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Given the limitations of time, I want to focus on pre-charge detention, starting with the point made by my noble friend Lord Robertson, who reminded us that it is up to 42 days, not, as the noble Lord, Lord Lyell, said, internment, which is a more open-ended judgment. The House of Lords Research Paper says:

Not quite the subjective view of the Home Secretary, as the noble Baroness, Lady Neville-Jones, suggested.

I congratulate the noble Lord, Lord Dear. I do not know if he is in his seat. He was the first person to refer to the Magna Carta in this debate, reminding us of the enshrined right to a fair trial and the principle of habeas corpus. However, I cannot accept his invoking of the dire warning from Pastor Niemöller on the power of the state. This is not the fascist Germany of the Third Reich, where the rights of the individual were trampled into the dust along with the remains of

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the Weimar republic. These powers are carefully circumscribed, subject to the scrutiny of an independent judiciary and parliament, and time-limited. To my knowledge these are not features of a national socialist Government. Time and again contributors to this debate have warned against extending pre-charge detention because of the possibility of a negative community impact. A serious charge, but can it be substantiated?

The noble Lord, Lord Thomas of Gresford, gave us the example of the part he played as a responsible member of the community in reporting his suspicions about an extreme Welsh nationalist, who, he told us, was no longer a threat now that there is a Welsh Assembly. If only it was as simple as that. But we know that the vast majority of the Muslim community do not support terrorism, and those who preach the nihilist gospel of al-Qaeda know that innocent Muslims were among those who perished on 7 July. This tiny minority of extremists has no negotiable agenda, unlike our experience of Welsh nationalists and even the IRA. They want to undermine our democratic society and believe that the end justifies the means.

I share the view expressed by the noble Lord, Lord Carlile, the independent reviewer of terrorist legislation, on pre-charge detention being a recruiting sergeant for terrorism:

Like a number of my noble friends, I believe that the controlled extension of up to 42 days is justified on the grounds of the severity of a threat which is global in reach and the complexity of these cases, which utilise the power of IT and the internet to achieve their objectives. Add to this the complexity of encryption and translation, plus the need to seek co-operation from a range of Governments and judicial systems. Does this not represent an enormous challenge to national security which we have to take very seriously?

Returning to the need for a period of more than 28 days, once again I can do no better than refer to the noble Lord, Lord Carlile. He said:

He also said:

The noble Lord made the point:

On comparisons with other countries, once again, the noble Lord says:

That is a pretty powerful statement from the independent reviewer of terrorism legislation.

I should like to end on a quote; we have heard a lot of quotes tonight, and I suppose that we are all selective in that respect. Chief constable Ken Jones, ACPO president, says:

Sir Richard Dearlove, the former head of the Secret Intelligence Service, said:

I shall not go on, in the interests of time, except to say that I commend the Government for this legislation. It is a difficult but courageous decision.

9.24 pm

Lord Monson: My Lords, like the majority of noble Lords who have spoken today, I shall confine my remarks to the question “28 or 42?”, to use convenient shorthand. There have been some magnificent speeches today on both sides. I think of two in particular, both from the Labour Benches. There was that of the noble and learned Lord, Lord Falconer of Thoroton, with whom I agreed totally, and then, a little later, that of the noble Lord, Lord Howarth of Newport, who took a totally opposing view with which I agreed even more strongly. From the Conservative Benches, I was most interested in the speech of the noble Lord, Lord Cope of Berkeley—I am glad to see him in his place—which tellingly attacked the proposed change from a practical rather than a wholly emotional point of view. It is well worth studying. It is a matter which understandably generates great emotion, but when many innocent lives may be at stake, the head must ultimately prevail over the heart, as I hope your Lordships will agree.

We all, I think, have enormous respect for Colonel Tim Collins, but when he wrote in the press a few days ago that al-Qaeda and its many imitators are not so very different from the IRA, the INLA, the UVF, the UDA and so on, he was mistaken. I was glad to hear

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the noble Baroness, Lady Park of Monmouth, and the noble Lord, Lord Clinton-Davis, agree with me about that.

Over the past 50 years, conventional terrorist bombers, by which I mean bombers who are prepared to take risks, sometimes fatal, but hope on the whole to emerge unscathed from the carnage that they have caused—for example, the Baader Meinhof gang, the Brigado Rosso, the shadowy right-wing group which bombed in a long tunnel the express train travelling between Florence and Bologna and killed a great number of people, the various Northern Ireland groups, some of them operating south of the border, and ETA, the Basque terrorist group—have all caused plenty of death and destruction. However, things started to get far worse 25 years ago when a new phenomenon, the suicide bomber, emerged, carrying out a spectacular, lethal attack on a US Marine barracks outside Beirut, killing hundreds of American Marines and dozens of French soldiers. Since then, suicide bombers have gone from success to success by their own warped and perverted standards—I think of the American embassy bombing in Nairobi, 9/11 and 7/7, together with hundreds of attacks in Israel, Iraq, Afghanistan, Pakistan and even Sri Lanka, where the suicide bombers are a different kind of fanatic. The total number of casualties in Asian countries has been enormous, but, alas, they are off the radar as far as most Westerners are concerned. The only major non-suicide atrocities during this time that come to mind—I have not done deep research on the matter, but I think that I am right—are the bombings in Bali and the bombing of commuter trains heading towards Madrid and Bombay respectively, which caused tremendous carnage. In other words, as the extremely stressful security nightmare at airports testifies, we are now in new territory. I submit that suicide bombers are not merely two or three times but perhaps 10 times as dangerous as conventional bombers, since it is so difficult to defend oneself against them—it is a different ball game, as the Israelis, with their decades of experience in these matters, have found.

With that in mind, two alternative initial conclusions can be drawn vis-Ã -vis this legislation. The first is that 28 days is more than adequate and that any extension would in practice save virtually no innocent lives and that, therefore, the status quo should prevail. The second is that up to 42 days—as has just been said, we are talking not about 42 days but up to 42 days—will occasionally be needed to foil a terrorist attack which could cost many lives. Even if the new legislation prevented only one such attack in, let us say, three years, it would be worth while.

Like, I suspect, most of your Lordships, I lack the inside knowledge to adjudicate between these two claims. But leaving aside the three Front Benches so as to eliminate even the merest hint of subconscious political bias—and apart from the noble Baroness whose excellent maiden speech we heard with such interest—there is at least one person who possesses that inside knowledge, who has just been mentioned. I refer to the noble Lord, Lord Carlile of Berriew. The noble Lord is clearly not in any way an instinctive authoritarian; indeed, quite the contrary, he is an instinctive libertarian, like myself. Nor does he have any political axe to grind. Again, quite the opposite is

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the case since, one understands, he is at odds with his own Front Bench in this regard. If he says that detention for longer than 28 days may on occasion be needed to foil terrorist atrocities, I am inclined to believe him. I am sorry that he is not here tonight, but I heard him on the radio very recently passionately defending the 42-day principle and rubbishing any idea of a fudge that would introduce 42 days obliquely by the back door. In parenthesis, however, I sometimes wonder whether a fudge might not be the best solution, although that option is not open to us at this point.

Although their information is not as up to date as that available to the noble Lord, Lord Carlile, I am also inclined to believe the noble Baronesses, Lady Park of Monmouth and Lady Ramsay of Cartvale, whose good sense, moderation and devotion to traditional British freedoms one has no reason to doubt. But of course that is not the end of the story. There are those who argue that, even if an extension from 28 days may well save a few lives over the next five years or so, the benefits will be outweighed by the consequent enlargement of the existing pool of disgruntled youth, who may become in effect fifth columnists—let us be blunt about it—willing to abet and sometimes commit acts of terrorism, thereby leading to more death and destruction overall in the longer term. That is an argument that one has to take seriously. However, on the assumption that any new powers will be used extremely sparingly and with the utmost sensitivity, I have yet to be convinced by that scenario. Let us remember how many decent Muslims were killed and maimed in the 9/11 and 7/7 bombings, and how many are still being killed by suicide bombers in Iraq and, to a lesser extent, further east. Ed Husain, who has been mentioned, has reminded us that Islamist fanatics are just as much the enemy of the moderate Muslim majority as they are the rest of us, whatever our religion or beliefs.

If 42 days is outrageous, 28 days must be almost as outrageous—at least 66 and two-thirds per cent as much. It is a question of degree, not principle, is it not? Yet the 28 days has not provoked comparable indignation politically, perhaps because it is being used so sparingly. I would love to be able to believe that 28 days was adequate and I am willing to be so convinced at some future date, but that has not happened yet. I shall reserve my final judgment until a later stage of this Bill’s passage.

9.33 pm

Lord Soley: My Lords, some months ago in a debate in this House I suggested to the Government that we should adopt an element of continental law to deal with this very tiny but particularly dangerous group of suspects. In a curious sort of way, that is being accepted in this Bill. The idea of 42 days under the supervision of a judge is not very different from what happens in continental Europe, where they hold people for much longer but under the supervision of a magistrate. It is an important point. Liberty and other groups are wrong to say that we compare badly with other countries on this. I know that as an ex-MP who intervened on many occasions to try to get people out of French jails, in particular. They would be held for long periods of time while an examination went on;

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then suddenly they would be deported to such beacons of liberty as Algeria without as much as a by-your-leave. I have to say that the situation in Europe in terms of being a terrorist suspect is not good.

In the United States, Australia and other countries with the English common-law system, there are also problems. In the United States, leaving aside the horror of Guantanamo Bay, they use much more surveillance—and there are obvious implications in that for resources—but they also do something that we used to do here many years ago, which they also do in Australia. They give the nod and the wink to the magistrate or the judge that you were charging a person with a lower offence but that you did not want that person to get bail because you envisaged a much more serious offence. I do not know whether that was done with terrorism cases, but I do know—and I speak as an ex-probation officer—that it frequently happened for common offences.

Fortunately, thanks to people like me, people in the other House and my noble friend Lady Stern, who all argued that bail should not be used in that way, it is now much more difficult to give a nod and a wink. When I was a probation officer, I often looked in law books to see whether I could find “nod” and “wink” defined, but nothing was there. The reality is that we did that—as many of the lawyers here will know—as a way of holding a person while more serious charges were considered. I do not want to go back to that, which is why I say to the Government that I would prefer to adopt an element of continental law for this tiny number of particularly serious cases. To some extent, we seem to be going down that road, because with the supervision of a judge and other safeguards, the safeguards in place are much greater.

The noble Lord, Lord Carlile, is right when he says that if you are suspected of a terrorist offence in Britain you have a better chance of having your civil rights respected than in most other countries. The underlying reason why he is right, without going into the details because I do not have time, is that we have had experience since 1969 of learning by our mistakes. The big mistake of course was internment. The United States has Guantanamo Bay, which is internment writ large. Internment was bad news.

I want to say a couple of things about the past in relation to this because I have heard some speeches today from people who would have made very different speeches in the 1980s—people from politics, the law, the intelligence services and the police—who were strongly in favour of the old Prevention of Terrorism Act, which was worse than this legislation. I will say why. Internment was not part of the old Prevention of Terrorism Act. It was a big mistake that we should put to one side. Look instead at exclusion orders. Exclusion orders were defined not only by me but by others as internal exile. It was the first time in the history of United Kingdom since Henry VIII that a political person—the Secretary of State—had the power to say, “You cannot move from one part of the United Kingdom to another”. That was done by the Home Secretary. It was defended hotly by the Conservative Party and the Liberals, and people like me who opposed it at the

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time were told that we were being irresponsible and that we ought to allow the security forces to have this power because they needed it.

The exclusion order was bad news in terms of the principles of civil liberty and it was eventually dropped. The noble and learned Lord, Lord Mayhew, who is in his place and who I wish had said this, recognised that it needed to be dropped. The John Major Government, to some extent, amended some of that legislation in a way that we then continued, which was when things began to change for the better.

Then there was the use of the old Prevention of Terrorism Act. Up to 6,000 people per annum were taken in for questioning under that Act, of which only about 5 per cent were charged and only about 2.5 per cent were charged with anything relating to terrorism. There is not a recruiting sergeant major for the IRA or al-Qaeda in the sense that someone who has a bad experience in a court of law then goes outside and blows themselves up. People do that for other reasons as well. What internment did and what the sweeping- up powers of the old Prevention of Terrorism Act did was to make people nervous—particularly people from the Catholic and Irish communities—about giving information to the police in case they were held under those powers. That is where it undermined the approach of winning hearts and minds. It is not just a recruitment sergeant major in the simple sense. That point was also recognised because, to some extent under John Major's Government, the use of those powers was drastically reduced. Again, the noble and learned Lord, Lord Mayhew, would know about that and I wish that he had said so.

The situation has also improved in other ways. There was no video or recording of interviews. I was responsible as a probation officer for one of the people wrongly held and sentenced to many years’ imprisonment for one of the pub bombings. A very young person, under the influence of drugs, did not know what time of day it was and confessed. That person was still confessing to me literally a year later, part way through the sentence, on the grounds that “I must have done it; they said so, didn’t they?”. The reality is that if you are not allowed to see a solicitor—which you were not for the first seven days—or family or friends, you are on your own. That is no longer true, and has not been for some time. You can now have more safeguards.

There is a danger, as we all know, of serious terrorist attacks. Whenever that happens, the mood of the country changes, which is how we originally got the old Prevention of Terrorism Act. That is the important point. It is why the Conservative, Labour and Liberal parties all supported it at the time, and why a number of them—including some members of my own—went on supporting it when it had the internal exile and the sweeping-up powers I have referred to. That has gone, and we must ensure that it stays out of the legislation. We must be much more focused. I congratulate the police because they do not use powers in that way. The Minister will correct me if I am wrong, but I understand that we have never held more than 1,000—as opposed to 6,000 under the old Prevention of Terrorism Act—charging more of them as a result with them either pleading guilty or being found guilty. In other words, we have become more intelligent with how we use it.



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I say to the parties opposite and some of my own colleagues that the key is to recognise that we need to hold people longer. I would prefer the continental law system, even if it upsets lawyers here; they say “We cannot do this, this is English law”. Frankly, tough. We can do it and we should. We must then focus on how to prevent wrongful convictions and avoid sweeping people up into the net, so that they are then frightened to give evidence to the police. That is the key to this and, staggeringly, we are getting there, albeit in a series of steps. I wish that the noble and learned Lord, Lord Mayhew, had made this point because, to be fair, John Major’s Government started that process.

9.42 pm

Lord Maginnis of Drumglass: My Lords, when I recently had the privilege to be permitted to visit our troops in Helmand province in Afghanistan, it was evident to an ex-soldier like me that our service men and women had learnt hugely from the Northern Ireland experience. When I listened to the Minister today, it was equally evident that the Government have learnt nothing.

At this late hour and after 45 speakers, I will try not to reiterate what has been said. I am on my feet to vehemently oppose 42-day detention. It is wrong, unjust and potentially the repetition of a 1970s mistake in Northern Ireland. As my noble and learned friend Lord Steyn clearly indicated, it would be a process without safeguards, as it would occur in circumstances where there was no evidence for a court to test. Thirty-five years ago, I saw how internment without much high-grade intelligence, based on perception and prejudice, resulted in many of the wrong people being detained without any judicial safeguards. It saw alienation and a loss of community support.

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