Terrorism Act 2006 (Disapplication of Section 25) Order 2009

My Lords, last year we debated this order when the Government proposed to extend the period of pre-charge detention to 42 days, as the noble Baroness, Lady Miller, reminded us. Having been defeated, the Government still have on the stocks, it is important to remember, what they call the temporary Bill to extend pre-charge detention to 42 days, which they have not submitted to pre-legislative scrutiny. I note that, because it is in the background of the Government’s proposal that they should retain the 28 days. There is a desire in certain circumstances to go further. I want to reiterate the point that I made last year; namely, that the need for Parliament to renew Section 23 of the Terrorism Act 2000 on an annual basis demonstrates that the extension from 14 to 28 days maximum is already an exceptional power, as the noble Lord, Lord Judd, just said. We scrutinise it frequently because it is such a dramatic departure from normal practice. Certainly, the object on these Benches is that the period of pre-charge detention should be reduced. We have great sympathy with the amendment tabled by the noble Baroness, Lady Miller. We agree with her that other methods should be used to bring charge at an early stage; she detailed a number of them. I add the possibilities for a more flexible threshold test than already exists, the post-charge questioning possibility and the increased resources that certainly, as she rightly reminded us, have been provided to the security services. One might legitimately ask if the power is still needed based on its use to the present date. A number of the previous speakers have mentioned the statistics. The Government’s statistical bulletin on terrorism arrests and outcomes since 2001 shows, as has been said, that in 2006-07 10 people were held for between 14 and 28 days, of whom seven were charged and three released without charge on the last day of the 28 days. In 2007-08, one person was held for more than 14 days before being charged on the 19th day. Since March 2008, no individual has been held longer than 14 days. So, as the noble Baroness, Lady Miller, said, the statistics do not of themselves demonstrate a continuing need. That certainly shows the importance of review. However, the statistics are only one part of the debate that we need to have. We on these Benches certainly recognise that the terrorist threat is increasingly complex. There is no argument about that. Even though the power has not been used in the past two years, that does not of itself demonstrate that the extension to 28 days is no longer necessary, as the absence of evidence is not evidence of absence. However, it is imperative that the Government make the case, as has been said by other speakers. In their Explanatory Memorandum to the order, and as repeated by the Minister, the Government put forward five reasons to justify the need for extension to 28 days. These reasons are based on the evolving and ever increasing complexity of the terrorist threat and include: the greater use of encrypted computers; the increasingly complex nature of terrorist networks; the international linkages in plots and the need for putting everything together; and the difficulty of entering premises—these are all matters to which he referred. The fifth reason, of course, is the need to intervene early in some terrorist cases, which results in the investigators having less time to gather admissible evidence prior to arrest. These are all relevant considerations, as are the points made by the noble Baroness, Lady Miller. On thinking back to the 12 arrests in Manchester recently, I find it worrying that, following an investigation based on what was said at the time to be strong intelligence into what the Prime Minister described as a serious terrorist plot, the police have not been able to present sufficient evidence even to lay charges against any of the arrested, let alone obtain convictions. There has been no explanation for this and what happened unavoidably gives rise to questions about the procedure followed. It is also the kind of episode that has the potential for greatly increasing communal tension in this country. We on these Benches have called on the Government to increase the range of evidence admissible in court in terrorist cases to include that derived from intelligence sources, which would help underpin a greater number of successful prosecutions. This call is reflected in the amendment of the noble Baroness, Lady Miller. Yet despite the recommendations of the Chilcot review that it would be in the interests of national security to develop an acceptable way of bringing intercept evidence to court, frustratingly there is still no sign of the completion of the work of the follow-up committee. It would be helpful to know from the Government whether Sir John Chilcot, with his new responsibilities for the Iraq inquiry, will be able to find time in the near future to complete the work that has already been undertaken. We are all agreed that one of the greatest deterrents to terrorism is getting the guilty behind bars. We should therefore not go on handicapping ourselves unnecessarily by restricting the evidence that is admissible and instead lengthening the period of pre-charge detention to increase the chances of finding other cogent evidence. That is precisely the opposite of the policies followed by common-law countries in similar situations. We on these Benches take the view that we cannot go on indefinitely like this. As with control orders, we give the Government fair warning that our continued tolerance of extended pre-charge detention on the present basis is wearing thin, and these are the reasons. First are all the points that I have just made about the need legitimately to strengthen the hand of the prosecution in terrorism cases to reduce the resort to derogations from fundamental provisions. Secondly, there is the somewhat elderly information put into the public domain about the nature and extent of the terrorist threat. The reasons put forward by the Government for extending pre-charge detention are certainly not irrelevant, as I have already said, but they are general propositions likely to be more or less valid for a long time to come. They tell us little about the evolving threat or the current security situation and, as has been pointed out, lead to the danger of simply renewing these orders, year after year, without real examination. The point of the sunset clause is to enable legislators to take an informed view on a periodic basis—and I mean informed. This House needs more information than the Government have provided on the terrorist threat and the security situation. As part of today’s proceedings we should be debating a report from the Government on the current threat and the security situation which informs us and the country about its evolution. The noble Baroness, Lady Manningham-Buller, who is not in her place, helped to move us in this direction when she gave a speech to Queen Mary College in November 2006 on the terrorist threat to the UK; her successor, Jonathan Evans, likewise did so in a speech in November 2007 and, as was quoted today, made the odd further obiter dictum. However, the assessment that we have is now getting on for two years old and these two speeches should not be the end of the information put into the public domain on a considered basis; the Minister should be willing to update us. As I say, as part of today’s proceedings we should be debating lessons learnt from previous terrorist investigations. The Joint Committee on Human Rights has noted for many years one way in which this could be achieved. It has called for an independent review of the practice of detaining people for between 14 and 28 days, conducted by an appropriate body such as the Crown Prosecution Service Inspectorate, to see whether those charged after being detained for more than 14 days could have been charged any earlier. Other noble Lords have made reference to this and it is an important recommendation which the Government should take seriously. I note that the report published today states that: ""The Government has provided some statistical analysis which is helpful, but it is not enough to allow us to assess whether the extension beyond 14 days pre charge detention is needed"." Other noble Lords have said this. There seem to me two reasons. There is certainly the need to examine the efficacy of the procedures and, as I said earlier, we need to know more about the security situation. The Government have not really provided sufficient evidence in their Explanatory Memorandum either to support or reject their reasons for the extension. That brings me to my third point, which is the unsatisfactory nature of the legal framework surrounding the extension of pre-charge detention as it affects the rights of defendants in particular. This, I know, is something that the Joint Committee on Human Rights always looks at, and last year the committee’s report on pre-charge detention was published the day before we considered a similar order. This year it was published a few hours ago. I wish that the Government would time the debate better, when they know that a report of this kind is going to come to your Lordships’ House, so that it enables us actually to consider the committee’s conclusions and enough time to really absorb its contents. Last year the Joint Committee concluded that the current arrangements for judicial authorisation of extended pre-charge detention did not satisfy the stringent requirements either of habeas corpus or of Article 5 of the European Convention on Human Rights. The committee reiterated that conclusion today, and it gives a couple of reasons. First, it says the hearing of an application for further detention is not fully adversarial. The second reason is because judicial oversight is inadequate as a result of the narrowness of the questions the court is required to answer in making its decision, focusing on the course of the investigation and whether it is being conducted diligently and expeditiously rather than whether there is sufficient evidence to justify the original arrest and continued detention, which should actually be what it is focused on. I suspect the committee will continue to focus on that part of its report, and it seems to me quite right that it should. Given the recent ruling of the Law Lords in a different matter—it touched on some of the same issues, however—I ask the Government whether they are going to risk a further legal challenge or whether instead they might heed the recommendations of the statutory reviewer of counterterrorism legislation, the noble Lord, Lord Carlile, who has suggested that the Government consider, ""empowering judges to scrutinise the reasons for detention, and the adequacy of the work done to bring the case to charge, from the seventh day after arrest"?" That would be another way in which we might get a greater safeguard. All that, of course, reinforces our proposal with the noble and learned Lord, Lord Lloyd, for the institution of an independent commissioner for terrorist suspects, which was first put forward when we considered the then Counter-Terrorism Bill. The Government accepted it and undertook to put forward legislation but, in March, when I asked what progress was being made, I was told, ""we are continuing to consider how to meet the commitment to establish an independent commissioner for terrorist suspects".—[Official Report, 23/3/09; col. WA 106.]" I hope that I am not just being fobbed off and that the Government will bring forward the promised proposal. I draw the Government’s attention to the opportunity which the Coroners and Justice Bill provides for them to put forward a proposal of this kind. Let me conclude by reiterating that the objective on these Benches is without doubt to reduce the period of pre-charge detention. We agree with the fundamental points made by the noble Baroness, Lady Miller, but I have to say that as shadow Security Minister, I do not feel able to vote for or to support a change with real potential implications for security on the basis of today’s short and incomplete debate, uninformed about the current terrorist threat and the security situation generally. Lest the Government conclude that this is therefore the way to obtain renewal in future—by keeping the House in the dark and by ignoring the numerous objections to obnoxious features of the current legal regime—let me give fair warning that on these Benches we shall not be so complaisant on future occasions. The Government must not think that they can take Parliament for granted. Can the Minister please therefore assure your Lordships’ House that the Government will give Parliament an opportunity to debate the security situation? After today, our support for the extension of pre-charge detention will depend on what the Government are able and willing to do in the following respects: first, to demonstrate convincingly to Parliament that the security situation is such that 28 days remain indispensable and cannot be shortened—that means that we need a proper discussion on the security situation—secondly, to pursue implementation of the measures of the type advocated by the noble Baroness, Lady Miller, which would help reduce the time a suspect had to spend in pre-charge detention; and thirdly, to take action to amend the legal framework governing judicial authorisation of extended detention to allow it to meet the procedural protections required by our common law, as well as by Article 5 of the ECHR. Should there be a change of Government before the next renewal comes up, this gives an indication of the approach that we would take. The Government have a duty to keep the people of this country secure and, with parliamentary consent, to take the measures that are strictly necessary to that end. That, however, is not enough; protection must and can be achieved in ways that uphold our historic freedoms and our reputation for justice and procedural fair dealing.