Terrorism Act 2006 (Disapplication of Section 25) Order 2010

My Lords, I share the concerns expressed by the noble Baroness, Lady Kennedy of The Shaws. I appreciate that we are debating this issue in the context of the Government’s very welcome announcement that they will conduct a review of the 28-day pre-charge detention limit. However, I am unpersuaded that there is any basis for continuing this power, even on a temporary basis. There are three points which your Lordships will wish to have well in mind. First, this is an extraordinarily exceptional power. English law normally requires that suspects be charged or released within four days. The pre-charge detention limit for terrorist cases was limited to seven days until 2003, when it was raised to 14 days. English law jealously restricts the power of the state to detain people without charge, and rightly so. It is only when charged that the person concerned has the right to be told the accusation against him and to respond to it. For the state to hold a person without charge for up to four weeks is inevitably a very substantial interference with their freedom and inevitably has a very damaging effect on their work, family relationships and reputation in the community. Secondly, there must, therefore, be a very heavy onus on the Government to justify such an interference with basic liberty. The real question is whether they can meet that heavy onus. I suggest that they have failed to identify any practical experience whatever which establishes, or indeed even suggests, that a 14-day limit would not suffice. This is, of course, not a new problem. The Home Office has all the relevant information. Will the Minister in her reply please identify for the House whether there are any cases in which pre-charge detention after 14 days was necessary to the successful prosecution of a terrorist suspect? It is surely not sufficient for the noble Baroness to assert—and who can disagree with the assertion?—that it is impossible to be sure that there might never in the future be an occasion when more than 14 days might be required, as she put it. My third and final point, which I hope troubles this Government more than it did the previous Government, is that detaining a suspect pre-charge for as long as 28 days is a breach of the European Convention on Human Rights. It would be declared to be so by the European court and, indeed, by our courts were this power to be exercised. In this respect, the European convention simply adopts and applies the principles of English common law developed over the centuries. Article 5 entitles a suspect to be informed promptly of any charge against him, and case law clearly establishes that ““promptly”” means within a few days, even in cases where an individual is suspected of terrorism. Therefore, if and when the 28-day power is used, it is almost certain that a challenge to its legality would succeed. Can the Minister tell the House whether the Government have been advised to the contrary? The organisations Liberty and Justice have been making these points eloquently and repeatedly over the years. There is, I suggest, no coherent answer to them. The noble Baroness mentioned the Statement that she made to the House on 13 July, repeating a Statement by the Home Secretary in the other place. She said that, "““the first duty of Government is to protect the public—but that duty must never be used as a reason to ride roughshod over civil liberties. And that is what the last Government did on too many occasions. This Government are different””.—[Official Report, 13/7/10; col. 644.]" I am very sorry indeed that this Government do not feel able to demonstrate the difference on this occasion.