Protection of Freedoms Bill

My Lords, I am grateful to the noble Lord for his detailed consideration of this clause, and I thank him for his letter of 16 November in which he provided a detailed explanation of the reasons behind his amendment. The amendment would extend the circumstances in which an order could be made under Clause 58 to increase the maximum period of pre-charge detention in relation to terrorist suspects from 14 to 28 days. We have made it clear that we believe that the maximum period for pre-charge detention for terrorist suspects should in the majority of circumstances be 14 days. Given that no suspects have been held for longer than 14 days since 2007, it is evident that such a long period is not routinely required. However, there may be exceptional circumstances in which it is necessary to extend temporarily the maximum period. A mechanism should therefore be in place to provide for such circumstances. We are clear that any extension of that maximum period would be a very serious matter and, as such, the question of whether to increase the maximum period available should be put to Parliament by way of fast-track, primary legislation. I am grateful for the consideration of this issue by the noble Lord, Lord Armstrong. He has invested considerable effort during, and since, his chairmanship of the Joint Committee which undertook the pre-legislative scrutiny of the Government’s draft fast-track legislation. The Joint Committee agreed with the Government that the creation of a contingency mechanism to increase the maximum period of pre-charge detention is a sensible precaution. However, the committee advised against the use of primary legislation suggesting that the circumstances in which it might be needed would make its passage through Parliament impossible, a point stressed by the noble Baroness, Lady Royall. The Government also agreed with the committee’s conclusion that primary legislation would not be a workable solution during the period when Parliament is dissolved because obviously there would be no Parliament to take it through. As a result of a Government amendment agreed on Report in the House of Commons, Clause 58 now provides for the Secretary of State to make an urgent order to extend the maximum period of pre-charge detention, but only during a dissolution or in the period before the first Queen’s Speech of a new Parliament. The noble Lord’s amendment seeks to allow an urgent order to be made by the Secretary of State at any point if she felt that the use of primary legislation would be inexpedient for any of three reasons: namely, that there is not enough time; that there is a risk of prejudicing future trials; or that there is a risk to public safety or security. I appreciate the arguments put forward by the noble Lord that the Government may proceed by way of primary legislation but that they should also retain the option of using an urgent order-making power if primary legislation is too difficult. However, the Government remain of the view that when Parliament is sitting or is in recess, such a power is not appropriate. A 28-day limit on pre-charge detention for terrorist suspects is such a significant extension—it doubles the time—of the current limit, which is itself longer than the period permitted for non-terrorist investigations, that we believe Parliament should have the opportunity to debate and approve such a move. Yes, it will be difficult to manage primary legislation in those circumstances but it has been done before and the noble Lord, Lord Armstrong, has pinpointed some of those difficulties in his amendment, as has the noble Baroness, Lady Royall. However, we believe that it will be possible. Parliament has shown itself capable of debating emergency legislation in one or two days in the past—I have taken part in some of the debates—when the issues have been of real importance and urgency. Furthermore, Parliament would be required to debate the principle of 28-day detention rather than the circumstances of any individual cases, which will properly remain the responsibility of the courts. Therefore I do not think the danger to which the noble Baroness alluded would occur. While that means that Parliament must tread a very careful line in discussing the details of any individual investigations, it would be afforded the opportunity to consider the general nature of the threat and the need for any extended period of pre-charge detention in the context of that threat. Again, I think Parliament has a track record of discussing sensitive ongoing legal issues, as we have seen this year with the intensive debate around phone hacking. The Government believe that the introduction of an order-making power along the lines proposed would detract from the principle that in the main 14 days should be the maximum period of detention in all normal circumstances and this should be reflected in the legislation. The temptation to use such a power instead of primary legislation would be greater and this Government do not believe that it properly reflects the exceptional nature of 28-day pre-charge detention. In this group, we were also due to consider government Amendments 144 and 145. It might be of some use if I briefly say a word or two about them. They are in response to a recommendation and an observation made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. The committee reported that any order made by the Secretary of State under Clause 58 should be laid in draft before Parliament as soon as practicable. The committee noted that a similar provision in the Terrorism Prevention and Investigation Measures Bill requires an order to be laid before Parliament. The Government accept the committee’s recommendation and Amendment 144 will give it effect. An order made by the Secretary of State under Clause 58 will be made only when Parliament is dissolved. That effectively means that a draft would be laid as soon as possible once a new Parliament has assembled. The order would then be subject to parliamentary approval within 20 days, as per the requirement in the clause. The Delegated Powers Committee also noted that the drafting of the Bill means that the revocation of any temporary extension order made under this power would also be subject to the affirmative procedure, and questioned whether this was appropriate. After further consideration, we are of the view that the revocation of a temporary extension order need not be subject to parliamentary approval. A revocation order would simply return the maximum period of pre-charge detention for terrorist suspects to 14 days. Should Parliament agree to Clause 57, it will already have signalled its agreement that the default maximum period should be 14 days. I do not believe that it is necessary for Parliament subsequently to approve an order that restores the 14-day limit, given that the effect will simply be to revert to the status quo. As an order could be both made and revoked while Parliament is dissolved, it is possible that Parliament could be asked to approve an order and then approve its revocation immediately afterwards. Given that Parliament’s concern has been around the increase of the maximum period rather than any reversion to 14 days afterwards, I believe that it is sensible to allow for a process of parliamentary approval in respect only of the making of an order, rather than the revocation. That will allow Parliament to debate the principle of an extension of pre-charge detention, but will not result in the unnecessary use of parliamentary time if that increase, for whatever reason, is no longer required. That is the explanation behind government Amendments 144 and 145. I hope that what I have said about the amendment in the name of the noble Lord, Lord Armstrong, will satisfy him and that he will therefore feel able to withdraw his amendment.