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As I have said, our committee published 13 reports on this issue, all of which have said the same thing. Since the most recent report, there has been opposition from the Parliamentary Assembly of the Council of Europe (PACE), the United Nations Human Rights Committee, and the European Committee for the Prevention of Torture—

Lord Tomlinson: I remind the noble Earl that the Parliamentary Assembly of the Council of Europe has done no such thing. I was heavily involved in the debate in the Legal Affairs Committee at the Council of Europe and in the debate in the plenary session the week before last. It produced a draft report, and the noble Earl should look at the only conclusion in that draft report.

The Earl of Onslow: I have here a reference assembled by our legal adviser at the JCHR, and your Lordships can judge whether the noble Lord, Lord Tomlinson is right—

Noble Lords: No!

The Earl of Onslow: Perhaps he was asleep, I do not know. I have the reference here in the JCHR report.

Lord Tomlinson: I actually put the resolution. You are wrong.

The Earl of Onslow: Even the UN Human Rights Committee and the European Committee for the Prevention of Torture commented adversely on the proposal. PACE states that 42 days are incompatible with the European Convention on Human Rights. Her Majesty's Government have said that there is a growing threat of terrorism that is greater than last year. The noble Lord, Lord Carlile, produced a string of horrible possibilities, all of which we accept. We do not disagree that those possibilities are there. We have asked the Home Secretary several times, “Please can you give us evidence that the threat has grown?” and answer came there none. In December last year, we wrote to Jonathan Evans, the director-general of the Security Service, and he has not even bothered to answer the letter.



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The use of the 28-day period has already been referred to. In the past year, no one has been detained for more than 14 days and before that very few people were detained beyond 14 days. The noble Lord, Lord Thomas of Gresford, set out with great eloquence and accuracy exactly what has happened to people under the 28-day period. Therefore, there is no need to extend the period because there is no increased threat.

4.30 pm

Lord Foulkes of Cumnock: I refer the noble Earl to the speech made publicly by the head of the Security Service, MI5, about the huge increase in the threat. In addition, we have doubled the number of people working for the security services. Why would we do that if there were not an increased threat? What the noble Earl said just now is manifestly wrong, as were all his previous remarks.

The Earl of Onslow: I shall stick by the evidence that we heard in the Joint Committee on Human Rights and by the unanimous agreement of my colleagues that what I say is accurate. I reiterate that we have asked the Home Secretary several times for evidence of an increased threat and she has not given any.

Lord Wedderburn of Charlton: What kind of evidence does the noble Earl wish to have? Does he want an affidavit from Osama bin Laden that he will send a bomb in 41 days? What kind of evidence would he accept? Perhaps he would describe what he is looking for.

The Earl of Onslow: It is not for me to accept the evidence; it is for the Government, when they make a statement saying that the threat has increased, to give the evidence that it has, and they have not given any for me to accept or not accept. It is all right for noble Lords to witter on over there saying that they disagree with me—I know that they do—but I am telling the Committee what we heard in the Joint Committee on Human Rights, and all of us in the Joint Committee will agree with that.

I come to the matter of parliamentary scrutiny. It is worth reading out what tests have to be applied. They are,

Those are all questions that have to be asked by a court and by judges. They cannot be debated in Parliament because the moment they are, there will be interference in the due process of law when the chap comes up for trial. The result will be not a conviction but the release of someone because of interference by Parliament. Is that what the noble Lord wants? It is not what I want. I want the person who is guilty of an offence to be charged, locked up and sent away for a long time. That is right and proper, and it is the way that I hope we do things in this country.



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Lord Campbell of Alloway: Is my noble friend addressing your Lordships on behalf of the Joint Committee on Human Rights and, if he is, has he any authority to do so?

The Earl of Onslow: I am addressing your Lordships on the part of the Joint Committee on Human Rights. We all agreed that I should make this speech—at least, that is what I assumed and it is what the Clerk said—and, in any case, I am précising the JCHR’s report for your Lordships.

Lord Lester of Herne Hill: I am sure that the noble Earl would agree that each Member of the Committee must speak for himself.

The Earl of Onslow: Of course I agree with that.

Baroness Manningham-Buller: I hear the noble Earl’s comment that my successor did not reply to his letter. I say merely that just because the Joint Committee on Human Rights has not seen what it would like by way of evidence of or intelligence on the increased threat does not mean that such a threat does not exist and has increased.

The Earl of Onslow: I have been saying that we asked for evidence and have not had it. Of course, the successor of the noble Baroness does not have to reply in detail to what we ask. I accept that, but he could have said, “I am very sorry, I cannot answer your letter”. Not to reply to a parliamentary Joint Committee seems odd.

We have been through the lack of evidence and the inability of Parliament to supervise properly, so I hope that with a resounding majority your Lordships will reject this ill thought-out and bad proposal.

Lord Falconer of Thoroton: If I thought that this provision for 42 days would make any difference in the fight against terrorism I would unhesitatingly support it. I agree completely with what the noble Lord, Lord Carlile of Berriew, said about the level and nature of the threat. The speech of the noble Earl, Lord Onslow, although delivered in good part, did not have the ring of authority that the intervention of the noble Baroness, Lady Manningham-Buller, had. We should not treat the situation as being one in which you have to prove the level of the threat.

I approach the debate on the following basis: there is a very substantial threat that is a danger to the whole community and, if extending the number of days would assist in bringing terrorists to justice, we should do it. Unfortunately I do not accept that proposition. I accept what has been said by the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Carlile, both of whose speeches were excellent—although I disagree with the final conclusion of the noble Lord, Lord Carlile—about a huge amount of work having to be done involving the computers, the foreign element, and making intelligence into evidence that can be produced in court. Anyone who has been involved in these cases, such as the noble Baronesses, Lady Kennedy and Lady Mallalieu, and the noble Lord, Lord Carlile, has seen the piles of paper reflecting the huge amount of work. The critical point was made by my noble

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friend Lady Mallalieu—that we have recognised that you cannot possibly get that material together in 14, 28 or even 90 days. I supported both privately and publicly the increase to 90 days because I believed that the computer problems, the international problems and the fact that you had to arrest early for fear that people might be killed if you did not do so justified the extension to give the intelligence services, the police and prosecutors as much time as possible in which to construct a case.

That proposition was rejected. What happened subsequently? A pre-existing provision in the prosecutor’s code—the threshold test, which my noble friend Lady Mallalieu described—allows you to bring charges when you have a reasonable suspicion and a likelihood that you will get the evidence within a reasonable time. As the noble Lord, Lord Carlile, said, the basis on which it operates has changed in practice. That has worked. I listened incredibly carefully to what he said, because I hold him in the greatest respect, and he also has the knowledge, having been the independent reviewer. If he had said, “Well, I don’t think it would work”, I would have been influenced by that. Instead, he railed against the threshold test. He said that it is a bad thing. It may be a bad or a good thing, but it is there. It is the law that prosecutors currently operate. The idea that extending it from 28 days to 42 days is going to make a difference is utterly fanciful.

I have read the Home Office’s documents very carefully to seek to justify the extension from 28 to 42 days. The Home Office accepts that the threshold test is now used extensively in terrorist cases and that where there is a reasonable suspicion and a likelihood of getting the evidence it is not necessary to have a 51 per cent chance. However, it says that there is a gap when it might not be possible to get the evidence “within a reasonable time”. I have thought very carefully about what that could mean. Are there judges in this country who, when they are told that the evidence could be obtained over the next six months, will be influenced by the fact, and say that if you had had 14 days more they might allow the prosecution to continue? It is utter nonsense.

I have experience of working with the Home Office, and I have the greatest possible admiration for Home Office officials. They write with great clarity, and if that is the best they can do to defend 42 days, it is clear—just as it was clear from the speech made by the noble Lord, Lord Carlile, when, instead of saying that the threshold test does not work, he railed against it—that we do not need this extension from 28 to 42 days. Therefore, with a heavy heart, because I am utterly sympathetic to the Government's fight against terrorism and I completely agree with the analysis made by the noble Lord, Lord Carlile, of how big the threat is, I say that there is no benefit in this. It does not help at all. With a heavy heart, I am going to vote against the Government.

Lord Harris of Haringey: My noble and learned friend speaks with as much facility as Home Office officials draft their responses. I have spoken to senior police officers, and surely the point about the threshold test is that it is necessary to demonstrate that you

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reasonably expect evidence to appear. If you are still wading through masses of computer printouts and masses of data, how can you certify to a court that you reasonably expect that evidence to appear? Therefore, the threshold test does not apply in these circumstances.

Lord Falconer of Thoroton: That is nonsense because you can arrest only with a reasonable suspicion, and a reasonable suspicion is sufficient to allow the wait.

Lord Harris of Haringey: But the reasonable suspicion is that somebody has appeared in particular circumstances and is clearly associating. There are clearly issues that require further investigation, but the evidence is going to emerge only by careful analysis of some of the material that has been seized.

Lord Falconer of Thoroton: No. The reasonable suspicion is the reasonable suspicion that the person has committed a criminal offence. That is what justifies the continued detention. There is a misunderstanding about what those senior police officers are saying to my noble friend.

Lord Lloyd of Berwick: I hope I may at least reduce the temperature by a few degrees. I believe the Committee will already be very familiar with my views on pre-charge detention. I opposed the original increase from seven days to 14 days back in 2003 because it did not seem to me then that the police had made out a case for so large a distinction between terrorist cases and all other cases. I would remind your Lordships that in all other cases, however complex, the maximum is four days—not seven days, not 14 days, not 28 days and not 42 days. Terrorist cases are not the only cases in which the police have to analyse computer records. I opposed the original increase, I opposed the increase from 14 days to 90 days, as it was in the original Bill, and I now oppose the increase from 28 days to 42 days for all the reasons given so eloquently by my noble friend Lord Dear.

4.45 pm

Lord Anderson of Swansea: Would not a distinction between the normal limit and this one be that, if one is wrong, the consequences are quite horrific? This is not long firm fraud or a matter of that sort of complexity; multitudes of people could be killed and even more killed as a result, for example, of an al-Qaeda cadre obtaining dirty bombs.

Lord Lloyd of Berwick: That is the right question. However, I put back to the noble Lord the sort of harm that can be done by the failure to interrupt, to analyse and to break up an international conspiracy for the importation of hard drugs, which in the long run can, although not as dramatically, cause exactly the same number of casualties.

For the reasons given by my noble friend Lord Dear and most powerfully by the noble Lord, Lord Thomas, I oppose the increase to 42 days.

I wish to make only two points today. The first relates to the basis of the Government’s argument for

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extending the period of detention beyond 28 days, which is that 42 days might not be enough in exceptional circumstances. The trouble with that way of putting the argument is that it has probably given the impression that, in all ordinary circumstances, 28 days is acceptable. I merely remind the noble Lord, Lord West, of assurances that have been given by all his predecessors, including the noble and learned Baroness, Lady Scotland, who was in her place earlier, that the norm remains 14 days, not 28 days. I very much hope that the noble Lord, when he comes to reply, will repeat loud and clear that that is the position. It is important because judges, believe it or not, pay attention to what Parliament says. They even pay attention to what Ministers say. It is important that judges, who have the task of deciding whether to extend the time beyond 14 days, should realise that the view of this House is that 14 days, not 28 days, is the norm. I look forward to a further assurance on that point.

My second point is that Ministers often use the increased threat as a justification for extending pre-charge detention. The noble Lord, Lord Foulkes, has already made that point. However, I see no connection between an increased threat and the length of time a suspect is kept and questioned in police custody. An increased threat, assuming it to be so, is surely justification for increased vigilance on the part of the Security Service, the police and all the others. It might even be justification for increased sentences as a deterrent, but surely an increased threat, assuming that it exists, does not touch on the question that we are discussing: whether the length of pre-charge detention should be extended. Surely it cannot be the government case that extending the length of pre-charge detention will act as a deterrent. Indeed, exactly the opposite must surely be the case; so far from being a deterrent, it is a step that is positively inflammatory—the word used by my noble friend Lord Dear.

Lord Wedderburn of Charlton: I am most grateful to the noble and learned Lord. His argument is as usual very persuasive, except that, in a complex and detailed universal organisation of death to those whose security we in this country are responsible for, is not a longer period needed to investigate the computers and other mechanisms, the languages, the geography and the nature of the threat?

Lord Lloyd of Berwick: The simple answer to that is: if there is a need for more people to analyse computers, let us have more people to do that. But I am not persuaded that that is the case.

Lord Tebbit: I should explain why I intend to support the Government today. I am mildly surprised that so few others, especially on the Benches opposite, seem to want to—

Noble Lords: We—

Lord Tebbit: Yes, and I understand the reasons. First, most of my friends supported indefinite detention without trial in Northern Ireland. Clearly, a matter of 42 days is not an absolute matter of conscience for

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them. Nor can I understand how conscience or judgment, despite the quite remarkable speech of the noble and learned Lord, Lord Falconer, would allow a man to support a 90-day limit while in office, but not a 42-day limit when out of office.

There are three substantial, practical objections to what the Government propose: first, the proposal is now so hedged about with conditions that it could verge towards being unworkable, which is a serious consideration for the Government to take in mind; secondly, it is likely to be abused by the Government and would worsen relations with minority communities from which terrorists might come; and, thirdly, it is simply not needed or wanted. As I have said, there is some force to the first objection, but if that is so, the Government can come back in a year’s time to improve those procedures. On the second point, the Government have, certainly at times, tended to misuse anti-terrorism laws for other purposes, but I do not see even this Government sweeping up and detaining people with no cause whatever—other, perhaps, than that they might be Muslims or something of that kind—and holding them for 42 days without good cause before releasing them just for the fun of it. I simply do not believe that that is likely to happen. Nor do I believe that moderate Muslim opinion in this country would be inflamed by the fact that we have taken these measures against terrorism—not against Islam, but against terrorism. That is the most important point we have to get across. Because this legislation is subject to review, it is possible for us to strike it down in the future.

What is the positive case for the Government’s proposals? There is no doubt that tracking down the evidence against a suspect from computer discs and hard drives—possibly using encryption and foreign languages—across continents and requiring the co-operation of foreign intelligence agencies can take time. It has been suggested that those things can take time against other criminal acts. Of course they can, but there are moments when the police are in a position where they have to decide whether to make an arrest to prevent the commission of a crime before they have begun to amass the kind of evidence that could be put to court in a prosecution. If that crime is a bank robbery—├ža va. A bank robbery is a very bad thing, but a terrorist crime, as the noble Lord, Lord Carlile, pointed out, could be a much more terrible thing.

We have to agree that it is undesirable that even a single individual should be unjustly treated or detained, which might happen under any circumstances, whether the time period is 7, 14, 28 or 42 days. But we have to consider what is in the other balance of the scale; that is, what the noble Lord, Lord Carlile, called proportionality. If the lack of this provision causes the police to fail to prevent a major terrorist outrage, what then? It might mean multiple fatalities, a strike against economically important infrastructure with great consequences, or it might mean that we fail to prevent an outrage as great as the detonation of a dirty nuclear device in a city centre, leaving it uninhabitable for years. We have to take into account that things are changing, that what was unforeseeable a while ago has become terribly foreseeable in terms of the world

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economy. What was also unforeseeable a while ago is that there is a very weak and potentially bankrupt Government in Pakistan, a country which is a nuclear power with all the dangers that that may bring to us. The weights in the scales are simply disproportionate.

It is very difficult indeed to rectify the injustice which has been done to a dead terrorist victim. Victims have human rights just as much as suspects. Finally, I should say to my noble friends on the Front Bench—to whom it will come as no surprise that I am going to support the Government today—that I do so for one other reason. Let us think about the dilemma if the Government are denied these powers tonight, but at some time in the future a Conservative Administration conclude that they need them. How would that Administration go about coming back to Parliament and asking it to grant those powers? My party might come to rue the day if it wins this vote. So although I find myself in strange company—not least in the company of the noble Lord, Lord Carlile, with whom, as he well knows, I do not always agree, and with many Peers on the opposite side of the Chamber with whom I do not often agree—when I vote with the Government tonight it is partly with the thought of protecting my friends in my party from the position in which they may find themselves if they are in government in the reasonably near future.

Noble Lords: Lord Morris!

Lord Judd: I rise—

Baroness Ramsay of Cartvale: I rise—

Lord Brett: I think it is the Liberals’ turn now.

Lord Lester of Herne Hill: It is a great pleasure to follow in the wake of the speech of the noble Lord, Lord Tebbit. He and his family of course have suffered as much from the barbarity of terrorism as anyone. He speaks with great passion and authority, and I respect what he has said. I think that there is no dispute among us that the threat of terrorism is extremely serious.


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