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It has already been said that it is ironic that criticism of those very provisions—parliamentary involvement and the safeguards—is coming from those who are most concerned about civil rights. Those provisions were brought in to try to meet the requirements of safeguarding civil rights. This is an honest and brave attempt to balance the operational security requirements of the law enforcement agencies to defend the public with the requirements of civil rights. As such, it deserves our support.

The Lord Bishop of Southwark: I will make a very brief contribution from these Benches. I have listened carefully to the debate this afternoon. Underpinning the disagreement on the amendment is where the balance needs to be struck between an emphasis on national security and upholding civil liberties. It is understandable that any Government would wish to put great weight on the need for national security, for protecting their citizens is the basic duty of any Government. Those of us not in government can reflect further on the balance that must be struck, particularly if, were we to get it wrong, our national security would be weakened and not strengthened through groups in society feeling that they were being targeted and treated unfairly.

Speaking for myself, I am not persuaded that the case has yet been made for the necessity of extending the detention of terrorist suspects to 42 days. Therefore, I will support the amendment.

Lord Harris of Haringey: I—

Lord Judd: A great deal of experience has been brought to bear—

Lord Brett: My noble friend Lord Harris of Haringey has been waiting for a long time.

6 pm

Lord Harris of Haringey: I declared at Second Reading that I sit as the Home Secretary’s representative on the Metropolitan Police Authority, with the specific responsibility of providing lay oversight of the police work on counterterrorism. I spent an hour or so today with the senior officer at New Scotland Yard who co-ordinates terrorist investigations. I do not intend to

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report the detail of that conversation, as that would be inappropriate, but I can say that I am disturbed that there are Members of the Committee who have not recognised the increasing threat of terrorist action. I spend a lot of my time looking at the degree to which the police services, and, I am sure, the intelligence services, are stretched to full capacity in investigations that are graded as high priority. We cannot view that with complacency.

We have also discussed risk, which, in terms of terrorism, has been transformed in the past 10 to 15 years. The objective of the terrorists is not to make a specific point but to inflict mass casualties. There is a desire to do “better” than has been done before. There is also the recognition that the individuals concerned will die in the course of taking that action. That means that the decision when to intervene in any prospective plot is that much more difficult. You have to intervene earlier to avoid running the risk of possibly horrible and appalling loss of life. That is the dilemma that is faced, and it is why it is necessary for the Committee to debate these provisions.

Much has been made of the complexity of the cases. A recent example involved the seizure of some 200 or 300 computers. A modern computer contains a terabyte of memory, which is the equivalent of 50,000 trees, cut down, converted to paper and printed on both sides. If that material is encrypted or is written entirely in Arabic or, perhaps more significantly, if it contains significant material hidden in files which have been given such innocuous labels as “holiday photographs”, it is an enormous task to sift through it. That is why time is needed, because of the relationships that have to be pursued, as my noble friend Lady Ramsay said, in international jurisdictions.

In our discussions, we have heard much about the threshold test. I had a brief exchange with my noble and learned friend Lord Falconer of Thoroton on this point. As I understand it—although I may be corrected by the massed ranks of noble and learned colleagues in this Committee—the decision on making a prosecution, whether or not with a reduced threshold, has to be taken by the Crown Prosecution Service. Before this provision can be implemented, the director of that service has to certify that a prosecution is necessary. This new power is a reserve power which can be used only in the event that things cannot otherwise be dealt with. Because it is a reserve power and because it requires the consent, approval and recommendation of the Director of Public Prosecutions, it can be invoked only in circumstances in which the lower threshold test has not proved satisfactory, or when the other matters that noble Lords have raised mean that the legislation is needed. Those are the only circumstances in which this failsafe will come into force.

The reality is that this proposal is designed to protect in the event of other things failing. It can be implemented only after what has been described as a tortuous and difficult process. It should be a tortuous and difficult process. However, the provision is there for a reason. It is there because, although there may be a threat to civil liberties in any instance where someone is detained for longer than 28 days—and probably for longer than 14 days, and probably longer than seven

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days—the rule of proportionality states that we must protect this country and its citizens, both here and overseas, from the threat of mass murder. That is what terrorism is about.

Lord Foulkes of Cumnock:

Lord Ramsbotham:

Lord Judd:

The Lord President of the Council (Baroness Royall of Blaisdon): I feel that it is the will of the Committee that we ask the Minister to respond to the amendment.

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): Over the past few hours we have had another passionate, gripping and constructive debate. As a relative newcomer to this place, I can only say that it shows itself at its best when issues such as this are debated. Notwithstanding sniping from some quarters, the nation is fortunate that such a Chamber still exists to air, in a rather less party political and partisan context, matters of crucial national importance. I hope that such debates here allow consideration of the argument rather than the expression of preconceived political ideas.

No one likes holding people in custody without charge. I can assure noble Lords that the police investigate all cases as quickly as possible and that they would not detain anyone for longer than is absolutely necessary. It is disappointing that some Members of the Committee seem to think less of the police than that. Indeed, when applying to the court for an extension of detention, the police have to present strong evidence for further detention. Judges—and I have considerable faith in judges, particularly since the noble and learned Lord, Lord Lloyd, told me they pay attention to Ministers—would not grant extensions of detention where they did not believe that the investigation was being pursued diligently and expeditiously. Judges can, as they have in the past, grant less than the full seven-day extension requested, or no extension at all if they feel that further detention is not justified. All of us would prefer to be in a position where a charge could be brought within 48 hours. But we are in a different world today, as a number of noble Lords have said.

When it comes to terrorism, particularly modern-day terrorism, we cannot always expect to uncover the crucial evidence that can found a charge immediately on arrest. If the police wait until after a crime is committed to make an arrest, we may have scores, hundreds or even thousands of casualties. In securing a successful prosecution, it would often be advantageous to wait and gather further evidence, because conspiracy to commit an act is notoriously difficult to prove. But the risks of waiting too long and allowing another 7/7 or 9/11 are far too great. I would always prefer the police and agencies—and I make this point to them—to err on the side of the safety of our people and not to delay acting because they may be aware of a time constraint when framing a charge.

We as a Government often face the issue that we are wrestling with today in this Committee: balancing the safety of the majority of our population against the freedom of the individual. I am certain where our duty

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lies. Those who are not in power, and particularly those who are never likely to be in power, have the privilege of arguing in the abstract. They are not faced with the harsh realities of being accountable to the nation for their decisions. However, this Committee has already understood the force of the argument and the necessity to change the legislation, and that it would be inconceivable in the present circumstances to return to 48 hours. Parliament has already accepted the need for 14 days’ detention as the norm and, exceptionally, 28 days’ pre-charge detention in terrorist cases. So today’s debate is not on a matter of principle, on an extension beyond a matter of hours or on Magna Carta; it is more on a prosaic judgment as to whether 28 days is enough to ensure our safety or whether we need slightly more. As the noble Lord, Lord Carlile, said, we may need 12 days or so extra. It does not have to be 12 days; it could be a matter of a day or hours.

Why do experts believe that there may be an occasion when more than 28 days will be required? I have already touched on the need to act quickly. I make no apologies, because it is important, for referring again to what former deputy assistant commissioner Peter Clarke said of the Dhiren Barot case. He said that,

at the point of arrest. Barot was subsequently sentenced to 40 years’ imprisonment. After moving quickly, the evidence has to be sought and compiled. The difficulties of doing so are growing exponentially, as a number of noble Lords have understood and spoken about. Again, I make no apologies for reiterating some figures. In 2001, when police investigated the last major IRA case, they had to analyse the contents of one computer and a handful of floppy disks. Three years later in 2004, in the Dhiren Barot case, 270 computers and 2,000 computer disks had to be analysed. In addition, the inquiries extended across eight other countries and jurisdictions. In a recent ongoing case, 30 addresses were searched within two hours and 400 computers, plus 8,000 disks, were seized for analysis.

The terrorists learn quickly from their mistakes and our successes. They make much more use of encryption and different communication devices, and they move across borders using numerous names and numerous countries to store, access and hide material. They have steadily become more aware of all our capabilities, particularly those relating to intercept. The consequence of all this—and I have not even added the extra delays that would be caused by contamination of evidence if the plot involved CBRN, to which a couple of noble Lords referred—is that more and more time is required to gather the evidence and to charge.

We have not required more than 28 days up to now, so what is the reason for the change? That is the question that a number of people asked, including the noble Lord, Lord Dear. The situation was exactly the same when we extended the period from seven to 14 days and from 14 to 28 days. On neither of those occasions had there been a case that required more than the existing time limit, but all the trends showed us that it would happen because of the complexity to

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which I have referred, and of course Parliament was right on both occasions. Such an extension was required and then used.

In every arm of government and in the commercial world one has to make serious decisions based on predictions and trends. That cannot be avoided. The analysis now leads inevitably to the conclusion that more than 28 days will, before long, be required. But would such powers be used indiscriminately by our police? A number of noble Lords referred to that. I have rather more faith in our police than some people and organisations seem to exhibit, and in this context it is well worth noting that the police have not needed or used more than 14 days in the past 14 months because there has been no requirement to do so. There have been no plots of the complexity that requires that length of investigation. I have to say—this is not giving anything away—that at present all our intelligence indicates that that might not remain the case for long. I digress here and mention the noble Earl, Lord Onslow, who said that the threat has not increased. I am afraid that the threat has increased dramatically, and that has been stated very clearly. We are monitoring 2,000 people, and the things that regularly cross my desk are daunting. There is a greatly increased threat, which we have to manage.

However, I understand the concerns of those who say, “Hang on a minute. If we go down this route we could end up with 300 days, 500 days or whatever”, Indeed, it was concern about how far we should go that led me to express doubts about the 56 days that were talked about last year.

I have no easy answer to this. Rather, it has to be a question of judgment using pragmatism, common sense and knowledge of all the issues. I believe—the noble Lord, Lord Carlile, touched on this as well—that 42 days is about right, bearing in mind that we are looking at going beyond 28 days, and at the moment, using my professional judgment, pragmatism and common sense, I do not envisage additional complexities that would require more than that. I cannot say that that is any more than a judgment—I do not know the exact answer—but it will be only the most exceptional, complex and serious cases that require more than 28 days.

What of those who have been saying that more than 28 days is not required? Most of them of course are interested laypersons and not experts. Many call in aid senior police officers, serving and retired. I can say only that ACPO, the chief constables of all the forces where the bulk of terrorists have been apprehended—not those from some of the shires—and, more recently, retired senior police officers who spent time in post handling these complex operations, rather than those who have been retired longer, all believe that more than 28 days will be required at some stage in the future. Indeed, this morning I had a phone call from Chief Constable Ken Jones. He phoned me to say, “Best of luck. Charge of the Light Brigade”, or something like that, but then he said, “I do hope you manage to get it through because there will be a case where we need more than 28 days”.

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Noble Lords have heard from the noble Lord, Lord Carlile, the independent reviewer of terrorism, who, more than any other non-operational person, has access to information on terrorist investigations. He is convinced that at some stage more than 28 days will be required.

6.15 pm

Andy Hayman, former assistant commissioner for special operations at Scotland Yard, has been quoted at length. I shall set out exactly what he said:

“As someone who has been deeply involved in every major counter-terrorism investigation since 2005, I am convinced that we will soon need the power to hold suspects for more than the current limit of 28 days—and that we need to legislate for that power now rather than in the middle of an emergency”.

I have to say that I am sure that there will be a need to go beyond 28 days.

My noble and learned friend Lord Morris of Aberavon asked whom we have consulted. I could go into detail on this but over four months we consulted more than 100 organisations, the judiciary, legal organisations, police forces, the CPS and the DPP, and the DPP was consulted before the Bill was introduced.

I asked myself whether there was any way of avoiding extensions by using technology or perhaps using other legislation. These were the very issues that I wanted to investigate last year when I was falsely accused of a U-turn. I was glad to hear the noble Earl, Lord Onslow, accuse me of that again. It was an interesting interlude in my life but at least it brought the new phrase, “Doing an Admiral West”, into the drivers’ lexicon, so it was not all bad.

The short answer to whether technology or other legislation will remove the need to extend is no, and certainly using intercept as evidence or post-charge questioning are not silver bullets to achieve this end. I do not intend to go into detail on using intercept as evidence but we are pursuing the recommendations of the Chilcot review at full speed on a cross-party basis.

I looked at the question of technology but it cannot resolve the time aspects of analysing ever growing amounts of computer data, not least because there are choke points where only a limited number of assets can be brought to bear and the need to go through other jurisdictions and languages is incredibly time-consuming. Some of them do not want to help us; it takes a long time.

So what of using other legislation or other charges? Let us take the threshold test, for example. I think that I have three pages on that. I could go through them or I could say that I am afraid that it does not meet all our requirements. It has been debated at length and I shall spare the Committee those three pages. The threshold test does not achieve what we want.

We have of course looked at whether the Civil Contingencies Act could provide a workable model, but we, the Home Affairs Select Committee, the Joint Committee on Human Rights, the noble Lord, Lord Carlile, and the police have all concluded that it is not the answer. This is primarily because the Act was not designed to provide for extensions of detention in terrorist-related cases and it would give rise to considerable legal and other difficulties if we tried to use it in that way.

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Lord Lester of Herne Hill: The Minister has not yet come to the question of legal difficulties under the European Convention on Human Rights, but can he tell the Committee how he answers the view of all independent legal commentators and of the Joint Committee on Human Rights that there will be serious breaches of the convention without a derogation? Will he be dealing with that?

Lord West of Spithead: I did not intend to go into that in detail. I simply say that I see nothing at all in what we are doing here that goes against the ECHR. There would have to be a challenge through the courts to show that but I do not believe that it does; I think that we have all the right safeguards in place.

The noble Lord, Lord Imbert, made very clear during Second Reading that using spurious minor charges and then post-charge questioning was not the correct way to do business in this country, and I agree entirely with that. The DPP is totally against holding charges of the type that the noble Lord, Lord Dear, talked about. They are contrary to our legal system. As a throwaway comment, I have to add that it is ridiculous to say that you are entitled to legal representation post-charge but to suggest that there is no legal representation or access to a lawyer pre-charge. There is.

I am convinced that there will be a complex case in the future where the police will need more than 28 days to bring the appropriate charges, and there is no way of avoiding that stark fact. That is why we are proposing contingency, or what I sometimes call—perhaps somewhat inelegantly—back-pocket legislation, to enable the 28-day limit to be increased in exceptional circumstances, and then only for a very limited period. What is the balance of risk? As a Minister, I have to ask that. If I am wrong—and my goodness, I hope that I am—there will be no such complex plot and the limit will never be extended above 28 days under the powers in this Bill. But if the proposed legislation is rejected and the Government and the experts are right about needing more than 28 days, it could mean that dangerous terrorists are released to commit atrocities or destroy other potential prosecutions. They will not be brought to justice for the terrorist crimes that they have committed.

The noble Lord, Lord Thomas of Gresford, referred to the Overt trial. I have to be careful. I cannot really talk abut this because there are considerable things going on. All I would say is thank goodness that two men were found guilty of conspiracy to murder.

A noble Lord: Three.

Lord West of Spithead: Three, I hear. They could have murdered tens or hundreds—probably not thousands, but hundreds of people could have been killed. We get into the question of scale raised by the noble Lord, Lord Carlile. Is the fact that a small number of people may have been held for whom we could not get a charge to be weighed in the balance against the fact that two or three people could have killed hundreds and were found guilty? I throw that to the Floor.

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Lord Blackwell: Is the noble Lord saying that if a person is released, rather than being held in custody at the end of 28 days because the threshold test is not met, that significantly increases the threat of a subsequent terrorist event? Are the public not entitled to expect that in those exceptional circumstances, that individual, once released, would be kept under surveillance to reduce that risk?

Lord West of Spithead: The Government will do the absolute maximum to try to ensure people’s safety by ensuring that there are people covering those who have been released, who are after all innocent. Complete checks need to be made all the time as such people will be able to use their phones and perhaps unravel cases that may be going on against someone else. They will not be found guilty of something they intended to do, which is possibly to kill thousands of our people. That cannot be right and we must try to avoid that happening.

Lord Anderson of Swansea: My noble friend has said that in his judgment such power will certainly be needed in the future. In the event that the proposal were defeated in this House tonight, would it be incumbent on the Opposition to support emergency and less satisfactory legislation?

Lord West of Spithead: I shall come to my noble friend’s point a little later in my response.

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