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The noble Lord, Lord Brooke of Sutton Mandeville, was gracious enough to tell the Committee that he would withdraw his amendment in due course. I will try to answer at least one of his questions: why is there no duty to report a find to a franchisee on whose land

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an object is found? A find must currently be reported to the local coroner. Our changes will see a duty to report any find to the coroner for treasure. The franchisee will be an interested person and will consequently be kept informed of the investigation’s progress once the location of the finding is established. This area may be a matter for incorporation into the code of practice that is to be developed. We will continue to work to improve knowledge of the rules on treasure. That is all I have to say this evening on this matter.

Clause 21 disagreed.

Amendments 73 and 74 not moved.

House resumed. Committee to begin again not before 8.40 pm.

Terrorism Act 2006 (Disapplication of Section 25) Order 2009

Terrorism Act 2006 (Disapplication of Section 25) Order 2009
16th Report from the Joint Committee on Statutory Instruments

Motion to Approve

7.41 pm

Moved By Lord West of Spithead

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, the Government agreed during the debates on what became the Terrorism Act 2006 that there should be a requirement for the annual renewal by Parliament of the 28-day time limit. Section 23 of that Act extended the maximum period of detention of terrorist suspects before charge from 14 days to 28 days. Section 25 of that Act says that the period of detention will revert to 14 days unless the 28 days are renewed by order for a period of up to a year. The order maintains the 28-day maximum limit for a further period of one year, beginning on 25 July 2009.

Terrorist investigations can be immensely time-consuming, and the increase from 14 days to 28 days was necessary primarily as a result: first, of the greater use of encrypted computers and mobile phones; secondly, of the increasingly complex nature of terrorist networks that have to be investigated—they quite often run through many, many countries; and, lastly, of the increasingly international nature, as I say, of terrorist networks. There are huge language difficulties and there is great difficulty in getting this evidence from abroad, which all adds to the complexity.

The potential consequences of a terrorist attack are of such magnitude that it is imperative that the police have the powers to arrest terrorists before they can achieve their goals. The current threat level remains at severe, where an attack is highly likely. Jonathan Evans, director-general of the Security Service, has recently stated that there is enough intelligence to show intent to mount an attack and that it could happen at any stage.

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When a terrorist plot is uncovered, due to the likely severity of an attack, law enforcement agencies often have to intervene at a much earlier stage in the investigation than they would like. I have to say that I encourage them to do that. As a result, at the point of arrest the information that the police have available to them may be based more on intelligence than on admissible evidence. This is one of the fundamental ways in which terrorism is so different from other crimes. Therefore, unlike other forms of crime, proportionately more work needs to be done on the investigation after an individual has been arrested.

The decision to extend pre-charge detention from 14 days to 28 days in the Terrorism Act 2006 took account of these practical difficulties, and it has been justified by subsequent events. It means that we have been able to bring prosecutions that might otherwise not have been possible. Since the power came into force in July 2006, 11 people have been held for more than 14 days, and six people have been held from between 27 and 28 days; of these six, three were charged with terrorist-related offences. The last person to be held for more than 14 days was held on 30 June 2007 for 18 days, 17 hours and 48 minutes, which shows the flexibility of the length of time for which people are held.

I should point out that the existing application for an extension is a very rigorous process. Those who are arrested can be detained for 48 hours, after which the police or the Crown Prosecution Service may apply to a judicial authority for a warrant of further detention. This is to a designated magistrate for applications for up to 14 days’ detention, and to a High Court judge thereafter. A Crown Prosecution Service lawyer makes the application for extensions beyond 14 days. Defence solicitors are provided in advance of each application, with a written document that sets out the grounds for the application.

At the extension hearings, the senior investigating officer is present, and the applications are usually strenuously opposed and can last for several hours. The officer may be questioned vigorously by the defence solicitor about all aspects of the case. Applications to extend the detention period may be made for up to seven days at a time or quite often for less; it may be a matter of only a day or two. Suspects can be held only for the purpose of obtaining evidence in relation to criminal offences. They cannot be simply detained for public safety reasons. This means that once the police have exhausted their questioning of a suspect, the person must be either released or charged regardless of how many days they have been detained for.

A recently published report by Her Majesty’s Crown Prosecution Service Inspectorate highlighted that the Counter Terrorism Division of the Crown Prosecution Service,

As I have already noted, all 28 days have been proved to be necessary, and while the full 28 days have not been needed over the past 24 months that does not mean that they might not be needed again in the near future. The threat level cannot be ignored, and it is simply not possible to predict what might happen over

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the next 12 months. All of us on all sides of the House appreciate the seriousness of the terrorist threat that we face and the importance of having the right measures in place to counter that threat. Terrorism is a huge international challenge, but it is a particular challenge for democracies, which must strive to protect individual liberties while ensuring collective security. It is vital to strike the balance between protecting the rights of the detainee and ensuring that an investigation proceeds properly and effectively, enabling the police to deal with the complexity of modern terrorism investigations. I hope that the House agrees that this order achieves this, and I commend it to the House.

Amendment to the Motion

Moved by Baroness Miller of Chilthorne Domer

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for introducing the order. At least this year we are debating it without any other confusion, such as the proposition to extend detention to 42 days. We now see that that proposition, which we on these Benches strongly resisted, was absolutely unnecessary. I am sure that even the Minister and the Government can accept just how unnecessary it was.

Today we consider whether we should simply renew the 28-day detention with barely a murmur or a question. Every time we consider these special and extraordinary provisions, we must be clear that the goal is to return to what we all accepted as normal pre-9/11: that no one could be held without charge for longer than four days. I want to highlight how different things are now. It is important to remember that we are at seven times the normal limit.

I will not dwell on some of the other details that we have rehearsed many times in your Lordships’ House. The Minister touched on a few of them, including the issue of the suspect’s access to a lawyer and what that lawyer may address. I am sure that my noble friends may touch on those issues. I should like to emphasise the importance of the steps that we make to return to normalcy. I ask the Minister to prove today that reverting to 14 days pre-detention as laid down in the Terrorism Act 2006 is neither desirable nor even, it seems, the goal that the Government seek to attain. The Minister said himself that, in the past 24 months, neither 28 days pre-detention nor anything like it has been used. In fact, the statistics in the independent assessor’s report bear out the fact that a return to 14 days is a practical proposition.

I should like to question the reasoning that the Minister laid out for the 28 day maximum. The Government should provide the evidence to back up

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the assertions because the statistical evidence is pointing the other way. I will take the Minister’s assertions one by one. He says that there is an increasingly complex nature of terrorist networks. He would accept the strategy—because he, with his department, wrote it—that vastly increased resources are going into counterterrorism. At the time he published the strategy the figure was £2.5 billion, rising to £3.5 billion in 2011—and a Security Service personnel that has doubled in size. The Government impressed upon us that they had a new strategy and better targeting when they launched that strategy in March this year. So, while the terrorist networks may be more complex, the tools that the Government have are increasingly more substantial.

The Minister mentioned the increasingly international nature of terrorist networks, meaning greater language difficulties and a greater need to gather evidence from abroad. I am sure that the Government maintain a good network of interpreters and translators. That is never going to be a sound reason for having such a departure from our normal rules of law and justice. I am not sure whether the Minister mentioned in the Explanatory Notes the difficulty of entering premises to search for evidence where it is suspected that chemical, biological, radiological or nuclear material may be present. Legislation allows access to premises. The technological challenges, if they are that severe, are not likely to disappear on day 28.

The Minister mentioned the need to intervene early in some terrorist investigations due to the public safety consequences of a successful terrorist attack. We had an example of that this year with the arrests in the north-east after Bob Quick inadvertently let slip information about the operation when his papers were photographed. The people were arrested early and released without charge well before 14 days. Then there is the question of the encryption of computers. As the noble Baroness, Lady Kennedy of The Shaws, mentioned some time ago, when we were debating 42 days, that is an issue of getting more computer experts to bear on the problem. Again, it is not a sound argument.

It was very useful that the Joint Committee on Human Rights published its report today at five o’clock. We have the benefit of its views. The Joint Committee believes that it is impossible for it, or for Parliament in general, to assess whether the 28-day limit is necessary without a proper independent investigation of whether those who have been held for more than 24 days could have been released or charged earlier. That has been mentioned to the Government before. Although the report on the operation of the Terrorism Act was published in June this year, and although it contains useful statistics, it does not contain any sort of qualitative assessment to give us an indication of what we are dealing with.

This suggests that the Government do not intend to move away from 28 days at any time in the near future or, indeed, ever. Liberal Democrats are deeply unhappy at this rubber-stamp renewal. We were equally unhappy with the automatic renewal of control orders, in respect of which the Government’s approach was found wanting by the Law Lords. If the Government pursue this order today, we believe it will mean that exceptional

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legislation stays on the statute book year after year. Doubtless the terrorist threat will not go away for a generation. I am not underplaying the serious nature of that threat. However, given the Government’s approach, we are looking at keeping 28 day detention for a generation. We do not accept that is a desirable position. We urge the Government to develop their thinking and to return with a plan, and the actions necessary, to move us back to at least 14 days before this provision is renewed again. I beg to move.

Lord Judd: My Lords, I am sure we are all agreed that during the past two years no one has been held for more than 14 days. I suspect that we all also agree that the fact that this power has not been used is not in itself an argument that it is not needed. However, to uphold the system of justice that we hold so dear and that we are determined, as it is crucial to our society, that terrorists and extremist will not take away from us, it is essential to be certain that that power is necessary.

This point was accepted by the Secretary of State for Justice in a recent lecture at Clifford Chance on 12 May, where he argued, I understand, that UK counterterrorism law was,

He was reported as saying:

“There is a case for going through all counterterrorism legislation and working out whether we need it. It was there for a temporary period”.

This debate is important because it would be absolutely disastrous if we slipped into an easy habit of making temporary legislation de facto permanent and, thereby, in my estimation, giving the extremists a victory, which would be very unfortunate. I am one of those who believe that one of the things that we are defending in our society is our system of justice.

What is the justification for extending it to 28 days again? I noticed today that the Joint Committee on Human Rights has produced a report that raises some important questions in this respect. I wish that it had done it a little earlier. I know, because I have heard him say it, that my noble friend takes the findings of the Joint Committee on Human Rights extremely seriously. I am therefore a little surprised that he did not refer to its report. I hope that, before we conclude our debate, he will take up the points in its report and deal with them in detail.

One of the questions that the Joint Committee raises is whether the procedure by which the judge who authorises detention up to the maximum period during the 28 days provides sufficient, robust and adequate standards. Information can be withheld from the suspect and his lawyer and they can be excluded from hearing it. Another specific question that the Joint Committee on Human Right raises is whether this is compatible with the UK’s human rights obligations.

8 pm

In the first year of the 28-day limit, three people were held for almost the maximum period, but that was before being released without charge. What detailed, careful analysis has been made by the Government of the lessons to be learnt from that? If those people were

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released without charge after almost 28 days, there must be lessons to be learnt if no charge was possible. I would suggest that the Joint Committee on Human Rights is absolutely correct to underline that to have a proper evaluation in a debate of this kind it is necessary to see such an evaluation by the Government in order that we cannot just be by good will persuaded, but by the force of intellectual argument persuaded that these exceptional powers are necessary.

What are the implications for the principle of the presumption of innocence, which I hope will remain central to our system of law, although I sometimes begin to become a little fearful? I believe that one of the great things about British law is that there is a presumption of innocence. What does all this amount to in terms of that very important principle for our whole society and its way of operating? What are the implications for a fundamental right to a fair hearing? It is absolutely central to our system of justice that people should know why they are being held and being charged. That goes back centuries in our history. It was fought for with tremendous commitment and courage in our history and evolution.

I am not saying that the system may not be necessary, but it is very important to hear detailed argument of why it remains important and not just to say, “Oh, we renewed it last year and the arguments are the same so we will renew it this year”. It means that for yet another year we have not been operating by the standards we set ourselves. Therefore, to renew that for another year, we need to hear the arguments now and not just accept the arguments from last year. What are the implications for justice being seen to be done, which I have always again seen as central to our system of justice? What about the good will and co-operation of ethnic minority communities? From talking to police officers and others who are working on the front line with such communities, I know that co-operation and good will are absolutely essential in this vital task of holding the situation against extremists and preventing outrages against the population as a whole.

I raise these questions because I believe that we have heard a sincere argument by my noble friend. I do not question his sincerity, nor do I question his commitment to British justice. But it seems to me that if we are undertaking a review seriously, year by year, and mean that, as the Secretary of State for Justice suggested we should, it is important to hear much more detailed, rigorous arguments as to why we should continue overriding absolutely fundamental principles in our system of law.

Lord Goodhart: My Lords, I support what the noble Lord, Lord Judd, has just said, with which I agree very warmly. The Joint Committee on Human Rights has criticised this order. It has not said unequivocally that the order is improper, but it has indicated that whichever Government are in office this time next year they must produce a stronger case if they wish to renew the 28-day detention power. The present Government are likely to be in office for at least the next nine or 10 months. Will they therefore begin to undertake the reviews that have been recommended by the committee in paragraphs 25, 29 and 36 of its report?

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Baroness Neville-Jones: My Lords, last year we debated this order when the Government proposed to extend the period of pre-charge detention to 42 days, as the noble Baroness, Lady Miller, reminded us. Having been defeated, the Government still have on the stocks, it is important to remember, what they call the temporary Bill to extend pre-charge detention to 42 days, which they have not submitted to pre-legislative scrutiny. I note that, because it is in the background of the Government’s proposal that they should retain the 28 days. There is a desire in certain circumstances to go further.

I want to reiterate the point that I made last year; namely, that the need for Parliament to renew Section 23 of the Terrorism Act 2000 on an annual basis demonstrates that the extension from 14 to 28 days maximum is already an exceptional power, as the noble Lord, Lord Judd, just said. We scrutinise it frequently because it is such a dramatic departure from normal practice. Certainly, the object on these Benches is that the period of pre-charge detention should be reduced. We have great sympathy with the amendment tabled by the noble Baroness, Lady Miller. We agree with her that other methods should be used to bring charges at an early stage; she detailed a number of them. I add the possibilities for a more flexible threshold test than already exists, the post-charge questioning possibility and the increased resources that certainly, as she rightly reminded us, have been provided to the security services.

One might legitimately ask if the power is still needed based on its use to the present date. A number of the previous speakers have mentioned the statistics. The Government’s statistical bulletin on terrorism arrests and outcomes since 2001 shows, as has been said, that in 2006-07 10 people were held for between 14 and 28 days, of whom seven were charged and three released without charge on the last day of the 28 days. In 2007-08, one person was held for more than 14 days before being charged on the 19th day. Since March 2008, no individual has been held longer than 14 days. So, as the noble Baroness, Lady Miller, said, the statistics do not of themselves demonstrate a continuing need. That certainly shows the importance of review.

However, the statistics are only one part of the debate that we need to have. We on these Benches certainly recognise that the terrorist threat is increasingly complex. There is no argument about that. Even though the power has not been used in the past two years, that does not of itself demonstrate that the extension to 28 days is no longer necessary, as the absence of evidence is not evidence of absence. However, it is imperative that the Government make the case, as has been said by other speakers.

In their Explanatory Memorandum to the order, and as repeated by the Minister, the Government put forward five reasons to justify the need for extension to 28 days. These reasons are based on the evolving and ever increasing complexity of the terrorist threat and include: the greater use of encrypted computers; the increasingly complex nature of terrorist networks; the international linkages in plots and the need for putting everything together; and the difficulty of entering premises—these are all matters to which he referred. The fifth reason, of course, is the need to intervene

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early in some terrorist cases, which results in the investigators having less time to gather admissible evidence prior to arrest. These are all relevant considerations, as are the points made by the noble Baroness, Lady Miller.

On thinking back to the 12 arrests in Manchester recently, I find it worrying that, following an investigation based on what was said at the time to be strong intelligence into what the Prime Minister described as a serious terrorist plot, the police have not been able to present sufficient evidence even to lay charges against any of the arrested, let alone obtain convictions. There has been no explanation for this and what happened unavoidably gives rise to questions about the procedure followed. It is also the kind of episode that has the potential for greatly increasing communal tension in this country.

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