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Lord Clinton-Davis: I come back to the point which I raised in my intervention. It is highly dangerous for the extension to 14 days to be exercised without judicial approval, which would have to be very specific. I noticed that, in the course of his remarks, the noble Lord, Lord Carlile, did not refer to this.

I pay tribute to the noble Lord's work and I think that it is invaluable. However, we have to be conscious of the rights of ordinary people—which includes terrorists. We may not like them, but so far as the law is concerned, they are entitled to protection. I think, therefore, that the burden of proof for which this extension is being sought should rest firmly on my noble friend. There can be no equivocation about that; it is a very serious matter indeed. For all I know, my noble friend may be able to convince the Committee that an extension of this kind is required, but I would be surprised if she were able to do so.

The noble Lord also said something about a change in the character of terrorism. He may be right about that, but in my view we should be very slow to dismiss altogether the claims of those who purport to present a view about civil rights, which is most important. All I ask is that this issue should be considered impartially—perhaps in secret, I do not know—by a judge. The trouble I see ahead is that, slowly but surely, a rule will develop to the effect that prospective defendants on this kind of charge will be held for 14 days willy-nilly, and it will not matter whether it is justified; that will be the case. Have defending lawyers and defendants asked for a change of this kind to be made?

In my view—I may be wrong—the burden of proof cannot be properly discharged in such circumstances. The gravamen of the noble Lord's intervention is that the change foreseen in this proposal is justified, but nothing that he said in his powerful speech would enable the Committee to come to that conclusion.

Baroness Kennedy of The Shaws: Like the noble and learned Lord, Lord Lloyd, perhaps I may express my concerns. I support what the noble and learned Lord said about the obligation to charge or release being the cornerstone of the liberty of the subject, although he said it with some hesitation and apologised that it might sound pompous. Let me say immediately that there is absolutely nothing pompous or wrong in reminding the Chamber, and the nation, of the importance of liberty and how easy it is to cede its precious principles.

In saying that, I am not suggesting for a moment that we roll over in the face of terrorism. The work carried out by the noble and learned Lord, Lord Lloyd, in relation to this subject was crucial and he has incredible experience of the balancing that has to take place. The problem with the trade-off between civil liberties and security, which we all entertain when referring to terrorism, is that we always imagine that it is not us who will be making the trade. We always

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believe that someone else's liberty will be affected when in fact liberty cannot be separated out in that way. In the end, the "them" always means us. It is our liberty inside our system that is affected. It is important that we hold on to that idea because it is those precious principles of our democracy that terrorism assaults. So let there be no apologies for explaining why this matters and why this subject is so important.

I am concerned, however, that this seems very much like an administrative convenience. When investigating crime, it is always difficult to get things done within the set parameters. So you always think that if you were given more time, that would be the answer to the problem. It is in that way that a kind of "creep" takes place which erodes liberty.

I should say to my friend and colleague at the Bar, the noble Lord, Lord Carlile, that when you spend too much time with people on the investigative side you hear only about the problems they feel they are facing—how they would like more time; how they would like to have interpreters at the ready; how they would like more computer experts, and so on. But, as the noble and learned Lord, Lord Lloyd, said, none of these problems are new. They are not very different from what they were three years ago when the Terrorism Act 2000 was enacted, and they are not very different from those experienced in the many terrorism cases in which I have been involved, which now run into double figures. Not all of them were to do with Ireland. Many cases involved people who had language difficulties—they were from the Middle East and from the Indian sub-continent—and they needed interpreters, and so on.

By enlarging the amount of time in which people are kept in custody—people who are in fear; people who know the seriousness of what is being alleged against them—we run the risk that people may end up making confessions against their own interests and which may lead to miscarriages of justice.

This brings me back to the principle that liberty matters. We do not want people kept in custody without good reason. They should be brought before the courts and charged at the earliest possible opportunity. Fourteen days is too long. Nothing has changed to justify such an extension.

My noble friend Lord Clinton-Davis inquired whether anyone had spoken about this to anyone on the defence side. I can assure him that the answer will be in the negative because, if anyone had inquired, they would have been told that this is an outrage. We should remind ourselves of why protecting liberty is so important. We need better justification for this incredible change than we have heard so far.

Baroness Scotland of Asthal: I agree with my noble friend Lady Kennedy of The Shaws and the noble and learned Lord, Lord Lloyd, that liberty is the cornerstone of our democracy—but liberty for all, not only for those who wish to perpetrate crimes of terror against us. It is a question of balance. We have to

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balance the liberty of those being investigated with the liberty of those who will be the subject of terror. It is a difficult balance.

I part company with the noble and learned Lord, Lord Lloyd, when he says that there is no distinction between terrorism and drug trafficking; that there is nothing unique about it. I do not share his view for the following reasons. I absolutely accept that trafficking in class A drugs is pernicious; I absolutely accept that it visits terror of a long and enduring nature upon those who take and abuse drugs. But there is a significant difference. Those who take drugs have an element of choice. Sometimes they are vulnerable and pressured, but they can choose to take the drug or to say no. There is no element of choice when it comes to terror. Terror is visited upon us whether we like it or not. There is no consent; there is no agreement; and there is nothing that those who are subjected to terror can do to avoid it. No one asks our permission; no one asks for our consent. So while I accept what the noble and learned Lord says in relation to investigation, we should be frank in accepting the nature of terror.

We also need to accept that things have changed. We may not like the fact that things have changed, but they really have changed. Why? Because in the past those involved in nefarious practices—if I may speak colloquially—usually had form. What happens now? More and more of the people who engage in terror appear to have no record of involvement in crime, as the noble Lord, Lord Carlile of Berriew, said.

Tragically, there is a new feature: those who perpetrate terror have no feeling of self, and dying is not an issue for many of them. That is a tragedy because previously we could rely on the fact that most bombers who perpetrated offences—I refer to the terror visited on us by the Real IRA and others in the terrible bombings to which we were subjected—wished to escape; they did not wish to be subject to the death they visited on others. Tragically for us, that situation has changed and we are living in a new environment where the risks to our people are more acute than ever before.

How do we respond? I take up the point made by my noble friend Lord Clinton-Davis in relation to the courts. What will be the courts involvement? Let me put it into context, although I know that not all Members of the Committee are totally familiar with the provisions.

Clause 284 amends Part 3 of Schedule 8 to the Terrorism Act 2000 which governs the detention of persons detained under Section 41 of that Act. Section 41 gives a constable the power to arrest a person without a warrant whom he reasonably suspects to be a terrorist. An individual detained under Section 41 may only be held by the police for a maximum of 48 hours unless an application has been made asking a court to issue or extend a warrant of further detention. I echo what was said by the noble Lord, Lord Carlile of Berriew—the judges who are tasked with performing this function are rigorous in the way in which they apply it.

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Under Schedule 8 as it stands, a court may extend the period of detention for up to seven days if the conditions set out in the legislation are met. Clause 284 will allow such detention to be incrementally extended by the court for up to 14 days. I agree with the noble Lord, Lord Carlile, who said that this will be used sparingly and not frequently. But there appears to be a need to use it.

These provisions come to us from the police and are considered to be essential to them. I add my voice to those of the noble and learned Lord, Lord Lloyd, the noble Lords, Lord Hunt and Lord Carlisle, and others who have rightly complimented Commander David Veness on his work and the work done by all those officers who have been so successful in trying to keep us safe in recent days. I add my voice because the police are simply asking for unmerited extensions—they have persuaded us that these extensions count.

4.30 p.m.

Lord Lloyd of Berwick: The Committee will be very grateful to the Minister for explaining the way in which this works. Has she had any discussions with those judges and retired judges who are performing the function she has explained and would have a better view on this than almost any of us, as to whether this extension is justified?


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