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On these Benches, we oppose the proposal in the Bill for detention without charge for up to 42 days. I address that issue alone. My noble friends will address your Lordships later on other aspects of the Bill. In terrorist cases, the act of arrest is the end of a long process of surveillance and evidence gathering. The surveillance continues so that the security services and the police can see the scope of the whole operation. Arrest opens up to the police the chance of seizing incriminating material, such as mobile phones, computers, and even perhaps suspect substances. The suspect can be interrogated both about the facts revealed by surveillance and his explanations for the material seized.

If he is detained in custody, by the common law of this country, not to mention Article 5 of the European Convention, he is entitled to know the reason for his detention promptly. When he is properly charged, he knows where he stands. He is entitled to be brought before a judge promptly and to have the lawfulness of his detention determined. But when he is not charged, which is the proposal in the Bill, he is in limbo. He is detained without even a reasonable suspicion based on admissible evidence of his involvement in terrorist activity.

In previous terrorism Bills, we have passed a succession of new offences for acts preparatory to terrorism and for association and support. There are all sorts of acts which do not amount to any physical involvement, but

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encouragement and preparation are now criminal acts. A person who is detained without charge is detained without even a reasonable suspicion that he is involved in acts of that sort. Reasonable suspicion, as the noble Baroness, Lady Neville-Jones, pointed out, is the threshold test advised by the Crown Prosecution Service as the basis for preferring a charge. Reasonable suspicion does not require a realistic prospect of conviction. That is the full code test applied to the evidence by CPS lawyers at a much later stage in the collection of evidence when determining whether the case should proceed. Sir Ken Macdonald, the Director of Public Prosecutions, is happy with current procedures, and he should be because he has succeeded, as the noble Lord, Lord West of Spithead, pointed out, in 92 per cent of the cases that have been brought.

Interrogation of the suspect after charge in relation to the subject matter of the charge is unusual, but it has always been permitted under the judges’ rules under PACE Code C in special circumstances. It enables, even now, for a suspect to be questioned on new evidence where it is in the public interest. Consequently it is no surprise that all parties in this House support Clause 34 of the Bill which permits further questioning on the subject matter after a charge of a terrorism offence.

The usefulness of such questioning is a different matter. It should be realised that one of the side-effects of the introduction of planned and lengthy interviews is that a defendant at his trial may be subjected to the deconstruction of every sentence and every word recorded in his interviews by a highly experienced prosecutor and all sorts of unintended implications will be put to him in the presence of the jury. Those with a less than adequate grasp of the English language may prefer, indeed may be advised, to say nothing. The purpose of further questioning in a no-comment interview is to cover the ground—simply to raise an inference of guilt from the failure of the suspect to answer questions. The noble Baroness, Lady Kennedy of The Shaws, will recall the methods of the IRA: say nothing, plead not guilty, do not give evidence, and when you get to prison, turn it into a prisoner-of-war camp and wait for the amnesty. That is exactly what happened.

Even if a suspect confesses after continuous interrogation over many days, it is worthless. It is inconceivable that a suspect should be questioned daily for 42 days, or that if he were, evidence of a confession so obtained would ever be accepted by a judge as untainted by oppression. This is the important point which the argument seems to have missed so often. Other evidence-gathering in relation to the inquiry will continue after charge in any event, fuelled by the items seized. That is normal in every type of case. The inquiry is not hindered in any way by the act of charging the suspect. In any serious case, it is highly unusual for technical, scientific or other forensic investigations and material seized to be reported on for weeks or months. Inquiries into phone records and overseas contacts will continue, and fresh evidence will be served as the case proceeds towards its trial date.

So the period of 42 days has no practical or principled basis. It does not set a time limit for the inquiry. A period for a suspect in the police cells without charge

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adds nothing of value to the investigation, prosecution or conviction of terrorists. The noble Baroness, Lady Neville-Jones, has pointed out the alternatives that are available to detention without charge, and I will not go over that ground.

This Bill has passed its stages in the Commons by the production of gesture after gesture. A very important part of our constitution and legal system is that the party Whips do not determine whether an individual should lose his liberty. Let us look at what is proposed in the Bill. The DPP and the police must tell the independent lawyer to advise; he must tell the Home Secretary of his advice; she must tell the senior judge and the chairs of the JCHR and others; and she must tell Parliament, which must approve the order. And woe betide the lot of them if the independent reviewer says six months later that they got it all wrong. This is legislation in the AA Milne style.

There were 65 rebels among Labour Members of Parliament. Some of them were persuaded to change their views, not by knighthoods or peerages or pork-barrel promises, but a melange that only Winnie the Pooh could invent of executive, legislative and judicial functions, all mixed together in one useful jar. Some of those rebels and the entire DUP swallowed that melange whole. What a triumph that was for informed democratic politics.

In January 1993, I prosecuted the last terrorist trial in Wales, concerning the sending of letter bombs to senior police and officials of the Conservative Party. Since that time, thanks to our long campaign, the wisdom of the late and much-lamented John Smith and the leadership of Gareth Williams in this House, Wales gained its Assembly. There has been no more violence or threat of violence; the grievances of the people are addressed. The day will come when our minority communities will be proportionately and fairly represented in our democratic institutions, and in our police forces and security services. There will then be no more violence within, and threats from without will be resisted by a country that has learnt to share the same goals and values to which the noble Lord, Lord West, referred. If only the Government would drop these proposals and work to that end.

3.59 pm

Lord Falconer of Thoroton: My Lords, I look forward keenly to the maiden speech of the noble Baroness, Lady Manningham-Buller. We are very lucky to have her in this House. Having worked with her on the sort of issues that we are dealing with today, I know the huge contribution that she has made to the defence of the United Kingdom.

I shall speak of only one issue in my remarks: the extension of pre-charge detention to 42 days. We are a country where there is in a meaningful sense both freedom and security. Both are important to our well-being and we understand the importance of both. We restrict freedom when we have to provide security and, generally as a nation, we have got the balance right. Getting the balance right requires open debate and mutual trust. We should respect both sides of the debate. On these issues, we should as legislators understand that we are trying to get the right policy answer. That is what the public expect of us.



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We should pay special attention to what the Government say on these matters, not only because, as I know from my own experience, these judgments are difficult, but above all because of the consequences to innocent lives if atrocities occur as a result of our getting it wrong. However, I am absolutely clear that no advantage in fighting terrorism will be obtained by extending pre-charge detention to 42 days. I will therefore oppose this part of the Bill.

The terrorism backed and driven by al-Qaeda has raised new difficulties that everybody in this House will acknowledge: the need for long-term forensic examination of computers; the important links with abroad, in particular Pakistan; and, as my noble friend Lord West on the Front Bench said, the fact that the police often have to intervene earlier than simply evidence gathering would suggest to protect lives. Equally, it is accepted that a significant number of plots have to be fought against. It is also agreed that prosecuting terrorists in the conventional courts is one of our most critical defences against terrorism.

In most cases—I emphasise “most”—criminal charges may be laid and further detention justified after charge only if there is a 50 per cent or more chance of success before the jury and public interest requires the prosecution. In most terrorist cases of any complexity, it takes longer than 14 days. Indeed, it takes longer than 28 days; it takes many months in many cases to gather the evidence to establish the 50 per cent-plus. It was because of that that the proposal to extend the pre-charge detention period to 90 days was made. I supported that privately and publicly.

Parliament rejected that proposal. Since it did so, the Crown Prosecution Service has successfully used what is described as the threshold test in the vast majority of cases to charge terrorist defendants. The threshold test allows charging where the evidence to show 50 per cent-plus prospects is not yet available but the authorities believe on reasonable grounds that it will become available and where, if the detainee were released, he would be a danger to individuals or the community at large.

Lord Morris of Aberavon: My Lords, I, too, at that stage supported the 90 days, but, even then, the 2004 test for threshold charging was in operation, contrary to what the noble and learned Lord has just said.

Lord Falconer of Thoroton: My Lords, I completely accept that it was in place at that time. The extent to which it could be used was not known; the extent to which it became the basis of most terrorist charges was not known. Now that it is known, the basis for an extension to 42 days completely disappears.

The test allows charging where the authorities believe that the evidence will come, for example, from the forensic examination of computers from abroad. It means that there is no need for an artificial deadline. We know that the CPS is satisfied with that approach; the Director of Public Prosecutions has made that clear. They know best; they are the ones making the decision about charges that determine whether people who may be terrorists have to be released before the opportunities have existed to gather evidence against them. They do not think that pre-charge detention

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extensions are required. We have heard from my noble friend Lord West that there were 8,000 exhibits in the Barot case, for example. Those 8,000 exhibits were not contained within the 14 days; they took many months to gather.

What is the argument to justify the extension? I quote from the Government’s policy paper in support of the 42 days. It says:

It is rather difficult to know precisely what that means. However, it is suggested that the 14 days between 28 and 42 days will make the difference as to whether it is a reasonable time. I have news for those who put forward that view: it will make no difference. Test it. Suppose it is said that it will take six months to get the evidence. Is any judge going to say, “I would have allowed the charge but for the fact that you would not get the evidence in five and a half months”? No. That would be a ridiculous assertion, I submit.

If someone has been in custody for 28 days and there is not even a reasonable suspicion—this is the point made by the noble Lord, Lord Thomas—it seems extremely odd that there could be a basis for detaining him. If the Government had in mind a situation in which the state was overwhelmed by multiple plots and the life of the nation was threatened, the debate could be about whether the Civil Contingencies Act was sufficient. But that was not how the case was framed. The Home Office put the case on the basis that it is to apply, to quote from its paper, to,

The threshold test provides the best framework. If there is reasonable suspicion, charge the detainee and let the search go on for evidence. That meets the case. The basis for the extension simply is not there. I shall oppose the extension to 42 days root and branch.

I say little about the safeguards, save the following. First, on their complexity, we have heard that it needs a chief of police, a Parliament, a judge, an independent lawyer and a DPP before you can charge. If it was necessary to extend the time, I would hope that our police and prosecutors would be focusing on seeing whether there was evidence there, not trying to find their way through the complex flow chart that the Home Office has provided to try to help them through this position.

The second problem with the safeguards is that we in this country determine whether people should be detained on the basis of a judge’s view after analysis of the evidence. I find it worrying that somebody could be detained in prison on the basis of a deal done with another political party. That is something that we have never accepted in this country before.

The safeguards are obviously defective, but I shall vote against the whole extension to 42 days because I consider that no proper basis has been shown for it. We should address the issue in this House on the basis of a rational and open debate on the merits of the proposal. Only that rational debate will allow a true

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consensus to form and only in that way do we demonstrate both our determination to defeat terrorism and the strength of our values in doing so.

4.08 pm

Baroness Manningham-Buller: My Lords, I am delighted to be in your Lordships’ House. I thank noble Lords for the very warm welcome that I have had from all parts of the House and for the generous comments made today.

Normally, I would have liked a little longer than a week to settle in and to learn the conventions of your Lordships’ House before opening my mouth, but I have learnt one convention, which has been drummed home to me, which is that maiden speeches are to be short and non-controversial. I can do short, but non-controversial is a bit trickier in the circumstances.

Since 9/11, we have had a great deal of terrorism legislation. One point that has not been made so far is that successful counterterrorism work depends on a number of things, but in particular on good intelligence and good police work, not necessarily on changes in the law. That said, all the legislation has had some important and enabling provisions.

I applaud the fact that we are discussing now, rather than against the background of an atrocity, where this country wants to draw the line on issues such as pre-charge detention. I have considerable sympathy with the police on the collection of evidence, which is very challenging, given the need to move early, the amount of seized data, the complexity of cases and the forensics. I congratulate the anti-terrorist branch of the Metropolitan Police for the superb job that it does. But arguments can be made to justify any time of detention, just as in other countries, although mercifully not here, they can be made to justify any method of interrogation.

In deciding what I believe on these matters, I have weighed up the balance between the right to life—the most important civil liberty—the fact that there is no such thing as complete security and the importance of our hard-won civil liberties. Therefore, on a matter of principle, I cannot support the proposal in the Bill for pre-charge detention of 42 days.

I understand that there are different views and that these judgments are honestly reached by others. I respect those views, but I do not see on a practical basis or on a principled one that these proposals are in any way workable for the reasons already mentioned and because of the need for the suspect to be given the right to a fair trial.

Finally, I have been fortunate in my career to have dealt with national security. It has been a great privilege. Our legislation covering the Security Service refers to the protection of parliamentary democracy. I have a plea: handling national security should, as far as possible, be above party politics, as it has been for most of my career. Faced by a severe terrorist threat, we should aim to reach, after debate and discussion, a broad, cross-party consensus on the way ahead. Polarised positions are damaging to what we are all trying to achieve in preventing—I underline that—detecting and countering terrorism.



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4.12 pm

Baroness Ramsay of Cartvale: My Lords, it gives me great pleasure to congratulate the noble Baroness, Lady Manningham-Buller, on her outstanding, thoughtful and valuable maiden speech. I have known the noble Baroness for some time and, in spite of the conventions of address in this House, I am happy to call her a friend. Although a new Peer, she is no stranger to this House. Not only is she very well known to us from her distinguished career in the Security Service, culminating in being its director-general, she is the daughter of an eminent former Lord Chancellor and the sister of a hereditary Peer, formerly a Member of this House. What she has said today will provide the House with food for thought, delivered in her usual forthright manner. We look forward to hearing a lot more from her and we warmly welcome her to this House.

Noble Lords: Hear, hear!

Baroness Ramsay of Cartvale: My Lords, I now turn to the Bill. It is beyond doubt that we are being threatened now by forces of terrorism that constitute a unique challenge to our society in general and to our security, intelligence and law enforcement services in particular. The nature and severity of that threat are unprecedented. This Bill is a serious attempt to deal with that threat while trying to preserve our democratic principles and practices. The introduction of some unparalleled safeguards and parliamentary involvement is the result of the widespread consultation in all directions in an attempt to obtain the broadest possible support, although unfortunately the much desired cross-party consensus has not been obtained on many crucial issues. I will never be able to understand the Conservative position on some of these issues. We will have an opportunity to discuss details of the Bill in future stages. At Second Reading, I will speak on only two points: making intercept material available to coroners and pre-charge detention.

The House has often heard the concerns expressed by myself and others about the use of intercept as evidence in courts. It has never been a question of principle for any of us, but one of practicality. The Chilcot committee of privy counsellors, in its excellent and thorough report, laid down nine considerations which would have to be satisfied if intercept was to be used as evidence. These nine considerations encompass all the points we have ever argued of the difficulties and dangers of using intercept as evidence. The Chilcot report was accepted by the Government, and my right honourable friend the Prime Minister made clear that only when the nine conditions were safeguarded could the matter progress. The privy counsellors entrusted with putting this into practice are in the process of doing so.

It is therefore with considerable surprise that one finds Clauses 80 and 81 in Part 6 of the Bill, amending RIPA so that intercept can be used in inquests and inquiries. I am unimpressed by the so-called safeguards enumerated in the Bill. The clauses seem to fly in the face of the assurances given by the Prime Minister and repeated in this House by the noble Baroness the Leader of the House. I understand that there is a

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coroners Bill planned for the next parliamentary Session, which would seem the appropriate place for this. There is also the work of the noble and learned Lord, Lord Cullen of Whitekirk, in Scotland, on fatal accident inquiries to be taken into account.

On Report in another place, these points were all raised by some distinguished former Ministers—my right honourable friends Reid, Ingram and Spellar—by the opposition Front Bench and by two Chilcot privy counsellors, the right honourable Alan Beith and the right honourable Michael Howard. The Minister, my right honourable friend Tony McNulty, responded to their concerns by confirming that amendments in this House would meet their points. I look forward to those government amendments in Committee. These clauses should be deleted, sunseted or sunrised, and they should definitely be amended so that they do not come into effect before the work on the nine Chilcot requirements is complete.

Apparently, the motivation for these two clauses is concern about one particular case. I say only this: there must be a way to solve this other than inserting two clauses into a wholly inappropriate Bill with serious, far-reaching, unintended consequences, in contradiction to assurances given in both Houses on the Chilcot considerations.


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