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Linklater of Butterstone, B.
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McKenzie of Luton, L.
Maclennan of Rogart, L.
McNally, L.
Mar and Kellie, E.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Murphy, B.
Newby, L.
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Patel, L.
Prosser, B.
Quin, B.
Ramsay of Cartvale, B.
Rea, L.
Redesdale, L.

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Rennard, L.
Richard, L.
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8.06 pm

Motion D

Moved by Lord Tunnicliffe

The Commons disagree to Lords Amendment No. 66, but propose Amendment 66A in lieu-

66A: Page 63, line 35, at end insert-

"Detention of persons under section 41 of the Terrorism Act 2000

(1) Section 36 of the Terrorism Act 2006 (c. 11) (review of terrorism legislation) is amended in accordance with subsections (2) and (3).

(2) After subsection (2) insert-

"(2A) A review under subsection (2) may, in particular, consider whether-

(a) the requirements imposed by or under Part 1 or 2, or paragraph 37, of Schedule 8 to the Terrorism Act 2000 (detention of suspected terrorists), and

(b) the requirements imposed by any relevant code of practice under section 66 of the Police and Criminal Evidence Act 1984 or Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)),

have been complied with in relation to persons detained under section 41 of the Terrorism Act 2000 pursuant to a warrant of further detention issued under Part 3 of Schedule 8 to that Act."

(3) In subsection (3) for "That person" substitute "The person appointed under subsection (1)".

(4) Section 51 of the Police Reform Act 2002 (c. 30) (independent custody visitors for places of detention) is amended in accordance with subsections (5) to (7).

(5) After subsection (1) insert-

"(1A) Every police authority must ensure-

(a) that the arrangements made by it require independent custody visitors to prepare and submit to it a report of any visit made under the arrangements to a suspected terrorist detainee, and

(b) that a copy of any report submitted under paragraph (a) is given to the person appointed under section 36(1) of the Terrorism Act 2006 (independent reviewer of terrorism legislation)."

(6) In subsection (3), after paragraph (b) insert-

"(ba) in relation to suspected terrorist detainees, to listen to the audio recordings and view the video recordings (with or without sound) of interviews with those detainees which have taken place during their detention there and which were conducted by a constable;".

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(7) After that subsection insert-

"(3A) The arrangements may include provision for access to the whole or part of an audio or video recording of an interview of the kind mentioned in subsection (3)(ba) to be denied to independent custody visitors if-

(a) it appears to an officer of or above the rank of inspector that there are grounds for denying access at the time it is requested;

(b) the grounds are grounds specified for the purposes of paragraph (a) in the arrangements; and

(c) the procedural requirements imposed by the arrangements in relation to a denial of access to such recordings are complied with.

(3B) Grounds are not to be specified in any arrangements for the purposes of subsection (3A)(a) unless they are grounds for the time being set out for the purposes of this subsection in the code of practice issued by the Secretary of State under subsection (6)."

(8) For subsection (10) substitute-

"(10) In this section-

"detainee", in relation to arrangements made under this section, means a person detained in a police station in the police area of the police authority;

"suspected terrorist detainee" means a detainee detained under section 41 of the Terrorism Act 2000.""

Lord Tunnicliffe: My Lords, Amendment 66 seeks to establish an independent commissioner for terrorist suspects. As my noble friend Lord Brett indicated in Committee, we are concerned that the establishment of such a commissioner would have a detrimental effect on the efficient and effective conduct of terrorist investigations. Such investigations are fast-moving and having to accommodate a commissioner would cause delays to extension hearings and could be used by suspects to hamper investigations.

The period between the arrest and charging of a terrorist suspect is one of considerable pressure. It is possible that suspects could use the role of commissioner to manipulate and control the time available for an investigation by requesting private interviews or by insisting on the commissioner's presence in police interviews. It is also possible that suspects could be detained at different locations throughout the country-for example, in Manchester, Bristol and London. The length of time that could elapse before a commissioner was able to visit all detainees would be unacceptable. These concerns are shared by the police, the CPS and, in Scotland, the Crown Office and Procurator Fiscal Service.

I note the concern of the noble and learned Lord, Lord Lloyd, about the need for further balanced scrutiny of the pre-charge detention process for terrorist suspects. However, this process is already rigorous. At present, those arrested can be detained for 48 hours, after which the police or CPS must apply to a judicial authority for a warrant for further detention-a WFD. This judicial authority is to be a designated district judge when the person has been detained for less than 14 days and a High Court judge thereafter. Applications for WFDs are for a maximum period of seven days at a time. If a period of longer than seven days is required, up to a maximum of 28 days, further applications by the police or prosecutor must be made before the expiration of each seven-day period.

Each application for a WFD requires detailed preparation. Preparing it is time-consuming and places significant pressure on the police and prosecutors to

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meet the required deadlines. The application for a WFD must include detailed grounds that set out relevant considerations, including details of interviews, forensic examination and any financial investigation. All applications to extend the detention period beyond 14 days need to be considered and made by the CPS. If the CPS considers that there are no grounds for making the application, it will not be made. When granting a warrant for further detention, the judge must be satisfied that the further detention is necessary to obtain relevant evidence by questioning the suspect or otherwise, or to preserve relevant evidence, or pending the result of an examination or analysis of any relevant evidence, and that the investigation is being conducted diligently and expeditiously.

In April this year, Her Majesty's Crown Prosecution Service Inspectorate reported on the CPS's counterterrorism division. As part of the report it examined 12 cases from a sample where there had been pre-charge detention. In all cases the inspectorate was satisfied that there was evidence on the file that pre-charge detention had been properly monitored and reviewed.

While it is clearly regrettable that the other place did not have the opportunity to debate the amendment on Monday of this week, it is none the less clear from the vote that the other place shares our concerns, given that it voted by a majority of 223 to disagree with the Lords amendment. The other place has, however, offered an amendment in lieu, which I commend to this House. That amendment provides for enhanced independent scrutiny and further guarantee of the treatment of terrorist detainees.

The amendment in lieu proposes two changes to bolster the existing arrangements. First, it seeks to give statutory force to the independent reviewer of terrorism legislation's ability to review and report on the treatment of persons detained under a warrant of further detention under the Terrorism Act 2000-that is, broadly speaking, persons detained beyond 48 hours from the time of their arrest. The reviewer may dedicate a specific section of his annual report to the treatment of terrorist suspects detained for these extended periods. The report may cover whether Parts 1 and 2 of Schedule 8 to the Terrorism Act 2000 are compliant with the PACE codes of practice, which deal with the treatment of detained persons and the review of their detention by the police. In order to reinforce this legislative change, the Home Secretary will write to the noble Lord, Lord Carlile, making it clear that he is able to visit any detention facility where terrorist suspects are held and observe police interviews in real time or view or listen to interview tapes. He may also attend any extension hearing that he chooses, but he would not have a role in the actual hearing other than as observer.

Secondly, the amendment in lieu will extend the role of independent custody visitors under Section 51 of the Police Reform Act 2002. Independent custody visitors will be allowed to view or listen to recordings of any police interviews with the suspect. They will also be required to provide a report on their findings to the relevant police authority, which will pass this on to the independent reviewer. Custody visitors will be required to attend specialist training prior to starting

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their extended duties and will need to be appropriately security-cleared. Amendments will be made to the national code of practice for custody visitors to reflect this and the increase in their responsibility.

I believe that the approach set out in the Government's amendment and in the letter to be sent to the noble Lord, Lord Carlile, will provide the additional protection for terrorist suspects that provided the motivation behind Amendment 66, while not having a detrimental effect on terrorism investigations. I beg to move.

8.15 pm

Baroness Neville-Jones: My Lords, I find it disappointing that the Government's objection to the notion of having a special commissioner for terrorist suspects is based on the idea that it would somehow obstruct speedy or fair process. This idea is part of UK experience; it has been in operation in Northern Ireland. Why is it considered wholly unsuitable to be deployed in current circumstances? I find this very difficult to understand.

It is a great pity that the Government are not prepared to accept that the reassurance that such a process and such an individual would provide is suitable to our current circumstances. After all, we may have to live with this for a long time. When we debated the proposal, your Lordships' House was not convinced that extending the role of independent custody visitors or that of the statutory reviewer of terrorism legislation, the noble Lord, Lord Carlile, was a sufficient step. I do not at all suggest that these people do not do a very important job-they most certainly do-but it is a great pity that the Government have taken the stance that they have.

We need to enlighten ourselves on certain issues regarding how the system that the Government are proposing will operate. The proposal does not satisfy the point that is constantly made by the Joint Committee on Human Rights, which is that the current arrangements for judicial 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. I do not believe that the Government's ideas will meet those requirements.

However, in the spirit of wanting to know how this might operate, I ask the following probing questions. The first relates to the role of the statutory reviewer of terrorism legislation. If the noble Lord, Lord Carlile, has always had-as appears to be the case-the power to review the operation of Section 41 of the Terrorism Act 2000 and the related codes, can the Minister confirm whether he has attended any detention hearings so far and whether he has reported on them? If he has not done so, why is that the case and why did not the Government ask him so to do?

Secondly, I am sure that the Minister will agree that the noble Lord already has a significant amount of work to do in relation to the operation of other parts of terrorism legislation. It would be helpful to know whether discussion has taken place with him about how much extra time looking at the whole position of the detention of terrorist suspects will involve.

Thirdly, it would be helpful to know how it is intended that the noble Lord will go about his work. Is it the intention that he will visit the majority of terrorist

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suspects? Will his office be given any additional support for this task? Will he be able to feed in to detention hearings, or will this be only an ex post facto task? That is an important point. Is this going to be a living part of the procedure or is it simply going to be a case of reviewing in order to comment on, and possibly find fault with, what has previously happened? That relates very much to the findings of the Joint Committee on Human Rights.

My second set of questions is about the role of independent custody visitors, who have been put forward as important people in this scenario. First, will police authorities be required to prioritise terrorist suspects for visits by independent custody visitors? Will this actually happen?

Secondly, will there be additional training and guidance for custody visitors in preparation for this task? These are not things that custody visitors normally do. Related to this, is it the intention that there will be a specialised cadre of custody visitors? I come back to the specialist nature of the task. This is why it seems to us that an independent commissioner would be so much better.

Thirdly, what are the grounds for denying independent custody visitors access to records of interviews? I am absolutely prepared to believe that there would be legitimate grounds, but it would be helpful to know how those are defined by the Government, because the amendment does not specify what these grounds are now or might be in the future. Without some specificity, it is obviously possible to restrict the role of custody visitors so that they could not report fully on the detention of terrorist suspects. That is an important point in practical terms.

Related to that is my fourth point. Can the Minister confirm that in cases where the independent custody visitor had concerns after having heard records of interviews and/or having spoken to the suspects, he would then be able to communicate them to the judge before a detention hearing? This comes back to whether this is an academic, ex post facto activity or whether it is intended to apply safeguards within the procedure as a living procedure. That is very important and it will be a requirement if this is to be a real safeguard.

Fifthly, how will the Government act on the visits and reports of independent custody visitors? Even now, some of the recommendations of the noble Lord, Lord Carlile, are ignored. Therefore, what hope will custody visitors have of being able to influence the operation of Section 41 and the related codes of practice?

I worry that the Government's proposals will neither achieve comprehensive monitoring of the detention of terrorist suspects nor improve the procedures of detention hearings. Therefore, the Minister's response to my points will be very important as regards how effective and acceptable the Government's ideas are as an alternative to what we think should be the case. I very much look forward to the Minister's explanation of how the proposals will work in practice. I should add that, should the Conservative Party enter office, we will want to revisit this topic.

Lord Pannick: My Lords, I share the regrets and concerns expressed by the noble Baroness, Lady Neville-Jones. Of course, the purpose of the new clause agreed

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to by this House is to ensure that, where the police apply for an extension of the period of detention for a terrorist suspect, the judge has information that may assist him or her in understanding any weaknesses in the police case for an extension of custody. That is a vital matter.

I thank the Minister for the steps taken by the Government to address these concerns to some extent, as approved by this House. However, I seek two assurances from the Minister; I know that they are matters that also cause concern to the noble and learned Lord, Lord Lloyd of Berwick.

First, can the noble Lord confirm that, because the independent custody visitors are positively vetted, it is not the intention of proposed new subsection (3A) to deny them access to the audio or video recording simply because it contains information whose publication would be damaging to national security? Can the Minister assure the House that subsection (3A) is simply intended to cover a much more specific and much narrower set of circumstances-that is, where the recordings would disclose an ongoing police operation that it would be damaging to reveal at that time?

The second matter on which I seek an assurance has been mentioned by the noble Baroness. It concerns the vital matter of communication of information from the independent custody visitor to the judge. Can the Minister assure the House that a procedure will be devised to ensure that, after the independent custody visitor has seen and heard the recordings, he will be able to communicate his views to the judge, who will decide on whether there should be an extension of custody?

Lord Tunnicliffe: My Lords, perhaps I may first address the concerns of the noble Lord, Lord Pannick, who explained rather better than I can from my notes the basis of his first point. Proposed new subsection (3A) is meant to relate to the narrow point of operational police matters. Because the ICVs will be appropriately cleared, they will normally be able to listen to recordings and so on.

The second, and I think key, point was made by the noble Baroness. It concerns whether this is other than an ex post facto exercise. It is not and it would be wrong of me to try to use words that gave comfort in that direction. We believe that the process will be powerful in monitoring whether the procedure has been carried out properly. Earlier, I gave the noble Baroness various assurances about the inspectorate looking at how this is done. I was asked whether the ICVs would have any input into the observations of the noble Lord, Lord Carlile. I do not think that this will be a simply academic process. I believe that the fact that the views of responsible persons will be looked at carefully by the noble Lord, Lord Carlile, will have an effect on maintaining standards.

One of the most telling points made by the noble Baroness-I can see why it was quite attractive-concerned the Northern Ireland experience. The independent commission worked well in Northern Ireland because it was a small jurisdiction with one place where subjects were held and with high levels of co-operation between the police and the commission. On the mainland, however, a significant number of terrorist suspects have been arrested

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and held in police stations throughout the country, including in London, Devon, Manchester, Kent, Heathrow, Norfolk, Nottingham, Surrey, Buckinghamshire and the West Midlands. With so many forces potentially involved, it would be harder to maintain levels of co-operation and communication. Ultimately, the commission in Northern Ireland was no longer deemed necessary because of the significant overlap with the work of other bodies charged with inspecting and investigating pre-charge detention conditions-for example, the work carried out by the noble Lord, Lord Carlile, lay visitors and the HMIC. In fact, I believe that the commission was abandoned in 2005.

I turn to the other points raised by the noble Baroness. There will be a specialist coroner. He will receive specialist training and will of course be appropriately security-cleared. On the JCHR, we are sensitive to the Joint Committee's views, but the Government take the view that the process is rigorous, for the reasons that I set out earlier.

With regard to the extent to which the noble Lord, Lord Carlile, will be involved in this work and the amount of time that he will have to spend on it, it is unlikely that he will attend more than the odd extension hearing, because he has no role in the process. As I said, his role is ex post facto; none the less, it is a powerful role. He is likely to limit his detention centre visits to the most serious investigations.

The noble Lord, Lord Carlile, has been consulted about the amendment. He already has a statutory role in relation to the operation of the Terrorism Act 2000, which includes reporting annually on the operation of pre-charge detention. Although he has tended not to get involved in individual cases, his role does not preclude him from doing so. Indeed, he has reported on the individual cases of those involved in Operation Pathway.

I hope that, with those explanations, the House will be able to support the Motion.

Motion D agreed.

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