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The Government have sought strenuously to ensure that civil liberties are protected in this Bill. Contrary
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The Bill also contains powerful safeguards once the power is activated. It would not be for the Home Secretary to commit individuals to detention, but for a judge following application by the DPP to do so. It is not the case, as some seem to suppose, that the Government are demanding that Parliament give the Home Secretary the power to bang up anyone as a suspected terrorist at the suggestion of the spooks and the cops. Just as under existing legislation no individual can be detained beyond 48 hours without the approval of a district judge, and beyond 14 days without the approval of a senior judge, so under this Bill no one could be detained beyond 28 days without the DPP having approved the application being made and a senior judge having authorised the extension of detention. Detention could only be extended at any point after the first 48 hours for up to seven days, and after 14 days a senior judge would have to approve each period of extension for up to a further seven days. The whole power to extend pre-charge detention beyond 28 days up to 42 days would lapse after a maximum of 60 days from inception.
Unlike the noble Lord, Lord Thomas of Gresford, who anticipated that the judges would be manipulated by the Executive, I am confident that the judges would not give their approval if they were not truly convinced that an extension of detention was genuinely necessary in the interests of securing evidence to bring an appropriate charge. We can expect the judges to be sceptical and rigorous. They have a fine record of defending civil liberties against the wrongful use of power by successive Home Secretaries. In the field of terrorism, we have seen the judicial challenge to control orders.
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5.30 pm
I have rehearsed these points, which must be well known to your Lordships, because I do not think that they have been given sufficient weight in the estimation of some noble Lords who are critical of the Government and because I am not always sure that the Government’s critics outside Parliament are fully aware of them. Forty-two literary celebrities have taken the Liberty whip. Can such a quantity of intellectuals—and quantity is presumably as important as quality here—be wrong? It is not inconceivable. After all, 364 economists who write to the Times were wrong about the 1981 Budget. Have all the celebrity writers, as good citizens of the democracy they wish to defend, studied the detailed provisions of the Bill?
There may be flaws in some aspects of the Bill—we shall need to examine the provisions for parliamentary oversight—but those issues are for other debates. The issue now is simply whether there should be a power of any kind to extend pre-charge detention beyond 28 days. I believe that, with suitable safeguards, there should, and that the amendment is misconceived.
Lord Goodlad: Briefly, I bring to the attention of the Committee the role of Parliament envisaged in Clause 28, and point out that it cannot work well and should therefore be revisited. Your Lordships’ Select Committee on the Constitution, in its report of 5 August, said that, in seeking ways in which Parliament may be involved in decision-taking about police detention of terrorist suspects, the Bill risks conflating the roles of Parliament and the judiciary—the noble Lords, Lord Thomas and Lord Carlile, alluded to this—inviting Parliament and the judiciary to ask and answer similar questions; placing on Parliament tasks it cannot effectively fulfil; and risking undermining the right to a fair trial of the individuals concerned.
Under the Bill, an order declaring the reserve power exercisable will, like normal legislation, be expressed in general terms and will, on the face of it, merely permit the DPP to seek warrants for further detention from a court. However, the reality would be that the order would be made in relation to investigations into particular individuals. As the Home Secretary has acknowledged, the debate on an order is likely to include the “outline of the plot” and,
Your Lordships’ committee found principled and practical difficulties with this arrangement. Members and Select Committees of both Houses would have to tread a tightrope between exercising parliamentary privilege and duty of free speech to ensure proper scrutiny while, on the other hand, avoiding remarks, individual or collective, that might serve to prejudice fair trails and threaten the independence of the judiciary. Effective debates in Parliament would need not only to avoid touching on potentially prejudicial matters but also to ensure scrutiny commensurate with the fact that individual liberty would be at stake. Parliament would operate without knowing the full factual background. The Home Secretary’s legal advice would be redacted to remove material the disclosure of which might damage the public interest or prejudice a prosecution.
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Lord Foulkes of Cumnock:The noble Lord is arguing, as have others, about the impracticality of these provisions. Is it not ironic that these provisions were put in as concessions to the critics of the Bill? Is the noble Lord now agreeing with me that it would be better for the Government to go back to its original proposals?
Lord Goodlad:I am afraid that I am not agreeing with the noble Lord, whose knowledge of irony is unparalleled.
Your Lordships’ Select Committee asked the Minister in correspondence to provide details of what matters would be appropriate or inappropriate for debate in Parliament on a resolution to affirm a reserve-power order. No such further details have been provided. Your Lordships’ committee is unconvinced that the Government have properly thought through the proposed scheme. It expressed concern that, under the Bill, Parliament would be asked to make decisions that, in the circumstances, it is institutionally ill-equipped to determine. Far from being a system of checks and balances, the proposals before us are, in the view of your Lordships’ committee, a recipe for confusion that places on Parliament tasks that it cannot effectively fulfil and which could undermine the right of fair trial for any individuals concerned. This proposal should therefore be resisted.
Lord Brett: My noble and learned friend Lord Morris has been seeking your Lordships’ attention for a long time.
Lord Morris of Aberavon: For any substantial change in our fundamental rights, we should endeavour to find a consensus. I have tried with my colleagues over a number of years to find a way forward. I fear that the Home Office is not listening, and its stubbornness will end in defeat.
The loss of liberty has been progressive. At Second Reading, the noble and learned Lord, Lord Mackay of Clashfern, reminded us that he was wrestling with the concept of four to eight hours when he was Lord Advocate. When I was Attorney-General for Northern Ireland, I got by with seven days. I was persuaded by Mr Andy Hayman of the complexity of modern terrorist cases, and that they posed new challenges. I regret that further and more detailed investigation later proved to me that there are other means of achieving probably the same results.
It is clear that the present 28 days have proved adequate to date. In an imperfect world, one cannot be absolutely certain that there will never be new challenges. If they ever have to be met—I hope that that will not happen—the Bill is not the means of doing so; rather, there should be a wholly judicially supervised solution. The very safeguards that the Government have sought to insert wholly undermine its workability. Confusing parliamentary and judicial functions is a recipe for disaster. The more detailed the material provided, the more prejudicial it will be. The Home Secretary suggested topics for debate, but I fear that they lack intellectual rigour: the outline of the plot, the number of suspects
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I am grateful to the Minister for seeing me. Despite the fact that the noble Baroness, Lady Manningham-Buller, had shot the Government’s fox at Second Reading, he prefers those with experience in the job of prosecuting; that is, ACPO. The noble Lord, Lord Dear, has brought us up to date this afternoon and told us that there is more than one view among the police. Perhaps Mr Hayman’s recent views in the Times may temper his assertion. What is strange is that no one at the coal face was consulted before legislation was introduced—
Lord Morris of Aberavon: Four ex-law officers who actually have been in charge of prosecutions in this country, and who have opposed this measure, were not consulted. The DPP, who at the time of giving evidence to the Select Committee had not met the Home Secretary, the Prime Minister or the Metropolitan Police Commissioner, was satisfied with the situation as it was. “It suits me nicely”, he said. What about those at the coal face whose job is to prosecute these cases from day to day? I have conducted my own investigation and I do not accept that we can proceed without a much more detailed consultation with persons such as the DPP and Treasury counsel who have to present cases to juries.
The key to the refinement of my views was referred to in detail by the noble Baroness, Lady Mallalieu—I shall shorten it—namely, that adequate machinery is available, particularly in the form of the lower threshold of charging, which has been in operation since 2004. Instead of charging on a realistic prospect of conviction, it is sufficient to have a reasonable suspicion that a suspect has committed an offence. That is the lower standard. We should spell out what happens very carefully. If the second lower standard has been adopted, the crucial stage then is the bail application or an application to dismiss before a judge. By this time, at least an outline of the case will have been served on the defence. The strength of the evidence will be rigorously considered by the court and, after determination of this application, the case will have to pass the full code test within a reasonable time. There is no target of 28 days and I am confident that, as regards the reasonable time issue, the judiciary will act correctly and interpret that provision properly. The case will be reviewed by prosecutors at regular intervals and in the mean time the investigation can continue and, when available, notices of evidence supplementing and overtaking the outline will be served.
All this time the defendant will be subject to the jurisdiction of the court. This will inevitably involve staged service of distinct sections of evidence. The evidential case continues to develop until the full case is served, but often beyond that as terrorism cases are frequently large and wide-ranging. I ask the Minister
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A criminal case is an ongoing process with various important and well established hurdles to be jumped on the way. It is our duty to preserve both the liberty of the subject and the security of the state, or, as I prefer it—the old fashioned words—the “Queen’s peace”. I fear that I cannot support the Government on this issue in the Lobby.
5.45 pm
Lord Lyell of Markyate: I am most grateful for the opportunity to follow the noble and learned Lord, Lord Morris. He could not have put the matter more clearly or more succinctly. I shall be brief and concentrate on the key point because I agreed with every word he said. He has done the Committee a great service. I, too, support the amendment in the name of the noble Lord, Lord Dear. I agree with what he said and I certainly agree that we are faced with a very grave threat. If the case were made out for doing what the Government are asking us to do, I think that we would all do it, but it is not.
The key reason for rejecting the 42-day extension on which I wish to concentrate is simply that it is not necessary. Sir Ken Macdonald, the outgoing Director of Public Prosecutions, has made this clear from the outset. I wrote to him personally on 20 May this year, asking for further information about the threshold test. I wrote because I had precisely the anxieties which motivated—although I disagree with the result—the rather passionate words of the noble Lord, Lord Carlile of Berriew. I wanted to find out whether the threshold test was sensible and worked properly, and exactly how it operates. On 4 June I received an extremely helpful five-page reply, which can be found at appendix 3 on page 28 of the report of your Lordships’ Select Committee on the Constitution. It well repays reading because it probably answers most of the questions that have arisen. It shows that we have a satisfactory system in which all relevant cases have been charged well within 28 days. Only eight cases have gone beyond 14 days, and of those only four have had to use the threshold test for charging. This is the test of reasonable suspicion that a terrorist offence has been committed with a prospect of further evidence within a reasonable time as opposed to the full test of the code for Crown prosecutors, which is that there is already sufficient evidence to give a realistic prospect of conviction. The DPP’s letter is absolutely clear that no case will go on to trial unless the prosecutor—very experienced prosecutors are assigned to these cases—is satisfied that there is a realistic prospect of conviction.
The point is that in all terrorist cases, as soon as the suspect is charged he is brought immediately before the court in accordance with Article 5 of the European convention, and questions of possible bail and timetables for delivery of evidence by the prosecution, justification for any delay being sought as a result of the need for further inquiries or examination of laboratory results and a detailed timetable and summary are all presented to the court by an experienced Crown prosecutor and closely monitored and decided by a High Court judge
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I therefore believe that the whole House can be satisfied that all the proper procedures are already in place. The extension to 42 days is not merely unnecessary but is disproportionate, as I think is widely agreed in this House. It is likely to cause at least some members of the Muslim community to feel victimised. The so-called safeguards are contrary to principle, almost certainly unworkable and risk damaging the prospects of a fair trial. These are powerful objections and I very much hope that this unwise proposal will be rejected.
Lord Clinton-Davis: Why was that not argued previously in relation to 28 days? Is it not germane? What the noble and learned Lord is arguing at the moment is irrelevant as far as the basic point is concerned. Equally, what he is arguing is relevant as far as the 28 days are concerned.
Lord Lyell of Markyate: The noble Lord is right, of course—it is relevant to 28 days. I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick, who expressed his serious worries about our proceeding even as far as 28 days. When you have a threshold test to charge, it is certainly a relevant point, but the Director of Public Prosecutions explains in his letter that only eight cases have had to go beyond the 14 days and only four of them have had to use the threshold test. We are where we are. We have 28 days. We should not go further.
Baroness Ramsay of Cartvale:I listened with the greatest of interest to the intervention of my noble and learned friend Lord Falconer, because I remember how supportive he was of me when I moved an amendment for 90 days of pre-charge detention. He has not satisfactorily explained how things have changed.
I have lost count of the times that I have spoken in this House for an increase in pre-charge detention, and the arguments have not changed. They have not changed because the reasons for the need for them have not changed. I am as convinced now as I have ever been that having a maximum of 28 days in our legal system is inadequate for the terrorist challenge that we face. The senior police officers who are—listen carefully to the adverbs that I use— currently, directly and operationally involved in counterterrorism all say that they believe that we need more than 28 days and that they need more than 28 days. What has changed under the Bill is the way in which the Government propose to meet the requirements. This is a reserve power to extend the pre-charge detention limit up to 42 days. The need for this falls broadly under two headings. I shall be brief, because most of the arguments are well known.
First, there is often the need in terrorist cases to intervene early. Secondly, there is the growing scale
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The Earl of Onslow: The Home Secretary said that the reason we need this power is that there is a growing threat. When asked to give evidence on the growing threat, she could not produce any. That must destroy that argument.
Baroness Ramsay of Cartvale: It certainly does not destroy the argument. The fact that the director-general of MI5 has said that in public, and the fact that he does not produce chapter and verse of the proof for the committee that the noble Earl, Lord Onslow, sits on, is not very surprising. The former director-general—who is in her place—enumerated that there was an increasing risk in her time, and the current director-general has also cogently explained that there is an increasing risk. The Home Secretary has also said so. Given those sources, there is no doubt about that. People can see it for themselves in the number of cases that are coming into the courts.
There are at least 2,000 terrorist suspects, with 200 networks or cells and 30 active plots. Is that not evidence, when someone who knows what they are talking about says that? The noble Lord, Lord Carlile, says that he is convinced of an increasing threat. The evidence is overwhelming. I will not enumerate the staggering statistics about computers and disks that have to be dealt with now after any arrest. The sophisticated complexity of the material; the enormous increase in computer product, which is often encrypted; the multiple identities of suspects, whereby it can take considerable time to establish who an arrested person actually is; the global reach of the contacts involved, which often means reliance on foreign security and intelligence services for information and for operational assistance, are all factors.
As I have said in this House before, we are very lucky to have security and intelligence services with a long history of close and successful relations with foreign services, which have often been built up slowly and painstakingly over the years. It is a mistake to think that this is easy or automatic, or that such liaisons can ever be taken for granted. Liaison services have vastly different levels of competence, resources and speed of working. In addition, they will pass on only what does not conflict with their own national interest. All that can mean time-consuming waits for information that our services need to proceed with a case.
As I said earlier, what has changed in the Bill is that the Government are trying to deal with a threat of terrorism that is unprecedented in its nature and severity, while trying to preserve democratic principles and practice. They are doing so by introducing unprecedented
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