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When we last considered detention, I went along to hear Assistant Commissioner Hayman, who persuaded me of the complexity of the issues involved. My subsequent speech setting out the case is on the record, only in that case it was for 90 days, although I did not vote on the second bite at the cherry proposed by some of my honourable friends. When the issue appeared to be coming back to us, I thought that I should return to re-examine the case in depth. When I was Attorney-General, I was not greatly troubled by the most recent type of terrorism cases, as was my noble and learned friend Lord Goldsmith, but I had to adjudicate on other cases of terrorism. We got by in that period of terrorism on seven days detention without charge. What is now proposed, accounting for the differences in the judicial and investigative systems, will result in the longest period of detention in the common law world. It is six times higher than it was a few years ago. It is at least doubtful, despite the Home Secretary's endorsement, whether it will comply with Article 5(2) of the convention where there is a requirement that a suspect is informed promptly of the charge against him.
Is there a need for this part of the legislation? We have had a recital of the existence of a number of suspects and plots. I am not in a position to argue to the contrary as to such a state of affairs. If this provision justifies a need, you would expect everyone who has ever had a hand in the prosecuting process to justify and stand up this particular encroachment on our liberty. The Home Secretary herself at an earlier stage did not seem to be sure how many days were required. The security services are neutral, and we have had the advantage of hearing the speech of the noble Baroness, Lady Manningham-Buller. The police are divided. All former law officers who have spoken today are against it. The DPP, who will have to administer
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The head of the CPS counterterrorism division has said that there had been no need to make an application to extend pre-charge detention beyond 14 days since the investigation into the attack on Glasgow airport in 2007. We are asked to further encroach on the subjects liberty, not on present need but on the possibility of a future need.
In the mean time, there are other options. The Joint Committee has spelt out some of them. What has influenced me, as a criminal practitioner, has been a better understanding of the basis of charging since the publication of the code for prosecutions as far back as 2004. The DPP says that the code has included specific guidance on how prosecutors should determine whether and what to charge. Therefore, instead of the need for a realistic prospect of conviction for charging, if sufficient evidence is not presently available to charge on that basis, a lower criterion of a reasonable suspicion that a person has committed an offence has developed. At a hearing, the court and the defence will receive an outline of the case and the reason why the prosecution will be seeking remand into custody. The court will take the strength of the evidence into account on an application to dismiss. All cases must pass the full code test within a reasonable time.
In the mean time, crucially, notices of evidence supplementing and overtaking the outline will be served. This will inevitably involve staged service of distinct sections of evidence. The evidential case inevitably continues to develop until the full case is served, but often beyond this as terrorism investigations are frequently large and wide-ranging. So what is the problem? It would have been better if there had been consultation with the practitioners who operate on this basis day after day.
In the time available, I cannot say much about the problems of a parliamentary debate after the Home Secretarys Statement to Parliament on having made the provision available. But I can question how there can be a fair trial if sufficient materialas mentioned by the noble Lord, Lord Copetriggered by a specific case, is made available to Parliament. How can parliamentary oversight be meaningful? The Home Secretary has suggested topics for debate: The outline of the plot, The number of suspects detained, The what, when and why. That Parliament will face this scenario is incredible. The more detailed the material provided, the more prejudicial it will be. I therefore endorse the Joint Committees conclusion in this respect: the Governments proposals are fundamentally flawed. They confuse parliamentary and judicial functions by attempting to give to Parliament an unavoidably judicial function: the decision over whether it is justifiable to detain individual suspects for longer.
The lower threshold of charge and post-charge questioning achieves many of the Governments aims. Experience will tell whether the mixing of Parliament and the judiciary, as proposed, is workable. I think not. The Governments proposals are a bridge too far, and the Government should take them back and think again.
Baroness Stern: My Lords, I am a member of the Joint Committee on Human Rights and want to confine my contribution to some points that have particularly concerned the committee and continue to concern it in relation to the Bill we are discussing today. I shall confine my remarks to matters relating to the definition of terrorism, control orders, coroners inquests and safeguards against the use of information obtained under torture. I shall not deal with 42 days. The noble Lord, Lord Dubs, who is also a member of the Joint Committee, has already addressed that matter extremely effectively.
The committee also agrees with one of the central tenets of the Newton committee of privy counsellors that counterterrorism measures ought not to be extraordinary measures in a special category of their own but as far as possible part of the ordinary criminal law of the land. That is the preferred route whenever it can be followed.
I am sure all members of the Joint Committee would agree with one of the committees former and most distinguished members, the noble Lord, Lord Judd, who said on 27 February when debating the renewal of control orders:
We must remember that those cornerstones of British justice which have been so admired throughout the world did not come lightly; they came from decades and centuries of struggle and rugged determination to make the law a civilised example ... Part of me recoils at the concept that, however frightening the terrorism with which we are confronted, we should by the presence of that danger begin to dismantle or erode what we have seen as fundamental to our system of justice.[Official Report, 27/2/08; col. 729.]
The noble Lord reminds us constantly of this point and we should be grateful to him for this and for his contribution today. That is why the Joint Committee has paid such close attention to counterterrorism legislation and its possible consequences for our fundamental freedoms.
Turning to the Bill, first, we have long had concerns about the breadth of the definition of terrorism and the impact it may have on freedom of expression. As noble Lords will know, the definition is very broad, covering violence against people and property, and actions taken outside the UK. The public against whom a serious risk to health and safety is threatened can be situated abroad. The public can be that of a country other than the UK. The Government subject to such actions can be a foreign Government, however cruel or tyrannous it is. This definition of terrorism is the basis of the offences of publishing statements
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Secondly, the committee welcomes the Governments proposal to place the disclosure and use of information by the intelligence services on a statutory footing, a measure we see as potentially enhancing human rights. It has become clear in recent months that there is an issue in many areas about information and its use, and a need for the Government to be more conscious of the importance of respect for peoples privacy. We welcome the establishment of a legal basis for the disclosure and use of information by the intelligence services and the creation of a legal framework prescribing the scope of the power and providing adequate safeguards against the power being exercised arbitrarily or disproportionately.
We do not doubt the Governments commitment to work to eliminate torture and to oppose it when possible but we are of the view that it would be in the spirit of this commitment for the Government to agree to amend the Bill to provide that nothing in Clause 19 authorises a disclosure that breaches the Human Rights Act, the United Nations Convention Against Torture or any other relevant international obligation.
In the committees view, the control orders regime will not be human-rights compatible unless measures are introduced to ensure that, first, there is a priority given to trying to instigate a prosecution. So far, no one subject to a control order has subsequently been prosecuted for a terrorism offence, other than for a breach of a control order.
Secondly, we would like to see changes to the hearings, so that they are fairer and more in accordance with what we know as justice. Thirdly, we would like to see a maximum daily limit of 12 hours on the curfew that can be imposed in a control order. Fourthly, we suggest that control orders should be time-limited and that a limit of two years might be a starting point for debate.
Finally, I add my voice and that of the Joint Committee on Human Rights to the concerns that have been raised about the human rights implications of the
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Lord Boyd of Duncansby: My Lords, for more than six years, I was Lord Advocate in Scotland. As such, I was for the most part an observer of terrorism policy and terrorism cases rather than being an active player. However, I gained sufficient insight, not only from the cases that we dealt with but from contacts with the CPS, the Director of Public Prosecutions and law officers in England and Wales, to be able to add my voice as a former law officer to those who have spoken against the extension of pre-trial detention to 42 days.
Before turning to that matter, I shall raise one other issue. I welcome the provision in the Bill that gives common jurisdiction for the prosecution of terrorism offences, which is in Clause 40. I pressed for that when I was Lord Advocate, and I am very glad to see that is now being taken on board. The reason why I supported it then was as a result of experience of a terrorism case in Scotland. It was a situation in which I believed that had we been able to prosecute that would have made a difference to the evidence. We were contemplating a prosecution against a number of individuals charged with the commission of offences preparatory to the acts of terrorism. That was related to items that had been discovered in Scotland. In England, some suspicious items had been discovered at a house that was associated with at least one of the suspects. On their own, they were insufficient for proceedings in England, but they would certainly have made a difference to a case if it were possible to prosecute it in Scotland.
There is a precedent in the Explosive Substances Act. While I note the concerns of the noble and learned Lord, Lord Mackay of Clashfern, in relation to the constitutional issue of Article 19echoed I think by the Law Society of ScotlandI believe that it should be possible to put in place adequate provisions, through consultation and protocols, to ensure that constitutional sensitivities are protected.
Turning to the issue of 42 days, I note that I am number 37 on the speakers list, and most of the points that I wished to make have already been made, no doubt far more eloquently, by others. I regret that I cannot support the proposal. I was the Lord Advocate at the time the proposal to extend pre-trial detention to 90 days was made. I was not formally asked for my views on that occasion, although I was consulted
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We now have experience of the extension to 28 days, which is highly relevant to noble Lords in considering the matter. The reasons why we should not support a further extension beyond 28 days have already been made. I was particularly struck, if I may say so, by the maiden speech of the noble Baroness, Lady Manningham-Buller, when she suggested, quite rightly, that there is a balancing exercise and a judgment to be made. The background to all our deliberations has to be one of ensuring the preservation of our democratic traditions and civil liberties.
I understand that the Government say that it is necessary to make provision by extending the period because of what might happen in future. But, like many others, I have found it difficult to find evidence to support an extension. The question is where to stop. I was struck by the remarks of my noble and learned friend Lord Morris of Aberavon when he said that the article that he read by the Prime Minister in the Times was highly persuasive, but it was also persuasive of further extensions. If we do not have an evidence base for drawing the line, why is it 42 days? Why not 56, 90, 120 or any other number? There is no logical point at which to draw that line.
I was also struck by the evidence given by the Director of Public Prosecutions to the Home Affairs Committee in the other place, pointing out that to bring a charge under the prosecutors code, prosecutors have to determine whether there is reasonable suspicionnot reasonable prospects of a conviction, but reasonable suspicion. If one cannot show after 28 days in detention that there is reasonable suspicion that the person who is detained has actually committed an offence, in my submission it is very difficult to further justify holding that person in detention, and I very much doubt whether the courts would go along with it.
I am troubled, too, by the powers in the Bill providing that only when the Secretary of State makes an order is that order then subject to parliamentary scrutiny. Of course one can understand the motive of attempting to put in place some kind of safeguard, but as the noble and learned Lord, Lord Falconer of Thoroton, said at the beginning of the debate, it is a pretty complicated safeguard involving large numbers of individuals. Like other noble Lords, my submission is that it mixes the different functions: the legislative functions of Parliament; the executive functions of the Secretary of State; and the judicial functions that should properly regulate the detention of people in custody.
I note, for example, that an order can be made only if an order is already in force under Section 25 of the Terrorism Act 2006 extending the period to 28 days. So the order is not made in the abstract, or on the occasion of a certain event, such as a terrorism outrage. It is made in respect of individuals and, in my submission,
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Lord Wallace of Tankerness: My Lords, I am tempted to say that we have reached the stage of the debate where most of what needs to be said has been said, but not everybody has had the chance to say it. It must be recorded that those who have made their case have tapped a rich seam of experience and have been very persuasive. I join many others in commending the noble Baroness, Lady Manningham-Buller, on a maiden speech that concisely and compellingly set out her case.
It is right that people on both sides of the argument express themselves with passion, because fundamental issues and high constitutional principles are at stake. The fundamental challenge of a free and democratic society is how we balance liberty and security. I accept that defending the security of our nation is one of the supreme dutiesif not the supreme dutyof government. However, I also believe that if, in doing so, the fundamental values of our community and nation are eroded, and the essence of what makes us a nation is significantly altered, the wrong balance has been struck. I fear that that would be the outcome of certain provisions in the Bill, particularly the provisions with regard to 42 days detention. I join others in challenging these provisions, not only on the grounds that I believe that they erode some of our fundamental liberties, but also because they could undermine the fight against terrorism. As my noble friend Lord Thomas of Gresford said in his opening remarks from these Benches, so much of the information essential to tackle terrorism comes from within communities. If we take steps that cut down that flow, I fear that we might disable the authorities in their battle against terrorism.
There is no difference north or south of the border in our commitment to individual freedom. However, over the centuries we have developed in different ways. Scotland does not have Magna Carta. We do not even have the writ of habeas corpus; but our love of liberty is no less. It is not so many years since the trial of someone remanded in custody in Scotland had to be completed within 110 days of their committal. Tackling terrorism is an issue rightly reserved for the Westminster Parliament. I will reflect on three issues that arise out of the Bill as they affect Scotland.
The first relates to 42-day detention. The noble and learned Lord, Lord Boyd of Duncansby, reflected on his experience as Lord Advocate. I had the privilege of serving with him in government in Scotland for six years. He indicated that he is opposed to the extension of the period of detention before charge. The current Lord Advocate, Ms Elish Angiolini QC, in a letter to my honourable friend Mr Alistair Carmichael MP last month, said that,
I therefore share the view of the DPP Sir Ken MacDonald and the former Attorney General, Lord Goldsmith, that the requirement for an extension to the current 28 days is not supported by prosecution experience to date.
I will reflect on two further issues. The first is universal jurisdiction, which was referred to by the noble and learned Lord, Lord Mackay of Clashfern, and also by the noble and learned Lord, Lord Boyd of Duncansby, who argued cogently that Clause 40 should be in the Bill, and that the perpetrator of a terrorism offence within the UK should be tried anywhere within the UK. When the Bill was originally published, it would be fair to sayif I may use the Scottish wordthat it caused a bit of a stushie in Scotland. It was seen to erode the independence of the Lord Advocate and even to be contrary to the Treaty of Union. However, when the noble and learned Lord, Lord Boyd, said that he had pressed for this provision, and the present Lord Advocate, in her evidence to the Public Bill Committee that was dealing with the Bill in another place, indicated that she had sought a similar provision, some of the heat went out of that argument.
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