Counter-Terrorism Bill

My Lords, I am tempted to say that we have reached the stage of the debate where most of what needs to be said has been said, but not everybody has had the chance to say it. It must be recorded that those who have made their case have tapped a rich seam of experience and have been very persuasive. I join many others in commending the noble Baroness, Lady Manningham-Buller, on a maiden speech that concisely and compellingly set out her case. It is right that people on both sides of the argument express themselves with passion, because fundamental issues and high constitutional principles are at stake. The fundamental challenge of a free and democratic society is how we balance liberty and security. I accept that defending the security of our nation is one of the supreme duties—if not the supreme duty—of government. However, I also believe that if, in doing so, the fundamental values of our community and nation are eroded, and the essence of what makes us a nation is significantly altered, the wrong balance has been struck. I fear that that would be the outcome of certain provisions in the Bill, particularly the provisions with regard to 42 days’ detention. I join others in challenging these provisions, not only on the grounds that I believe that they erode some of our fundamental liberties, but also because they could undermine the fight against terrorism. As my noble friend Lord Thomas of Gresford said in his opening remarks from these Benches, so much of the information essential to tackle terrorism comes from within communities. If we take steps that cut down that flow, I fear that we might disable the authorities in their battle against terrorism. There is no difference north or south of the border in our commitment to individual freedom. However, over the centuries we have developed in different ways. Scotland does not have Magna Carta. We do not even have the writ of habeas corpus; but our love of liberty is no less. It is not so many years since the trial of someone remanded in custody in Scotland had to be completed within 110 days of their committal. Tackling terrorism is an issue rightly reserved for the Westminster Parliament. I will reflect on three issues that arise out of the Bill as they affect Scotland. The first relates to 42-day detention. The noble and learned Lord, Lord Boyd of Duncansby, reflected on his experience as Lord Advocate. I had the privilege of serving with him in government in Scotland for six years. He indicated that he is opposed to the extension of the period of detention before charge. The current Lord Advocate, Ms Elish Angiolini QC, in a letter to my honourable friend Mr Alistair Carmichael MP last month, said that, "““while I accept that there have been a limited number of cases in Scotland which were investigated in terms of the Terrorism Act 2000, I am not aware of any case where an extension of the period beyond 28 days would have been required.""I therefore share the view of the DPP Sir Ken MacDonald and the former Attorney General, Lord Goldsmith, that the requirement for an extension to the current 28 days is not supported by prosecution experience to date””." There we have the up-to-date position expressed by the present Lord Advocate. I will reflect on two further issues. The first is universal jurisdiction, which was referred to by the noble and learned Lord, Lord Mackay of Clashfern, and also by the noble and learned Lord, Lord Boyd of Duncansby, who argued cogently that Clause 40 should be in the Bill, and that the perpetrator of a terrorism offence within the UK should be tried anywhere within the UK. When the Bill was originally published, it would be fair to say—if I may use the Scottish word—that it caused a bit of a stushie in Scotland. It was seen to erode the independence of the Lord Advocate and even to be contrary to the Treaty of Union. However, when the noble and learned Lord, Lord Boyd, said that he had pressed for this provision, and the present Lord Advocate, in her evidence to the Public Bills Committee that was dealing with the Bill in another place, indicated that she had sought a similar provision, some of the heat went out of that argument. Nevertheless, there are important issues to which we should address ourselves, probably in Committee, regarding the implications of this measure. What would the criteria be for transferring an accused person from one jurisdiction to the other? If proceedings start in one jurisdiction, can a trial take place in another? These are not simply academic points. In Scotland, there are time limits under the Criminal Procedure (Amendment) (Scotland) Act 2004: 80 days for serving indictments; the commencement of a trial of a person in custody must take place within 140 days unless the court grants an extension; and a preliminary hearing must occur within 110 days unless the court grants an extension. If someone who was originally charged in Scotland was sent to stand trial in England, would those time limits apply? Conversely, if someone originally arrested in England were sent for trial in Scotland, would these time limits apply to that person and, if so, when would they kick in? As I said, those are not academic points; they are fundamental. In Scottish criminal law, great pride is taken in the safeguard provided by the time limits for bringing people in custody to trial, and we should not let that go by without any reference being made to it in the Bill. I looked at the Bill in great detail but did not see anything that covered that kind of situation; nor, indeed, did I see what the criteria would be for transferring an accused person or deciding in which jurisdiction that person should be tried. The other point that I wish to raise concerns post-charge questioning. As my noble friend Lord Thomas indicated, such questioning is not unprecedented in England and Wales, and the Bill has separate provisions for Scotland. It is fair to say that until now in Scotland it has been an established and fundamental common-law principle that the police are prevented from questioning a suspect after he or she has been charged. There is no doubt that the legislature can change that but, if it does, it is only fair for us to take the argument to the Government and ask what account was taken of the Scottish situation when the provisions of Clause 35 were drafted. In the case of Stark and Smith v Her Majesty’s Advocate in 1938, the Lord Justice General, Lord Normand, said: "““When an accused person has been committed, he comes under the protection of the court and it is the court’s duty to see that nothing is done by the police that will prejudice his trial””." If someone is under the protection of the court, we should expect more than we see in the Bill if that protection is to be interfered with somehow or another. Should that protection be interfered with in the first instance simply on the authority of a superintendent? The questioning can take place right up to the trial. If the trial is to take place in the High Court, is it right that the sheriff should have to give authority for the questioning to go beyond 24 hours? What is the role of the Lord Advocate in this? In Scotland, not only is the Lord Advocate a prosecutor but he has responsibility for directing the police in their investigations of a crime. Therefore, does the Lord Advocate have a locus if a superintendent intends to give the authority for post-charge questioning, as is proposed in Clause 35? I raise those points because they are important. We are not necessarily saying that we are opposed to the measure but we should expect more in the Bill if a fundamental change is to take place. There is the impression that it has not been properly thought through. If, as I think is appropriate in cases of terrorism, matters are reserved to the Westminster Parliament, the least that we can expect of it so far as concerns Scots law is that it does things properly.