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At times, this debate has descended into the realm of the absurd. I heard the noble Lord, Lord Carlile, the independent reviewer of terrorism, speak on the

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radio of the man who drove the incendiary vehicle into Glasgow airport to cause a terrorist outrage and who ended up, after arrest, in hospital, in a coma with severe burns and who eventually died. The noble Lord said that that would have presented the police with problems because he would still have been medically unfit beyond 28 days. Anyone listening might have thought this criminal would have got off scot free because we did not have 42 days pre-charge detention. In fact, half the nation saw the man drive the vehicle into the airport on the news. There were hundreds of witnesses to his actions and he was caught at the scene.

Sometimes I hardly recognise the facts of the cases in which I have been involved when they are described by Ministers, or politicians in the other place, who claim that cases are almost foiled by the absence of extended powers. I have heard this said about both the operations that have led to the cases in which I have been involved—Operation Crevice and Operation Overt; it was suggested that the police were up against the buffers but was just not true.

We must remember that law depends upon principles. Those principles did not come out of nowhere; they were forged in the fires of human experience. Yet we seem to be losing our collective memory over why civil liberties matter. I have often commented on the fact that so often it is Jewish lawyers who take up civil liberty cases in the courts. That is because Jewish lawyers so often know why civil liberties matter so much. Irish Catholics often know why civil liberties matter so much. Trade unionists used to know. Young black men, who experienced the sus law cases, knew too, just as Muslims nowadays know. But in our brave new world the urgently evanescent—tomorrow’s headline, the next poll or the next vote—seems to be all that matters. Knowledge of the abuses of the past and the historic battles for rights and liberty are rarely explained to our children and yet knowledge is what gives us the power to say “no” and the ability to give reasons for the rejection when Governments pass oppressive laws. If we do not understand our own history we are much more likely to be taken in by new-fangled dogmas and law.

Almost all terrorist trials start with intelligence but I do not want to see a situation where intelligence becomes the basis on which people are kept in custody week-in, week-out, only eventually to be released because it was a trawling exercise. The Government have piled on safeguards but others have mentioned just how facile and illusory they are.

Finally, I appreciate the difficult conundrums Governments face in trying to find the right balance between security and liberty. Only last week I gave the Sir Isaiah Berlin memorial lecture. I gave it at Hampstead Synagogue although I am not a Jew. I went back to his work on positive and negative liberty. Berlin was all too clear about the difficulty in finding the appropriate balance between different rights. But his words should be sacred in our hearts. He said:

The torch of resistance has now passed to this House, whose powerful defence of freedom in recent years has

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more than justified our existence as a second Chamber. It fills me with pride when I think of the hard battles that we have fought together on justice and liberty. I trust that all of you, my esteemed colleagues on all Benches around this House, will again show our mettle and reject this erosion of liberty.

6.48 pm

Lord Steyn: My Lords, I have not spoken in a general debate since I made my maiden speech in May 1995. Rightly or wrongly, I have taken the view that I ought not to take part in general debates while I was a serving Law Lord, or eligible to sit as a Law Lord after my retirement from judicial office. Since August last year, any such impediment came to an end. Given the importance of the subject of this debate I should like to make a few, very brief, observations.

It may be the case that from time to time it is appropriate for this House to defer to the views of the House of Commons. But the Bill before the House is demonstrably not such a case. If it is not appropriate and legitimate for this House on issues of high constitutional principle, fundamental civil liberties and Magna Carta itself to reach an independent conclusion, the usefulness of our bicameral parliamentary system would be placed in doubt. If I may slightly paraphrase words in the House of Commons almost 100 years ago by another Home Secretary, Winston Churchill, a calm and dispassionate recognition of the rights of the accused are the symbols which mark and measure the stored-up strength of a nation. That approach is as valid today as it was then.

It is undoubtedly right that the first duty of a Government is to protect citizens from harm. That is particularly so in this era of terrorism, but it does not excuse the endless excesses and acts of lawlessness committed in the name of the war on terror. The context is very relevant to today's debate. Emblematic of such repressive policies is Guantanamo Bay. At the very start of the lawless regime established on that island, our Government, through the then Defence Secretary, said on 15 January 2002 that:

at Guantanamo Bay,

to Guantanamo Bay.

Now the tide may be turning. A few days ago in Boumediene v Bush, a majority of the US Supreme Court decided that prisoners at Guantanamo Bay were entitled to habeas corpus—they have a constitutional right to take their cases to civil courts on the US mainland. The words of Justice Anthony Kennedy, a conservative member of the US Supreme Court, are worth citing. He said:

One wonders how long our Prime Minister can still insist that our Government stand shoulder to shoulder with the outgoing President Bush in regard to his discredited policies on the war on terror.



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Turning directly to the 42-day detention provision in the Bill, I suggest that a solid case for extending the 28-day limit on pre-charge detention has not been established. Fundamental civil rights should not be whittled away by alarmist speculations. If the Government's reasoning were to prevail, one wonders what repressive policies would be truly beyond the pale. I am mystified by the purpose of the Government in embarking on this wholly unnecessary legislation. I asked myself whether it was for a tawdry political objective to wrong-foot political opponents, but I would not readily accept that because it would mean that the Government, instead of pursuing the public interest, were guilty of an abuse of power. I continue to be mystified about the Government's motivation in bringing forward this senseless legislation.

But there is a second and wholly separate reason why the 42-day provision in the Bill deserves to be rejected by this House. The so-called protections in the Bill are illusory and constitutionally illiterate. While the Bill makes provision for judicial oversight it is meaningless, because before a person is charged there is no evidence for a court to test. More importantly, the supposed parliamentary oversight is non-existent because Parliament cannot in our system examine individual cases. The attempt to create a provision for compensation possibly amounting to £3,000 per day is truly absurd. For very good reasons a provision for compensation is, as a matter of legal principle, limited to wrongful arrest and/or false imprisonment—that is, cases where there is malice on the part of the police. Surely, objectively considered, the Bill can be seen to be an attempt to lead the public to think that it is a serious attempt to improve security. It is nothing of the kind. It is also a wholly unworkable piece of legislation, which must in practice be a dead letter.

6.56 pm

Lord Sewel: My Lords, the last time we debated pre-charge detention I moved the 60-day amendment, and lost, so I think that there has been an obligation on me to listen to the arguments in today’s debate and assess whether there is any basis for me to change my mind. I have listened and rewritten, but I have not changed.

I repeat two points I made in the earlier debate. First, I acknowledge that this is an enormously difficult matter. We all individually have to strike the balance between security and liberty, and I will not criticise those who have consistently and honourably come to a different conclusion from myself. However, I say in passing to my noble friend Lady Kennedy of The Shaws that I totally reject the link between ethnicity and the defence of civil liberties. Secondly, the debate addresses the perennial dilemma of the liberal state—how far is it justified to use illiberal means to defend itself from those who seek its destruction and, in so doing, exploit the very values they abhor?

So far, the weight in the debate has been very much in the direction of pointing out the dangers—I admit that there are dangers—of legislating in a way where the underpinning values of the liberal state are challenged and eroded, and that that therefore changes the nature and characteristics of the state. But there are

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counterarguments and counterexamples. The Weimar Republic was a liberal state with a liberal constitution, which was destroyed in part because it lacked the constitutional means to defend itself from the anti-parliamentary extremism of both the left and the right.

It has been claimed that 42 days is incompatible with the ECHR, a point made forcefully by the noble Lord, Lord Lester of Herne Hill. Non-lawyers like myself find it difficult to understand the type of situation that has arisen in the case of the recent horrible murder of a young woman in Italy, where it seems perfectly consistent with the ECHR for the Italian authorities to keep the suspects in detention without charge for a period greatly in excess of 42 days.

I listened hard and carefully to the arguments of my noble and learned friends Lord Falconer and Lord Goldsmith. Unfortunately, they are not in their places at the moment. Both are men of enormous ability and integrity whom I have always admired. They demand to be listened to, but I found their arguments difficult to follow. My noble and learned friend Lord Falconer says that he was persuaded to move away from supporting 90 days—and now cannot support 42 days—because of the emergence of the threshold test. Yet he agreed with the intervention of my noble and learned friend Lord Morris of Aberavon that the threshold test was available at the time of the 90 days debate. I do not understand where that argument is leading. My noble and learned friend Lord Goldsmith made the point that, as a Minister, he argued against 90 days on policy grounds within Government. That is undoubtedly the case. What I do not understand is how he felt able to continue in office once the policy that he had honourably opposed, and continued to oppose, had become the decided policy of the Government.

One Member of your Lordships’ House has been mentioned relatively infrequently today, namely the noble Lord, Lord Carlile of Berriew. He is the noble Lord who is, perhaps, best placed to provide a balanced and objective assessment. Not only is he the independent reviewer of terrorism legislation, but he is a lawyer and a Liberal, with a big “L” and a small “l”. The noble Lord has endorsed 42 days. We should not put his assessment aside lightly.

7.01 pm

Lord Brett: My Lords, I rise as the least qualified person to participate in this debate. I have no expertise in the judiciary, the legal profession, the police or the security services. I am setting aside a lesson that I learned a decade ago, when I first became a Member of this House—to know that you have expertise in what you speak about before entering into debate—perhaps to represent the voice of the man or woman on the Clapham omnibus. In my case, that would be the number 24 bus, and my build would not let me get up the stairs. The debates that I have heard in my locality and others have not been as high-flown or profound as ours, but they have asked a series of questions worthy of answer.

To begin, why is the issue of principle being raised so much, when there have been several terrorism Acts, and detention before charging has been increased to

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28 days? It is not a principle, it is an expedient. The argument is 42 against 28. I have listened today to try to resolve that for myself, and I have heard some fairly extravagant language from Members I would not expect to hear it from. I heard “endless excess” and “draconian”. I took slight offence at the noble Lord, Lord Dear, who quoted Pastor Niemöller, who, as I recall, was talking about a Nazi Government’s behaviour towards their own people. The noble Lord seemed to be making a construction between that and this Bill, which takes matters somewhat further than it should.

Questions have to be answered and the debate has to take place. Outside this Chamber—where it is not as rarefied and people are not as endlessly engrossed in what we say as we are—are a whole population who know that they need protection and are not sure that they are getting it. Perhaps because of the media and our own contributions, the population sometimes feel that we think more about the rights of the accused than the rights of the innocent and the victims. If we can clear up one thing in the passage of this Bill, it should be to reassure the section of the public—whether that is 69 or 79 per cent of them—who believe that we need to do more to combat terrorism. They do not seem to be looking for 42 days; they are concerned about changing the law. They are also concerned because they see a kind of war that is different from any that they have seen before. That includes people who have seen two world wars. They see a need for the Government to be armed in order to protect them. They also see the logic of not doing that in the kind of hasty debates that we have had previously, going back to the outbreak of World War Two, when we passed legislation in one 24-hour session. Better to have the debate and decision in the cold light of day than in the hot aftermath of a catastrophe.

7.05 pm

Lord Mayhew of Twysden: My Lords, this debate has been dominated so strongly by the 42 day issue that it is tempting to choose for one’s own seven minutes one of the Bill’s less notorious, but still alarming, provisions. I would have chosen the Government’s amiable attempt in Part 6 to rid themselves of the tiresomeness of having juries and local coroners at certain inquests, and to put in a coroner of their own choosing, so long as he behaves. This would all be on the certificate of the Secretary of State that, on some ground or other, it is in the public interest to do so. I agree with the noble Baroness, Lady Ramsay of Cartvale, about Part 6. That will be a pleasure postponed, because the 42 days issue is of such importance that I want to offer my view on it, however repetitious it may be.

I begin with a general reflection. It is greatly to the credit of our country that this issue has received such close attention, both in the parliamentary progress of this Bill and in the discussions that preceded it. I go on to consider the background. Beyond doubt, we face threats made all too credible by what was perpetrated in London on 7/7, what was attempted at Glasgow airport and what, earlier, had happened in the United States on a scale never previously imagined. We also know that other plots with horrifying objectives and

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capabilities, like those planned for Heathrow, would in all probability have succeeded, had it not been for great skill on the part of those who look after our safety and, perhaps, a measure of good luck. It would not have been irrational if all this had produced an overwhelming demand from the public that we forgo what might be seen as the forensic niceties of fairness, and keep terrorist suspects in custody without charge for as long as it takes.

This has not happened, due to the steadiness of people in this country and their invaluable gut feeling that their freedom is precious and an inheritance to be jealously guarded. In Parliament, too, we should demonstrate these qualities. I also reflect that, undoubtedly, the easier course for Parliament now is to support this, the “tough on terrorism” extension. No one could sensibly call that irrational either, for it plays not least to the powerful argument, never more movingly expressed than by victims, that there is no freedom without safety. The rights of victims have been tellingly alluded to by the noble Lord, Lord Brett, who has just spoken.

In thinking about the choices that face us, my starting point is that freedom from arbitrary detention, secured as it is by the venerable remedy of habeas corpus, lies at the very heart of what makes us free. I very much agree with my noble friend Lord Sheikh about this. In recent years we have thought it right to nibble at the application of that principle, and to do so with increasing appetite. The present maximum of 28 days’ detention without charge is four times longer than the seven days put in place as recently as 2000. Indeed, my noble and learned friend Lord Mackay of Clashfern reminded us that we talked about the difference between four and eight hours in 1979. Now it is proposed to increase this limit of 28 days to six weeks, which is half as much again. It has been pointed out that this gives a total equivalent to a sentence of three months’ immediate custody. This surely warrants proof of necessity if it is to be accepted. I recall—and I hope everybody will read—the powerful speech by the noble and learned Lord, Lord Goldsmith. That proof of necessity is lacking. Before such an increase was proposed, I would have expected the need for it to be common ground among informed opinion, yet the DPP, the professional head of the Crown Prosecution Service, told the Commons Public Bill Committee,

that is to say, whether there is enough evidence to charge—and that,

He made it clear that what he said extended to,

The noble Lord, Lord Lester of Herne Hill, recited the list of distinguished ex-officeholders to oppose this extension on that ground among others.

If the test of necessity is failed, so is the test that the provision should not be counterproductive. I think it is counterproductive in three respects. First, as the noble Lord, Lord Dear, the right reverend Prelate the Bishop of Chelmsford and, perhaps most tellingly, the noble Lord, Lord Condon, said, this proposal will

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add predictably to disaffection in the Muslim communities in particular. The Islamist terrorist should not be fed with this kind of encouragement. Secondly—I do not think that this point has been made before—just as internment in Northern Ireland in the 1970s put us on the back foot and encouraged the violence we were resisting, so this proposal will predictably harm us. Thirdly, nibbling away at the principle of habeas corpus without proof of necessity is a proclivity to which all Governments are regrettably prone. It is dangerous, and this precedent will make it harder to resist in future.

I hope we shall not be had by the so-called concession of requiring parliamentary approval; in practice it will prove worthless, like the other concessions so tellingly criticised by the noble and learned Lord, Lord Steyn. This proposal is dangerous in principle, damaging in practice and has not been shown to be needed. I hope your Lordships will take the harder rather than the easier course and will reject it.

7.12 pm

Lord Dubs: My Lords, I am privileged to follow the noble and learned Lord, Lord Mayhew, even if he took from my speech the point about internment in Northern Ireland. That was clearly seen as providing recruits for terrorism and was regarded as a mistake. I am not saying that internment in Northern Ireland is identical to 42 days, but there are sufficiently disturbing similarities in their effect on innocent people who might be detained in this way.

During this debate, I have been reflecting on the number of years during which we have debated detention without charge, long before terrorism loomed as large on the scene as it does now. When I was in the Commons, I was on the Standing Committee dealing with the Police and Criminal Evidence Act, and we debated at great length the decision by the Government that people should be detained without charge for not more than 96 hours—that related to criminal offences. We secured amendments against the Government that ensured that at 36 hours and at 72 hours the police had to go to the courts to get judicial approval for continued detention. That was not so long ago: 25 years.

Today, we have had prevention of terrorism legislation allowing seven days, 14 days and now 28 days. It is useful to reflect on what has happened. I am not saying that 96 hours would have been sufficient for terrorists, but we have gone a long way down a particular path and I do not think we should go down it any further. That is why I am against 42 days.

I am a former chair of Liberty and a member of the Joint Committee on Human Rights, but even if that were not the case, and I had had any doubts, they would have been fully met by some of the powerful arguments that I have heard this evening. Members of the House will recall that earlier today the former Lord Chancellor and the former Attorney-General were powerful advocates against 42 days. Senior police officers argued that there is no need to have 42 days. The Director of Public Prosecutions, who is not in this House, has argued very clearly that we do not need 42 days. The noble Baroness, Lady Manningham-Buller, who has enormous experience of the security services,

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said that we do not need 42 days. I remember going with a Select Committee to South Africa towards the end of last year and discussing the argument about 42 days. One person said that lengthy detention without charge was too reminiscent of apartheid and that he could not bear the thought that this was even being contemplated in Britain.

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