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The committee’s second report of this Session therefore recommended a statutory regime to govern the hearings that give warrants for further detention. We suggested that there should be more stringent requirements about the information that must be contained in the statutory notice given to a suspect before such a hearing; that there should be measures to define more closely the power to withhold information from the suspect and his or her lawyer; that there should be provisions for special advocates to represent the interests of the suspect at any closed part of the hearing; that there should be express provision for the right of the suspect to cross-examine the investigation officer; and that any restrictions on disclosure or participation are subject to the overriding requirement that the hearing of the application be fair. We have attempted to put those requirements into our amendment. I hope very much that the Minister will feel able to enter this discussion with us about how far the safeguards for extending detention from 14 to 28 days are satisfactory and in accordance with our human rights requirements. I beg to move.

Lord Lester of Herne Hill: I have put my name to this amendment, as well as being a member of the Joint Committee on Human Rights. The noble Baroness, Lady Stern, has said everything that needs to be said. I should like to add one or two points. Although this issue may now seem academic in one sense, it is not at all academic because the Home Secretary’s Statement in the other place has indicated that a Bill is in the offing, if and when it is needed, which would extend the period of detention without trial beyond 42 days.

I deeply regret the part of the Home Secretary’s Statement, which says that she deeply regrets,

That is a most impertinent thing for her to have said if it refers to those of us in the opposition parties and on the Cross Benches in this House, and those on the Back Benches from the Labour Party who have disagreed with the Government’s judgment.

I, working with Roy Jenkins in 1974, was involved in fashioning the first prevention against terrorism Bill. I was much involved also with advising him, as he recalls in his memoirs, on effective steps to counter terrorism. The notion that those who disagree with the Home Secretary’s judgment are prepared to ignore the terrorist threat is preposterous. I am very sorry that

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that was said. I very much hope that that is brought to her attention by her admirable advisers.

This amendment seeks to introduce a limited but further form of natural justice into the procedure. I shall not make a long speech, but, as everyone knows, it is a cardinal principle of our system of justice that you are entitled to know the case against you, to have a fair opportunity to rebut it, to have proper access to legal advice and to be sure that there are reasonable grounds for the conduct of which you are suspected to have been guilty.

My only direct experience of these procedures was on the related issue of the proscribed organisations procedure where I once represented a body which was trying to avoid proscription. As its advocate, I am bound to say that a very nasty taste was left in my mouth when it said, “We are going to withdraw from the proceedings because we do not believe any longer in British justice”—and it did. Having talked to some of the special advocates, I know that there is considerable concern among many of them about the present procedure.

What this seeks to do is obvious to anyone reading Amendment No. 34, in particular, and I shall not add to it. We would be very interested to know the current view of the Home Office. Although we will not divide the Committee today, this probing amendment is important for the future.

9 pm

The Earl of Onslow: In his speech on Amendment No. 29, the noble Lord, Lord Thomas, mentioned an incidence of what we dislike in the clause and why we wish to change it. I think I am right in saying that he spoke of extensions for four different people, all submitted with exactly the same wording basically along the lines of, “We think he’s done something naughty and we need to go on”. Those were not the exact words, but the implication of what he said. We really must get out of the habit of not telling people what the charge against them is. It is an ancient liberty which should be protected, and I hope that when the noble Lord comes to reply, he can give us some satisfaction on this point. If not, we will have to go back to the barricades on Report.

Amendments Nos. 35 and 36 are in this group. Amendment No. 36 provides for the:

“Lower threshold for charging in terrorism cases”.

I am not a lawyer, although I see quite a few legal eagles around the place who will either put me right or shut me up, but it seems that this would make the threshold charge clear to anyone who reads it. To me this clause is a pretty clear statement of what one wants the threshold charge to be. Obviously as I put my name to this amendment, I support it and wish to draw the attention of noble Lords to it.

Lord Lloyd of Berwick: As a non-member of the Joint Committee on Human Rights, I express my sympathy for my noble friend’s amendment. I have long been worried that the judge who has to make the decision to extend the period of detention does not really have the material on which to make a proper

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decision. My solution to this quite important problem would be to create a new appointment of an independent commissioner who would be entitled to attend interviews at Paddington Green in all terrorist cases. His function would be similar to that which was once fulfilled by Sir Louis Blom-Cooper at the holding centres in Northern Ireland, and proved extremely effective. This new commissioner—I do not know what he should be called—should be entitled, whenever he wants, to attend interviews at Paddington Green to see how well the police are getting on the with the job with which they are charged. However, the important point is that he should also be entitled to attend the hearing before the judge at which the prosecution makes an application for an extension of time. From his independent position, he would then be able to put the judge in a position to say how well in his view the police were getting on with the job.

As the noble Lord, Lord West, will remember, I suggested this idea many moons ago. At first it received what I would almost say was a good deal of support from the government Benches, but when I pressed it, it somehow did not get any further. But in the light of my noble friend’s amendment, I have thought seriously that I might bring this back at a later stage because it would be a simpler and probably cheaper way of achieving the objectives that she has in mind.

Lord Thomas of Gresford: I follow what my noble friend Lord Lester said. We welcome the noble Lord, Lord Mandelson, into our midst today, but it appears that he has brought with him some of the spin that we so deplored in the Administration of the previous Prime Minister. When the Home Secretary says, “I deeply regret that some have been prepared to ignore the terrorist threat for fear of taking a tough but necessary decision in relation to our deliberations today”, it is clear that spin has come back into the Government’s armoury. I deeply resent the suggestion that we have ignored the terrorist threat by our decision. I have made the point over and over again that we oppose the proposals put forward by the Government because we believe that they would increase the terrorist threat by alienating a significant part of the community of this country. We feared that what they were doing was more likely to increase terrorism than otherwise. We on these Benches have no fear of taking tough and necessary decisions and I suggest we have an election so that we can be over there to take those decisions.

Lord Lyell: I apologise to the Committee. I came in late, listened to the interesting and wise words of my noble friend Lord Onslow—there are more to come—and I was delighted to hear from the noble and learned Lord, Lord Lloyd. My noble friend referred to Amendment No. 36. Subsections (3) and (4) of the proposed new clause seem to put this issue in lay-man terms. As my noble and learned friend Lord Mayhew knows, I am a mere chartered accountant so I have no major or professional interest in this part of the Bill. However, I was interested to see that proposed new subsection (4) encapsulates much of what we were discussing and voting on earlier. It is particularly important and I am sure the Minister will be able to give major consolation to both my noble friend and the noble and learned Lord, Lord Lloyd.

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Lord Dubs: My noble friend Lord Mandelson has not made his maiden speech—he was introduced to the House only a few hours ago—and I am surprised that he is already being attacked.

Lord Thomas of Gresford: Let me make it clear that I am not attacking the noble Lord, Lord Mandelson. I shall be very interested to hear his maiden speech. I am attacking the introduction, once again, of spin as the Government try to explain away the decision that we took today.

Lord Dubs: There are more important things to discuss tonight than that, but I cannot understand why the noble Lord mentioned my noble friend Lord Mandelson at all if he was not proceeding to attack him. Certainly the juxtaposition of his criticism of spin and the name of my noble friend Lord Mandelson seemed to be very close indeed. He is not going to win that discussion.

Amendment No. 71 is concerned with granting bail in terrorism cases. As I understand it, bail cannot be granted in terrorism cases. The point of the amendment is to probe what the Government have to say in response to a suggestion that in certain and, I am sure, limited circumstances it might be appropriate for the court to order pre-charge bail. It may not happen very often and would have to be handled sensitively—clearly, for the most serious offences it would not be appropriate—but there might be a situation when it would be sensible. I hope my noble friend will comment on it when he replies.

Baroness Neville-Jones: First, I share some of the sentiments that have just been expressed by the noble Lords, Lord Lester and Lord Thomas, and I shall give more of our reaction tomorrow when the Statement is repeated in this House. Secondly, some of the amendments we are discussing, which are based on the work of the Joint Committee, are very interesting and the noble and learned Lord, Lord Lloyd, made an interesting suggestion. We will think about these and come back to them on Report.

Lord Mayhew of Twysden: On the basis of some experience in Northern Ireland, I support the suggestion made by the noble and learned Lord, Lord Lloyd, about a counterpart to the commissioner appointed to review procedures in the holding centres in Northern Ireland. That post was established in my time and was held by Mr Louis Blom-Cooper QC, who at a very early stage established the full confidence of all concerned. It was effective, it was cheap and it worked extremely well. I add that as an addendum.

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): I hope that I have never given the impression that I have had any view in this House other than that all of us have the interests and the safety of our nation and our people in mind. I might have different views as to how that should be achieved but that is very healthy and is what happens here. I would be horrified if I thought that any of us thought otherwise. I hope that I have never done anything to give that impression and I would be shocked if I had.

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The Earl of Onslow: Will the Minister please inform the Home Secretary that that is his view, with which I completely concur? She was not exactly polite and rather disingenuous in what she said; I am being polite and House of Lords in the way in which I criticise her.

Baroness Miller of Chilthorne Domer: While I appreciate that the Minister usually expresses very positive sentiments, he said something which surprised me. In his summing up, he said that it was all very well for those who would never be in government to vote like that. Perhaps he was referring to the Cross Benches or perhaps he was taking a particularly optimistic view of his own party’s position. However, that statement was not one which I would normally imagine him making.

Lord West of Spithead: The noble Baroness should not assume that I automatically meant her party. Something I have come across throughout my career is that people who have responsibility for something often have a slightly different view of it. That was all I meant.

The noble Baroness, Lady Stern, said that the amendments were exploratory, and I shall take them all together. On Amendment No. 34, we believe that extension hearings are already fully adversarial and that most of the proposals put forward in the amendments are already covered in existing provisions on the extension of detention in Schedule 8 to the Terrorism Act 2000.

It is already a requirement that public authorities act in accordance with the ECHR under the Human Rights Act 1998. Nothing in Schedule 8 might require a judicial authority to act in any way other than compatibly with Article 5.4 or any other convention right, so the proposed new paragraph 29(7) is completely unnecessary. The extension hearings are a mechanism by which we give effect to Article 5.4. They provide a judicial hearing under which the lawfulness of the suspect’s detention is reviewed.

Schedule 8 to the Terrorism Act 2000 already provides for the detained person to make written or oral representations and be legally represented. Extension hearings apply only to people held on suspicion of terrorist offences or involvement in terrorist activity in any event. The prosecution must demonstrate to the judge that there are reasonable grounds for believing that the further detention is necessary, that the investigation is being conducted diligently and expeditiously and why more time is needed to obtain, preserve, examine or analyse relevant evidence.

Sometimes an ex parte hearing—closed part—is required during the application process to authorise the withholding of information from the detainee. These are not routine and can be ordered only on limited and proportionate grounds. They are only a part of the process and are closed for a reason: for example, to prevent evidence being destroyed or that others might be alerted to the detail of the investigations. The judge may also exclude the detainee from part of the application hearing itself under paragraph 33. The grounds on which this exclusion may be made are left to the discretion of the judge. This process has been endorsed by the House of Lords in the case of Ward vPolice Service of Northern Ireland. The detainee may need to be excluded where, for example, the judge

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wants to examine with the police what further lines of inquiry they wish to put to the suspect in interview. The police are entitled to withhold this information from the suspect until the interview itself; therefore, only by excluding the suspect could the judge examine the legitimacy of this reason for why further detention is necessary.

Conducting this examination is in the detainee’s best interests; it ensures that there really are proper lines of inquiry left to conduct. However, it is important to note that closed hearings get rarer as time goes on. In fact, in extension applications for 17 individuals after the 14-day point, only one ex parte hearing has been conducted by the prosecution.

We continue to believe that extension proceedings are currently fully adversarial. The one that I saw at Paddington Green was amazingly thorough. It gave the man the opportunity to know what was going on and gave the judge the opportunity to really see what the police were doing; indeed, the judge gave the police a hard time and granted them only a small extension. The suspect is entitled to legal representation and to be present at the open part of the hearing.

9.15 pm

Lord Lester of Herne Hill: The Minister describes the process as fully adversarial, but am I right in thinking that a fully adversarial procedure would entitle the suspect to, as subsection (3) of the proposed new clause says,

I am not talking about the evidence. I quite understand the reasons for excluding the person, for closed hearings and for all the rest of it, but am I right in saying that the procedure is not in any normal sense fully adversarial, as what is mentioned in subsection (3) is not at the moment provided to the person concerned?

Lord West of Spithead: It is not fully adversarial in the sense of a full court of law where the suspect has been charged; it certainly is not that.

Lord Lester of Herne Hill: This is a matter of natural justice. We are not concerned whether there is a full court of law, but am I not right in saying that the suspect does not have,

and that he is not given,

Lord West of Spithead: The detainee is made aware that he is there on suspicion of terrorism, but he is not given such information because he can pass on details of that and make changes to it when he is talking to his lawyer or in any way that he wishes.

Lord Lester of Herne Hill: I will not go on, but I am not talking about details. The amendment refers to,

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In other words, it is a summary, which does not have to disclose chapter and verse. However, the suspect is not given that at the moment, is he?

Lord West of Spithead: That is correct.

Lord Thomas of Gresford: Is the noble Lord aware that, in the Italian case to which he referred in our previous discussion, the statement of what was alleged against the person concerned was available from the preliminary judge within a week of that person’s arrest? The noble Lord was making the point that the person had been held for a year, as though that were before charge, when in fact that person had the opportunity of knowing what was alleged against him and of addressing that.

Lord West of Spithead: I do not know the full details of that case but, as I said earlier, I am wary of making comparisons, because the situations are so different. When we wish to interview someone who is a terrorist suspect in another country, it is interesting to note how long they have sometimes been held. Even though the rules in that country might make it clear that they can be held for only four or five days, they still seem to be there the following year. I do not think that there is any merit in going into that detail, because the situations are so different.

In this case, the suspect’s lawyer is able to cross-examine the investigating officer to challenge the application rigorously. A senior judge oversees proceedings and ensures that the tests for further detention are satisfied before any extension is granted.

Lord Thomas of Gresford: I am sorry to interrupt the Minister again, but is he aware that the Crown Prosecution Service view is that the detainee’s lawyer is not entitled to cross-examine the officer who is bringing the application for extension? He may be allowed to do so in order to assist the judge—that is how it is put—but he has no right to do so. Will the noble Lord research that and perhaps tell us at a later date whether the CPS view is correct?

Lord Lester of Herne Hill: Will the Minister also look into how you can cross-examine effectively if you do not know the basis of the suspicion and the gist of the material? How can you ask relevant questions when you do not know the substance of the case that you are questioning?

Lord West of Spithead: The police have to tell the suspect the basis of the reasonable suspicion—in other words, for terrorism or whatever it might be—and sufficient detail must be available to enable his legal adviser to challenge the basis of his detention.

The Earl of Onslow: The JCHR heard evidence—I am trying to recall it and I think that I am right—from defence solicitors that their ability to challenge in front of the judge was extremely limited. It is emphasised by what the noble Lord, Lord Thomas, said on Amendment No. 29. Furthermore, if the police have

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said merely, “We suspect you of terrorism”, it is so broad that it could be anything. If the officer says, “I suspect you of terrorism”, it is jolly difficult even to begin to run an argument against it because it is so broad and so inchoate.

Lord West of Spithead: Enough data are available for the judge to ensure that proceedings are fair, which will normally allow the detainee or his lawyer to cross-examine the investigating officer. The extent of questioning is controlled by that judge to ensure that it is directed only to relevant matters and does not trespass on undisclosed or more difficult matters. The judge whom I accompanied at Paddington Green was extremely thorough. He went into considerable detail to make sure that it was appropriate for the man concerned to be held while further investigations were going on. He gave them only a very short time. That chap was charged and found guilty later. I was rather impressed by how that was done. I will certainly take away the point of the noble Lord, Lord Thomas of Gresford, and look at it.

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