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As the noble Baroness, Lady Manningham-Buller, pointed out in her intervention, we do not need further evidence of the fact that the threat of terrorism is extremely serious, and those of us who are in favour of this amendment need no lectures about it. We all appreciate the very serious threat of terrorism. If we thought that an extension of the power to detain without trial from 14 to 28 days, and then from 28 to 42—or from 42 to 90, or from 90 to, as far as I can understand those on the other side, an indefinite period—would actually cope with the problem, then we might need to reconsider it. As a liberally minded person I believe that the spirit of liberty is the spirit that is not too sure that it is right. Indeed, I say to my noble friend Lord Carlile of Berriew that I hope that, as a Liberal, he shares that uncertainty and not the dogmatism on this question.

We all agree that the threat is very serious, but the question is whether the means being proposed by the Government are going to be effective. What we have not heard is evidence from anyone that the extension

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from 28 days to 42 days is necessary. That is the evidence that the Joint Committee on Human Rights was concerned to discover. None has been forthcoming.

5 pm

In considering the question which is now before us, it is important to consider the reputation of this country throughout the world for the effective protection of human rights and upholding the rule of law. The noble Lord, Lord Tomlinson, was a member of the parliamentary assembly that discussed this issue and passed a resolution which is summarised, as the noble Earl, Lord Onslow, said, in the Joint Committee on Human Rights report. For those who want to read the summary of resolution 1634, it is on page 9 of the report. It sets out the substantial objections to what the Government are now proposing.

The situation is well summarised in the series of reports by the Joint Committee on Human Rights, which explains why we unanimously, from all parties and beyond, consider the proposed extension to be wrong in principle and unjustified in practice; why it lacks a sense of proportion; and why there are alternative adequate means of tackling the problem. It is unnecessary to bore the Committee with the detail; it is all in our reports. The proposal stains the good reputation of the Government and the UK in the wider world in upholding the rule of law and ensuring respect for human rights.

In his trenchant article in today’s Guardian, the noble and learned Lord, Lord Goldsmith, explained that he could not be here, but in summarising his view, he summed up the position for me. What he termed “this pernicious provision” is,

The noble and learned Lord pointed out, as is the case, that the proposal,

including, of course, the noble and learned Lord, Lord Falconer of Thoroton—

With great respect, the noble Lord, Lord Carlile, has not provided any evidence to suggest that they are wrong, nor has he answered the detailed reasons by the Joint Committee, nor has he explained why the lawyers who have advised throughout are wrong in saying that this would lead to serious violations of the European Convention on Human Rights.

Lord Clinton-Davis: Is there not a difference of view between police officers? Some support what the Opposition are saying and some oppose it. Is the noble Lord rejecting altogether the advice of those police officers who say that the Government are quite right in what they are proposing?

Lord Lester of Herne Hill: I am not rejecting anything at all. Of course reasonable people may disagree about the appropriate means in the difficult situations that we are discussing. Of course it is right that different

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police officers will take a different view. We understand that even the noble Lord, Lord West of Spithead, took a different view until he was persuaded to the contrary. That is a perfectly sensible approach in life.

Lord Wedderburn of Charlton: Does the noble Lord agree that the 30th report of the Joint Committee on Human Rights proposes amendments whereby this Bill could be brought into accord with the European convention? That is a most valuable contribution to the debate, which he now appears to be denying.

Lord Lester of Herne Hill: I think that the noble Lord, Lord Wedderburn, misunderstands. Our report firmly opposes the extension from 28 to 42 days for the reasons it explains. It then goes on to seek further safeguards whether or not there is an extension to 42 days, dealing with matters such as derogation, post-charge questioning and so on. Some of that is designed to make prosecutions and evidence-gathering more effective in order that terrorists may be brought to book. We are not unrealistic or part of an irresponsible lobby; instead, we are seeking to deal with a serious problem by appropriate means.

Lord Sewel: What about derogation?

Lord Lester of Herne Hill: I shall not go into derogation at this stage. It is not relevant.

Lord Sewel: Will the noble Lord help me regarding the incompatibility of these proposals with the European Convention on Human Rights, which seems to rest primarily on the number of days? If that is the case, why is it that in Perugia—in a totally different, but European, member state—two people are being held in relation to a murder that was committed very nearly a year ago? They have been held without charge for that period. I understand that there are two different approaches—the investigatory and the accusatory or confrontational—but to the lay person that seems to be a very thin justification. The point is that in other states covered by the convention, there are nevertheless people who are held in detention without charge for periods greatly in excess of 42 days.

Baroness Kennedy of The Shaws: May I correct my noble friend? In the Italian case to which he refers, they have been charged.

Lord Sewel: How long ago?

Baroness Kennedy of The Shaws: They were charged within quite a short period of time.

Lord Sewel: With what crimes?

Lord Lester of Herne Hill: I do not know whether the procedures of the Committee envisage such arguments. May I conclude by trying to deal with the point of the noble Lord, Lord Sewel?

There is a significant difference between post-charge and pre-charge detention, and that is the difference with which we are concerned. It is not an academic difference; once one has been charged and is being detained, as is the case on the Continent as well as

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here, a different set of safeguards arises. The noble Lord is perfectly right that in some of the continental systems, people are detained for very long periods after they have been charged. The same, of course, is true here. The question is whether pre-charge detention periods should be extended.

The noble Lord, Lord Tebbit, referred, quite correctly, to internment in Northern Ireland. That was a classic example of detention indefinitely without charge. To those noble Lords who say that the threat of terrorism is so appalling that we must do anything to counter it, logically their position is—or should be—in favour of internment, without any time limits, until the evidence has been forthcoming. That is what, at the height of the Second World War, Winston Churchill described as,

and I think he was right. We are now facing a serious threat, but no greater than when we were fighting the Nazis in the Second World War. That is why this Committee has a peculiar responsibility today to strike a fair balance, as has been said, between the need to protect the lives of our people against a serious threat of terrorism and the need to uphold our tradition as a country which respects the rule of law.

I have come to the conclusion, even after listening with an open mind to the noble Lord, Lord Carlile of Berriew, that that Government have made a classic mistake. The Minister is a distinguished Navy man; perhaps he will forgive me for making a comment as an Army man. I was taught in the Army that it is a classic mistake to dig a trench, to be flushed out of it, to dig another trench, be flushed out of that, and then to be on the run. I believe that that is exactly the Government’s position: they dug a trench which was indefensible; they were flushed out of it on the question of 90 days; and now they are trying to defend 42 days without, I believe, any objective justification for doing so. I very much hope that this evening’s debate will be the second mutiny at Spithead, but that this one will have a better and quicker resolution.

Lord Imbert: Although I have heard much genuine concern about the human rights of suspects, as is right, commendable and essential, I have not heard enough concern about the human rights of victims and, just as important, potential victims—those who are yet to lose their lives or their legs, arms, sight or hearing.

I have been in contact with three of the senior officers who, following the 7 July 2005 terrorist attacks, were responsible for supervising the rescue operations and collection of evidence, which included the ghastly task of retrieval of body parts from trees, railway tracks and gutters. One of these officers has forwarded to me 17 foolscap sheets giving particulars of those who have no human rights at all, as they are all dead. He sent more pages giving details of the dreadful injuries to others, one of whom is a young woman who, some might argue, theoretically retains her human rights. The pity is, however, that she has no legs and, as for others who lost eyes, limbs and internal organs, that is how she will spend the rest of her life. Nothing

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became any better after 28 or 42 days; the pain and suffering get worse. These are the people about whose human rights I also care.

I do not accept the argument that I have heard noble Lords making that asking for an extension of maybe just hours beyond the present 28-day limit of detention would be a recruiting sergeant for al-Qaeda. The recruiting sergeant for al-Qaeda was the invasion of an Islamic country by the USA and Britain and the fact that our troops are still in occupation. However, I concede that, if we continue to talk about 42 days’ detention before charge as though it were the norm and not an exception, that will both confuse and help to radicalise some impressionable young Muslims.

It is a pity in many ways that this is a government Bill, as that certainly seems to have united the opposition to it. It is also unhelpful that the “42 days” epithet has, I believe, confused many people. Even some police officers who have not studied the Bill have been persuaded that, if a person suspected of a terrorist offence were arrested, that person could be detained for up to 42 days. That, of course, is totally incorrect.

The police did not ask for any magic figure of 42 days to be included in the Bill. The extension in the most exceptional of circumstances could be for just 24 hours or perhaps for two days. However, it seems that in an effort to make any extension more acceptable the Government chose to limit that to an absolute maximum of 42 days. Therein came the opportunity to confuse; it has been a classic “shooting oneself in the foot” job.

The senior police officers to whom I have spoken have assured me that the proposal for 42 days was not made at their request. They are as aware of the civil rights of suspects as they are of those of past and possibly future victims and they will work to the best of their abilities within whatever parameters Parliament sets. None the less, Assistant Commissioner Bob Quick, the senior officer responsible for the counterterrorism command at New Scotland Yard, his predecessor, Assistant Commissioner Hayman, and the latter’s operational deputy assistant commissioner, Peter Clarke, are firmly of the view that the time is coming when, because of the most horrific possibilities of a terrorist attack aimed at achieving maximum deaths and casualties, an extension to the present 28-day limit of detention before charge is most likely to be necessary. However, I concede that Andy Hayman was concerned, as my noble friend Lord Dear said, about the bureaucratic system that would have to be employed before such an extension were allowed.

5.15 pm

I am not a politician and admit that I often fail to understand politicians’ motives or agendas, so, to prevent my falling into the same trap as one of my successors as Commissioner of the Metropolitan Police seems to have done, perhaps I should declare that my support for much of this Bill is not political, and I believe that public protection should rank much higher than political opportunism.

I was a working policeman for 40 years, and I believe that I was invited to become a Member of Your Lordships’ House to use my years of operational

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experience to highlight the practical difficulties that some legislation might pose to those whom we expect to keep us safe from the criminal and the terrorist. I believe that it was known that I could bring a wealth of practical, feet-on-the-ground experience to Your Lordships’ discussions and that, having left the field of play, I would not indulge myself by standing on the touchline and chucking intellectual toilet rolls into the goalmouth.

I urge noble Lords to consider most carefully before supporting the amendment. Will noble Lords unequivocally support the amendment while not knowing at this stage what the exceptional circumstances might be—perchance a plot to assassinate the Queen, or to blow up fuel dumps or a fully loaded gasometer situated within yards of a block of council flats? Will they regardless, as in the amendment, say that there can never be an extension? I make it clear that I am not advocating 42 days, but there must be provision for a properly supervised extension when the most exceptional circumstances prevail. To agree to the amendment could be dangerous and might in time lead to the further loss of lives.

Lord Howarth of Newport: Osama bin Laden and his disciples could not have made it plainer that they are at war against us. Their methods of warfare include a peculiarly ruthless terrorism whereby people who willingly embrace their own deaths attempt to kill maximum numbers of unsuspecting civilians. They also seek to disrupt and undermine our lives by any means possible. They operate with technical virtuosity across the globe, using sophisticated telecommunications and computing, with layers of encryption and in obscure languages. They operate powerful propaganda systems through the internet. They are not susceptible to reason, argument or negotiation. They are patient. They are implacable. They will use the most powerful weapons that they can obtain. Bin Laden has decreed that:

“It is the duty of Muslims to prepare as much force as possible to terrorise the enemies of God”.

If they think, as they well may, that western hegemony is now on the wane, if they detect a weakening of our self-confidence, their contempt for us and their determination will be intensified. They cannot be deterred except by being found out and disrupted. They cannot be defeated by traditional means. I am sorry if all this sounds melodramatic, but I learnt, during four years of serving on the parliamentary Intelligence and Security Committee, that it is the reality.

Given the vast and increasing complexity of intelligence operations in a time of multiplying computer power and the need to collaborate with agencies in other countries, notably Pakistan, whose speed and reliability may not match our own, we must surely accept that there may come occasions, possibly soon, when an investigation will require that a suspect is held in pre-charge detention for longer than 28 days. It is mere prudence to create a reserve power to extend pre-charge detention for a reasonable additional period. It is better also to legislate for such a contingency in advance, calmly and carefully, than to try to alter the balance between security and liberty following a terrorist outrage in the midst of a crisis. That is what the Government, rightly, seek to do.

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The defence of the realm and of the safety of our people is the most basic responsibility that our Government have. Our commitment to liberty, passionate though it is, is, in extremis, subordinate to that primary duty. Of course, we should not surrender—

Baroness Warsi: I thank the noble Lord for giving way. I presume that he, like everybody else in this Committee, is here with one thing in mind: to protect our country. Having outlined the long list of things that form the threat that we face—and I accept that we face a grave and real risk—would he not accept that the only real and sustainable way in which to deal with this challenge of extremism that we all face is by making sure that the majority of Britain feels that they are part of big-tent Britain? Would he not say that this is not a simple argument between the rights of the victims and human rights of the terrorist? This is an argument about how we have a long-term solution to the challenge of extremism, and locking people up for 42 days will alienate the very communities that we need on board to support us in facing this challenge together.

Lord Howarth of Newport: I agree entirely that, if there is a long-term solution, it has to be though winning hearts and minds—but, in the mean time, we have to defend our people. Of course, we should not surrender more than the minimum necessary of liberty and we should at all times be vigilant on behalf of our liberty, but the balance between liberty and security has always been recalibrated in time of conflict.

I respect the professional experience and judgment of noble Lords who have been very senior police officers, headed the Security Service, chaired the Joint Intelligence Committee or served in government as Attorney-General or Lord Chancellor. However, I am puzzled as to how they can be confident that, as technology and other complexities develop and we find ourselves in uncharted circumstances, it will never be necessary, in the interest of the safety of the public, to hold anyone in pre-charge detention for more than 28 days. What if, as my noble friend Lord Harris of Haringey asked at Second Reading, the police cannot start to question a seriously injured suicide bomber for some time, or it takes some time to make safe for investigators premises where biological or radioactive materials have been kept? When an early arrest is needed in the interest of public protection or when there is more than one plot requiring simultaneous investigation, it may be necessary to hold suspects for longer before charging.

The call by the Opposition Front Bench and the Joint Committee on Human Rights for evidence of the need to extend pre-charge detention seems unreasonable. You cannot have evidence about what has not yet happened. There can be pointers, however; if we extrapolate past trends, we are assuredly led to conclude that longer periods of investigation before charges are preferred in terrorist cases may be needed.

We were asked by some noble Lords at Second Reading, and by my noble and learned friend Lord Falconer again today, to accept that the threshold test

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for charging removes the need to extend pre-charge detention, and to draw comfort from the new provision for post-charge questioning. I am not a lawyer and I may misunderstand them, but I find both those arguments less than satisfactory. I am encouraged to raise these questions by the important speech of the noble Lord, Lord Carlile.

If investigators do not yet have the admissible evidence to prefer a charge convincingly, how content should we be that a charge is none the less slapped on the suspect to legitimise continuing detention during the search for more evidence? The noble Lord, Lord Dear, suggested that it would be satisfactory to use what he termed “second division” or holding charges. As my noble and learned friend Lord Falconer reminded us, the threshold test requires that there be no more than reasonable suspicion. It may be there and may already be provided for, but that does not make it a good thing. The suspect, after being charged on the basis of a threshold test, can then be detained for months longer—far beyond 42 days. Why is that preferable to the continuation of pre-charge detention up to a maximum of 42 days, authorised by a senior judge who is persuaded that there is sufficient prospect of the fuller evidence needed for a charge being found?

Lord Dear: The whole point about charging the lesser offence first is that detention without trial disappears immediately. The moment that you are charged in those circumstances, you have access to a lawyer, you know what the charge is, you are put before a court and you are in the normal judicial process. Will the noble Lord comment on that?

Lord Howarth of Newport: I remain uneasy about it. It is rather like the French system, which the noble Lord, Lord Carlile, described to us. It makes me decidedly uncomfortable.

If the Government insist that an adverse inference may be drawn from a suspect’s exercising the right to silence under post-charge questioning, how confident can we be that the interests of justice are being served? If that insistence is not maintained, there remains the problem that continued questioning of the suspect in detention fails to secure the balance between defence and prosecution that procedures in a trial are designed to safeguard. Threshold charging and post-charge questioning will no doubt make the need to extend pre-charge detention beyond 28 days rarer, but they are not flawless means to justice. We are in the disagreeable situation in which the means to secure liberty and justice and the means to secure safety are inescapably in tension.

Like all noble Lords, I do not want Parliament to grant excessive powers to government or their agencies to curtail civil liberties. Our enemies indeed seek to destroy the freedoms that we cherish and that we are proud to claim distinguish our political culture. To overreact to terrorist threats would indeed be to allow our enemies a victory. I agree with that argument. But I do not think that the Government are overreacting in the provision for 42 days.

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