necessary for investigation into a serious terrorist offence and that the investigation is being conducted diligently and expeditiously. It may be for a matter of hours, a couple of days or a maximum of seven days at a time. That seems a very considerable safeguard. However, over my very short time in your Lordships’ House, I have noticed that I seem to have more faith in our senior judiciary than most noble Lords do.

The independent reviewer will report on whether individual suspects were held in accordance with the requirements governing detention, whether proper

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procedures were followed for applications for detention beyond 28 days and whether it was reasonable for the Home Secretary to make the higher limit available.

The proposal on pre-charge detention is therefore very different from the original proposal. It does not change the pre-charge detention limit now but it does enable the limit to be increased in future in specific and exceptional circumstances, and then only for a strictly limited period.

I believe that this new proposal achieves the balance that we have always sought between providing the police with the powers that they need when they need them and protecting the rights of individuals being investigated for these most serious of crimes.

Finally, I turn to the issue of coroners’ inquests. The Government have put forward these proposals because there is a genuine problem when an inquest into a death must be held with a jury but it involves the consideration of sensitive material which cannot be disclosed publicly. When an inquest has to consider such material, currently there is the potential for it to be incompatible with Article 2 of the European Convention on Human Rights if the sensitive material is central to the purpose of the inquest. The Government are firmly of the view that the proposed changes will ensure that an Article 2-compatible inquest can be held in all cases, including those where there is a possibility that state actions may have caused or contributed to the death, while protecting the integrity of the material in question.

The vast majority of inquests will continue to be held in public. However, in the very few cases which the Secretary of State has certified will involve consideration of material that cannot be disclosed publicly without damaging the public interest, it will be necessary for the part of the inquest to which that evidence relates to be held in private. Our proposals will not result in material that would otherwise have been heard in public being heard privately, but they will allow material to be considered that could not otherwise have been taken into account.

I recognise that these provisions were the subject of detailed comment in the other place. Equally, I am aware that some Members of your Lordships’ House, including the Constitution Committee, have expressed concerns about them. We are all attuned to these sensitivities but we also recognise that there is a real-world issue with which we must deal—not least in meeting our obligations under Article 2 of the ECHR and in enabling certain cases to be concluded, allowing the families involved to achieve some kind of closure. My right honourable friend Tony McNulty indicated in the other place that we would look to amend these provisions to include a sunset clause. I stress to the House this afternoon that, as ever, we want to listen to the views of noble Lords, reflect on them and work to alleviate any concerns, if possible.

I know that we will have a full and interesting debate this afternoon; I have been looking forward to it. Although there is, I believe, a large degree of consensus on many of the measures in the Bill, it is clear that the issues of pre-charge detention and coroners’ inquests, in particular, need to be fully and properly debated. I know from my time here that everyone in

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this House is aware of the terrible threat we face from terrorism and is committed, in their own way, to doing everything we can to address it. In a democracy such as ours, this involves striking the very difficult balance between providing the law enforcement agencies with the legal powers they need to protect our people and the need to protect individual civil liberties. That difficult balance is something that this House is expertly placed to address, and I know that the debate will be positive and constructive. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord West of Spithead.)

3.26 pm

Baroness Neville-Jones: My Lords, let me make it clear that we on these Benches take the terrorist threat to this country every bit as seriously as do the Government; there is no difference between us on that. Wherever possible, we strive for agreement on security matters. The issue today is how the security that the British people expect, and to which they are entitled, is best brought about and sustained.

The Bill contains many detailed provisions and we have called for some of the measures—such as post-charge questioning—for some years. There are measures that we support in principle, such as making terrorism an aggravating factor in sentencing; notification requirements; travel restrictions on those convicted of terrorist offences; and offences related to the security of members of the Armed Forces. There are other measures with which we still have certain difficulties, such as control orders. My noble friend Lady Hanham will, in winding up, also touch on inquests, inquiries and the rules of court. Important concerns on these were largely obscured in another place by the debate on 42 days’ detention.

I will, at this stage, focus most of my remarks on the proposal to extend pre-charge detention to 42 days. We oppose the proposal in its entirety. Many in this House will have watched with grave concern the passage of this proposal through another place. It brings to the fore the challenge of balancing the rights of the individual and the needs of efficient justice with the duty of the state to protect its citizens. We will be judged on how we strike this balance.

At the heart of the debate is one central question: what type of society are we trying to create, protect and secure? After all, it is on the effects of our actions, not our intentions—however virtuous these may be—that we will be judged. Extending pre-charge detention seeks to guard against the terrorist threat by giving more power to the state. We take a different view from that of the Government. Security measures should not have as their sole focus a reduction in the threat, essential as this is. If security is to be sustainable over the long term, security measures must also facilitate and protect a united society based on shared liberal values and the mutual trust of a free, responsible citizenry. Citizens must be able to repose their trust in each other, not in the state for fear of each other. The impact of this legislation on different communities is, therefore, not a minor, subordinate matter. It goes to the heart of our chances of reconciling freedom with security.

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Will the proposed extension achieve and protect an open and unified society? The answer is emphatically no. It represents yet another attempt on the part of the Government to abridge, without sufficient justification, fundamental democratic rights and freedoms that have underpinned our society for centuries and which we have defended against tyranny on so many occasions. The Government are putting those rights and freedoms at risk in a reactionary fashion. Terrorists want to undermine our freedoms and way of life by provoking the state into putting in place repressive measures. We therefore risk, in effect, doing their job for them. No doubt many noble Lords will make comparisons with other common-law jurisdictions to illustrate the point that our allies are addressing the terrorist threat without draconian extensions of detention.

If we are to approve any measures that restrict our fundamental rights and freedoms, we must have two things. First, evidence is needed to show that new measures are required, the proportionality of which we can then assess. Secondly, if restrictive powers are deemed necessary, we must have proper safeguards. In his speech of 17 June, the Prime Minister noted that the civil liberties aspects of extended detention without charge could be taken care of by a bunch of claimed safeguards. But, in the view of those on these Benches, precise justification for the proposed extension and considerations about proportionality must come first. I should like to take a few moments to examine those points.

The first is the threat. Agreed, it is real; agreed, it is severe. However, the Minister asserted as recently as 1 July in this House that we were now safer than we had been. At the least, if that does not mean a reduction in the threat, it must mean an improved capacity to detect, disrupt and protect against terrorist activity, so one has to wonder somewhat at the timing of the legislation.

The Government have laid much stress on the complexity of terrorist conspiracies, which they say gives rise to the need for extended time for investigation. To make that argument, the Government have relied on what they have called pragmatic inference. At an extreme, Mr Tony McNulty, the Minister of State in the Home Office, has painted an alarming picture of complexity combined with magnitude. Imagine, he says, five 9/11s. But such a scenario would be in the catastrophic class, for which there is already legislation on the statute book in the shape of the Civil Contingencies Act 2004. The Government are not powerless in such a situation, and to suggest otherwise is to scaremonger.

The Metropolitan Police Commissioner has said explicitly:

Precisely, but that is not good enough. The evidence actually suggests that an extension is not needed and would not be proportionate. Last week, this House approved an order to renew the extension of pre-charge detention from 14 to 28 days. It was clear that, in the past year, no terrorist suspect has been detained without charge for the maximum of 28 days. If we look at the cases often cited to demonstrate the complexity of investigations, which we do not underestimate, we find

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that in no case was there a need for an extension beyond 28 days. The case of Dhiren Barot, which the Minister cited, was one of the most technically challenging, but charges were successfully brought within 14 days. In the case of the 2004 Crevice fertiliser bomb plot, all charges were brought within 14 days.

The original justification for an extension to 90 days involved a scenario with over 20 suspects, multiple locations, multiple targets, multiple computers with encrypted files in different languages and dependency on foreign intelligence. Operation Overt, the investigation into the alleged plot to attack 10 airliners at Heathrow in 2006, had every one of those characteristics, yet the police were able to charge every suspect within 28 days. All those facing the most serious charge—conspiracy to murder—were charged within 21 days. Of the five held to the end, three were discharged and two were charged with lesser offences based on information obtained well before the 28th day. This is far from being up against the buffers, as has been claimed. In his broadcast on the “Today” programme last November, the Minister spoke of the importance of being certain of the need for more than 28 days. He is right in this. The trouble is that the Government have not demonstrated the need for what the Minister has described as “the precautionary approach”.

I turn now to the safeguards, in which the Prime Minister reposes so much confidence as the guarantee of our liberties. The Terrorism Act 2006 and the Civil Contingencies Act contain key provisions for Parliament, such as a sunset clause and stringent requirements for judicial supervision. The Government’s concessions to secure the passage of this Bill in another place do not compare. They still allow the extension to 42 days to be triggered at the subjective, unfettered discretion of the Home Secretary. They do not allow judicial review of the Government’s claim that a “grave exceptional terrorist threat” exists. There is no requirement for Parliament to vote on whether there is an emergency or a “grave exceptional terrorist threat”.

Does one not think that in the context of greater restriction of liberty, the safeguards against its abuse might be at least as great as those which apply in the case of lesser restriction? Is not this inverse relationship of greater restriction and lesser safeguard extremely odd? Even if the Government’s concessions could be considered proper safeguards, the former Home Secretary, Charles Clarke, has made clear his view that the procedures that will be established are so cumbersome that the police and the prosecuting authorities will be most unlikely to seek an extension. Mr Clarke also labelled the so-called concessions “constitutionally damaging”, in that they would confuse the role of Parliament with that of the judiciary. Members of this House may share this view.

This House cannot endorse the so-called safeguards, any more than it can accept the case for an extension of pre-charge detention. Not only is an extension unnecessary and unworkable, but it has an active downside in two key respects. First, the extension is a disproportionate response, which would be likely to serve as a recruiting sergeant for terrorism. In this regard it is worth noting that the Government still have to produce the promised risk assessment for

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communities of the current extension to 28 days. They should have done so and should not try to proceed to 42 days without having done so. The Minister has promised this assessment for the autumn, and I ask him to have it ready for the House to take into account when this debate resumes in October. Secondly, the Government’s own impact statement for this Bill notes that the reaction of Muslim groups to the proposal puts at risk information that might otherwise be forthcoming from members of the community in the future. In other words, the Home Office itself suggests that extending detention without charge may hinder our counterterrorism efforts, by cutting off vital local intelligence. Let us be clear: these are security warnings.

We also know that a significant number of current senior police officers see the risks. It may surprise the House to learn that the Association of Chief Police Officers, ACPO, has never collectively discussed the effect on its work of an extension to 42 days. The Director of Public Prosecutions and the former head of counterterrorism in the Crown Prosecution Service, as well a number of noble Lords, have all voiced their opposition. Should not so many weighty and knowledgeable dissenters give the Government pause? It is clear that an extension is not needed, will not work and will have an active downside. Why are the Government therefore fighting so hard for it? If one looks at the history of the debate one sees that the Government first wanted 90 days, then wanted 56 days and now want 42 days. It seems that they have become fixated on extending pre-charge detention for political reasons, rather than for well considered policy and strategic reasons. Alternative, proportionate security measures are, in effect, neglected.

There are alternatives. In terrorist cases, the criterion for charging is already the lesser standard of reasonable suspicion. Is it really the case that the British state would contemplate holding for even longer than 28 days people against whom not even a reasonable suspicion of a terrorist-related offence had by then been established? Related to this is the use of post-charge questioning under judicial supervision which could and should be used more extensively. No doubt the noble and learned Lord, Lord Lloyd of Berwick, will speak to this point. There are also measures that we have pushed for that are entirely absent from the Bill. They include lifting the ban on using intercept evidence in court, tightening the rules on extremists entering the UK and banning radical groups that serve as antechambers for terrorism.

I shall focus briefly on the use of intercept evidence. I am aware of the sensitivities, which I take seriously. Against them, the Joint Committee on Human Rights has noted that the current prohibition on the admissibility of intercept evidence is,

The Crown Prosecution Service is clear that its use will lead to more guilty pleas and fewer abortive trials. The Director of Public Prosecutions was told in Australia that prosecutors who do not use intercept evidence in terrorist cases are not being serious. The situation in this country is all the more anomalous, given that it is used in organised crime cases. Even with the backing of the committee of privy counsellors, the Government still appear reluctant to allow the use of intercept

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evidence. I am sure it would help the House to know from the Minister when the committee appointed to follow up the privy counsellors’ report is likely to be ready with its findings.

In putting in place counterterrorism legislation, we must be clear that we are charged with taking into account the implications not just for the police, the security agencies and the prosecuting authorities, but for society and the constitution as a whole. On these Benches, our approach to the Bill is to guard against three things: possible miscarriages of justice; adverse outcomes for our society; and counterproductive consequences for our ability to tackle the terrorist threat. We want strong security, the preservation of liberties and efficient justice.

We will work with the Government to strengthen aspects of the Bill, and we will press them to take measures they have left out, but we will not agree to the sacrifice of our fundamental freedoms without the most compelling, evidence-based justification.

3.43 pm

Lord Thomas of Gresford: My Lords, in October 1963, the Tryweryn dam and reservoir were opened in the heart of mid-Wales by the Lord Mayor of Liverpool. The drowning of that valley had been opposed by every Welsh Member of Parliament of every political colour. It awakened feelings of outrage that the countryside, the culture, the language and a way of life were being destroyed. In the Lords, counsel for Liverpool Corporation in promoting the Private Bill told the committee:

We started to campaign in earnest for a Welsh parliament. Many noble Lords in this House were part of that campaign.

For my part, in 1967, I drafted a Bill for a Welsh parliament which my noble friend Lord Hooson presented in the Commons. However, there were others who wanted to take more extreme steps. There were explosions to transformers and power cables that served the dam, which were undoubtedly terrorist acts. It continued with cottage burnings and the antics of the Free Wales Army, whose manoeuvres I once stumbled on in the mountains above Dolgellau. On 2 December 1968, two of the four water pipes carrying the main supplies to Birmingham were blown up. It was a matter of a Private Notice Question that day in the House of Commons and Mr Leo Abse asked:

Mr James Griffiths called for stricter security for explosives. My noble friend Lord Hooson asked:

Sir Knox Cunningham called for “special security measures”.

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At that time, I had a work colleague who was a passionate nationalist. He was a very likeable man, but he also knew something about explosives because of his job. I used to banter with him that he must be a general in the Free Wales Army. On the day of that explosion I asked him, jokingly, what he had been up to. He seemed somewhat abashed. Later that morning, I noticed that his Land Rover had over the weekend lost all its political stickers—“Cofia Dryweryn”. His Land Rover was covered with mud. That evening, I talked it over with my wife and I telephoned the police.

Information to the police and to the security services comes from within a community. Last year, the Observer told us that more than one year before he detonated his Tube bomb on 7/7, Mohammed Siddique Khan had been listed as a “desirable suspect” by MI5, along with fellow bomber, Shehzad Tanweer. Where did the intelligence come from that led to that or to the thwarting of so many violent terrorist plots by our police and security services, to whom I pay tribute for the tremendous work they have done in protecting the people of this country? I am delighted that we shall later hear from the noble Baroness, Lady Manningham-Buller. We look forward to her contribution, whatever side of the debate she may happen to be.

The police and security services, in targeting people, do not make wild guesses. They act on information that is obtained from within the Muslim community. If you lose the confidence of that community, in the fairness of our police and in the justice of our legal system, you will hinder the prevention and the detection of terrorist acts. That is the apprehension which unites the people who know most about policing, about prosecuting and about the conviction and punishment of terrorism, many of whom will speak in this debate today.

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