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We on these Benches have called on the Government to increase the range of evidence admissible in court in terrorist cases to include that derived from intelligence sources, which would help underpin a greater number of successful prosecutions. This call is reflected in the amendment of the noble Baroness, Lady Miller. Yet despite the recommendations of the Chilcot review that it would be in the interests of national security to develop an acceptable way of bringing intercept evidence to court, frustratingly there is still no sign of the completion of the work of the follow-up committee. It would be helpful to know from the Government whether Sir John Chilcot, with his new responsibilities for the Iraq inquiry, will be able to find time in the near future to complete the work that has already been undertaken.

We are all agreed that one of the greatest deterrents to terrorism is getting the guilty behind bars. We should therefore not go on handicapping ourselves unnecessarily by restricting the evidence that is admissible and instead lengthen the period of pre-charge detention to increase the chances of finding other cogent evidence. That is precisely the opposite of the policies followed by common-law countries in similar situations. We on these Benches take the view that we cannot go on indefinitely like this.

As with control orders, we give the Government fair warning that our continued tolerance of extended pre-charge detention on the present basis is wearing thin, and these are the reasons. First are all the points that I have just made about the need legitimately to strengthen the hand of the prosecution in terrorism cases to reduce the resort to derogations from fundamental provisions. Secondly, there is the somewhat elderly information put into the public domain about the nature and extent of the terrorist threat. The reasons put forward by the Government for extending pre-charge detention are certainly not irrelevant, as I have already said, but they are general propositions likely to be more or less valid for a long time to come. They tell us little about the evolving threat or the current security situation and, as has been pointed out, lead to the danger of simply renewing these orders, year after year, without real examination.

The point of the sunset clause is to enable legislators to take an informed view on a periodic basis—and I mean informed. This House needs more information than the Government have provided on the terrorist

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threat and the security situation. As part of today’s proceedings we should be debating a report from the Government on the current threat and the security situation which informs us and the country about its evolution. The noble Baroness, Lady Manningham-Buller, who is not in her place, helped to move us in this direction when she gave a speech to Queen Mary College in November 2006 on the terrorist threat to the UK; her successor, Jonathan Evans, likewise did so in a speech in November 2007 and, as was quoted today, made the odd further obiter dictum. However, the assessment that we have is now getting on for two years old and these two speeches should not be the end of the information put into the public domain on a considered basis; the Minister should be willing to update us.

As I say, as part of today’s proceedings we should be debating lessons learnt from previous terrorist investigations. The Joint Committee on Human Rights has noted for many years one way in which this could be achieved. It has called for an independent review of the practice of detaining people for between 14 and 28 days, conducted by an appropriate body such as the Crown Prosecution Service Inspectorate, to see whether those charged after being detained for more than 14 days could have been charged any earlier. Other noble Lords have made reference to this and it is an important recommendation which the Government should take seriously.

I note that the report published today states that:

“The Government has provided some statistical analysis which is helpful, but it is not enough to allow us to assess whether the extension beyond 14 days pre charge detention is needed”.

Other noble Lords have said this. There seem to me two reasons. There is certainly the need to examine the efficacy of the procedures and, as I said earlier, we need to know more about the security situation.

The Government have not really provided sufficient evidence in their Explanatory Memorandum either to support or reject their reasons for the extension. That brings me to my third point, which is the unsatisfactory nature of the legal framework surrounding the extension of pre-charge detention as it affects the rights of defendants in particular. This, I know, is something that the Joint Committee on Human Rights always looks at, and last year the committee’s report on pre-charge detention was published the day before we considered a similar order. This year it was published a few hours ago. I wish that the Government would time the debate better, when they know that a report of this kind is going to come to your Lordships’ House, so that it enables us actually to consider the committee’s conclusions and enough time to really absorb its contents.

8.15 pm

Last year the Joint Committee concluded that the current arrangements for judicial authorisation of extended pre-charge detention did not satisfy the stringent requirements either of habeas corpus or of Article 5 of the European Convention on Human Rights. The committee reiterated that conclusion today, and it gives a couple of reasons. First, it says the hearing of an application for further detention is not fully adversarial.

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The second reason is because judicial oversight is inadequate as a result of the narrowness of the questions the court is required to answer in making its decision, focusing on the course of the investigation and whether it is being conducted diligently and expeditiously rather than whether there is sufficient evidence to justify the original arrest and continued detention, which should actually be what it is focused on. I suspect the committee will continue to focus on that part of its report, and it seems to me quite right that it should.

Given the recent ruling of the Law Lords in a different matter—it touched on some of the same issues, however—I ask the Government whether they are going to risk a further legal challenge or whether instead they might heed the recommendations of the statutory reviewer of counterterrorism legislation, the noble Lord, Lord Carlile, who has suggested that the Government consider,

That would be another way in which we might get a greater safeguard.

All that, of course, reinforces our proposal with the noble and learned Lord, Lord Lloyd, for the institution of an independent commissioner for terrorist suspects, which was first put forward when we considered the then Counter-Terrorism Bill. The Government accepted it and undertook to put forward legislation but, in March, when I asked what progress was being made, I was told,

I hope that I am not just being fobbed off and that the Government will bring forward the promised proposal. I draw the Government’s attention to the opportunity which the Coroners and Justice Bill provides for them to put forward a proposal of this kind.

Let me conclude by reiterating that the objective on these Benches is without doubt to reduce the period of pre-charge detention. We agree with the fundamental points made by the noble Baroness, Lady Miller, but I have to say that as shadow Security Minister, I do not feel able to vote for or to support a change with real potential implications for security on the basis of today’s short and incomplete debate, uninformed about the current terrorist threat and the security situation generally.

Lest the Government conclude that this is therefore the way to obtain renewal in future—by keeping the House in the dark and by ignoring the numerous objections to obnoxious features of the current legal regime—let me give fair warning that on these Benches we shall not be so complaisant on future occasions. The Government must not think that they can take Parliament for granted. Can the Minister please therefore assure your Lordships’ House that the Government will give Parliament an opportunity to debate the security situation?

After today, our support for the extension of pre-charge detention will depend on what the Government are able and willing to do in the following respects: first, to demonstrate convincingly to Parliament that the

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security situation is such that 28 days remain indispensable and cannot be shortened—that means that we need a proper discussion on the security situation—secondly, to pursue implementation of the measures of the type advocated by the noble Baroness, Lady Miller, which would help reduce the time a suspect had to spend in pre-charge detention; and thirdly, to take action to amend the legal framework governing judicial authorisation of extended detention to allow it to meet the procedural protections required by our common law, as well as by Article 5 of the ECHR. Should there be a change of Government before the next renewal comes up, this gives an indication of the approach that we would take. The Government have a duty to keep the people of this country secure and, with parliamentary consent, to take the measures that are strictly necessary to that end. That, however, is not enough; protection must and can be achieved in ways that uphold our historic freedoms and our reputation for justice and procedural fair dealing.

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, I am grateful to all those who have contributed to the debate. I know that this House appreciates the seriousness of the terrorist threat that we face and the importance of having the right measures in place to counter that threat. That has been reflected in the excellent contributions that have been made.

To the noble Baroness, Lady Miller, I say that of course we would like to return to four days. This was mentioned by a couple of other speakers. We all want to get back to that position, but we are still in extremely unusual circumstances. I hope that over time CONTEST 2, which I will come back to, will move us in a direction that will allow us to do that. These are not measures that we use willy-nilly, though: just 11 people have gone over 14 days in the time that this has been in force. We do not just go and use this in a random way; it is tightly controlled and conducted. As I said, I would love to be able to move back via 14 days to four days, but at the moment a return to 14 days is something that the police and the agencies would be very much against, and they advise strongly against it.

The noble Baroness touched on the issue that I talked about, the increasingly complex nature of terrorist attacks, and the answer is that they are indeed more complex. Even allowing for our increased expenditure, which has been quite remarkable—from £1 billion to £3.5 billion—they are still highly complex and getting more so all the time. I have to say, too, that they are also getting cuter; they rapidly pick up all the techniques that we use. The moment that any of these techniques are exposed in any way, we find, when we are trying to track these people down and bring them to justice, that they are using their knowledge of those techniques to make it more difficult for us.

With regard to the international aspect, the real difficulty is moving through different jurisdictions. We often find, particularly with the way that computer users have been connecting, that they have gone through country after country, and going to those jurisdictions and going through the mechanics of getting hold of information takes a very long time.

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The noble Baroness raised an issue that I had not raised in my opening speech, for which I am grateful to her: CBRN. That is a real issue. Luckily, I am glad to say, we have not come across a plot that has caused us a real problem, but I am sure, and I have said it a number of times in public, that in those areas it is not a question of if there is an attack of that type but, I am afraid, of when. That is why we put so much effort in CONTEST 2 into countering those. There is a real problem. Think of that incident with the polonium attack—when trying to get into an establishment where something radioactive and unpleasant has been, time is finite, and it adds time to get forensics in there.

A couple of speakers raised the issue of moving quickly. We need to move quickly; we are talking about a real danger. These are people who wish to kill hundreds or, if they could, thousands of innocent people. We absolutely cannot take that risk. When we have intelligence of a level that shows us that something is happening, we have to move. It would be much nicer to wait in the old way until there was a body and the chap who had done it had thrown his knife down and run for it. That would be perfect, and we could do it all in 48 hours—it works beautifully. That is why these systems were set up many years ago. However, we are just not in that position now. We know, from some of the plots that we have uncovered and some of the ones that we have managed to disrupt, that they are looking at killing huge numbers of people, and we just cannot take that risk.

The noble Baroness mentioned computers and suggested we need more experts. It is not as easy as that. I thank her for raising the 42-days issue; I am scarred by that particular incident and I think I have a Guinness book of records award for the defeat in it. At the time we dealt with that issue, I looked in great detail at the question as to whether we could expand our high-tech unit within the Metropolitan Police Service. But there are narrow choke points and it does not matter whether you have 200 or 2,000 people doing it, because you are tied to working your way through that one thing, and it just does not resolve that bottle-neck. All of those reasons remain and make this necessary.

I agree with my noble friend Lord Judd. He is absolutely right—it was touched on by the noble Baroness, Lady Neville-Jones—that the fact that we have not had an example for two years, does not mean that it is wrong that we still do this. Indeed, I believe the power is still necessary. Certainly, the police and the agencies absolutely believe that we need this.

The JCHR report was mentioned by my noble friend Lord Judd and also by the noble Baroness, Lady Neville-Jones, and the noble Lord, Lord Goodhart. As regards the timing, I am not sure how exactly this happened; I do not know how much it is due to the House authorities or to us. It is not very satisfactory. I have not had the chance to go through the JCHR report in detail.

One of its points is about better information so Parliament can decide whether to renew the power. That is a good point made by a couple of noble Lords. We already have the important independent oversight of the annual reports of the noble Lord, Lord Carlile, on the operation of terrorism legislation. The noble

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Lord, Lord Carlile, is an authoritative and objective voice of scrutiny on all these issues. He recently announced that he will be conducting a review of Operation Pathway arrests in north-west England, which was touched on. As part of this, he will look at circumstances surrounding the detention of the individuals involved; we will be looking very carefully at that report. Due to his impartiality and his unrivalled access to details, it may possibly be the catalyst for looking at further detention issues, including any individuals who are detained beyond the 14-day period.

We are considering the impact of the judgment on the question of compatibility with the right to a judicial hearing. But the Government do not accept that there is an automatic read-across to all other proceedings involving the use of closed material. Closed hearings are used very rarely in pre-charge detention extension hearings. They are certainly used less frequently in the later stages of detention beyond the 14 days

It raised the very important point of the impact on suspects and communities. During the 42-days debate, a commitment was made to undertake a review of the impact of all counterterrorism legislation. Work on the scope of that review has been ongoing and, while the review will not be specifically about pre-charge detention, it will encompass it. Extensive scoping work means that this assessment has been delayed. A broad research project on the community impact is being progressed and we are committed to deliver this research by November 2009.

As regards the presumption of innocence, that is a matter for the Director of Public Prosecutions to consider. In regards to ensuring that court cases are not prejudiced by external factors, such as the media, this already happens in appropriate cases, albeit via the Attorney-General rather than the Crown Prosecution Service.

We are addressing these issues. I am sorry I do not have a more comprehensive response, but as was pointed out, I was first aware of this at about 5 pm this evening.

The noble Baroness, Lady Neville-Jones, raised the issue of how important it is that we reduce pre-charge detention and talked about the flexible threshold test and post-charge questioning. These issues have been looked at in detail. The police and the CPS still do not believe that these actually meet the Bill and I have been through this in some detail. There is a dispute. There are some people who believe it does, but there is quite a large number that does not believe it does. The noble Baroness also pointed out, as did my noble friend Lord Judd, that the fact that this has not been used for two years does not mean that it does not have any value. She is absolutely right on that issue.

As regards the Manchester incident, I hope the point that I made—that it is being reviewed by the noble Lord, Lord Carlile—covers it. It was another case where there was intelligence of such a level and nature that, when it was put together, we just could not take the risk. I am absolutely certain of that because I was aware of that intelligence. But, as I say, it is fleeting, and it is not the same as evidence. I cannot say much more about it because there are issues in the case that are still being followed through.

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8.30 pm

As for intercept as evidence—we have had this debate on the Floor of the House before—the Government absolutely support the Chilcot review. The all-party Privy Council group is looking at this and we are moving forward as fast as possible. The nine Chilcot tests are there. I am absolutely certain that this is not a silver bullet and we must make sure that all of the nine tests are actually ticked. We as a Government cannot get ourselves into a position where we could risk what are effectively the crown jewels in our capability. I have already mentioned these people’s acuteness and the speed with which they pick up any of our techniques when we expose them. If we gave those away, there would be a real danger and risk to our people. We have to be certain. That is why the nine tests that Chilcot laid down are absolutely right and we are working through all of them. If we cannot be absolutely sure that we are not putting these things at risk, we should not do it. We will have to see where that stands; we have not got to that point yet. The noble Baroness mentioned that we need to get terrorists behind bars. I would say that we have put almost 200 behind bars over the past five or six years; so we are achieving that. People quote instances of what other countries do about intercept, but those countries are very different and comparisons are sometimes worse than useless. Comparing what the FBI might do with a phone tap does not relate to what the West Country can do with the internet and things like that. It is a completely different world.

On control orders, we looked specifically at a group of nine such cases. There was not a single case in which intercept as evidence would have made a difference. I think that we need to be extremely wary there.

I was surprised that the noble Baroness, Lady Neville-Jones, mentioned a lack of knowledge of the threat. CONTEST 2 is one of the things that I have been very proud of. It explains the threat in great detail. It gives a history of the threat and talks through it. I have no doubt whatever, having been around the world, that it is the world’s best counterterrorism strategy at the moment. It does explain it. Does that mean that we need to have a debate on it? I have no difficulty about a debate in the future. I cannot promise a debate on counterterrorism, because it depends on parliamentary business, but I would love to have one. I am very proud of what we have achieved over the past two years in counterterrorism—in our Prevent strategy, in countering extremism, in stopping radicalisation. We have probably the most comprehensive strategy in the world. We cannot protect and arrest our way out of this problem, but as the strategy starts to bite and work, I hope that we will become safer, and then we can get rid of these requirements to hold people before charge for this length of time. Similarly, what we have done in Protect and by holding the ring is crucial. We have done a lot to protect crowded places and transport and all of these things. As for the Pursue part of our strategy—that is, catching these people and arresting them—this 28-day provision is still a crucial part of it. That is why I believe that we need to keep it.

I hope that I have answered most of the questions raised. I know that there are differing views on the issue. I am reassured by the knowledge that the aim of

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all noble Lords is to keep this great nation of ours safe. We might have different perceptions of how to do that but I am absolutely convinced that we are doing the right thing. In the final analysis, we as a Government are responsible for the lives of our people. They have the right to life. Crucially, sometimes we do things that are not the things that we would like or love to do, because there is still a very great threat to this nation. I do not want to keep on about that because one the great joys of the British people is that they get on with life—they live it, have fun, work and travel. I want them to do that because otherwise we will be doing the terrorists’ work for them. CONTEST 2 will start to achieve that, and this is a small but none the less very important fragment of that. I invite the House to approve the order.

Baroness Miller of Chilthorne Domer: My Lords, I am immensely grateful for the detailed and careful analysis of the noble Baroness, Lady Neville-Jones. She gave us a very useful list of headlines that the Government need to address. If I had wanted to move instantly to abandon the order, I would have tested the opinion of the House tonight. However, I tabled a non-fatal amendment to encourage the Government to move incrementally backwards to 14 days. For all the Minister’s expertise, I did not hear him express an aspiration to approach that. It sounded to me as though he still felt that my aspiration was naive, because there was such a tremendous risk.

We on these Benches accept that there will always be risk. The need to balance our values of justice with the necessity to minimise risk was eloquently expressed by the noble Lord, Lord Judd. What the Government are not doing—I did not hear the Minister say that he would be moving towards it—is producing evidence for us. This creates frustration. I heard it from the noble Baroness, Lady Neville-Jones, and we on these Benches feel it, too. The Minister knows what he knows, but at the moment not enough evidence is produced—I am aware of the constraints—for Parliament to make a reasonable assessment based on what the Government are saying. Before we have the debate again this time next year, the Government must try harder and take on board the recommendations of the Joint Committee on Human Rights to produce that qualitative evidence. In the mean time, I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.

Motion agreed.

8.37 pm

Sitting suspended.

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