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These proposals are wholly unnecessary because the CPS has changed the basis on which most terrorist suspects are charged. We have already had some indication of it from others, but perhaps I may spell it out: most criminal charges are brought only if the prosecuting authority considers that, on the evidence currently available to it, there is a greater than 50 per cent chance of a successful prosecution. That decision must be made within 14 days of detention, except in terrorist cases, where, as a result of the earlier legislation which this Chamber passed with the assistance of the noble Lord, the authorities have 28 days to make the decision. However, the Crown Prosecution Service has adopted a different basis of charge in the majority of terrorist cases and now uses what it calls the threshold test, which permits a detainee to be charged where the evidence to show a greater than 50 per cent prospect of conviction is not yet available but the authorities on reasonable grounds believe that it will be available before trial, and where they believe that the suspect, if released, would be a danger to the public. In practice, therefore, the time available to the police and the Crown Prosecution Service is not 14, 28 or 90 days—it is the whole of the period up to trial, which is commonly a year to 18 months. During that time, investigations can and do continue and evidence can be served on the defence right up to the end of the presentation of the prosecution case in court. As the noble and learned Lord, Lord Falconer of Thoroton, said at Second Reading,
I am bound to say that I wonder what on earth we are doing here. It is very hard to see whether there is some perceived political gain—I hope that that is not the reason—or whether somebody is afraid of backing down for fear of appearing weak. I hope that that is not the case either.
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Lord Wedderburn of Charlton: I always have the utmost respect for my noble friend’s arguments. Would she not agree that the time that is needed to investigate the complexity of future terrorist plans may be virtually as long as she has said it takes to go to trial? This is a matter of life against death, and the threat of death involving computers and their operations may be such that the investigation may require—that is all that is being said—a very long period indeed.
Baroness Mallalieu: I totally accept that, but I believe that that period is currently available and practice is showing that that is exactly what is happening. But
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Lord Carlile of Berriew: I remind the Committee—
The Earl of Onslow: As part of the JCHR—
Lord Carlile of Berriew: I remind the Committee at the outset of my remarks of my interest in this matter as independent reviewer of the Terrorism Act 2000 and of other statutory provisions. The noble Baroness, Lady Mallalieu, who has just spoken, knows my very considerable regard for her, both as a Member of this Chamber and as a lawyer. She, I am sure, will accept that although I disagree with her on this occasion we are aiming at exactly the same end—the same free society, in which the same people, the general citizenry of this country, can move about freely and without danger to their lives, while at the same time protecting individuals who may be wrongly accused from arbitrary action by the state. That is the difficult balance that we are trying to sustain in this debate and many others under the counterterrorism laws.
I did not speak at Second Reading because I was absent abroad as independent reviewer, for which I apologise. I am anxious not to abuse my position as independent reviewer by repeated speeches and will not do so; this may well be the only speech that I make in Committee, but I feel that I must set out my views on this important subject. I should add that I have a self-denying ordinance never to vote on these subjects, because I regard it as taking too much advantage of my position.
Consistency is not always a virtue, but I have remained consistent, publicly and privately, on these issues throughout recent times. Of course, I recognise—and I remind the Committee—that my opinion is but one among many, albeit one that is briefed and refreshed, if necessary, on a daily basis, and which I try to keep up to date. I shall try to assist your Lordships, or those at least who may possibly still be open-minded about this issue, of whom I am sure there are a great many, by setting out my views and judgment on the matter. If it is rejected, so be it.
Not a day has passed since this proposal was first made without my debating it in my own mind, taking into account the views of the many who are opposed to my opinion on this matter and whose opinions I respect. I acknowledge that for many this issue is difficult because their knowledge of changing terrorism issues and the changing picture will not necessarily be up to date. I value this debate. It is healthy for our law and democracy that serious people can disagree seriously about serious issues, as long as we keep it at that level of seriousness, which has not always been the case.
As a lifelong Liberal—I choose that word with great care and the largest “L” that I can find—it is uncomfortable to disagree with those with whom I would instinctively expect to agree. It would be so
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I have heard it said that this is a breach of Magna Carta. I disqualify that on the grounds of misrepresentation and over-reliance on a document that, although of its time, by today's values is sexist and racist. I would expect Liberty to be marching in the streets against it. It proposes a situation that is far worse—
Lord Lester of Herne Hill: Does my noble friend accept that the European Convention on Human Rights might be a better standard these days than Magna Carta?
Lord Carlile of Berriew: I absolutely agree with my noble friend. Later, I shall say that in my view these proposals are within the European Convention on Human Rights. I welcome his intervention.
The next argument that I disqualify—and there is a shameful advertisement by Liberty in today's Guardian—is that we propose a situation far worse than that in the United States, France and other comparable countries. Does anyone in this House really believe that charging someone with association de malfaiteurs is an adequate basis for keeping people in custody for a year and longer? I do not. Does anyone in this House believe that the French system of arresting people, not informing their lawyers and interviewing them without a tape recording is a proper basis for interrogation? A leading French juge d’instruction smiled when he described it to me as—I will not attempt to imitate his accent—“a very productive period of interrogation, monsieur”.
As for the United States of America, the noble Lord, Lord Dear—I say this to him with great respect—misrepresented the position in a country in which at least one citizen has been deprived of his citizenship rights and has been kept in custody for years, and where executive witness detention—not executive defendant detention—can keep people in custody for up to a year at a time. Let us make fair comparisons. I am always willing to meet fair comparisons, but not the traducing comparisons that we sometimes see.
I have also heard it said that those of us who broadly support this proposal are proposing internment. I wrote a report on the definition of terrorism and studied every terrorism law in the known world. I have looked at the history of internment over the past 70 years. Perhaps I can simply dispose of that argument by saying that I hope that everyone in this House, including those who have looked at the most recent
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I shall now explain why, with one significant misgiving, I support the proposal that we are debating. I have five main reasons. The first is the range and complexity of the risk that we face, which is changing all the time. The risks of violent jihadist terrorism that we face now come from many places and countries. Some are domestic and home grown. Terrorism of that kind threatens places of mass public aggregation in this country—for example, the safety of our children as they get on the bus to go to school in central London, or young people around the country who gather in, if your Lordships will forgive the old-fashioned expression, a dance hall to enjoy themselves.
However, the risk of terrorism is now potentially far more pervasive. Terrorism potentially involving al-Qaeda supporters now spreads anywhere in the world. It includes, for example, a significant threat—noble Lords should listen carefully to this because it is true—to humanitarian efforts in what is sometimes called the “deep field”. Aid and development are seen as support for apostate regimes, hence the attack of 11 December 2007 on the United Nations headquarters in Algiers. All this is planned in an extremely complex international network, part of which is likely to be in this country and will be very difficult to unravel.
The manifestations of terrorism around the world now include piracy in the Horn of Africa—on which the French Government have been rather firmer than the United Kingdom Government—and franchised al-Qaeda activities, as they are sometimes called, in north Africa, with global planning connections. It is now clear that most al-Qaeda networks have some element of contact between them. The word “unravelling” is entirely apposite to the kind of evidence that the authorities may have to deal with after arrest. In addition it has to be said, recognising what is happening in Pakistan, that the less than stable new Government of Pakistan are thought by many experts to represent an increased and significant security threat not just in Pakistan but to Europe and to its citizens in their own countries.
The final point about risk is serious; it is about regeneration. There is evidence, which I think that those who are expert in the field and fully up to date will recognise, that some networks have regenerated themselves repeatedly after disruption. It is important to be able to penetrate the evidence about such networks in order to prevent regeneration.
I turn next to evidential challenge. We have already heard something in this debate about computers, and a noble Lord opposite helpfully intervened to point out how complex these cases can be. As has already been said, the risks of which I have spoken are posed by determined and often clever people. Al-Qaeda will be listening to every word of this debate to see how much quarter is given by this Parliament. It is sometimes thought that its ideas cross the world at high speed, and they do. But the problem is that its ideas cross the world not only at very high speed but at very slow speed, too—on foot, on ships, on planes. It is difficult for the authorities to bring together those strands of
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As has been said, making the linkages of evidence can be painstaking. We need to have appropriate and fair means to avoid releasing prematurely those who are determined to regenerate their activity and who will set out to achieve their ends come what may. Without going into detail, there really is evidence of that.
The potential for damage can be stated in a few words: deaths between the tens and the thousands, with the numbers likely to be increased by suicide bombing. The authorities in this country have been fantastically successful in disrupting this activity. Putting it at its lowest, many hundreds of lives have been saved by them through such disruptions. The maximum of an extra 12 days, controlled as it would be, could in my view assist those disruptions.
The enduring integrity of the law is very important to me. The one thing I dread is a horrendous event in which an airplane or a huge bomb is driven into a crowd of thousands, resulting in a huge number of deaths. We can imagine the headlines the following day. We can imagine the understandable reaction in the elected House. There would also be a very strong reaction in this House, although it would undoubtedly be more measured. I want to see an end to the constant introduction of new counterterrorism law. I want us to have a counterterrorism law that we can consolidate, and I mean consolidate formally if at all possible—a codified, robust counterterrorism law which is good enough to endure, and which would endure a massive atrocity. If, heaven help us, such an atrocity takes place, I want to be able to stand up as independent reviewer and say to the Minister, as he faces pressure from his own Back-Benches in both Houses, “We need no more because we’ve done the job already”.
We have heard it said that we are talking about the thin end of the wedge, but I see no such argument here. I see finality in the law of detention with appropriate protection from the judges. I say to my noble friend Lord Lester that one needs only to look at what the judges have done in relation to counterterrorism law to see the level of protection that they give. I spend a lot of time talking to officials in the Home Office and a few judicial names trip off their tongues on a daily basis, knowing that they face being tested on that daily basis by those judges. I cite as an example a case at first instance, not an appellate case, R (I) v City of Westminster Magistrates’ Court and the Chief Constable of Manchester Police, decided on 28 August this year by Mr Justice Collins, as one of many examples of the courts being robust in testing the law, but saying that it complies with the European Convention on Human Rights. I believe there is no real evidence that it does not comply with the European Convention.
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We should also bear in mind that we have been here before. The noble Lord, Lord Newton of Braintree, chaired a committee of Privy Counsellors some years ago. I apologise for taking so much of the Committee’s time, but I feel that I should speak once. The Newton committee spoke of giving the judges more inquisitorial power. That is exactly what we have done.
As regards proportionality, how many people are these new proposals likely to affect adversely? Let us assume that the overall effect is adverse in terms of keeping people in custody. I believe that these laws might affect a maximum of five or six people in the next four or five years. This is not the end of civil liberties as we know them. They could save many lives at home and abroad, including those of people in the humanitarian camps which the United Nations and other bodies maintain abroad. I believe, in fact, that these laws could have the effect of reducing the detention periods of some people. It is undoubtedly the case that judicial rigour would be strengthened as a result of these enactments, and I would expect the judges, in an increasingly inquisitorial role, to keep detention to a minimum.
I turn finally to my misgivings. I have real misgivings about the parliamentary role as set out in the Bill. I do not believe that the parliamentary part of this adds anything useful whatever to the provisions. It does not make them better; it does not make them worse; it does not make them safer and it does not make them less safe. They are a fig leaf. In my view, nothing would be lost if it simply disappeared from the Bill.
Viscount Bledisloe: Will the noble Lord permit me to intervene to ask two questions? He said that he wants to see finality and consolidation. Is he really saying that 42 days is so wonderful that it will solve the problems for all time? Is he further saying that the enormously complicated system in the Bill—perhaps with the removal of the point about Parliament that he has just referred to—is a system onto which we wish to consolidate for all time?
Lord Carlile of Berriew: The answer to the first question is no, any more than Magna Carta is valid now as it was in 1215, but, in my view, it will do for a very long time. The answer to the second question is also no.
Lord Anderson of Swansea: The noble Lord has given a very dire warning to this Committee. In the light of what he has said, and in the light of the numbers, which we all know in this Committee, does he fear that he will suffer the same fate as Cassandra?
Lord Carlile of Berriew: The noble Lord and I have been around in Welsh politics together for a very long time, and Cassandra is an honorary Welshwoman. We shall have to wait and see; I hope that there are not snakes coming from my tongue at this moment.
This is not my Government. If I thought that the Government were wrong, as I have on many occasions, I would immediately be critical of them. I have criticised many things in counterterrorism law. There is the use
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On this proposal, the chorus of disapproval is misdirected. I say to the noble Baroness, Lady Mallalieu, that, if necessary, I am prepared to stand with her on the barricades. We could be the last man and woman standing to preserve civil liberties in this country, even if we have a slightly different view of the balance. The way in which she presented the threat, as she would have it, to the balance is misdirected.
Before I sit down, I shall refer briefly to the threshold test, the effect of which is to charge people on a lower standard and keep them in custody for months, if not years. How is that more civil-liberties compatible than a maximum additional detention period of 14 days, subject to these safeguards?
Lord Elton: Before the noble Lord sits down, it is important that lay Members of the Committee understand this as well as legal Members. I have not heard the noble Lord reply to the comment of the noble Baroness, Lady Mallalieu, that under the existing law it is possible to continue looking for evidence until the minute before the trial.
Lord Carlile of Berriew: I thought that I had just replied to that point. My point is that if you charge people by a lower standard than is normal, the threshold test, you can keep them in custody for as long as you like. Of course they can make a bail application, but even the noble Baroness, with her persuasive skills, would have trouble persuading a judge at the Old Bailey that someone charged under the threshold test with a serious terrorism offence should have bail. The chances are that they would remain in custody for a multiplier of the extra 14 days maximum allowed by the Bill.
That is what I think, what I believe and what I advise. I hope that it will have been of some value in this debate. I apologise for taking so much time.
The Earl of Onslow: I have the privilege of being a member of the Joint Committee on Human Rights, which is extremely ably chaired by a Labour Member of another place. My colleagues in this House are the noble Baroness, Lady Stern, the noble Lord, Lord Lester, my noble friend Lord Bowness, and the noble and learned Lord, Lord Morris of Aberavon. The JCHR has published 13 reports on this issue. Unlike on one or two other occasions, it has been absolutely solid, like the shield wall at Thermopylae—although on this occasion there was no Theban shepherd to take the Persians around the back. We have been unanimous and strong in saying that 42 days is unnecessary.
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It is interesting that the amendment has not been moved by the normal gang of civil libertarians, such as the noble Baroness, Lady Kennedy, or myself, but by “serious plod” and “serious Bond girl”. They are serious people who are not mucking about; they know exactly what the threat is and see no need for this extension. The noble Baroness, Lady Manningham-Buller, made a totally non-controversial speech at Second Reading and said the extension was unnecessary. The Director of Public Prosecutions says it is unnecessary. In a minute, the noble and learned Lord, Lord Falconer, will say it is unnecessary. He did not say that last time, when he said that 90 days was necessary. One is entitled to say that there is great joy in heaven when one sinner repenteth. The noble Lord, Lord West, agreed, too, until he was kneecapped by the Prime Minister at a breakfast meeting before going on the wireless.
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