Protection of Freedoms Bill

My Lords, as regards the three questions put by my noble friend Lady Hamwee I hope that I can deal with her first one, about the danger to a fair trial, later on. The other two obviously must be a matter for the noble Lord, Lord Armstrong, on the drafting of his amendment when he comes to respond. I echo the words of the noble Baroness, Lady Royall, in commending the work of the Joint Committee. We are very grateful for that and for all it does. I also echo the words of both the noble Lord, Lord Armstrong, and the noble Baroness, Lady Liddell, when they said, ““Let us hope there will never be a need to extend from 14 to 28 days””—I think I have those words correctly from the noble Lord. We would all echo that; we very much hope that it will never be necessary. That is one reason why we want to make it as difficult as possible to do this, but I am grateful to the noble Lord for giving us another chance to consider this matter. Similarly, I am grateful to him for coming to see me only last week to discuss his concerns about the limited nature of our order-making power in Clause 58. Given the noble Lord’s expertise and experience, I understand that this is a matter to which we need to devote a degree of attention and we certainly listened to what he had to say. The Government made it clear following last year’s Review of Counter-Terrorism and Security Powers that we felt it was right that the maximum period for pre-charge detention should be reduced from 28 days to 14 days. I think that the vast majority of this House agreed that that is a welcome change; I cannot speak for the party opposite. However, we all accept that there will be or could be circumstances—I would prefer to say could rather than will—in which a longer period of detention may be required and, as the noble Lord, Lord Armstrong, rightly asserts, we must be prepared. It is simply the way in which we find ourselves preparing for those circumstances that finds me disagreeing with him. We have made it clear that emergency fast-track legislation is the most appropriate and proportionate way to respond to the very exceptional circumstances in which longer than 14 days may be required. Detention for 28 days is such a significant diversion from the normal standards of our criminal justice system that the Government are adamant that such a framework should be in place only temporarily, and with prior parliamentary approval. 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 reasons of time, risk of prejudicing future trials or risk to public safety or security. In respect of the question of time, Parliament can, and has, acted quickly to address matters of great seriousness in the past. Many of us have been in one or another House for many years and can remember occasions when we have been called back at short notice. Noble Lords will remember that, following the attacks on New York and Washington in 2001, Parliament was twice recalled within three days. We saw Members of another place recalled to discuss last summer’s riots within a matter of days. Only last summer, Parliament was able to pass the Police (Detention and Bail) Bill within days of its introduction. We have worked with the Crown Prosecution Service and the police to ensure that decisions can be made early and quickly on whether there is a potential exceptional need to increase the maximum limit to 28 days. The second issue is that the debates surrounding fast-track legislation might prejudice future trials. This danger would arise primarily if fast-track legislation needed to be passed when a number of suspects had already been arrested. In such circumstances Parliament could continue to debate the principle of an extension to 28 days and the general nature of the threat. It is right to say that Parliament could not debate allegations against specific individuals. However, it would not need to and it would not be appropriate for it to do so. The question of whether extension of detention warrants should be granted in respect of individual terrorist suspects would remain a matter for the courts and not Parliament. The noble Lord’s final concern is that fast-track legislation could not be considered because of a risk to public safety or security. Although the Government accept that the passage of fast-track legislation might be difficult, we do not believe that the difficulties are insurmountable. The Government do not therefore accept that there would be a risk to public safety and security involved in adopting such an approach. I appreciate the noble Lord’s assertion that his amendment is permissive rather than mandatory and that fast-track legislation could still be used rather than the order-making power. However, the existence of such a power is not compatible with the Government’s general view that 28-day detention must be exceptional and that the decision to increase the maximum period of detention is one which Parliament should in the main be asked to make. I remain of the view that, should such an order-making power exist, there would always be arguments in favour of using it rather than putting the question to Parliament, where it should rightly be addressed, and the perception of 28-day detention as an extraordinary measure would again be lost. For those reasons, I hope that the noble Lord will feel able to withdraw the amendment.