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As the House knows, I and other noble Lords—the noble Baroness, Lady Park, the noble Lord, Lord Imbert, and my noble friend Lord Foulkes—moved on a previous Bill an amendment for pre-charge detention for up to 90 days, reviewed every seven days by a High Court judge and sunseted. I remain as convinced now as I was then that a maximum of 28 days in our legal system is inadequate in the face of the distinctive terrorist challenge of our time. I would also rather give the Home Secretary a reserve power for a possible increase than legislate in the emotional heat of a terrorist crisis.
The reasons for the need for increased time have been rehearsed often in this House: the sophisticated complexity of the material; the vastly increasing amount of computer product, often encrypted; the need for the police to intervene at an early stage to avoid the risk of letting a terrorist plot run; the request for the increase from all the senior police officers directly working operationally on terrorism; the multiple identities of suspects—it often takes time to establish who an arrested person is; and the global reach of contacts involved, which in these cases often necessitates reliance on liaison services for information. We are fortunate in our intelligence and security services, which have a history of close and successful relationships with foreign intelligence and security services, often built up painstakingly over many years. No one should think that this is easy or can be taken for granted. Liaison services have varied degrees of competences, resources and speed of working, and of course varying degrees of willingness to pass on all they know or discover. This is not always from ill will but sometimes because of their own national interests.
The various safeguards and the parliamentary role built into this Bill result from the widest possible consultations—I have never known a Home Secretary
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4.21 pm
Lord Mackay of Clashfern: My Lords, I was delighted and privileged to hear the maiden speech of the noble Baroness, Lady Manningham-Buller, and share her point of view that, if possible, security matters should be above party politics. I had the honour of introducing to this House the first Bill that dealt with the security services. That was done on the basis of strong cross-party support. It has been somewhat amended since then but on the whole has worked successfully.
I will talk briefly on Clause 40 of the Bill, which creates a universal jurisdiction for serious terrorist offences in the United Kingdom. It is desirable to point out the need for some mechanism to determine how this matter is to be exercised, remembering that the Scottish courts have a particular position under Article 19 of the Treaty of Union. The primary matter to deal with is detention without charge. I of course accept all that has been said about the complexity of the terrorist threat in modern times. Like the noble and learned Lord, Lord Falconer of Thoroton, I do not see a direct connection between that complexity to do with gathering evidence and holding a person without charge in the mean time. These are separate matters requiring separate consideration.
This Bill requires that the Home Secretary should have discretion to bring in a reserve power in this connection following a report by the Director of Public Prosecutions and the chief officer of a police force in England and Wales, the Crown Agent and the chief constable of a police force in Scotland, or the Director of Public Prosecutions for Northern Ireland and the Chief Constable of Northern Ireland. It seems to suggest that if one of these three groups should make such a report, this power is triggered for the United Kingdom as a whole.
The requirements of that report are clear. It is necessary that,
- “each of the persons making the report is satisfied that there are reasonable grounds for believing that the detention of one or more persons beyond 28 days will be necessary for one or more of the [stated] purposes”.
They must give grounds for that belief and must also be satisfied that any investigation is being pursued diligently and expeditiously.
On the basis of that report, the Bill gives the Secretary of State power to make an order bringing in that reserve power. It is interesting for me to notice that this involves something more than what was in the report, because the Secretary of State must satisfy Parliament that the need for the reserve power is urgent. There does not seem to be anything in the report from the prosecuting authorities that requires that to be stated. Whether the independent lawyer is
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However, I believe that we can have faith in the senior judge with supreme confidence. On the other hand, I do not believe that it is right to impose on the senior judge an impossible task. The procedure seems to be a private procedure that is alien to the general judicial process, and there does not seem to be any opportunity for intervention by the detained person. I do not think that the Bill states what the senior judge is supposed to be satisfied about before he grants the application. I would have thought that that at least would be required.
When I became Lord Advocate in 1979, the outgoing Labour Government had a criminal justice Bill for Scotland before Parliament. When we took office, we decided that it would be good to promote a similar Bill, with some changes of course, as always happens on these occasions. It was interesting that what we were trying to do was give a statutory framework for detention before charge. The time limits in question were something like four hours or eight hours. That was a time of quite severe terrorist threat. Noble Lords might remember that Mr Airey Neave was blown up in New Palace Yard at that time. I of course accept that the complications of terrorist activity are much greater now than they were then. However, it seems to me that when we are going from, on the one hand, four to eight hours in 1979, to 42 days at this time, we have seen a very considerable erosion of the civil liberties on which our society is founded. If we wish to preserve our society, methods that destroy that framework of civil liberties seem to me to be quite wrong.
4.28 pm
Lord Robertson of Port Ellen: My Lords, I add my congratulations to the noble Baroness, Lady Manningham-Buller, who has joined us today. She was a star in her previous job, and I hope that she will bring the same qualities here as well. She came to visit me when I was Secretary-General of NATO, and it was a breath of fresh air. I remembered the visit made to me by her predecessor, whom I had asked why my protection in the United Kingdom had been withdrawn, at a time when all of the major NATO nations, and NATO as an organisation, believed that I might conceivably be under threat. He looked at me and said, “Well, we make our own threat assessments in the United Kingdom and we don’t think you’re under threat. Mind you, it is an imprecise science we use. It is a question of balance and judgment”. I suppose the fact that I am here speaking today shows he got the gamble right, but I did not agree with him at the time.
Essentially, we are talking about exactly the same thing today. It is a question of achieving a balance between the liberties that the noble and learned Lord and others have spoken about and the new challenges that we face now and will increasingly face. Judgment as to the appropriate framework of legislation is required. It is better that we discuss this calmly and rationally rather than after the event when public sentiment is strong, and often an artificial all-party consensus can drive us in the wrong direction. I am
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We are, after all, talking about up to 42 days and not a mandatory 42 days. We are talking about a limit of 42 days but with very significant safeguards built in. In the circumstances, when terrorists are moving at the speed of light and can harness technology and communications in such a way that sometimes the democracies of the world can be too slow, we require that measure. We have an open, clear-cut, transparent and exceptional process that we should support.
Like my noble friend Lady Ramsay, I shall touch on the question of intercept. It is a rarefied issue that has boiled around both Houses of Parliament, and the use of intercept evidence in court is a matter of real concern. I declare an interest, although it is not particularly relevant, in as much as I am a senior adviser to Cable & Wireless—the second telecommunications company of this country—which gives me some knowledge of and background to these issues.
As a result of debates here and in the other House, the Government decided to set up an all-party committee under Mr John Chilcot, a distinguished former civil servant. That committee deliberated for longer than was anticipated because of the complications involved. It wrestled with the issues and took some time producing a report that was accepted by the Prime Minister and welcomed in all parts of this House and the other place. Nine major safeguards were proposed by the Chilcot committee, designed to ensure that essential national security was not prejudiced should intercept evidence be used as well. I do not think that I have ever done this in my life before, but I would like to quote what Michael Howard said in the other place. He is a member of the Chilcot committee, having replaced the noble Lord, Lord Hurd. In the debate on 10 June, Michael Howard said:
“The Chilcot committee report set out nine requirements that must be met to ensure that the United Kingdom’s strategic intelligence capability is safeguarded, and that the ability of intelligence and law enforcement agencies to protect the public is not harmed if intercept evidence is made admissible”.
He went on to refer to the provisions in the Bill regarding coroners’ courts. It does not seem to be a comfortable marriage when he states:
“It therefore came as a surprise, to me at least, to see the provisions of the Bill that allow for the admissibility of intercept evidence in coroners’ inquests without a jury, and to see that there was no reference to those safeguards, and indeed no hint of their necessity”.—[Official Report, Commons 10/6/08; cols. 260-61.]
He was supported in that—I do not wish to single him out—by John Reid, Adam Ingram and John Spellar, all of them former senior Government Ministers.
I repeat what my noble friend Lady Ramsay said: a promise was made by Mr McNulty in the other place that amendments would be put forward in this place to deal with the serious concerns expressed by those individuals. I hope that, at the end of the debate, my
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4.36 pm
Lord Lester of Herne Hill: My Lords, like everyone else, I congratulate the noble Baroness, Lady Manningham-Buller, on a memorable, well informed, practical and very influential speech—all in three minutes. If I could emulate that, I would be very surprised. I declare an interest as a member of the Joint Committee on Human Rights, which has scrutinised the Bill and has reported six times this year on counterterrorist proposals.
I begin not with the 42-day issue, but with another that we regard as equally important. It has received very little attention, except recently in the other place. I refer to the provisions on coroners’ inquests in Part 6 of the Bill. Even though those provisions have an impact on the right to life and to an effective and independent investigation under Article 6 of the convention, the Explanatory Notes do not explain the basis for the Government’s view that Part 6 is convention-compatible. That is deeply regrettable and I hope that the Minister will deal with it fully in his reply. He has not done so in his opening speech.
I commend a close reading of the debate of 10 June in the other place, initiated by our powerful chair, Andrew Dismore MP, with the support of Dominic Grieve QC MP, the new and admirable shadow Home Secretary. As Mr Dismore explained, the convention imposes a positive obligation on the state to provide an adequate and effective investigation where someone has been killed as the result of the use of force, particularly by state agents. The person conducting the investigation must be independent from those implicated in the events, and there must be a sufficient element of public scrutiny to secure accountability, in practice as well as in theory. The inquest must involve the next of kin to the extent necessary to protect their legitimate interests.
The procedure proposed by the Bill would empower the Secretary of State to certify that the inquest should be conducted without a jury—and with a special coroner—if, in the Minister’s opinion, it is in the interests of national security, or in the interests of the relationship between the UK and another country, or if it is otherwise in the public interest. The Secretary of State thus seeks sweepingly broad discretionary powers, going well beyond those needed to counter terrorism. The Government’s justification—the need to comply with Article 2 of the convention—is an example of Home Office chutzpah.
Independence is essential, and a system based on special appointment of security-cleared coroners by the Minister would inevitably involve serious breaches
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Dominic Grieve MP rightly asked:
“What is the point of suddenly dispensing with juries? ... it is possible to have specially vetted juries, to have public interest immunity certificates, and to treat these processes as ordinary hearings ... If ... the Government came forward with other ideas and proposals in the context of their planned reforms to the coroner system generally, that would be a sensible approach. Legislating quickly and repenting at leisure is a big mistake ... This House”—
he was referring to the other place—
- “has a major responsibility in upholding confidence in the law and the rule of law and in ensuring that deaths are properly investigated, particularly where there are issues of sensitivity surrounding possible state intervention, and it should not have anything to do with a set of proposals that will ultimately bring the Government into disrepute”.—[Official Report, Commons, 10/6/08; col. 249.]
The Commons Justice Committee called for the proposals to be withdrawn pending more detailed scrutiny and the introduction of the promised Coroners Bill. The Joint Committee agrees with that. We hope that the Government will decide to do so before we have to vote on whether Part 6 should be removed from the Bill. Sunset should come early in October.
I shall refer briefly to the issue of 42-day detention because everyone else speaking before me will have said almost all that can be said, as will those who follow. We all have too much experience in this country of the effects of murderous terrorism from within. One lesson of the IRA experience is that excessively repressive responses are counterproductive, and the Government’s attempt to justify seeking new powers of administrative detention is wholly unconvincing. They narrowly escaped defeat in the other place with the aid of nine DUP Members, persuaded by some Faustian bargain to swallow their doubts. The tactics used were squalid, including a deplorable whispering campaign against Liberty and its brave director, Shami Chakrabarti. The outcome of that vote cannot be said to demonstrate strong support in the elected House, even from the governing party’s supporters.
The Home Secretary’s argument would not be likely to convince either our courts or the European Court that the 42-day extension would be compatible with the fundamental right to liberty in Article 5 of the convention. Nothing that has been said or written by Ministers explains why 42 days has been chosen, except that it is thrice 14 days. The Home Secretary frankly admitted on 11 June that, apart from evidence of the growing scale and complexity of terrorist plots,
- “the only other evidence that it would be possible to provide would be provided on the day when a terror suspect walks free because an investigation cannot be completed. I am not willing to wait until then to legislate”.—[Official Report, Commons, 11/6/08, col. 322.]
That is not evidence and it does not justify what is proposed in the Bill, especially when weighed against the knowledge and experience of the Director of Public Prosecutions, two former Lord Chancellors, the former Lord Chief Justice, the former Attorney-General, the Home Affairs Select Committee, senior police officers and, last but not least, the noble Baroness, Lady Manningham-Buller.
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The safeguards in the Bill are illusory, cumbersome and self-defeating. Parliament cannot judge the merits of individual cases and pending investigations, and it would not be given evidence on which to base a judgment as to whether the reserve power should be triggered. The procedures envisaged are so bureaucratic that they would defeat the object of speedily and fairly tackling a serious emergency threatening the life of the nation and its people.
The Joint Committee includes members of all three parties in both Houses and of the Cross Benches. We concluded unanimously that,
- “the case for 42 days detention has not been made, that the availability of alternatives makes it unnecessary, and that it would inevitably breach Article 5”,
of the convention. We advocated a framework for making a derogation under Article 5 of the convention if it were necessary to do so.
Finally, apart from the human rights and constitutional principles that are at stake, there is a wider and equally important issue concerning the effectiveness of the Bill in reducing the risk of further acts of home-grown terrorism by fanatics pursuing an unholy political jihad against their fellow British citizens. There is a real danger that, by taking further reserve powers now for use in some future, hypothetical situation, the Government will alienate law-abiding, peace-loving British Muslims or weaken their ability to combat political extremism and criminal violence within the younger generation.
I worked with Roy Jenkins at the height of the Birmingham and other bombings, and one lesson from the long years of Irish terrorism was that moderation and self-restraint, rather than overkill, were vital weapons in the battle for hearts and minds. The Government have somehow convinced Keith Vaz MP to change his mind, but I doubt whether they have convinced many British Muslims or, I suppose, a majority of your Lordships’ House.
4.45 pm
Lord Goldsmith: My Lords, for over six years I had the privilege and burden of dealing with the issues with which your Lordships’ House is concerned in this Bill. The horrors of 9/11 occurred three months to the day after I had taken office and I was hurled headlong into the first of the antiterrorism Bills with which I had to be involved. Thereafter, through successive antiterrorism Bills, those that came to your Lordships’ House and, yes, those that were discussed but never brought forward, through Madrid, through Beslan and the horrors of 7 July, I was concerned not simply as legal adviser to the Government but as the senior prosecutor, the person responsible for the Crown Prosecution Service and its policies, and the person who had to take the decision in relation to some of the cases because my consent was required.
I worked closely with the Home Secretary and other senior Ministers in looking at all the issues with which your Lordships are concerned: intercept, control orders, counterterrorism and increasing resources for the police and the security services. I want to pay tribute to the police, the security services and the prosecutors. I want also to welcome the noble Baroness and compliment her on her discretion. While she was
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Those events taught me two things. The first is that the threat from terrorism is real and grave. No one who sat in the bunker, in the Cabinet Office, watching the 7 July events unfold could doubt that for one moment. Therefore it was right to look to increase resources for the services, and to look to the powers that might be necessary to increase their capability. But it taught me one other thing: if we are going to make changes to our fundamental rights, it must be on the basis of principle. Above all, it must bear in mind one very important factor which a number of noble Lords have referred to already, and of which I became increasingly convinced: we will not win this battle against the arc of terrorism that we see across the world by might alone; we need to win hearts and minds. We need to persuade people outside this country and—yes, noble Lords are right—some within this country that the values for which we stand of justice, fair play, freedom and liberty, the very basis of our society, are better, stronger and more valid than the horrible creed of hatred and oppression of al-Qaeda.
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