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Lord Filkin: My Lords, I thank all noble Lords who have spoken. The House recognises the sensitivity of the issues we are discussing. We are essentially balancing the liberties of an individual whom we believe to be a terrorist against the rights and the need for peace and security of our own citizens. That is a difficult judgment to get right in that one is balancing one set of rights against others.

We appreciated the support expressed by Her Majesty's Opposition and, in more guarded terms, by the Liberal Democrats, for the proportionate necessity of the powers. As regards the point of the noble Viscount, Lord Bridgeman, about the scale of reviews, the review will also be undertaken by the noble Lord, Lord Newton of Braintree, who is present. As the House knows, that review will be carried out by nine Privy Counsellors. They will examine anything that they think is of relevance to the legislation. They are requested to report by December 2003. I appreciate the calls on the time of the noble Lord, Lord Newton of Braintree. The House is grateful that he has agreed to undertake the review.

The noble Viscount, Lord Bridgeman, referred to the links mentioned in the report of the noble Lord, Lord Carlile. We believe that that issue is dealt with in Section 21(4) which defines links as meaning supporting or assisting international terrorism. We do not believe that there is a problem there but we shall reconsider the issue with an open mind, as was signalled in another place during the debate on the order.

I refer to the matter that so far all detainees have claimed to be Muslims. I am particularly alive to the sensitivities of that matter as in my other role as Minister responsible for race and faith I am in regular contact with many members of the Muslim community and discuss their particular sensitivities as British Muslims at this time. We are aware of that matter. The fact that someone claims to be a Muslim is no reason whatever for not detaining that person. One cannot discriminate on that basis. On the other hand, we have made it absolutely clear that generally to equate Muslims with terrorism is wrong and is a denial of the central tenets of the Islamic faith which is a peaceable religion.

We believe that the procedure as regards special advocates is fair and necessary. We will keep the issue under review. A point was raised as to whether the special advocate can be heard in the Court of Appeal. We believe that it is clear that they can do so if they proceed from SIAC to the Court of Appeal, and one can well see why there are good grounds for them wishing to do so.

The noble Lord, Lord Goodhart, made some points about the sunset clause. I would not deny that there are occasions when the House improves legislation, and

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perhaps those are some of the measures that have done so. I mentioned the review of the whole Act. The sunset clause will be a particular challenge, and we will have to look at it in a few years time but not immediately. I very much hope that he is right that it will be more difficult persuading the House in a year's time that there is not a continuing threat to the security of the nation. However, I cannot say I am optimistic about that, but we will come to it when we come to it.

It has already been noted that we have moved on Belmarsh. As the noble Lord said, the judgments were not those of the Government but of SIAC. We are glad that it is not delaying hearing such appeals now. There was something on the radio this morning that may have led to some confusion—it certainly did in my mind—as to whether the subject of intercepts was relevant. An announcement was made about consideration of the intercept evidence in court. In fact, there was confusion, and it was not in any way related to the order. I will clarify that with a note to the noble Lord.

The noble Lord also noted that there had been a small number of cases. Also, the flexibility of the ECHR made it possible to derogate while still standing firm to its other elements.

I am grateful to the House for the way in which it has supported the continuation of the order. It will be good when we are no longer in a position to feel that it is necessary to continue it, but we are not there yet. It may be some time before we are.

On Question, Motion agreed to.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Codes B to E) (No. 2) Order 2003

7.22 p.m.

The Minister of State, Home Office (Lord Falconer of Thoroton) rose to move, That the order laid before the House on 27th February be approved [12th Report from the Joint Committee].

The noble and learned Lord said: My Lords, I beg to move that the order, a copy of which was laid before the House on 27th February, be approved. The order has been seen by the Joint Committee on Statutory Instruments.

Noble Lords will be aware that a near identical order was considered by the House on 24th February. Obviously, they cannot be sure that it was completely identical because two or three pages were missed out, as the noble Lord, Lord Hodgson, pointed out. That order was revoked on 4th March in consequence of that defect in one of the codes of practice laid before the House. An administrative error meant that one of the codes, Code D, was incomplete. That has since been rectified, and fresh codes were laid before the House on 26th February.

The new order will, subject to the approval of the House and of another place, bring into effect, from 1st April 2003, revised codes of practice in connection

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with the exercise of police powers in relation to searches of premises and the seizure of property found on persons or premises, as in Code B; the detention, treatment and questioning of persons, as in Code C; the identification of persons, as in Code D; and tape recording interviews with suspects, as in Code E. The order has been made under Section 67 of the Police and Criminal Evidence Act 1984. It cannot have effect until it is approved by resolution of each House.

Since we debated the codes on 24th February, I have provided the noble Lords, Lord Hodgson and Lord Dholakia, with an explanatory paper for each code detailing the main changes, which I hope they found helpful. That was pursuant again to a sensible suggestion by the noble Lord, Lord Hodgson. The amended codes were welcomed by the House last month, and I hope they will be welcomed by the House today. I commend the order to the House.

Moved, That the order laid before the House on 27th February be approved [12th Report from the Joint Committee].—(Lord Falconer of Thoroton.)

Lord Hodgson of Astley Abbotts: My Lords, I am extremely grateful to the Minister for his further explanation and update of the position on the codes. I would like to take the opportunity to thank him for having responded to my request for explanatory notes to lay out the changes made, and for sending me a copy, which I have read carefully. They are extremely useful. I hope that the issuing of such notes will become practice in future.

I have read the two missing pages of Code D with care. Page 7, which was one of them, concerns identification parades, video identification and identification by group. It also refers to annexes A, B and C. I ask the Minister to turn to annex A. Paragraphs 15 and 16 on page 23 are concerned with image security and destruction. Paragraph 16 states:


    "As appropriate, paragraph 33 or 31 applies to the destruction or retention of relevant sets of images".

I may be missing something, but I cannot find paragraphs 33 or 31 anywhere in Code D. The code ends at paragraph 6.12, annex A at paragraph 18 and annex B at paragraph 28. Admittedly, annex C goes to paragraph 44, but paragraphs 33 and 31, which are on page 29, seem to have no relevance to image security or destruction in relation to group identification. Annex D ends at paragraph 7, annex E at paragraph 12 and annex F at paragraph 5.

If one reads the code again carefully, one realises that the relevant paragraphs appear not to be paragraphs 33 or 31, but paragraphs 3.30 and 3.31, which appear on page 10 and are concerned with:


    "Destruction and retention of photographs and images taken or used in identification procedures".

The Minister may have some simple explanation for that, in which case I have obviously been going up a blind alley, but I think that the error ought to be put right. I understand that we cannot amend statutory instruments, so the Government presumably need to withdraw, correct and represent the order.

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While the Minister is pondering on that, I want to make two further observations, both of which I raised in the earlier debate. The first concerns paragraph 4.3 of Code E. I am sorry that the Minister, for all his many kindnesses and courtesies to me, has not seen fit to make use of the hiatus that has occurred to clarify beyond peradventure the issue of clean and new tapes. Paragraph 4.3, which is on page 5 of Code E, reads:


    "When the suspect is brought into the interview room the interviewer shall, without delay but in the suspect's sight, load the recorder with clean tapes and set it to record".

"Clean" is not the same as "new", nor the same as "unused". Indeed, use of the word "clean" could indicate tapes that had been used before and cleaned. In the earlier debate, I drew attention to the dangers of fragmentary retention on tapes that had been cleaned and reused. If we are to have another hiatus, could we not substitute "new" or "unused" in paragraph 4.3 for "clean", for the avoidance of doubt?

Secondly, I want to return to paragraph 6.1 of Code B, which concerns timing, stating:


    "Searches made under warrant must be made within one calendar month of the date of the warrant's issue".

During our earlier debate, I raised the question of whether the date of issue was the same as the date on which the warrant was signed. I recalled debates on the Animal Health Bill during which it appeared that some magistrates at least had begun to sign but not date warrants, so that they could be used later. The title of Code B begins:


    "Code of Practice for searches of premises by police officers and the seizure of property".

Those are very serious offences. The Minister was not able to respond to my point during the earlier debate, but I would welcome his reassurance that the dating and signing of warrants for such use and in such circumstances must be contemporaneous, and therefore the one-month clock allowed for in paragraph 6.1 must start ticking.

I look forward to hearing the Minister's response to those two points, but more importantly on whether he and his officials believe that Code D can properly be approved in its present somewhat imperfect form.


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