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Lord Cope of Berkeley: The noble Lord, Lord Goodhart, said that he thought that there was no justification for a time-limit of 48 hours instead of 36 hours for detention in line with PACE. I believe that there is justification and that justification is clearly set out in the report of the noble and learned Lord, Lord Lloyd, at paragraph 9.10 and in following paragraphs.

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I shall not refer to that in detail as it is set out in those paragraphs, but he draws attention to the additional problems faced by the police in Great Britain and in Northern Ireland in dealing with terrorist suspects.

Such problems arise from a number of matters. Often cases involve great complexity; sometimes it is necessary to refer to inquiries overseas, and so on; and these days terrorists in Northern Ireland and those from other terrorist organisations--many of them consult and learn from one another--are highly trained to resist interrogation and to resist co-operating with the police in any way. I am quite prepared to go along with the recommendation of the noble and learned Lord, Lord Lloyd, and with the Bill and to stick with the 48 hours.

There are a number of other amendments in this group in my name and those of my noble friends that concern the related matter of who should decide about the extension of detention. The proposal in the Bill is that in future in all cases, including in Northern Ireland, detention should be extended only through judicial authority. "Judicial authority" is defined in the Bill, but basically it is shorthand for judges.

I believe that, particularly in Northern Ireland, it should still be the Secretary of State who is able to decide on the extension of detention beyond the 48 hours. As is mentioned in the report of the noble and learned Lord, Lord Lloyd, the judiciary in Northern Ireland have been, and remain, against having such a responsibility. I can well understand why. I do not want to make the job of the Northern Ireland judiciary more difficult than it is already. I have the highest respect for all that the Northern Ireland judiciary has had to put up with--I hope that is not too weak a term--over many years. After all, some of them have given their lives in the process. I believe that in a matter of this kind we should take the view of the judiciary in Northern Ireland extremely seriously.

However, there is a wider point of principle. In this context I refer particularly to Northern Ireland. If the judiciary become involved in the decision as to whether to extend the period of detention in order to allow an investigation to proceed, they will become drawn into the whole matter of the investigation and its supervision. Necessarily, they will have to consider intelligence evidence that could not be presented in open court but which it would be essential to consider when deciding whether to detain suspects for longer. Quite rightly, in Northern Ireland the separation of the process comes between, on the one hand, the judges, who are responsible for conducting the courts, and, on the other hand, the Secretary of State and the police, who are responsible for investigation, intelligence and weighing up all that. That is extremely important.

We all hope that in future the situation in Northern Ireland will not be as it has been in the past and as it was when I was a Minister in the Northern Ireland Office. We hope that in future peace will reign and that everything will be much easier, as it is, to a large extent in Great Britain. However, this Bill is not planned in its entirety on that supposition. The report of the noble and learned Lord, Lord Lloyd, was written on the

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basis of what to do after peace has been arrived at in Northern Ireland. Quite rightly, part of the Bill takes account of the fact that even if in the next few days a settlement is reached with the main parties in Northern Ireland--as we all dearly hope--there are likely to be terrorists--maybe maverick groups of terrorists that are not under the control of the main terrorist organisations about which we hear so much--still operating and those powers will still be required. I believe that they will be required and I do not believe that we should plan on the assumption that they will not be required. Among those powers are those to which I referred about who decides on the extension of detention.

I appreciate that I am talking entirely about the position in Northern Ireland, as opposed to that in Great Britain. The amendments that I have tabled refer to the whole of Great Britain. In general, the arguments, although not as strong as far as Great Britain is concerned, are similar and while I would be prepared to accept alterations to the amendments to confine this point to Northern Ireland, I believe that it is desirable that the same should happen in both jurisdictions. Although the arguments are not as strong, I believe that they apply on both sides of the water. For that reason I believe that Amendment No. 95, and the others that follow it, are desirable.

Of course, they also have the effect of continuing to ensure that the Secretary of State arrives at a decision in private, rather than the matter taking place in court with representations from the opposite side. I recognise that that is a departure from what one may want in this context, but I believe that it is a justified departure, and such a situation has been the practice up to now. I believe that Amendment No. 95 and the others grouped with it are justified.

Lord Mayhew of Twysden: I warmly agree with what has been said by my noble friend. It is of paramount importance that the reputation and perceived position of the judiciary in Northern Ireland as being wholly independent of the Executive should be preserved. They are jealous of that reputation, which is one that I have never heard seriously challenged even during my time in Northern Ireland from republican sources. They have achieved that tremendous prize themselves and they are rightly jealous to retain it.

I know that it was the view of at least one previous Lord Chief Justice that the jurisdiction that is now sought to be bestowed upon them by the Bill, in place of the jurisdiction of the Secretary of State, would be harmful to that reputation. I am pretty confident, although I cannot absolutely assure the Committee, that that was the view of two Lord Chief Justices. Whether it was the view of one or two Lord Chief Justices, that view is soundly based because, as my noble friend has said, a member of the judiciary would be drawn into deciding matters that would be perceived as pertaining to the Executive role. When one looks at the matters which he would have to take into account in Schedule 8, one sees how sensitive they are.

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It may be said on behalf of the Government that there is a parallel jurisdiction held by magistrates to decide whether or not, after 24 hours--it may be 48--an extension should be permitted. I ask the Government to accept that the matters which magistrates have to take into account under PACE are a world away from the matters which the judiciary would have to take into account in Northern Ireland in terrorist cases.

I suggest also that, if this provision were implemented, we would find significantly less covert information coming forward to the police from informers. They would fear that, no matter what the reputation of the judge hearing the application, somehow or other their identity would get out. That is a fact of life and that would be the advice received by the Government if it has not already been received by the chief constable. I need scarcely mention how important it is, in the battle of terrorism under the rule of law, that there should be an uninhibited supply of information from people who do not wish their identity to be known, or even to risk it becoming known. That is a second important factor to add to that already alluded to by my noble friend.

The last point I should like to make on Amendment No. 95 is that one must always look to see whether a proposed change in the law will be an improvement on what exists at the moment. In that regard it may be helpful for me to mention how the system works at present. As has been made clear, it falls to the Secretary of State to hear an application by the police to extend a period of detention beyond 48 hours and up to a maximum of seven days, which is rarely asked for, before a judicial authority is involved. That procedure is extremely scrupulously operated. In the vast majority of cases the authority is given by the Secretary of State after careful consideration of the application put forward in paper form. Occasionally it may be taken by a junior Minister in the absence of the Secretary of State. On rare occasions it may be given by the Permanent Under-Secretary, but always subject, at the first opportunity, to ratification by the Secretary of State. It is a scrupulously operated procedure. And it is by no means unknown for the Secretary of State to refuse such an application.

Moreover, the operation of that procedure is subject to the surveillance and monitoring of an independent commissioner--it was the noble and learned Lord, Lord Nolan, a few years ago--who has the right to call for all papers in every case in which this jurisdiction has been exercised, and who has the duty to report each year to Parliament on his findings. It is unusual--I do not recall an occasion--for the Secretary of State to be critical of a genuine mistake. Indeed, when a genuine mistake is discovered by officials in the Northern Ireland Office, that is always voluntarily drawn to the attention of the commissioner for subsequent ratification or at least remedy.

The present situation provides a fair and practical safeguard against abuse, given the circumstances of Northern Ireland and the need to combat terrorism. I

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ask the Minister therefore to consider carefully whether it is wise to accede to what has been a nationalist request for a long time--I grant that--but against which powerful arguments can properly be ranged.

6.30 p.m.

Lord Dubs: I appreciate the great experience that the noble and learned Lord, Lord Mayhew, brings to bear on this subject, and that of the noble Lord, Lord Cope. I am sure that they both signed a number of extension orders during their time in Northern Ireland, as I did. But I am not totally persuaded by the arguments deployed in relation to Amendment No. 95.

I signed such orders. They were always meticulously presented. The arguments were clearly stated and on only two occasions did I go beyond the PACE maximum of 96 hours. There was never a request for more than an increment of 48 hours' detention and never for the full five days. But the arguments were clearly presented.

I do not understand why, given the expression "the rule of law" used by the noble and learned Lord, Lord Mayhew, that rule of law is not better fulfilled by a politician extending the period during which an accused person is kept in custody rather than it being done as a judicial process. I had to sign extension orders when I was on duty at the weekend in the absence of the Secretary of State for Northern Ireland, so he would have signed many more than any duty Minister. However, I can recall no occasion when, on the information presented to me about a specific individual or a number of individuals, there could have been any difficulty in a judge looking at the same information and deciding whether or not extension was appropriate.

I am not persuaded by the argument in relation to informers. I do not remember all the details of individual instances and it would not be appropriate, if I could remember them, to refer to them here. But I cannot think of any instance where the manner in which the information was presented to me would have in any way prejudiced the anonymity of an informer had that same information been presented to the judge.

A further point is that at the moment the United Kingdom has a derogation, under the European Convention on Human Rights, to enable this procedure to continue. That derogation may not be permitted in the future. I am not totally familiar with the procedures of derogation but that is my understanding. It seems to me that, as a country, we are sailing close to the wind in continuing a procedure which is not one that is fully in accordance with the European Convention on Human Rights. That will have more focus when the Human Rights Act comes into force in October this year.

Therefore, while bowing to experience, I prefer the system which reflects the rule of law as completely as possible; in a nutshell, that decisions in relation to detention should not be made by politicians; they should be made by judges. Judges can bring the full

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impartiality of their position to bear when making those decisions. It may be that the decisions will be no different and in practice it will make no difference. But the perception of the process will be different and the way in which this country does these things will be perceived to be better done by the judiciary rather than politicians.

The thought that the Northern Ireland system, as it is now, will be extended to other parts of the United Kingdom makes me even more concerned about Amendment No. 95 and the related amendments. I hope that the Government will not be swayed by the arguments we have just heard.


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