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Lord Hylton: I intervene to support the amendment as a trustee of an English charitable organisation, Forward Thinking. Over the past four or five years it

13 July 2009 : Column 997

has worked, through Muslims, with Muslim communities in England to break down feelings of alienation and being in a ghetto that may, and do, exist. We have had some success. The amendment would prevent English Muslims from feeling that they were being attacked or vilified for supporting terrorism. Therefore, I am all in favour of it.

Baroness Butler-Sloss: I, too, support the amendment. It is very important that not only the terrorist suspect but his family, children, friends and neighbours within the Muslim community are all reassured. This matter usually, but not necessarily, involves Muslims but could also affect Sikhs or other local communities. It is important to have the reassurance provided by the appointment of a commissioner. If any problem arises regarding how the commissioner should exercise his powers, I have no doubt that the noble and learned Lord, Lord Mayhew, would give advice on that. However, I should have thought that guidance could be provided to the commissioner on the appropriate way to carry out his duties. It is important that those who may be incorrectly suspected of terrorism, and are rightly picked up by the police in these dangerous days in which we live, should know that someone will be there to keep an eye on them.

Lord Thomas of Gresford: This matter was debated at length on a previous occasion when the noble Lord, Lord West of Spithead, said that he would like to accept the substance of the amendment. On that occasion, my noble friend Lady Falkner of Margravine, who is present, said how important it was to restore confidence among ethnic minority communities. We support the amendment.

7.15 pm

Baroness Neville-Jones: I, too, support the amendment put forward by the noble and learned Lord, Lord Lloyd. The Government are apparently worried about the proposal for an independent commissioner and are concerned that his presence would somehow cause delays in judicial hearings. They are perhaps worried that police investigations would be delayed because of the need to accommodate the commissioner at short notice. These arguments, which seem to rest on convenience and administrative efficiency, do not seem to me to be the whole story. As the noble and learned Lord, Lord Lloyd, pointed out, the presence of the commissioner could make the proceedings more efficient as well as having the advantage of reassuring minority communities, as he pointed out.

I go further: reassuring communities outside the legal process, and the families of those involved, that the process is fair and just is a form of efficiency. What are you trying to do at the end of the day? We should be trying to deliver justice and convince the outside world that justice is being delivered. It is inefficient not to go the necessary short distance to increase the possibility of being able to do that. I am disappointed that it appears that this idea will not be included in the legislation, as there is no government amendment.

We ought also to bear in mind the fact that the Joint Committee on Human Rights has consistently concluded that the current arrangements for judicial

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authorisation of extended pre-charge detention do not satisfy the requirements of either habeas corpus or Article 5 of the European Convention on Human Rights. This amendment would help in that regard. The committee has found that the hearing of an application for further detention is not fully adversarial and that judicial oversight is inadequate as a result of the narrowness of the questions that the court is required to answer in making its decision. The establishment of a commissioner would help in all those respects.

The Government may have alternative ideas. If they involve the statutory reviewer of terrorism legislation taking on a further duty in this respect, I should point out that the noble Lord, Lord Carlile, is already a very busy man. It would be difficult for him to take on the full role that is required to provide the reassurance that a special commissioner would be able to offer.

I very much hope that the Government will think yet again about this. If the way in which we conduct these trials continues to be criticised, it seems to me that not only is justice not delivered but we provide grounds for potential appeal. Above all, we ought to do our very best to ensure that the proceedings that we conduct not only deliver justice but are seen to deliver justice to all those involved, particularly minority communities.

Lord Brett: Before I respond to the amendment, I pass on the apologies of my noble friend Lord West of Spithead, who-partly, I suspect, because of the speedy passage of business in the past hour or so-is not able to be present due to government commitments. He very much wanted to take part in this debate. I hope that the Committee accepts his regret that he is not able to be present.

Members have already recalled the depth of the debate that we had on a previous occasion, which is undoubtedly why the contributions of the noble and learned Lord and other noble Lords, reiterating positions previously taken, have been modest in length and have not repeated the argument to which my noble friend Lord West of Spithead sought to respond. As the noble and learned Lord, Lord Lloyd, has pointed out, my noble friend gave a commitment to establish such a role at Third Reading on the Counter-Terrorism Bill on 17 November. We have heard again, very much in shorthand form, many arguments from those who favour such a position. Although the case that the noble and learned Lord and others is one in which they believe strongly-on the occasion that we last considered it, it brought forward a lot of sympathy across the House-I am afraid that the Government cannot accept the amendment.

Since the debate last November, we have consulted further with the police, prosecutors and the Courts Service, in Scotland and Northern Ireland as well as in England and Wales. As a result of those consultations, we now believe that an independent commissioner as envisaged by the amendment would have a detrimental effect on the conduct of terrorist investigations.

Two main arguments have been made for establishing an independent commissioner. The first is that judges who consider extension applications do so on the basis of limited information and that the police do not conduct investigations quickly enough. That is

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why Amendment 187 provides for an independent commissioner to advise a judge at extension hearings on whether continued detention is justified. It is worth pointing out, however, that judges are already required by legislation to ensure that suspects are not detained for longer than necessary and that investigations are carried out "diligently and expeditiously". The application by police or the CPS for extended detention is a rigorous process; it is not a rubber-stamping job. Indeed, an independent report of the inspection of the counterterrorism division of the Crown Prosecution Service in April this year found that, in all pre-charge detention cases that were reviewed, extended detention had been applied only where it was properly justified.

The second argument for an independent commissioner is that the commissioner would ensure that suspects were not ill treated and thus provide communities with reassurance. Many of your Lordships will know that PACE code H already sets out the detailed conditions for detention of suspects. It includes access to medical assistance, legal advice, visits from friends and family, provision for religious observance, exercise, meals and reading materials. All interviews with suspects are already recorded. Again, it is worth noting that there have been no complaints from suspects that PACE code H has not been adhered to or that the conditions of their detention have not been satisfactory.

Against the arguments in favour of an independent commissioner for suspects, we also have to look at the views of those who deal with the process on the ground-the police, the prosecutors and those who deal with the application for detention in our courts. As I said, we have consulted further all these organisations. Their strongly held view is that allowing a commissioner a role in extension hearings would delay those hearings. The question was raised: why was there police concern? One aspect of it is that there is a belief that suspects will insist on the commissioner being present, therefore delaying interrogations, briefings, conversations-call it what you will-while the commissioner is found, and that they will insist on interviews with the commissioner for reasons that will delay prosecution.

The period between arrest and charging is one of considerable pressure and there are concerns that unannounced visits from the commissioner and the need to provide him or her with papers again would delay investigations, achieving the exact opposite of what is intended by the proposal. It is also possible that suspects could use the role of the commissioner to manipulate and control the time available for an investigation. As I said, the police were concerned about people requesting private interviews or insisting on the presence of the commissioner in police interviews. There are clear and strong operational reasons for not establishing an independent commissioner of the sort envisaged by the amendment.

There is also a case for saying that such a commissioner is unnecessary. Suspects' interests are already looked after by independent reviews in three different bodies. It might help if I briefly say what those are. First, the Police Reform Act 2002 already provides for independent custody visiting of persons held in police detention, including those detained under counterterrorism legislation. Custody visitors can make random,

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unannounced visits to suspects and can discuss with them their treatment and conditions of detention. They may examine custody records and inspect detention facilities. A report is completed after each visit. Secondly, in 2008, Her Majesty's Inspector of Prisons and Her Majesty's Inspectorate of Constabulary began jointly to inspect prison custody suites. They have unfettered and unannounced access to such facilities and can interview detainees. Part of their role is to ensure adherence to PACE codes and the appropriateness of treatment and conditions in which suspects are held. Thirdly, the noble Lord, Lord Carlile, already has a statutory role in relation to the operation of the Terrorism Act 2000. That includes visits to custody suites and reporting annually on the operation of pre-charge detention. Therefore, there are a number of very strong independent safeguards to ensure that suspects are properly detained and their welfare is looked after.

Finally, I point out that the role envisaged by this amendment would be too much for one person. The noble and learned Lord referred to Paddington Green as the centre where this would take place. However, over a nine-month period in Northern Ireland, the independent commissioner for detained terrorist suspects conducted 61 visits and interviewed detainees on 122 occasions. That involved only one place of detention. We therefore assess that at least five commissioners would be required to cover the whole United Kingdom, particularly as suspects are increasingly likely to be detained outside London. Assuming that each commissioner would cost in the region of £50,000 per annum, we estimate that the cost would be a minimum of £250,000 a year, not the £50,000 figure that the noble and learned Lord refers to. For these reasons, I unfortunately cannot accept this amendment.

That said, there are a number of things that we can do to provide further reassurance on the detention of terrorist suspects. First, we can look at extending the role of independent custody visitors. In particular, the role could be extended to provide an annual report to the Home Office specifically in relation to custody visits that involve the detention of terrorist suspects. It may also be possible to extend their role so that they can view recordings of any interviews with a suspect, as is now the case in Northern Ireland. Additional training could also be given specifically on the detention of terrorist suspects before charge. Secondly, we could ensure that the noble Lord, Lord Carlile, was informed of all arrests under Section 41 of the Terrorism Act 2000. He would then be able to visit any detention facility where suspects were held and to view interview tapes. He can already attend any extension hearings that he may choose and he can reflect the outcome in his annual report on the operation of terrorist legislation. Given that, I therefore ask the noble and learned Lord to withdraw his amendment. If that is not possible, I am afraid that the Government have no choice but to resist it.

Lord Lloyd of Berwick: As always, I am grateful to the noble Lord for what he has said and for offering certain alternatives that came to mind. However, I have not been persuaded that the amendment will not bring the benefits that I outlined and which other noble Lords have supported. Therefore, I wish to test the opinion of the Committee.

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7.28 pm

Division on Amendment 187

Contents 145; Not-Contents 103.

Amendment 187 agreed.

Division No. 1


Addington, L.
Anelay of St Johns, B.
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Attlee, E.
Barker, B.
Bhatia, L.
Bilimoria, L.
Bonham-Carter of Yarnbury, B.
Brougham and Vaux, L.
Butler-Sloss, B.
Cathcart, E.
Chadlington, L.
Chalker of Wallasey, B.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Courtown, E.
Crathorne, L.
Crickhowell, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dundee, E.
Dykes, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Feldman, L.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freud, L.
Gardner of Parkes, B.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Haskins, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hurd of Westwell, L.
Hylton, L.
James of Blackheath, L.
Jenkin of Roding, L.
Kilclooney, L.
Kimball, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L. [Teller]
Low of Dalston, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
McNally, L.
Maddock, B.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Northesk, E.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Pannick, L.
Plumb, L.
Rawlings, B.
Razzall, L.
Reay, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Rowe-Beddoe, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L.
Skelmersdale, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tonge, B.

13 July 2009 : Column 1002

Tope, L.
Tyler, L.
Verma, B.
Waddington, L.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Waverley, V.
Wilcox, B.
Williamson of Horton, L.


Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Blackstone, B.
Borrie, L.
Bradley, L.
Brett, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Chester, Bp.
Clark of Windermere, L.
Clinton-Davis, L.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Oldham, L.
Desai, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Mandelson, L.
Maxton, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rosser, L.
Royall of Blaisdon, B.
Sheldon, L.
Simon, V.
Snape, L.
Soley, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Woolmer of Leeds, L.
Young of Norwood Green, L.

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

Identity Cards Act 2006 (Information and Code of Practice on Penalties) Order 2009

Motion to Approve

7.40 pm

Moved By Lord West of Spithead

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The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, these draft statutory instruments are being made under the Identity Cards Act 2006, which received Royal Assent in March 2006, and together will enable the Government to deliver on their 2005 election manifesto commitment to introduce identity cards.

We are discussing five draft statutory instruments, whereas we had laid before the House a package of six separate affirmative statutory instruments. However, as the Home Secretary announced in a Written Ministerial Statement on 30 June, the sixth order, the draft Identity Cards Act 2006 (Designation) Order 2009, has now been withdrawn. The explanatory memoranda published at the same time as each of the statutory instruments refer to this sixth order, and therefore those references should be ignored. The decision to withdraw the designation order was made so that obtaining an identity card will now be on an entirely voluntary basis-just as it is for passports for British citizens-including the identity cards that will be issued to airside workers at Manchester and London City airports later this year, and as they are issued in France where the vast majority of the population chooses to carry them.

This also means that the concerns of the aviation sector unions have been addressed. This was the key issue which was drawn to the House's attention by the Merits of Statutory Instruments Committee in its 19th and 20th reports on these statutory instruments. As usual, we are very grateful for these reports and have taken them fully into account.

Through a phased commencement of the provisions of the Identity Cards Act, we will start to issue voluntary identity cards to airside workers, but also to ordinary people resident in Greater Manchester, starting in the autumn, and with a subsequent extension to other parts of north-west England.

I will briefly run through the purpose of each statutory instrument. Initially, I shall explain the purposes of the draft Identity Cards Act 2006 (Information and Code of Practice on Penalties) Order. First, to confirm the identity of passport and identity card applicants, this order sets out the government departments and organisations which may be required to provide information in support of an identity card application or to verify information already held on the register. The prescribed organisations listed in the SI were engaged throughout the 12-week consultation process and are content to be included in the order.

Secondly, the order will enable the police to verify the identity of people where there has been a death or serious injury but there is no criminal investigation-for example, such as following a major natural disaster. It will allow information from an individual's entry on the national identity register to be provided, without their consent, to the Scottish Crime and Drug Enforcement Agency and to the Security Industry Authority, as is currently the practice with passports.

13 July 2009 : Column 1004

Finally, it provides for the code of practice on civil penalties to come into force. A civil penalty regime will be in place to encourage individuals' compliance with the requirement to notify changes, such as a change of name or address, that would affect the accuracy of the register, to surrender an identity card or to report a card lost or stolen. The code sets out when a civil penalty should be issued and how the amount of the penalty should be calculated. It explains the processes in an accessible format and is the one document for which we have a legal requirement to consult, although we have in fact carried out a 12-week public consultation on the entire package of secondary legislation.

The civil penalty scheme will not be punitive or revenue-raising. If there is good reason for failure to comply or if the requirements of the Act have been complied with, the usual procedure will be to waive any penalty. We do not expect to need to apply the civil penalty regime to any great extent. However, without it, there would be a serious gap in our ability to ensure that the register was up to date and reliable. The imposition of civil penalties would not lead to any sort of criminal procedure, so a person on whom a penalty was imposed would not receive a criminal record and there would be no possibility of imprisonment as a result. The maximum penalty allowed for in the Act is £1,000, which incidentally is the maximum fine for failure to update driving licence details with the DVLA. However, as the code of practice makes clear, the basic penalty level would be £125.

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