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We have recommended that principle to the rest of the world and have in part fought wars to preserve it. It set our legal system apart from the world for many years and it was held up as an exemplar. We have gone far

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enough. There is no proven case for change. This attempt to appear tough on terrorism is a shabby charade that is unworthy of a democratic process, and we should reject it. I beg to move.

3.30 pm

Baroness Neville-Jones: I support the amendment. Many Members of the Committee will have seen the report in the Times on 6 October, which said that the Government have effectively dropped the proposals to extend pre-charge detention to 42 days and that they would,

So why are we debating this again? It is a criminal offence to waste police time and I wonder whether that offence also extends to wasting the time of your Lordship’s House.

This debate is an unhelpful distraction. It distracts us at a time when we should be concentrating our energies on more pressing issues: that is, the economy; other sensitive parts of this Bill, such as inquiries and inquests; post-charge questioning, which we on these Benches would like to see play a useful role in terrorist investigations, but with suitable safeguards; or things that will really aid us in the prosecution of terrorism, such as the use of intercept evidence, a measure that should be in the Bill, but is not.

The proposal to extend pre-charge detention fails on three significant grounds; namely, necessity, desirability and practicability. Let me be clear: the proposal is unnecessary, undesirable and unworkable. I shall address each of those points briefly. When the Government first put forward the proposal to extend pre-charge detention from the current 28-day limit, we made it clear that there needs to be evidence to support that; that we would need to see this evidence; that the Government need to make the case; and that we would consider it seriously. On these Benches, we take the terrorist threat to this country every bit as seriously as do the Government. As I said at Second Reading, there is no difference between us on that. Wherever possible, we strive for agreement on security matters.

But the Government have signally failed to demonstrate need. What they have relied on is a hypothetical scenario—what they call “pragmatic inference”—to make the case. Sir Ian Blair has said explicitly,

“We have never put forward a case that there is evidence of a need for an extension”.

The Government have relied primarily on the complexity of modern plots and, therefore, the difficulty of investigation. If that constituted overwhelming justification, one would expect that those who had to mount the prosecution would indicate their support for the measure.

But just the opposite is the case. The Director of Public Prosecutions has made clear that he does not think that it is necessary. The prosecutors do not perceive any need for the period of 28 days to be increased. He collapsed the Government’s case for a hypothetical situation. He said:

“It is possible to set up all sorts of hypotheses. Anything is possible. The question is whether it is remotely likely”.

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Many other experienced figures have similarly said that it is unnecessary, including the noble and learned Lord, Lord Falconer, a former Lord Chancellor, the noble and learned Lord, Lord Goldsmith, a former Attorney-General, the Lord Advocate and many former Lord Advocates, some of whom are here today. In its report dated 8 October, the Joint Committee on Human Rights commented that it is hard,

So the Government’s case is not good enough as grounds for taking power to keep people in detention for periods much longer than any other comparable democracy thinks necessary to confront the terrorist threat, a point just made by the noble Lord, Lord Dear. Moreover, Parliament must balance the evidence for this measure, such as it is, against its desirability—my second point—and against its wider effects. In his very powerful intervention, the noble Lord, Lord Dear, repeated a remark he made some time ago to the effect that the previously described proposal to extend pre-charge detention to 42 days was a propaganda coup and a recruiting sergeant for al-Qaeda. The Home Office’s own risk assessment for the proposal stated,

“It puts at risk the flow of community intelligence”.

That is the Government’s own department. Community intelligence is a priority area for counterterrorism work. We have not got it quite right yet, but these proposals will hinder us unnecessarily in trying to get it right, and I personally attach a great deal of importance to the development of community intelligence. Let me be clear: these are security warnings. The proposal to extend pre-charge detention has real potential security drawbacks.

Let us assume for a moment that if this proposal was desirable and necessary, which it is not, would we consider it workable? The answer is no. The former Home Secretary, Charles Clarke, made clear his view that the procedures to be established are so cumbersome that the police and the prosecuting authorities will be most unlikely to seek their extension. And as the noble Lord, Lord Dear, mentioned, Mr Andy Hayman, the former assistant commissioner for special operations, wrote recently that the process the police and the prosecution would have to go through just will not work. We have to take the comments of the police in this respect seriously since they will be involved in trying to make these procedures work. Indeed, Mr Hayman went further and wrote that at the height of a terrorist investigation it would distract efforts to solve or prevent the crime by forcing the police to prepare a “politically acceptable” case for an extension. The last thing we need in such circumstances is the taint of spinning.

That leads me to the final objection to this proposal. The apparent safeguards the Government have put in place not only make the proposal unworkable, they also make it constitutionally worrying. The Constitution Committee said that they run the risk of conflating the roles of Parliament and the judiciary. They will place on Parliament demands to act in a quasi-judicial manner. The safeguards are also inadequate to attain

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their ostensible objective—the prevention of the abuse of power. The excessively broad drafting of these provisions could actually lead to such abuses. Were Parliament able to conduct the sort of scrutiny of an order for the reserved power that it should if it were to provide a real safeguard against the abuse of executive power, it would be in great danger of prejudicing any subsequent trial, with all the adverse consequences for justice that could entail.

On the other hand, if it were to avoid that danger, Parliament would be prohibited from conducting real scrutiny. The Secretary of State has herself said that much the greater part of the material aspects could not be debated by Parliament, so it would not provide any real safeguard. Indeed, it would put itself in danger of conniving with acts over which it had no real control. That would not be worthy of either House, nor of our democracy, and the Government should not put forward proposals which risk the reputation of Parliament in this way. As the noble Baroness, Lady Manningham-Buller, said in her maiden speech, we are all trying to facilitate the work of the police, intelligence and security services to detect and counter terrorism, and we are all agreed on that. But to fulfil our constitutional role, we must ensure that our laws in this sensitive area of national life are relevant and proportionate. The proposal to extend pre-charge detention to 42 days fails on both grounds, and that is why we oppose it.

Lord Wedderburn of Charlton: Does the noble Baroness agree that the proposals in the 30th report of the Joint Committee on Human Rights go a long way to answer her arguments about what is unworkable and improper?

Baroness Neville-Jones: I have read the report which contains a number of interesting proposals and a very acute analysis; I agree with some of them but have reservations about others. However, it is certainly a serious contribution to our debate today.

Lord Thomas of Gresford: We on these Benches support the amendment so powerfully moved by the noble Lord, Lord Dear. Anyone who has travelled from British airports over the past two years will know that they have had to carry their toothpaste, shaving cream and toiletries in a clear plastic bag and they have been reduced to carrying one item of luggage. It has not been the easiest time for travellers.

This is a result of Operation Overt. Twenty-four suspects—young Muslim men—were arrested on the night of 9 August 2006. After 12 days, on 21 August, 11 were charged with conspiracy to blow up aeroplanes in flight by mixing liquids together, carried, it is said, in Lucozade bottles, into an explosive concoction. An application to extend time beyond 14 days was granted in respect of another nine. Of these, six were subsequently charged—two on 15 August, some 16 days after arrest; three on 30 August, after 21 days; and three were released after being held for, respectively, 24 days, 27 days and 27-and-a-half days. Of the 21 who were charged, only eight eventually faced trial some 18 months later. On 8 September, only four weeks ago, two years after the original arrests, the jury, after more than

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50 hours of deliberations, was unable to agree any verdict against seven of the defendants relating to the plot to blow up aircraft. Three were, however, found guilty of other conspiracy to murder charges; one was acquitted entirely. So the total bag out of the 24 who were originally arrested was three convictions unrelated to the airline plot. I say no more about it for the reason the intervention was made just now. I am told that there may be retrials and that the Government are facing expensive civil litigation from airlines who lost millions from the restrictions imposed upon them.

But would the outcome of these trials have been any different if those people had been kept without charge for 42 days? The period for detention in Spain is 14 days. Twenty-nine suspects were arrested for the Madrid bombings and there were 21 convictions. I made the point at Second Reading that the charging of a suspect does not for a moment inhibit the continuing investigation of an alleged offence. So there is no case whatever for suggesting that 42 days will bring about a conviction when 28 days will not. The Home Office agrees because, in its consultation paper, Options for Pre-Charge Detention in Terrorism Cases, published in July 2007, it acknowledged that there has been no case in which a suspect was released but a higher limit than 28 days would definitely have led to a charge.

My noble friend Lord Carlile put it more elegantly in his evidence to the Commons Home Affairs Committee in October last year when he said,

although he recognised that Parliament would impose a cut-off. His sayings and writings have been pored over on the Government Benches with a zeal matched only by Scotland’s famous son, Alexander Cruden, when he created his 1737 concordance of the Bible. But they seem to have missed this one. I sincerely hope that my noble friend Lord Carlile will develop the argument he advanced last October for a proper and fully human rights-compliant system of judicial control of detention before charge. He does not need any help from me.

3.45 pm

A fundamental concern arises from the proposition that a young Muslim—and they all have been young Muslims—should be arrested on nothing more than the words of an officer, “I believe you to be a terrorist”. According to the highly experienced defence barrister, Ali Naseem Bajwa, who gave evidence to the Joint Committee on Human Rights, detainees are taken to the police station and told nothing for many days of the basis upon which they are there. In Operation Overt, it emerged that disclosure was virtually non-existent for the first week of custody. Disclosure is, of course, where the police tell the defence solicitor, if there is one, of the nature of the matters about which they intend to question the suspect. Over the first four days of their detention, there were only three hours, on average, of total questioning of each detainee—three hours over four days each. Rather than being about any offence they may have committed, the questioning was mostly about their personal circumstances and

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background. Those who were charged after 15 days—the first group—were interviewed in total for 13 to 14 hours each. That is rather less than one hour a day. Those who lingered on to the end of the 28-day period before being released spent only the same amount of time overall—13 to 14 hours—in interview. Many days of their last 15 passed without any interview at all; the average was for 10 minutes a day. So extending time limits for questioning suspects seems to encourage a very leisurely approach.

The essential thing to remember is that if a detainee is held without charging, it means that the police have no reasonable suspicion that he has committed any terrorist offence at all, even the mildest form of terrorist offence—that of preparation for committing a terrorist offence. If they do have such evidence, they are under a legal duty to charge him.

In September 2005, the Director of Public Prosecutions, Sir Ken Macdonald, issued to prosecutors an explanatory guide on the application of the threshold test, which allows the prosecutor to charge where there is no more than a reasonable suspicion that an offence has been committed. In terrorist cases, that reasonable suspicion may arise on evidence which would be inadmissible in court—for example, intelligence or intercept evidence. That guide was, however, not made public. Indeed, it does not seem to have reached its intended target for some time: Deputy Assistant Commissioner Clarke, head of the Met terrorist branch, told the Home Affairs Committee in February 2006 that he did not think the threshold test was at all applicable to these cases. However, Sir Ken Macdonald, the retiring DPP, told the Home Affairs Committee last December that,

In my Second Reading speech, I outlined the practical reasons why detention without charge will lead to a drying up of intelligence to the security services, upon which all investigation depends, and how that will inevitably increase terrorism and diminish the security of the people of this country. Today I focus upon the weaknesses and the so-called extension hearings, where the DPP or a Crown prosecutor acting with his consent, can apply to a senior judge for extensions of time. Those extensions will continue to be governed by Schedule 8 to the Terrorism Act, which the Bill seeks to amend.

Those weaknesses are these: the applications to extend time beyond the original 14 days may be made ex parte. In other words, the hearing, or part of a hearing, may be held between the prosecution and the judge in private and in the absence of the accused, or of anybody representing him. Secondly, information may be withheld from the detainee or his lawyers so that he is not told the state of play in the investigation against him. Mr Bajwa described how in one case he was given three applications, identically worded, to support three applications for more time in respect of the same detainee—the same wording for seven to

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14 days as from 14 days to 21 and 21 to 28. In other words, nothing further was disclosed as to the state of the investigation.

Thirdly, the detainee has no entitlement to be brought in person before the judge. He may be dealt with by videolink from the hallway of Paddington Green police station. The judge, who is supposed to be monitoring his welfare, has the opportunity to see the detainee only on television. It is a brave person who complains about the circumstances of his detention when surrounded by his jailers.

Fourthly, according to the Crown Prosecution Service, cross-examination of the senior investigating officer to test the strength of the application is not a legal entitlement. The senior officer who is making the application is not required to answer questions by the detainee or his lawyer on the reasonableness of the application that he is making.

It is therefore no surprise that no application for extension has ever been refused and there has been only one occasion on which the number of days has been reduced. You can see why. The police tell the judge that they have plenty of irons in the fire. They say, “The investigation’s going well. You must trust us. If anything should turn up in our investigations, we want the detainee there so that we can question him about it”.

These are not proper, full, adversarial hearings. As the Joint Committee on Human Rights put it in its ninth report, issued on 7 February, the Bill contains,

In other words, the Government are using the judiciary as a convenient cover to give an aura of respectability to what is essentially executive detention.

I will not weary the Committee with pointing out the innumerable breaches of the European Convention on Human Rights; the injustice and the lack of fairness are obvious. Nor do I propose to dwell on the farce of asking Members of Parliament to vote on whether an individual should be held in custody on the basis of a redacted statement provided by the Home Secretary to the obvious prejudice of any future trial, which is not just unconstitutional but contemptible. I join all noble Lords who care for fairness and justice in calling for these proposals to be thrown out and for our real security to be maintained by sticking to the values on which the civilisation of this country depends.

Baroness Mallalieu: It is not a comfortable or happy position to find myself speaking and in due course, I trust, voting against my own party, but I have added my name to the amendment because the proposals in Clauses 22 to 33 are dangerously wrong in principle and wholly unnecessary in practice. In the Bill, we are in real danger of sacrificing something of real importance for no good reason—indeed, totally unnecessarily. As the noble Lord, Lord Dear, reminded us, our constitutional safeguards, which took centuries of struggle to achieve, are fragile. I am afraid that an important element of them could be destroyed in the eight minutes that it takes to vote in this House.

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Lord Foulkes of Cumnock: I have great respect for my noble friend in a whole range of areas, but will she explain to me the difference in principle between 28 days and 42 days? Surely it is just a matter of practice, not principle.

Baroness Mallalieu: I shall come to that. I do not think that the noble Lord was in the Chamber when we debated 28 days.

Lord Foulkes of Cumnock: I was.

Baroness Mallalieu: I apologise. I certainly did not support 28 days because there is a principle, and 28 days is beyond it. I hope that I shall come shortly to the point raised by the noble Lord.

It is surely an essential ingredient of living in what we still call a free country that we are free from the fear of being locked up without charge. On occasions—I think that this is the point of the noble Lord, Lord Foulkes—we accept that it is necessary in the interests of public safety to restrict that principle. When it is, it is surely once again the mark of a free country that we do so for the minimum time possible. We should not throw away any of our liberties as we are asked to do by the Bill just in case it may become necessary in future or for no compelling reason or as a result of speculation, because, once we go down that path and unless someone says “Stop”, that road leads on to indefinite detention, which others to their shame have followed.

Another important principle of living in a free society is surely that the law should not only apply but also be seen to apply equally to everyone. As the noble Lord, Lord Ahmed, and the right reverend Prelate the Bishop of Chelmsford said at Second Reading, these provisions are viewed by many in the Muslim communities, which do not support terrorism, as a confirmation that those in power make special rules for them and regard their freedoms more lightly than those of ordinary criminals, for whom the limit of detention without charge is lower. In the war against terrorism, as the noble Baroness, Lady Neville-Jones, has indicated, these provisions are an own goal.

Attempts have been made to persuade both Houses that this legislation contains meaningful safeguards, but, as others—notably, the noble Lord, Lord Thomas—have pointed out, it does nothing of the sort. There cannot be effective judicial oversight before a person is charged because there is no sufficient evidence for a court to test. If there were, the detainee would have had to have been charged. Nor can there be effective parliamentary oversight, because, as others have already said, Parliament cannot examine individual cases pre-trial because the result would be prejudice, which would prevent the trial ultimately taking place. The so-called safeguards therefore have as much substance as the back of the envelope on which they appear to have been drafted in order to push these measures past a vote in another place.

Lord Clinton-Davis: What is the difference between what the noble Baroness postulates now and the provision that somebody can apply for bail? There is no hearing in their defence.

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Baroness Mallalieu: There is a major difference, which the noble Lord, Lord Clinton-Davis, will recognise, between somebody who is detained without having been charged and then can apply for bail, and somebody who is detained not knowing the nature of the allegation against them. I take that to be a major distinction and at the core of what we are talking about here.

Just before I rose to speak, I noticed the noble and learned Lord, Lord Falconer of Thoroton, straining like a greyhound in the slips, and I am sure that he will speak shortly on this matter because he has done so most eloquently both in this Chamber and in the media.

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