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Lord Hylton: I wish to say a few words about the rather narrow point concerning a second review by an independent person after 48 hours following arrest and before the expiration of a period of seven days. I believe that this point is covered by one of the amendments in this group. I am aware that Schedule 8 already provides that there will be a review every 12 hours by a police officer of fairly senior rank.
However, let us imagine a case where the wrong persons have been arrested. They may be people of low intelligence, suffering from mental impairment or learning difficulties, who may, even if they do not suffer from those conditions, have weak characters and be very suggestible. These are the kind of circumstances in which miscarriages of justice have been known to occur in the past. I have in mind the case of the Guildford Four, of which I had some slight personal experience. It seems to me to be rather important that there should be provision for a second review by an independent person.
I should just like to add the suggestion--I do so rather diffidently, knowing that this Bill applies to the whole of the United Kingdom and not just to Northern Ireland--that such a review might be conducted by an ombudsman. After all, he is a person who is not attached to the judiciary or indeed to the executive.
Lord Bassam of Brighton: We have had a most interesting and useful debate, which has focused on the two different approaches from the Benches opposite. The Official Opposition seeks to retain the current position whereby the Secretary of State authorises detention after the 48-hour point has been reached, while the Liberal Democrats support judicial authority but seek to amend the Bill's regime.
I shall turn, first, to the Conservative amendments because these constitute a fairly radical departure from the Government's position. While looking at the amendments of the Official Opposition, perhaps I ought to say how much I welcome the support of the noble Lord, Lord Cope, for the 48-hour police detention. I should add that we are mindful of the position of the judiciary in Northern Ireland. Both the noble Lord and the noble and learned Lord, Lord Mayhew, spoke very wisely of the difficulties that it faces and there are concerns in that regard. However,
I do not accept that this is such a novel matter that it falls outside the natural remit of the judiciary. In fact, I believe that the judiciary is probably best placed to decide on the issue--an argument very ably advanced by the noble and learned Lord, Lord Lloyd, in his report at paragraph 9.19.
I should also like to comment a little on the points raised by the noble and learned Lord, Lord Mayhew. I take very careful account of what he said. Indeed, as my noble friend Lord Dubs said, he has, along with the noble Lord, Lord Cope, considerable experience in such matters, having had to study these cases most closely and make determinations. However, I cannot accept that this is a matter that is so inextricably linked to the executive that it cannot properly be transferred to the judiciary. Although I can sympathise with the arguments put forward by the noble and learned Lord, Lord Mayhew, that the present system works well--there is no question about that--in the light of the ECHR judgment in Brogan, I am afraid that it is not a system that can be maintained in the longer term.
Similarly, I do not entirely agree with the other point made so ably, as always, by the noble and learned Lord; namely, that terrorism cases are a world away from ordinary cases in every respect. The difference is not so stark at the top end. Let us take, for example, cases involving drugs, drug smuggling, gangster activities, and so on. These are similar, though not identical, to some of the sensitivities that apply in PACE cases. So it is not a matter of such cases being entirely different. Although the noble and learned Lord is right to suggest that PACE, with its invigilation conducted by magistrates, cannot be immediately transferred in exactly the same way to the Northern Ireland situation, we believe that the principle of having judicial involvement must be right.
The noble and learned Lord made a further important point about the need in instances of terrorism, especially in the context of Northern Ireland, to protect intelligence sources. We recognise that fact. However, it is best to stress that the role of the judicial authority is very forward looking in that respect. We shall continue fully to consult and ensure that we have the confidence of the police in this matter. Indeed, I am sure that we have that confidence.
As the noble and learned Lord, Lord Lloyd, pointed out on Second Reading, Strasbourg requires judicial authority. In order to maintain executive authorisation of detention, we take the view that the UK would also have to maintain the derogation from the convention, as pointed out by my noble friend Lord Dubs. We believe that it is right in principle that we should comply with Article 5 in this respect. We wish to withdraw the derogation as soon as practicable.
Lord Mayhew of Twysden: I am most grateful to the Minster for giving way. However, on that very point, is it not the case that, by writing into the Bill and preserving in it the ability to extend for up to seven days the period before which someone has to be brought before a judicial authority, the Government are dwelling upon and perpetuating the present rule that necessitated the derogation from the convention? Further, is it not also the case that, if not in Brogan then in the predecessor case--the name of which eludes me for the moment--it was said in effect by the ECHR that up to four days is all right but seven is too much? That led to the derogation, the validity of which was upheld in the case of Brogan.
Therefore, the argument being made that we really must do our best to conform to the convention and that that justifies rejecting Amendment No. 95--a point also made by the noble Lord, Lord Dubs--does not deal with the point that by keeping the seven-day period we are retaining the fruit of that derogation. In other words, if it is right to retain seven, why is it not right to retain "Secretary of State" in this respect rather than having the judiciary?
Lord Bassam of Brighton: I suspect that that is a rather different point. I do not believe that we would accept that this is a breach of Brogan. If the noble and learned Lord recalls, the case of Brogan turned on a lack of judicial intervention. That is the point we are trying to establish in moving away from the current system. The case was not about the time spent in detention. I believe the noble and learned Lord to be half right, but we are trying to build and create a very different situation. We do not think that we can maintain derogation any longer on that basis.
We believe that we have constructed a system which both meets and goes beyond our convention requirements. It is important for us to do so in terms of pre-charge detention. The minimum requirements were set out in the Schiesser case. We have added to those requirements the right of representation in relation to the hearing. As I said at the outset of my remarks, there is a clear difference in our approach. Fundamentally, we believe that it is right in principle that matters relating to the liberty of the individual should be in the hands of the judiciary. Indeed, I should have thought that there would be general agreement on that point in this place.
Moving further into the detail of the amendments, the noble Lord seeks to replace the references to the judicial authority with references to the Secretary of State. As he has argued, this leaves the scheme largely intact but produces some interesting, if perhaps slightly odd, results. For example, Amendment No. 101 deletes entirely paragraph 35 of Schedule 8, while Amendments Nos. 102 and 103 seek to alter it. The second approach would give the detainee a right to make oral or written representations to the Secretary of State. Does the noble Lord intend--I cannot believe that this is his intention--that the detainee would appear before the Secretary of State? It is an important point of detail although I shall not dwell on it. We wish to concentrate here on the principle.
We continue firmly to believe that judicial authority--that is, after all, part of the separation of powers--is the right approach. The Opposition have in the past said that they would not be concerned about continuing to derogate from the convention. However, we are concerned about this.
I note what the noble Lord has said and I also note what the noble and learned Lord, Lord Mayhew, has said. I fully accept that there has to be room for more than one view on this matter in particular. However, I ask the Committee to think carefully about our international obligations. I trust that the noble Lord will not press the amendments.
I turn to the Liberal Democrat amendments. I again welcome the support we have received from them on achieving our important policy objectives. I should say at the outset that I appreciate that the amendments are tabled with a wish to improve the regime. That seems to me entirely laudable. While I acknowledge that aim, I am afraid that I cannot accept the amendments. I should like to explain why that is the case in some detail.
Amendment No. 68C would reduce the time the police may hold a detainee from 48 to 36 hours. This issue was carefully considered during the Committee stage in another place and, of course, prior to that by the noble and learned Lord, Lord Lloyd. The Government continue to agree with the noble and learned Lord, Lord Lloyd, that 36 hours is insufficient for the special circumstances of terrorist cases. The noble and learned Lord considered this point in great detail in his report and concluded that the first 24 hours can often be entirely taken up with preliminary processing matters, not least the proper taking into custody and the identification of the detainee. Anyone who has been involved in those matters will be aware of that. Therefore we continue to believe that 48 hours is the right balance. I trust that the amendment will not be pressed.
Amendment No. 95A would mean that the judicial authority could grant no more than 36 hours further detention per application, up to seven days in total. This may be seen as a compromise position, compared with the approach taken in another place, that the seven day total should be reduced to four. That position was based on a view that seven day detention would be in breach of Brogan, where the European Court found that detention of four days and six hours was a breach of the convention. But, as I explained earlier, in that judgment the case turned on the lack of judicial intervention and not on the time spent in detention itself.
We do not believe that there are convention requirements which would lead us to accept that the detention period should be capped. The next issue is whether, in the absence of a requirement, capping would be desirable. We do not believe that it would be. It is for the police to make out their case. It is difficult, if not impossible, to envisage a case where the police would be able to persuade the judicial authority that five day detention is essential. However, I do not want to fetter the judicial authority's discretion here. It is, after all, for the judge to decide on the amount of time to be spent in detention.
I return here to the point made by the noble and learned Lord, Lord Lloyd--terrorist cases are not like ordinary crime. That is why we are debating this legislation today. Terrorist crime is inherently different and I am therefore opposed to capping as proposed by the noble Lord. It is better in my view that the time is left at the discretion of the judicial authority.
Finally, Amendments Nos. 103A and 103B seek to ensure that a detainee can be excluded from proceedings only if certain requirements are met. I am happy to set out our thinking behind those provisions, which I hope will reassure the noble Lord as to our intentions.
As I said earlier, we have based the regime on Schiesser requirements. That includes a right to appear before the judicial authority. Here, the detainee has a right to make written or oral representations and we consider this to be absolutely crucial. The judicial authority must hear both sides of the case or his discretion will be fettered and, although he must be a member of the judiciary, without this provision the regime would not be judicial in character. The power for the judicial authority to exclude the detainee and/or his or her representative is to ensure that proceedings can be properly managed. Exclusion is a matter for him alone and if he found it essential to exclude the detainee, he would not automatically need to exclude the representative.
Let us consider a case where the detainee was obstructing proceedings simply so that the judicial authority could not complete the proceedings. It would be wrong if the process could be frustrated in that way. The judicial authority must have the ability to run his proceedings in an orderly manner conducive to his important remit. However, I can confirm that the Government are absolutely committed to the principle that the detainee must have a right of appearance.