Terrorism Bill

– in the House of Lords at 3:06 pm on 13th December 2005.

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Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 3:06 pm, 13th December 2005

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 19 [Consents to prosecutions]:

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

moved Amendment No. 105:

Page 17, line 41, at end insert—

"( ) Permission under subsection (2) shall not be given if—

(a) there are reasonable grounds for believing that the government of the country has committed or encouraged in its territory genocide or crimes against humanity or grave breaches of human rights, and

(b) the person against whom proceedings are contemplated is not alleged on reasonable grounds to have aided, committed, or encouraged, or to have been a member of an organisation which has aided, committed or encouraged acts involving the deliberate killing of members of the public."

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

This amendment addresses an issue that has come up repeatedly in our discussions on the Bill. Members of the Committee will recall that in our discussions, one of the most difficult problems we have had to deal with is that while in some countries a person would be called a terrorist, in other countries he would be referred to as a freedom fighter; in other words, what are the clear limitations on the use of force against a government and on what grounds might such force be justified?

Let me begin by saying briefly that this amendment addresses the issue of the circumstances under which the Director of Public Prosecutions could bring a case against a foreign power where an offence has been committed which is partly or wholly of concern to that power. Perhaps I may make a very clear distinction between those governments who have legitimate channels to express opposition, such as our own and those of most democracies in the world, and those governments who do not. We should be very careful indeed of being recruited into what is sometimes described as a "war against terrorism" which fails to make that crucial distinction.

I remind noble Lords of the great example we have often discussed in this House, which of course is that of apartheid South Africa. I refer to the famous remark made by Nelson Mandela from the dock at the Rivonia trial in 1964:

"All lawful modes of expressing opposition to this principle, the principle of white supremacy, had been closed by legislation and we were placed in a position in which we had to either accept a permanent state of inferiority or to defy the government".

That is often treated as the classic case where sabotage against property as distinct from terrorism against innocent individuals could very powerfully be justified.

But there are other examples nearer home—for example, the overthrow of the democratically elected government of Greece in 1973 by what we now know as the Greek colonels. Their initial two actions were, first, to ban all political activity; and, secondly, to announce that anyone who held any official position and came from a party opposed to the government would lose that position and be suspended from office. It was a sweeping ban on democracy. The question arising from that was about the methods that the Greek opposition could use to undermine a military regime that had been established in a coup and had overthrown the democratically elected government of Greece.

Those might be described as relatively mild forms of oppression. There are yet more serious methods of oppression involving what have now become clearly defined as crimes against humanity, ethnic cleansing, genocide and other barbaric activities that sometimes deface the civilisation of which we consider ourselves to be part. It is in only too recent memory that we can all recall the massacre in Rwanda and the Srebrenica massacre in Serbia. We could draw up a list of governments who are treated as legal members of international organisations—from the United Nations through to other bodies—but which, nevertheless, have perpetrated the most terrible crimes against innocent citizens within their own countries. We do not usually describe that as terrorism. Although increasingly the definition of "terrorism" as crimes that involve the capricious killing of innocent individuals is accepted in the case of non-state actors, many of us recognise that there are state actors who can fall, if not within this category, certainly within the category of those who use unacceptable and illegal force against their own people.

It is interesting that the United Nations has trodden carefully down the line to which the amendment addresses itself. On the one hand, it could not have put more strongly its total opposition to any form of terrorism. I quote again from the United Nations High Level Task Force introduction by Kofi Annan, the Secretary-General, which states:

"Attacks that specifically target innocent civilians and non-combatants must be condemned clearly and unequivocally by all".

I believe that all noble Lords on the Benches of this House accept that sweeping, absolute condemnation of terrorism against innocent civilians.

In the same document there is another quotation from the task force which shows the limitations. It might be described as the decision that no extra-parliamentary or extra-constitutional act can ever be proper. It states:

"We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law".

The amendment addresses these issues. It begins to do so by setting out that the Director of Public Prosecutions should not bring a prosecution in a case where a government have allowed themselves to be involved in acts against humanity or in the acts listed by the United Nations. But the amendment is a moderate one and goes further. It makes it plain that if the person involved in the offence is someone who has been engaged at any point in terrorism involving the death of innocent civilians, then that is a reason why the prosecution should be permitted to go ahead.

I believe this to be an extremely important amendment. It sets limits to what we would regard as legitimate opposition, short of terrorism, against governments who are profoundly oppressive. One need only look at countries such as North Korea, Uzbekistan and various others to see that there are such governments and that they are profoundly oppressive. The amendment would simply tell the DPP not to bring a prosecution on the discovery of an offence against a government of this kind. It makes it clear that that would also exclude anybody who engages in terrorism involving the capricious deaths of innocent civilians.

At various times in our history, we have been involved in sweeping attempts to uphold governments of all kinds, however justified, legitimate or democratic they may or may not be. There was a time, which those who are historically minded will recall, when under the leadership of Metternich, the governments of Europe lined themselves up against radical or revolutionary moves of any kind. That culminated in the great year of 1848, when government after government fell because no attempt had been made to meet halfway the public sense of unrest and deep oppression.

Counter-terrorism could then easily be presented as being in favour of maintaining oppressive governments in developing parts of the world. It is much better, I believe, to make it clear that we are on the side of democracy, tolerance and constitutionality because those are the bases upon which we will defeat terrorism. We need a universal condemnation of the kind in the United Nations High Level Task Force. We do not need a decision to prosecute governments who are involved in acts of complete brutality and violence against their own people. That distinction is part of the underlying emergence of an international rule of law. I beg to move.

Photo of Baroness D'Souza Baroness D'Souza Crossbench 3:15 pm, 13th December 2005

I support the amendment very strongly. I will be brief, because much of what I wish to say has already been said by the noble Baroness, Lady Williams.

My support is based on my experience of living in South Africa under apartheid rule and during years of emergency from the mid-1980s onwards. At that time, even wearing a T-shirt in the colours of the ANC made you liable to arrest and arbitrary detention, and certainly to a roughing up in the streets by the security forces. It is important that one has in the Bill the kind of protections that the amendment affords. There are so many despotic governments in the world and the forces of democracy often have no other way forward in trying not only to obtain democratisation in their country but also to inform people, who are so severely suppressed and oppressed and have no access to information, that an active movement is doing something to try to liberate them and to remind the outside world that that force is alive and well.

Photo of Lord Mackenzie of Framwellgate Lord Mackenzie of Framwellgate Labour

The amendment causes me deep concern. I agree with a lot of what the noble Baroness, Lady Williams, said about human rights, but the amendment seeks to limit the circumstances in which the Attorney-General or Advocate General could give such consent. Consent could not be given where the country concerned was believed to have a poor human rights record and the person to be prosecuted was thought to have been involved in or to have encouraged action other than a deliberate killing of members of the public.

There is no attempt to define what constitutes grave breaches of human rights; I can see lengthy arguments in court on this very point. It is not just a theoretical point; in the context of the UK/US extradition treaty, the noble Lord, Lord Goodhart, and some of his noble friends have often been very critical of the human rights records of the United States, or certain states within it—so presumably it would be intended that that should be covered by the exclusion as well. It is so wide that it would make extradition virtually impossible in many cases.

Could my noble friend the Minister say whether the existing provision provides more safeguards than exist in similar situations in France and Germany? Signing a memorandum of agreement and the subsequent monitoring of the situation allow us to shine a light on the human rights record of the regime involved, as well as allowing us to provide human rights training in the legal system of the recipient country. So I would certainly feel uncomfortable if the amendment was passed.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I support my noble friend Lady Williams in moving the amendment to which I have put my name.

The very wide definition of terrorism in the Terrorism Act 2000 means that anyone using serious violence against person or property to put pressure on their government is guilty of acts of terrorism. So however brutal the government and however justified the cause of the opponents, any serious act of violence by those opponents is defined as terrorism. That runs contrary to what many of us see in respect of a number of movements that have fought for freedom or independence in past years. The most obvious case is that of the African National Congress, as my noble friend said.

There have been brutal dictatorships in the recent past; a very obvious example is the extremely brutal dictatorship of Saddam Hussein in Iraq. There are some brutal dictatorships still in existence—for example, in Myanmar or North Korea—and there well be more in future. We believe that it is wrong that those involved in fighting brutal tyrannies of that kind should face prosecution in the United Kingdom.

Clause 19(2) gives some protection by requiring the consent of the Attorney-General and the Director of Public Prosecutions to any prosecution, but that is simply not good enough. It is wrong to have to rely on the good will of the Attorney-General and the DPP to avoid prosecution of people who are fighting legitimately for a cause that they and we believe to be right. So the Bill should be amended to exclude prosecutions in cases of support for acts carried out overseas when they are directed against an oppressive government. It is not of course easy to decide where that boundary lies.

When drafting this amendment, I did so cautiously. Two conditions must be satisfied to rule out prosecution: first, that the government against whom the acts are directed must be guilty of,

"genocide or crimes against humanity or grave breaches of human rights".

It should be possible for a court to decide whether that condition is satisfied. Genocide and crimes against humanity are now pretty well defined in international law. Human rights are identified in a number of international documents—for example, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which the vast majority of countries have now ratified.

The noble Lord, Lord Mackenzie of Framwellgate made a fair point in saying that it was more difficult to decide what a grave breach of human rights is. The test—although I admit it may be somewhat circular—may be to say that "grave breaches" are breaches that are so serious as to justify or at least excuse armed resistance in the views of reasonable people not connected with either side. I certainly do not feel that that would apply to the USA, serious as are the criticisms which a number of people including myself have made in recent years.

The second condition is that the prospective defendant has not encouraged the killing of innocent civilians and is not a member of an organisation that kills or encourages the killing of innocent civilians. The killing of innocent civilians is wholly inexcusable in support of any cause, however justified that cause may be. That condition, of course, would not apply to the killing of agents of the government such as police or soldiers.

This amendment would rule out prosecutions in cases where there is a clear justification for armed resistance but not in any other case. It would not, I believe, prevent ratification of the Council of Europe convention on terrorism. It seems to me that we must have something of this kind in order to prevent the risk of prosecution against people who are fighting in a cause that they believe is just and that reasonable people in this country would also see as just.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

Perhaps I may ask a question about a matter that worries me regarding the consent of the Director of Public Prosecutions. That is an exercise of discretion. Is it an absolute discretion or is it challengeable, if irrational, on judicial review? I do not know the answer to that. The amendment seeks, unfortunately, to open to challenge in the courts every exercise of discretion by the Director of Public Prosecutions. If that is the case, where do we stand?

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I am grateful to the noble Lord for giving way. On what grounds does he suggest that a decision of the DPP would not be challengeable by judicial review?

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

It is an exercise of the DPP's discretion. As I understand the position having appeared in some of those cases, though admittedly too long ago, it would have to be an irrational decision. How are you going to deal with this situation? If it is open to challenge because it is irrational, so be it; but if you introduce this amendment, you invite a challenge on every decision that has been made.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

Our names are not added to this amendment but that does not mean to say that we do not applaud the intention that lies behind it. Our difficulty lies in how it has been drafted. I say that not to criticise the drafting style of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, but merely to reflect what I imagine will be a view held by a number of your Lordships—that trying to enshrine the Mandela situation in legal form is extremely difficult. We all know what we mean by this concept; but to translate it into words which will stand up in every situation is exceedingly difficult. Indeed, we think it is impossible.

The main observations on the text itself have, I think, already been made. One illustration ought to demonstrate why, if we go further with this on Report, we ought to reconsider the text of the amendment. It might well be argued that the events in Guantanamo Bay constitute a grave breach of human rights. In the amendment, the only acts of encouragement which are penalised are acts involving the deliberate killing of members of the public. But what about acts of encouragement to kill American soldiers because of the grave breach of human rights in Guantanamo Bay? That is the difficulty we face when we look at this text. I constantly marvel at the ingenuity of the noble Lord, Lord Goodhart, as a draftsman; he is one of the most brilliant I have ever come across. Nevertheless, to encapsulate what we would all like to see in this text, but do not at the moment see, will be a formidable challenge even for the noble Lord.

I wholly sympathise with the concerns expressed by my noble friend Lord Campbell of Alloway about the discretion given to the Attorney-General. The discretion to decide to prosecute by the Director of Public Prosecutions or the Attorney-General cannot be judicially reviewed—that was decided in Kebilene a few years ago; but the decision of the Director of Public Prosecutions or the Attorney-General not to prosecute can be judicially reviewed. So there is an imbalance between those two situations. If your Lordships wish to know why, I suggest you read the 80-odd pages that constitute the decision of the Appellate Committee of your Lordships' House. If I am challenged on the point, however, I shall have to try to summarise them at some stage in the course of the afternoon.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 3:30 pm, 13th December 2005

I thank the noble Lord for his brilliant summing-up of the debate so far. I agree with him—I am afraid that the amendment is fatally flawed for all the reasons that have just been given. I, too, fully understand the import of the concern expressed by the noble Baroness, Lady Williams, and the noble Lord, Lord Goodhart. However, my noble friend Lord Mackenzie made a very powerful point, driven home by the noble Lord and, indeed, by the noble Lord, Lord Campbell of Alloway, who rightly says that if you were to allow this, in all probability you would have an attempted judicial review in relation to every single exercise of discretion. I know that that is not what anyone would want.

The second limb of the amendment is equally problematic. It effectively excludes all attacks on property, so consent to prosecution would never be given in such cases. Of course, attacks on property are never as bad as attacks on people but I do not think any of us could, or perhaps should, forget the attacks made by the Provisional IRA on the City of London in the 1990s. They caused damage amounting to hundreds of millions of pounds and were unquestionably terrorist attacks. Similar acts in the future would deserve to be treated as terrorism.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

Of course, they would clearly be terrorist acts within the definition, but theoretically they would not escape prosecution because you could not say that the United Kingdom was a country which practised genocide, crimes against humanity or grave breaches of human rights.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I understand that that is the way in which the noble Lord and, indeed, the noble Baroness framed the measure, but it comes back to the question that has already been raised in Committee as to how we define what those grave breaches are and who falls within and who falls without them. If one looks at the situation in Guantanamo Bay mentioned by the noble Lord, Lord Kingsland, one sees the difficulties of that situation. I understand entirely the concern expressed by the noble Lord and the noble Baroness. Indeed, that is why, in using the definition in the 2000 Act, we have all said that we need to look at the definition of terrorism. That is why the noble Lord, Lord Carlile of Berriew, is looking at that issue. There has to be a wider debate about it. For the time being—and we all know that this Bill is not the end of this issue—it is a better course to keep the definition that we have in the 2000 Act and proceed on that basis. For those reasons, we do not feel able to accept the amendment, and we invite the noble Baroness to withdraw it.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

I cannot give an assurance that we will not return to this issue on Report, and I will explain very briefly why. I share the admiration of the noble Lord, Lord Kingsland, for my noble friend Lord Goodhart's extraordinary abilities as a draftsman, and I have little doubt that he may turn his mind further to this issue in the light of some of the criticisms that have been made. Let me put squarely to the Committee the reason why, if we can possibly find drafting that would meet the objections raised by the noble Lord, Lord Kingsland, and by the noble Baroness, it is worth persisting.

To be identified with oppressive governments, and to be identified with governments who offer no other channel of legitimate opposition—I repeat "no other channel of legitimate opposition", which cannot possibly be a proper description of the United States—is to put oneself in an alliance with those who oppose movements for change, movements for constitutional reform, and in some cases movements against some of the greatest methods of oppression that can be thought of. With great respect that is the answer to the noble Lord, Lord Mackenzie. My noble friend mentioned Iraq, but other cases come to mind. We have to find some way in which our opposition to terrorism is expressed as support for democracy, support for constitutional government and support for legitimacy.

Frankly, I think like the United Nations Task Force, it is not beyond the capacity of human beings to make a distinction that shows that we are not taking the view that any government who exists should be supported. That can be done by a redefinition of terrorism, and the Minister has been kind enough in earlier debates on the Bill to make it plain that she recognises the limitations of the definition of terrorism in the Terrorism Act 2000. It is a very sweeping definition. I hope that she will therefore at least give a fair wind to the attempts to define terrorism in such a way as to exclude those acts that are involved in attempting to find a means of expressing opposition in those states and societies that make that legitimately impossible. I beg leave to withdraw the amendment, without a promise that we will not return to it.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [Interpretation of Part 1]:

[Amendments Nos. 106 to 112 not moved.]

Photo of Lord Elton Lord Elton Conservative

moved Amendment No. 113:

Page 18, line 43, leave out subsection (7).

Photo of Lord Elton Lord Elton Conservative

This amendment seeks to leave out Clause 20(7). It may just be worth reading that subsection to give your Lordships a reason why. It reads:

"In this Part references to conduct that should be emulated in existing circumstances include references to conduct that is of a description of conduct that should be so emulated".

I have tried for a very long time to work out what that means, and I have failed. I hope that the Minister in replying will be able to explain it to me and to the Committee. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I hope that I can be as brief as the noble Lord, Lord Elton, and perhaps as elegant in my wording. This issue was raised in another place, and it was dealt with in correspondence by my ministerial colleague Paul Goggins on 9 November. The amendment seeks to amend the drafting of Clause 20 to remove the reference to,

"conduct that is of a description of conduct that should be so emulated".

The current formulation in the Bill allows for references to conduct in the Bill to include references to more generic conduct. As a practical example, it could refer to conduct such as praise for those who become suicide bombers on public transport, rather than specifically on the London Underground. The Bill is drafted as it is for that reason. I trust that that explanation will satisfy the noble Lord and that he will be able to withdraw his amendment.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

If I may say so with the greatest respect, that has not made things any easier. I do not wish to get in my noble friend's way, but the noble Lord has rather added to the difficulty. I do not know whether the noble Lord feels himself excessively guided and influenced by what was said by a Minister in another place, but whoever handled the matter in the other place cannot be said to have added in any way to the clarity of the situation. The cryptic and well concealed meaning here ought not to be repeated. I hope that the noble Lord will be inclined to take the matter away and see whether he can inject a crumb of meaning into the lines, which contain nothing. I am sure that my noble friend will feel the same.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

Is this not so much gobbledegook? Is there not a way in which the concept can be put in plain English?

Photo of Lord Elton Lord Elton Conservative

I hope that, if I retain my seat for long enough, the Minister will be tempted to leave his.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

Tempted I might be, but not to add more, I am afraid. The noble Lord will have to be satisfied with the explanation.

Photo of Lord Elton Lord Elton Conservative

On the contrary, if the noble Lord has nothing more to say, it means that he understands the provision no more than I do. Therefore, although I shall withdraw the amendment, I hope that something a little more lucid can be granted to us at the next stage. I repeat that it is almost impossible to put meaning into the provision, but I shall not go on about that; Members of the Committee can have a happy hour or two before Report working it out for themselves. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clause 21 [Grounds of proscription]:

[Amendment No. 114 not moved.]

Photo of Lord Elton Lord Elton Conservative

moved Amendment No. 115:

Page 19, line 43, leave out from "communication" to end of line 44 and insert "consisting of sounds, images, letters or numerals or any combination thereof"

Photo of Lord Elton Lord Elton Conservative

Again, this is a probing amendment in search of clearer meaning. The definition in the Bill falls between the two stools of being very concise and referring to what everybody knows is a message, and of being full and describing anything that could convey meaning in whatever form. The present drafting seems to exclude some possible forms, so I ask the noble Lord for an explanation, with slightly better hope of satisfaction this time. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I thought that the provision was a model of concision. The amendment seeks to change the definition of a statement within the changes that Clause 21 makes to Section 3 of the Terrorism Act 2000. Currently, the definition we have provided states that a statement,

"includes a communication without words consisting of sounds or images or both".

The noble Lord might be familiar with that if he followed, in quite the same detail as some of his noble friends, the Electronic Communications Act 2000, which makes it clear that a statement can include video and sounds without words, as well as statements of a more traditional nature. I leave him to imagine what such statements might be.

The amendment makes it explicit that letters and numerals are included in the definition. The Government are always happy to look at whether their drafting can be improved, but in this instance I am not sure quite what the amendment seeks to add. We have made clear that a statement that is defined as,

"an expression of something in a speech or writing" includes communications without words consisting of sounds or images or both, which we thought would put that matter beyond doubt. The Oxford English Dictionary defines images as,

"a representation of the external form of a person or thing".

We believe that must include numerals and letters.

I am grateful to the noble Lord for giving us the opportunity to explain that, but I hope that this time my explanation will enable him to withdraw his amendment with greater pleasure.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative 3:45 pm, 13th December 2005

Must a "statement" have a human source or not?

Photo of Lord Elton Lord Elton Conservative

I would have thought that it would originally have had a human source, but it might be propagated by other means afterwards.

The noble Lord will have satisfied me if he is convinced that letters and numbers are covered by "images". With that understanding, I happily beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 21 shall stand part of the Bill?

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I oppose the Motion that this clause stand part of the Bill.

Section 3(5) of the Terrorism Act 2000 provides that any organisation which "promotes or encourages terrorism" can be banned by an order of the Secretary of State. That banning is called "proscription". Proscription is a very valuable tool. It was not at first thought so by the Home Office. It thought that proscription would serve little purpose, but happily the Home Office changed its mind. At the time of 9/11 I remember feeling a tremendous sense of relief on looking at the list of organisations that had by then been proscribed and finding that al-Qaeda was at the top.

While proscription is a valuable tool, it should be handled with the greatest of care because members of an organisation that has been banned are automatically guilty of an offence by the mere fact of their membership of that organisation. I have no doubt that proscription, when it first entered into law in the 2000 Act, was intended to catch organisations like al-Qaeda that are committed to violence. It was never intended to catch non-violent organisations, however unattractive they might be. I am concerned that Clause 21 will do just that.

Why is Clause 21 liable to catch non-violent organisations? The answer is that it expands beyond all reason the meaning of "promotes or encourages terrorism" in Section 3 of the 2000 Act. The effect of the clause, if enacted, is that an organisation that "glorifies" an act of terrorism—whatever that may mean, and we know the problems involved with that word—is to be deemed to promote terrorism, even though the organisation has no intention of doing so, if there are persons anywhere in the world who might reasonably be expected to infer that they should "emulate" the act of terrorism in question.

That at once leads to all the difficulties that were discussed in Committee on Monday last week in relation to Clause 1. But Clause 21 is worse than Clause 1. At least under Clause 1, in order to secure a conviction, the prosecution would have to prove intent or recklessness. But under Clause 21 the Home Secretary could proscribe an organisation, even though that organisation was completely innocent, merely because its pronouncements were liable to be misunderstood. I am sure that it will be said that the Secretary of State would never prosecute other than in a clear case, and no doubt that is so; and no doubt it will be clear to him if he does proscribe an organisation, but it may not seem so clear to the organisations themselves.

I have in mind a letter which I received last week from Hizb ut-Tahrir—a letter that I suspect many noble Lords will also have received. Hizb ut-Tahrir is a Muslim organisation with a huge following of young and old, and Clause 21 has caused its members very grave concern. I think that most people would regard that organisation as extremist, as I suspect even its own members may do. But it is a great mistake to confuse an extremist organisation with a violent one or one that promotes or encourages violence. One has only to think of Gandhi. Many would have regarded his policies as extreme but surely no one would ever have regarded him as being committed in any way to violence.

If Hizb ut-Tahrir were a violent organisation, it could already be proscribed under the existing Section 3 of the 2000 Act. If it is not a violent organisation, as its members maintain, surely there is a great danger that it would be caught by Clause 21. The mere fact that it might be caught by the clause will surely do great harm to community relations.

Like other provisions in the Bill and in other Bills brought forward by the Government, in all probability this provision will do no good at all. But it may also do great harm. For that reason, I oppose Clause 21.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My name also appears on the Marshalled List in opposition to Clause 21. The noble and learned Lord, Lord Lloyd, has fully explained the background and I do not think that I need to go into it again. He also referred to the organisation Hizb ut-Tahrir—an Islamic political party operating internationally and priding itself on advocating non-violence. It denounced the London bombings and the New York and Madrid bombings as well. However, it calls for the return of the caliphate—that is its aim—and, worse than that, it calls for Mr Blair to step down from office for lying about Iraq's non-existent weapons of mass destruction and for authorising cluster bombing in Iraq and Afghanistan. I think that that gives the Committee a little flavour of the nature of its political involvement.

The noble and learned Lord, Lord Lloyd, referred to Mr Gandhi, but I suggest that there is a British parallel which may illustrate the problems of this legislation. If Clause 21 captures Hizb ut-Tahrir, surely it will capture Plaid Cymru, the Party of Wales. In the history of the party on its current website is a celebration of Saunders Lewis, the party's president from 1926 to 1939. Although he was a noted writer and dramatist, he was not, it says, an ivory-tower academic. The website states that he,

"along with . . . Lewis Valentine and DJ Williams, took part in the celebrated burning of the Penyberth bombing school. This symbolic gesture sought to highlight the evils of militarism and to draw attention to the threat posed by military developments to the cultural and linguistic integrity of the Llyn peninsula".

The website goes on to say that a Conservative government could secure a conviction only by having these three men tried at the Old Bailey in London. They describe the trial as a watershed that sowed the seeds for the future. It certainly did. I have no doubt that it indirectly encouraged the activities of Mudiad Amddyffyn Cymru, who blew up the reservoir at Clywedog in the 1960s, put a bomb inside the Temple of Peace in Cardiff in 1968 and were responsible for the bomb on the railway line at Abergele during the Prince of Wales's investiture when the two men who were carrying it were killed. I am also sure it was the inspiration behind Meibion Glyndwr, to whom I referred at an earlier stage of the Committee, who claimed responsibility for burning more than 200 cottages in the 1970s and 1980s. They even targeted the noble Lord, Lord Hunt, when he was Secretary of State for Wales in 1990. Yet the trial of the Penyberth Three is still on the Plaid Cymru website. Is that not unlawful glorification as defined in Clause 21?

The Government may think Plaid Cymru is a dangerous party. Currently, it sponsors the Impeach Blair organisation and, like Hizb ut-Tahrir, accuses our Prime Minister of lying to Parliament and it wishes to impeach him for high crimes and misdemeanours in relation to the invasion of Iraq. Perish the thought that that should happen. Of course, Plaid Cymru has always—

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

I am losing track of the noble Lord's argument. Is he suggesting that to call for the impeachment of the Prime Minister is glorifying an act of terrorism?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I am suggesting that this is a party that eschews violence, embraces peaceful and democratic aims, but glorifies terrorism that has happened in the past. The Government, not liking its current stance, could decide to proscribe it for glorifying Saunders Lewis. I am sorry that the noble Lord does not understand. Perhaps I can explain it more clearly.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

I understand part of the noble Lord's argument but I do not understand the relevance of the remarks he made about the organisation quoted by the noble and learned Lord, Lord Lloyd of Berwick, and its opposition to our current Prime Minister. I do not see how that relates to the glorification of terrorism. He has introduced that in respect of that organisation and in respect of Plaid Cymru. I do not see the connection.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I am sorry if the noble Lord is unable to follow my argument. Those two organisations both espouse peaceful political means, yet both of them glorify terrorism within the meaning of this clause and may not perhaps be the most popular organisations in the eyes of the current Prime Minister. I am using this only as an illustration, to show what happens should Plaid Cymru be proscribed and to give the Committee some idea of the scope of the Bill.

The consequence of that party being proscribed would be that every member of Plaid Cymru would be liable to imprisonment for a period of 10 years. Any person organising a meeting of Plaid Cymru or addressing Plaid Cymru would be liable to the same penalty. Anyone carrying a flag or wearing a T-shirt which could give rise to the inference that he was supporting Plaid Cymru would be liable to a term of imprisonment of up to six months.

I hope the Committee will see that when I bring this matter down to something with which we are familiar—a peaceful, political party which has never advocated violence but nevertheless glorifies violence that has happened in the past which has actually been emulated—we get to grips with what this clause is all about: the glorification of terrorism. I hope this translation of the terms of British politics will bring home the fact that this is an extraordinarily powerful weapon that is being put in the hands of this or any government, and we oppose it.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative 4:00 pm, 13th December 2005

I would never presume so far as to suppose that anything I say in the House would be memorable, but it was only yesterday afternoon that I expressed my concern not about what the Government think a clause means but about what some busybody will subsequently claim that it means. I gave an example of a victim who I was sure was not intended by Ministers: the poor lady who was reciting a list of British casualties in Iraq from the steps of the Cenotaph and found herself escorted away by no fewer than 10 policemen. That is an example of what vagueness can do and this clause is extremely vague.

As a matter of interest, I would like to know whether the word "organisation" is defined in the Bill. Is one person capable of being an organisation? This is an important matter.

Photo of The Bishop of Salisbury The Bishop of Salisbury Bishop

I wonder whether the Minister has considered how the technical use of the word "glorification" might be open to challenge. I am inclined to agree with the noble and learned Lord, Lord Lloyd of Berwick, that that word is an enormous hostage to fortune. It has a very precise meaning in theological terms, but that is clearly not the meaning being used here. The definition, which includes any form of praise or celebration, is much wider than the technical definition and is liable to give rise to a good deal of confusion.

My second point, which is not unrelated and which leads me to be inclined to support the noble and learned Lord, Lord Lloyd of Berwick, is that there is a real danger of proscribing groups whose relation to terrorism and terrorist activities is so loosely defined, especially if they advocate non-violence. Such measures may well increase sympathy and support for radical movements, without doing anything much to prevent terrorism. I hope that the House will think hard about this measure and be inclined to express its mind by some show of support for the noble and learned Lord, Lord Lloyd of Berwick.

Photo of Lord Slynn of Hadley Lord Slynn of Hadley Crossbench

I shall briefly endorse the warning given by the noble and learned Lord, Lord Lloyd, that one should be very careful before extending the grounds for proscription. In addition to the reasons he gave, I suggest that the penalties that follow—not the criminal penalties, but those from being put on the proscribed list—are very serious and impede what should be accepted as reasonably possible activities in a democratic community. They include the difficulty of publicising the ideas of the organisation or raising funds, as well as the risk of being guilty of a criminal offence once an organisation is proscribed. Therefore, one should be very careful before extending the grounds for proscription.

The second reason why this warning is apposite is that it is very difficult for an organisation to get off the list once it has been proscribed. The courts are reluctant to interfere because they think that a tribunal has been specially set up for that purpose. We have seen organisations that claim to be in no way violent and not to have advocated anything that would be prohibited or forbidden in a democratic society having the greatest difficulty in getting a case before the appropriate tribunal to get their names removed. I fully understand the reasons why the Government want to go further, but I suggest that this clause, as now proposed, is not a satisfactory or sufficiently precise model to be adopted in this area.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

I am aware that it is extremely unwise for Members of the House who are not legally qualified to get entangled in this debate because we all know that those with legal training have acquired all sorts of knowledge and skills way beyond those of us who have merely qualified in economics or science. I find the arguments that we have heard expressed in respect of Clause 21 very difficult to follow. For example, I find it very hard to understand that the conduct of Plaid Cymru could be such that people,

"could reasonably be expected to infer that what is being glorified, is . . . conduct that should be emulated in existing circumstances".

A description of what happened in the past, coupled with the fact that Plaid Cymru makes it clear that it is pursuing its ends through non-violent means, seems to me to make it very difficult for any reasonable inference that what is being glorified is conduct that should be emulated in existing circumstances. I find that argument rather difficult to follow.

If the argument is that somehow the wording is not as precise as it might be—something that we have already debated at great length in the Chamber, and no doubt will refer to again before the Bill passes—that might be a legitimate approach. But simply to strike out the clause from the Bill seems to be taking the argument somewhat far.

No doubt we would all agree that the principle of proscribing organisations engaged in terrorism is the right one. No doubt we would all agree—I hope we would—that those organisations which seek to facilitate the creation of funds for terrorism ought to be proscribed. Why then should we be so reluctant to proscribe organisations which are trying to procure a flow of individuals to take part in terrorism, as somehow being organisations that should continue to exist? It seems to me that the clause is trying to deal with those organisations which, because of what they say about terrorism and about those who engage terrorism, are encouraging young people, or maybe old people—all sorts of people—to engage in terrorism. Surely, that is exactly on a par with those seeking to facilitate the flow of funds toward terrorism.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

Like the noble Lord, Lord Harris, I am not legally qualified; but I advise him not to get too involved in the intricacies of Welsh political life. It can be most difficult.

My worry is that terrorism is a moving target. One day we may very well be condemning terrorism or a particular terrorist group and the next day we may be treating with them. That is the case, for example, with the IRA. At one time it was the terrorist. We would have nothing to do with it. We did not want to talk or negotiate with it. But the next day we found that we could talk to it and that we could negotiate with it. Therefore, it ceased to be a terrorist organisation.

I turn to Iraq. When it was in the interests of Britain and the United States to support Saddam Hussein when he was attacking Iran, those people who wanted to get rid of Saddam, who would have been considered by the Saddam regime to be terrorists, were considered to be terrorists by the British and the United States governments. Then, when the policy changed, anybody who wanted to get rid of Saddam Hussein was considered to be our friend. So difficulties can arise, because one day the terrorists are considered to be enemies and the very next day, or perhaps the next year, they will be considered to be friends. So, when building up legislation like this, we have to be careful with what we are doing.

The noble Lord, Lord Peyton, put his finger on it: there is the law of unintended consequences. Ordinary citizens in this country are now beginning to feel the lash of some of the laws passed in this Parliament by the present—I suppose I have to call it Labour—Government.

We have to be careful about what we are doing and listen to those people, particularly those who are legally trained, because they have a lot of experience, when we are passing legislation such as this, which may prove difficult to ordinary citizens of this country.

Before I finish, I say one more thing to the noble Baroness and the noble Lord sitting on the Front Bench. They have now been sitting there constantly for the past 24 hours and more. They could not have got home before midnight or one o'clock this morning. By the time that they have finished today and got home, they will almost have exceeded 48 hours. I hope that they are not in breach of the European Working Time Directive. They deserve congratulation nevertheless for putting in a magnificent stint on that Front Bench for so long.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

I rarely agree with the noble Lord, Lord Stoddart of Swindon, but I want to underline two things that he said. First, legislation of this kind—which, by the by, carries extraordinarily draconian penalties; it is worth reading just how major are the penalties associated with various provisions of the Bill and, if I may say so, the Identity Cards Bill that we discussed yesterday—rests on how far the law is clear to the citizen who is likely to be caught up in it and could end up being very heavily penalised for a breach of it. With the best possible will, no one could read Clause 21 without being extremely confused by it. The definition of glorification to include more forms of praise and ceremonial and the extraordinary definition of a statement as including communication without words but which consists of sounds or images or both, even slightly altered, raise huge questions about the exact meaning of the Bill.

If I accept that there have been drafting difficulties, I must still ask whether the clause could not be drafted much more precisely. My noble friend Lord Thomas gave a description of how Plaid Cymru might be caught. I did not find that all that difficult to understand. The noble Lord, Lord Stoddart of Swindon, raised the position of the whole Northern Irish nationalist movement, which has in recent years glorified terrorism and spoken in terms of great praise and celebration of its achievements and standing and, until very recently, suggested that it should be emulated.

I find myself in great difficulty with the clause, not least because we will shortly consider another Bill that will remove previous penalties on Northern Ireland terrorism. This becomes more and more obscure. It is possibly clear to lawyers, but it is certainly not to citizens and is certainly frightening because one may want to keep the law but will no longer be sure exactly what the law is.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

We have rehearsed the arguments about the glorification of terrorism several times. The noble and learned Lord, Lord Lloyd of Berwick, is quite right when he says that extremists or extremist organisations may not be violent individuals or violent organisations. But incitement to violence through the glorification of terrorism does as much—arguably more—harm as the incitement to raise money for terrorist organisations. That was a point that my noble friend Lord Harris made.

There is a real problem here. I am bound to say to the noble Lord, Lord Thomas of Gresford, that his argument was a reductio ad absurdum. Organisations that call for the impeachment of the Prime Minister or that describe past activities, as Plaid Cymru's site does, are clearly not through that action in and of themselves glorifying terrorism. I did not find the noble Lord's argument difficult to understand any more than the noble Baroness, Lady Williams, did; I just found it completely and utterly unconvincing. It did not deal with the real world of what has happened in the past few years in relation to terrorism or with the problem that all of us recognise we have. I felt that the noble Lord, far from getting to grips with Clause 21, had lost touch with the very serious argument of how terrorists today are recruited and sustained.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 4:15 pm, 13th December 2005

The noble Baroness referred to my argument as reductio ad absurdum. That is exactly what it was intended to be, in that the clause could catch an organisation such as a political party acting with perfectly peaceful intent, for the very reasons that I have explained.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

I do not believe that the law is that absurd and I am dismayed to hear a celebrated practitioner express the belief that it is. Terrorism today is spread, at least in part, through glorification of acts of carnage and destruction. Suicide bombings are simply not like the terrorism of the 1980s and the early 1990s. Terrorists seek their own death because that is what glorifies the acts they perpetrate. They seek their own death, not as the inevitable by-product of their act of terrorism, but as part of that act. It is part of the seeking of glorification, which, in itself, is a recruiting sergeant.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

I thank the noble Baroness for allowing me to intervene. Were not such things as the hunger strike by Bobby Sands and the attempt to commit suicide by the Price sisters which took the form of taking no food at all, in a sense about glorifying terrorism, regardless of their own lives?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

I think that we all accept that there may be ways in which past acts were glorified at the time. The problem, though, that the noble Baroness and all those who support her argument have failed to address is what one does about how young people today are recruited and how terrorist organisations are sustained through individuals and organisations that glorify terrorism. As noble Lords on the other side were not continually interrupted, perhaps, as apparently one of very few speaking in support of the clause, I might be allowed to finish a couple of my points at least.

Through the glorification of their own deaths terrorists have a very potent recruiting sergeant, which they believe can not only gather in young people but also sustain the arguments for others to support them. Of course some terrorists may be directly recruited by individuals who incite them to participate in particular acts of terrorism but many, many others are recruited indirectly, through what can only be described as glorifying the terrorist acts of others. All too often, there are not recognisable structures or hierarchies of command and control in terrorist movements and among those who support them. They are movement-based and seek to inspire others to carry out acts portrayed not as the inevitable actions of military-based organisations but as the glorious actions of those inspired to act as martyrs, and those acts, in and of themselves, can be celebrated and enjoyed.

I know that those who object to the clause—the proscription of organisations and movements—do so for the best of all motives, because they cite democracy, freedom of speech and human rights. But in any society we have to accept that there are some restrictions on our freedoms in those crucial areas where they are necessary for the greater security of innocent civilians. Such restrictions are the everyday currency of what one might call the "social contract" that we all enter into as part of a secure society. The restriction of prohibiting an organisation from glorifying or celebrating terrorism is a very small price to pay for making our buses, streets and trains safer places for people to carry out their daily business.

The noble and learned Lord, Lord Lloyd of Berwick, cited the Terrorism Act 2000. I do not believe that that is enough. Of course organisations can be proscribed if they are concerned with terrorism or if they are involved in committing or participating in acts of terrorism, but we all know that that is not the same as glorifying terrorism, which is why the noble and learned Lord objects to the clause. Perhaps I may remind Members of the Committee that this was very specifically part of the Labour Party manifesto on which this Government were re-elected earlier this year.

For a restriction to be a restriction to which we can all subscribe, it has to be proportionate. I accept that entirely, but I remind those Members of the Committee on the Liberal Democrat Benches that the noble Lord, Lord Carlile, in paragraph 52 of his report, said that this clause was,

"a proportional limitation on the freedom of association in relation to the . . . public good".

No one welcomes a restriction that is not necessary, but, sadly, some restrictions are. The public good has to come before the freedom of some organisations to celebrate the murder of innocent people.

Photo of Lord Hurd of Westwell Lord Hurd of Westwell Conservative

Perhaps I may ask the noble Baroness to elaborate a little. I am more of a layman than most who have spoken in this debate. As I understand it, where there is a question of intent and it can be shown that a statement or communication of any kind was made with an intention to encourage terrorism, that is covered by existing law. We are talking about cases where intent—participation in preparing an act—cannot be proved. We are simply talking about an act of glorification.

Let us follow not the legal point, but the point that the noble Baroness has just made. We are talking about an audience perhaps of young people—Muslims up and down the country—who may be tempted to take part in terrorist activity. Does the noble Baroness really think that the safety of our streets will be enhanced by watching such an audience and guiding the young people's conduct accordingly? Will our safety be enhanced by a prosecution or a proscription of a body which they may be tempted to join? Does the noble Baroness think that from a political point of view that will add to safety, rather than taking on these arguments in an open way and trying to defeat them? If she does, I disagree.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

Of course arguments have to be taken on in a proper way. I am in no way suggesting that one should not deal with the arguments or those who have sympathy over some of the issues around terrorism, which are obviously very difficult issues. But I ask the noble Lord to cast his mind back to what happened after 9/11; to what happened about the glorification of terrorism; and to the numbers of young people who have participated in terrorist organisations, and who have said that they were recruited through the examples of others and the way that those examples were glorified. I use the word glorified because it is in the Bill. They were inspired and found the celebration of those acts in themselves and of themselves inspiring.

Yes, I do think there is an issue that we have to confront here. I am as much a layman as anyone else, but I am not prepared to sidestep this issue on the basis of some clever arguments about Plaid Cymru. It is important to deal with the fact that there are individuals and organisations which seek to recruit young people and to inspire them to carry out acts of terrorism. This Bill needs to deal with them.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I can be telegraphic about our position. We agree with the Government to the extent that, if the Bill changes the law, it will be necessary for the Government to reconsider the current rules about proscribed organisations. It is very rare that the Opposition do not support an amendment tabled by the noble and learned Lord, Lord Lloyd; and we owe him an explanation as to why we do not do so this time. We oppose the notion of glorification and therefore three-quarters of the text of Clause 21; but we agree with the Government that there should be an offence of indirect encouragement. However, that is only as long as it is tightly defined, or at least defined in such a way that it is clear to someone about to make an encouraging statement what they are in for. In other words, that it would be compliant with Article 7 of the European Convention on Human Rights. That is why, as an alternative to the proposal tabled by the noble and learned Lord, Lord Lloyd, to expunge Clause 21 entirely from the Bill, we prefer our Amendment No. 114, which provides a taut but, we believe, effective definition of the offence of "indirect encouragement".

These amendments were tabled before the Joint Committee on Human Rights published its report. Some noble Lords may be alarmed to learn that the policy laid down in our amendments is endorsed completely by the committee's report. I simply draw the attention of the Minister to two paragraphs. The first is paragraph 63, from which I shall quote one sentence:

"In our view extending the grounds of proscription to cover organisations glorifying acts of terrorism is unlikely to be compatible with the right to freedom of expression in Article 10 ECHR or the right to freedom of association in Article 11 ECHR for the same reasons as those given in relation", to the definition of the offence of glorification of terrorism. The Minister might like to ponder those words in the context of the certification given to this Bill in your Lordships' House.

I also draw the attention of the noble Baroness to an earlier passage in the summary of the report from the Joint Committee on Human Rights set out on page 3. The first sentence of the section entitled "Encouragement and glorification of terrorism" reads:

"The Committee accepts, on balance, that the case has been made out by the Government that there is a need for a new, narrowly defined criminal offence of indirect incitement to terrorist acts".

So there we have it: an offence either of indirect incitement or of indirect encouragement to terrorist acts, yes; but not one based on the definition of glorification that the Government have in the Bill. I hope that, between now and the Report stage, the noble Baroness will consider very carefully both the definition of glorification in Clause 1 and the way in which it has been deployed in Clause 21, and comes up with something that reflects not only our view, but that of the Joint Committee on Human Rights.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 4:30 pm, 13th December 2005

I am grateful to the noble Lord, Lord Kingsland, for his explanation of the position of the party opposite. I am equally grateful to him for indicating that he does not support the proposal—or perhaps more grateful to him for the latter than for the former; I record that.

I agree with the assessment of my noble friend Lady Symons of Vernham Dean about the likelihood of Plaid Cymru being included in the Bill. It is not included. That is not the way in which the Bill is constructed. I accept, of course, that the noble Lord, Lord Thomas of Gresford, might have mischievously cited Plaid Cymru to excite our attention and our interest—I am grateful to him, as always—but it is fundamentally flawed and unnecessarily causes a deal of misplaced anxiety.

As to organisations, I remind the Committee that the definitions in relation to organisations and terrorism are the same as the definitions found in the Terrorism Act 2000. For example, "organisation" is defined in Section 121 of the Terrorism Act 2000, which this clause amends, as including,

"any association or combination of persons".

The right reverend Prelate the Bishop of Salisbury raised the issue of organisations, as did others. We are simply continuing the definition that is already there, which is well understood and has been used.

I very much agree with the analysis of my noble friend Lord Harris. I should say to the noble and learned Lords, Lord Slynn of Hadley and Lord Lloyd of Berwick, that although I understand the difficulties they contend there are in relation to a lack of precision, we believe that the legislation is precise. I shall try to explain why I say that. The Terrorism Act allows for an organisation to be proscribed if it is "concerned in terrorism". That is the basis on which proscription under the Act takes place. An organisation is concerned in terrorism if it commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism; or is otherwise concerned in terrorism. That is the context in which we have to consider Clause 21.

Additional organisations can be added to the list of proscribed organisations by order subject to the affirmative resolution procedure. Any proscribed organisation can appeal against its proscription to the independent Proscribed Organisations Appeal Commission. We have to remember that. It is not a situation where you go on a list and cannot come off, and there is no basis upon which one can protest. One can, people do, and they come off just as they go on. The decision is based on evidence.

As my noble friend Lady Symons of Vernham Dean said, proscription is an important weapon in the fight against terrorism. I think the noble and learned Lord, Lord Lloyd of Berwick, absolutely accepts that, as does the noble Lord, Lord Carlile of Berriew, in his report on the Bill published on 12 October. I agree with the quotation given by my noble friend in that regard.

As noble Lords are aware, for all the reasons set out in our debates on the first day in Committee, the Government believe that the glorification of terrorism should be an offence. It is right to remind the Committee that, as my noble friend Lady Symons said, this proposition was not only a part of the manifesto but was twice endorsed in Divisions in another place. I appreciate that not all noble Lords agree with the proposition and that Members of another place may have to deal with this matter in due course if the Committee comes to a view contrary to the view that they have taken.

I am sure that I do not need to repeat all the conditions of intent that apply to the glorification offence and the safeguards and defences that it attracts. We dealt with that on the first day in Committee. If we are outlawing glorification of terrorism by individuals, the same should apply to organisations. The clause allows the proscription of a group if its activities include the unlawful glorification of terrorism or are carried out in a manner that ensures that it is associated with statements containing unlawful glorification of terrorism. That is very important for us to recognise.

If it is possible to identify individuals who glorify terrorism, it may be possible to prosecute them if they meet the tests in the legislation. I am conscious that that will cause difficulty. However, the clause is aimed at organisations which glorify terrorism and thereby create a climate in which terrorism can flourish. If an organisation passes at its annual conference a resolution glorifying terrorism, it may not be possible to identify the individuals behind it nor may it be practical to seek to prosecute all the individuals who attended the meeting, but it would be possible to identify that organisation and prosecute it. I cannot believe that Members of the Committee would disagree with me about the propriety of so doing.

However, the Government believe that it should be possible to take steps against such a body whose statements might be influential among young people and encourage such people to carry out terrorist threats. We cannot delude ourselves into believing that individuals have not been so influenced. There is fairly cogent evidence, not least highlighted and elucidated in the report of the noble Lord, Lord Carlile, which tells us that that is the case. Clearly, this would require something more from the organisation than simply an individual member making a glorifying statement. Rather, the clause is designed to catch those organisations which are closely associated.

It is important to stress that the glorification of terrorism is covered only where the audience can reasonably be expected to infer that what is being glorified is being glorified as conduct which should be emulated in existing circumstances—not in old, historical circumstances, but in existing circumstances. In other words, glorification of terrorism itself is not sufficient grounds for proscription. Organisations that glorify terrorism create a climate which others may emulate.

I hear what the noble Lord, Lord Kingsland, says about the committee's report and of course we will look at it later, but our initial view is that these provisions are compliant and are capable of being supported. I commend the opportunity we have had for this very vibrant debate, but I invite the noble and learned Lord to withdraw his opposition to Clause 21.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

With regard to the aspect that the noble Baroness has just raised and the comments of my noble friend, I am a member of the Joint Committee on Human Rights, and we gave a lot of attention to this issue. If the noble and learned Lord presses his opposition to Clause 21 standing part, I would support that, not for the reason he has given but because of that given by the committee. The Minister said that she may look at this again. Will that reservation save me in the position that I am in? It is a difficult situation.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I cannot give the noble Lord any comfort—and he will understand that—as a result of the consideration that there will be a material change in the glorification provisions. I have outlined that clearly. The intent provision has already been changed in terms of how the offence under Clause 1 will be dealt with. We have made the change to "subjective intent" from "objective intent"—which we all accepted was a very material change. We believe that the provisions are now compliant. But of course it would be imprudent not to look further at the committee's report to consider what we think, as the noble Lord has invited me to do, between now and Report, and to express a view on Report. I take on board the noble Lord's own position, which is that on Report, having heard what I have said in response, he may take whatever decision that he deems to be appropriate. We appreciate that that is his position. The noble Lord, Lord Campbell of Alloway, may like to reserve his position till Report for the same purpose.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I should like to question the Minister on one matter and follow up a point raised by the noble and learned Lord, Lord Lloyd of Berwick, whose views on this matter we fully support. He mentioned the case of Hizbut-Tahrir, a Muslim organisation that has a somewhat unusual objective. Its main purpose is to recreate the caliphate. Historically the caliph was the religious and political leader of the entire Muslim community. Although the title did not disappear until 1924, it is fair to say that there has been no universal recognition of an individual as a caliph for about 1,200 years, so the aim of restoring it is plainly unrealistic. But as far as I am aware, and judging from the organisation's public statements, Hizbut-Tahrir advocates that its objective should be achieved purely by non-violent means. In those circumstances it has been suggested that one of the Government's aims in Clause 21 is to proscribe Hizbut-Tahrir. Obviously, I cannot ask the Minister what the Government's objectives might be, but does she believe that as matters now stand Hisbut Tahrir is an organisation that could be proscribed under Clause 21?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I accept the scourgings of the noble Lord, Lord Harris, and the noble Baroness, Lady Symons, that my analogy was farfetched in referring to Plaid Cymru. Indeed, it was intended to be far fetched, to demonstrate two things: first, the vagueness of the wording of the clause and, secondly, the seriousness of the consequences.

Under the regime set out in Part 2, the Secretary of State proscribes organisations only if he believes that the organisation is concerned in terrorism. As the Bill was originally drafted, there were four examples of being concerned in terrorism: committing or participating in terrorism, preparing for terrorism, promoting or encouraging terrorism, or otherwise being concerned in terrorism. The amendment expands the meaning of promoting or encouraging terrorism. I believe that the Committee will agree that promoting or encouraging carries along with it the concept of intentionally doing so. Intentionally promoting—that is what promoting is all about, as is encouraging.

Photo of Lord Davies of Coity Lord Davies of Coity Labour 4:45 pm, 13th December 2005

Having recognised that what he was stating was rather far fetched, does the noble Lord not agree that it does not recognise the realism that is portrayed in the Bill and this clause and that he is entering into a rather academic comparison rather than a realistic one?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I do not agree with that. I think that there are two problems: the problem of terrorism and the problem of causing a proportion of the population of this country to be set apart from the rest of us. In other words, if you proscribed organisations that are peace-loving and said to its members—and I was referring to the consequences—"If you are or have been a member of this organisation, you have committed an offence and you could, in a trial by indictment, be sent to prison for up to 10 years; or you could no longer support this organisation or address any of its meetings", then there is a danger of causing people who would otherwise be perfectly law-abiding in their ordinary way to feel that the state is against them. That is what I am driving at. The problem of having a vague definition of promoting and encouraging terrorism, which means glorification in the form of "praise or celebration" without intention—and intention is the key, as the noble Lord, Lord Hurd, said—is that it will be a bad thing if it brings one into conflict with the criminal law and the possibility of punishment to the extent that this legislation provides. That is the purpose, as the Committee will understand, of my opposing the clause.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I start by saying to the noble Lord, Lord Harris, and the noble Baroness, Lady Symons, that if an organisation promotes terrorism, it ought to be banned, and is already covered under Section 3 of the existing Act. If an organisation recruits young people with a view to their becoming terrorists, then of course it ought to be caught, and it already is caught. So there is no need to do anything about that situation, which I think was mostly concerning the noble Lord, Lord Harris, and the noble Baroness, Lady Symons. The problem that I have and I think perhaps others in the Committee have regards the organisation which is admittedly an extremist organisation but which does not advocate violence and has no intention of advocating violence, but which, according to the involved language of this provision, is to be deemed as promoting terrorism because it is guilty of something that is called unlawful glorification. For me, that is the sticking point.

The noble Lord, Lord Kingsland, seemed sorrowful that he could not support the amendment. But he went on to say that he is in favour of an offence of indirect incitement, but not based on glorification. That is exactly my position. I am in favour of an offence of indirect incitement, as I made very clear in my Second Reading speech, but I am totally against the concept of unlawful glorification whether applied to individuals under Clause 1 or to organisations under Clause 21. If anything, it is worse in respect of organisations. The noble Baroness says, "Perhaps that does not matter all that much because they can always apply to de-proscribe"; but in the mean time every member of that organisation has been guilty of a criminal offence. I do not regard that as a satisfactory solution. I do not regard this as a necessary provision. It is very difficult to understand, as I think we all accept. Therefore, although I seek leave to withdraw the amendment at this stage, I shall certainly want to bring it back.

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

The noble and learned Lord does not need to seek leave to withdraw an amendment because the Question before the Committee is that Clause 21 stand part of the Bill.

Clause 21 agreed to.

Clause 22 [Name changes by proscribed organisations]:

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

This is intended to be a probing amendment only. An organisation may be proscribed through being listed in Schedule 2—that is, under Section 3(1)(a) of the Terrorism Act 2000. It may be proscribed if it is an organisation which operates under the same name as a listed organisation, so if an organisation has one name in the schedule but also has another name, it is still proscribed. That seems very sensible. The Secretary of State may provide by order that if an organisation is operating wholly or partly under a name which is not listed, that organisation may be treated as another name for the listed organisation—that is the new subsection (6). I understand that—that the Secretary of State may by order say that a named organisation may be treated as a proscribed body.

However, as I read subsection (9), which I seek to remove, a liability may attach to the organisation even though it is not listed in Schedule 2, and even though there is no order in being, if it is proved to be the same as the organisation which is listed. I do not understand that and I would welcome an explanation. I would like to know what proof is required. It appears to mean that a member of a party, club, mosque or, indeed, any organisation may be liable to imprisonment simply for being a member of that organisation even though the organisation is neither listed nor subject to an order made by the Secretary of State and therefore he has no notice of the fact. I appreciate that this is a somewhat technical matter and one that is difficult to explain. I welcome an explanation from the noble Baroness. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I am grateful to the noble Lord for his indication that he understands and, indeed, agrees with the import of Clause 22 in as much as it enables us to identify an organisation which has a number of different names. I thank him for that acknowledgement.

The organisation may cease to be known by one name. It may subsequently be discovered that the organisation has adopted another name, unknown prior to investigation into its activities. Clause 22 adds an important flexibility to the existing proscription regime. It entitles the Secretary of State to make an order certifying an organisation as being the same as one that is already proscribed. Normal appeal rights will apply, enabling organisations to raise the matter at the Proscribed Organisations Appeal Commission. That is an important addition of some degree of flexibility to the proscription regime. I give the noble Lord an example. Members of the Committee will remember that this was a provision which the noble Lord, Lord Carlile, described in his report as "entirely practical and sensible" in its current form. I respectfully agree with him, and I would not seek to alter it. The amendment would create uncertainty; but I understand that the noble Lord is raising the amendment only to allow us the opportunity to have this debate.

The situation that one needs to consider is one in which a new organisation has sprung up from the ashes of one that was proscribed. It is not clear at this stage that the organisation is the same as the one that was proscribed, but in routine investigation of a common crime evidence emerges that proves that the organisation is indeed the same as one that was proscribed, and the identities of a number of members are revealed. At this stage, the police must act and arrest the members of the organisation in case a terrorist attack takes place. However, unless they are clearly entitled to argue independently in a court of law that the organisation is the same as the one that was proscribed, they cannot arrest those individuals, as there would be no basis on which to charge them. In order to charge, as no doubt noble Lords are aware, it is required that there is a reasonable chance of a conviction. Without the clear chance to argue that an organisation is indeed the same, the prosecution cannot consider that there is a reasonable chance of conviction, so the individuals will remain free and will probably flee the country before an order could be issued by the Secretary of State identifying the organisation as the same as one proscribed—so it is entirely practical.

It is almost like a tracing that one would do in civil proceedings, where you would say, "Here they are; I traced them over to the next circumstances and they are indeed the same people". They cannot avoid detection simply by calling themselves by another name. This enables the prosecution, when the police obtain those facts, to act in a way that I am sure all noble Lords would wish them to. That is the reason why it is framed as it is. It has sufficient flexibility, but it allows people who should be caught to be caught.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 [Extension of period of detention of terrorist suspects]:

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

moved Amendment No. 117:

Page 22, line 7, after "Scotland," insert "the Lord Advocate or"

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

This amendment is grouped with Amendments Nos. 118 and 125 in my name, and with the leave of the Committee I shall speak to all of them. They seek to remove infelicities in the provisions of the Bill affecting Scotland that demonstrate errors in an understanding of court procedures in Scotland. Amendment No. 117 seeks to provide that in Scotland the Lord Advocate, in addition to a procurator fiscal, can apply for a warrant extending detention or for the extension of the period of such a warrant. At present, new sub-paragraph (1)(b), in Clause 23(2), allows only for,

"in Scotland, a procurator fiscal".

Section 41 of the Terrorism Act 2000 provides that:

"A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist", and:

"Where a person is arrested under this section the provisions of Schedule 8 (detention: treatment, review and extension) shall apply".

Clause 23(2) seeks to amend sub-paragraph (1) of each of the paragraphs 29 and 36 of Schedule 8 to the 2000 Act. Those paragraphs enable a police superintendent or above to apply to a judicial authority for the issue of a warrant for further detention. Paragraph 29(4)(b) of the 2000 Act provides that in Scotland the judicial authority is the sheriff.

Clause 23(5) amends paragraph 36. As amended, that paragraph would provide in brief that certain applications only—those defined in new sub-paragraph (1B)—would be made to a judicial authority, but that in any other case the application would be made to a "senior judge". Subsection (9) amends paragraph 36 to define "senior judge" as,

"a judge of the High Court or of the Court of Session".

I seek in Amendment No. 125 to leave out "Court of Session" and insert "High Court of Justiciary", it being the superior criminal court in Scotland and the one before which the Lord Advocate, and not a procurator fiscal, brings criminal proceedings. I made that point during the debate last Wednesday on Amendment No. 53, reported at cols. 675-76 of the report of our proceedings. The Government may already recognise that Amendment No. 125 is well founded, and therefore will agree to it. I only remind the Minister that the Court of Session is the superior civil court in Scotland, and the distinction between its jurisdiction and the criminal jurisdiction of the High Court of Justiciary is properly recognised in paragraph 7(b) of Schedule 2 to the Bill, which declares that forfeiture proceedings by virtue of the schedule are civil proceedings and may be instituted,

"in Scotland, either in the Court of Session or in the sheriff court".

By contrast, the sheriff, of course, exercises both a civil and a criminal jurisdiction.

Proceedings of the nature of applications made under paragraphs 29 and 36 of Schedule 8 to the Act can only be criminal proceedings. The existing provisions of Schedule 8 clearly indicate that proceedings under it are criminal; they arise following an arrest in terms of Section 41 of the 2000 Act. In terms of paragraph 5, the status of the detained person is that he is,

"deemed to be in legal custody throughout the period of his detention".

Where a person is detained in Scotland, his rights are set out in paragraphs 16 to 20. While the rights there specified are declared to have effect,

"in place of any enactment or rule of law under or by virtue of which a person arrested or detained may be entitled to communicate or consult with any other person", in certain circumstances the provisions of the Criminal Procedure (Scotland) Act 1995 specifically apply to the person detained—for instance, those relating to a child and the procedure for taking certain prints and samples. The person so arrested and detained is thus vested with rights which he can invoke. These are just such rights of a kind which the High Court of Justiciary is under a duty to protect, as was stated by Lord Justice General Emslie in Hall v Associated Newspapers in 1979, a contempt of court case in which the Lord Advocate intervened.

Where applications in criminal proceedings in Scotland are to be made to the sheriff, it is entirely appropriate that the application be made by the procurator fiscal. It is done day and daily in matters concerning warrants. That such is the case is recognised in Schedule 5 to the 2000 Act, which concerns terrorist investigations. In part II of the schedule—it applies only in Scotland—paragraphs 22, 28 and 30, which deal respectively with applications for orders for production of material, for a search warrant and upon a person for explanation of material, provide that such orders are made by the procurator fiscal to the sheriff. Similar provision is made in respect of an application in Scotland for an order under paragraph 1 of Schedule 6 in relation to financial information. The sheriff is on these occasions exercising his criminal jurisdiction, not his civil jurisdiction. However, where an application is made to a judge of a superior court—whether it be of the Court of Session, which is the superior civil court in Scotland, or the High Court of Justiciary—it is not appropriate that a procurator fiscal should make it. Such applications should properly proceed in the name of the Lord Advocate.

For those reasons, Amendment No. 117 seeks specific recognition that it is the Lord Advocate who alone is the proper party to make such applications to a senior judge. At the same time, Amendment No. 125 seeks to substitute reference to the High Court of Justiciary for the Court of Session, to make it clear that such applications are being made in criminal proceedings.

Amendment No. 118 is designed to remove from police officers in Scotland the right to make applications for a warrant extending detention or for the extension of the period of such a warrant. When introducing my Amendment No. 103 at the end of the second day of Committee last Wednesday, at col. 734 of the Official Report, I set out in some detail the constitutional position of the Lord Advocate as head of the system of prosecution and investigation of crime in Scotland. I do not wish to repeat what I said then, other than to emphasise his statutory powers to instruct the police in the investigation and reporting of crime under Section 17 of the Police (Scotland) Act 1967 and Section 12 of the Criminal Procedure (Scotland) Act 1995.

These applications arise only after the first 48 hours of detention and during that time, of course, reviews will have been carried out by the review officer in accordance with paragraph 21 and subsequent paragraphs of Schedule 8 of the 2000 Act. There is thus no urgency of the kind that gives rise to the provisions under paragraph 31 of Schedule 5 of the 2000 Act which allow a police officer of at least the rank of superintendent to give by written order to a constable the same authority as that given by a search warrant granted by a sheriff to the procurator fiscal under paragraph 28, on the ground that the case is one of great urgency and that immediate action is necessary.

By paragraph 27(4) of Schedule 8 the requirement on the prosecutor under Section 135(3) of the Criminal Procedure (Scotland) Act 1995 to bring an accused person before the court after his arrest, not later than in the course of the first day after he is taken into custody, wherever practicable, is specifically disapplied. In matters so potentially serious, involving, as they do, the investigation of suspected terrorism, it is be expected that the police would advise the procurator fiscal of the fact of the arrest and detention of a person under Section 41 of the 2000 Act as soon as possible after the event. Consequently, there should be no difficulty in securing that any application for continued detention was made, and timeously made, by the procurator fiscal, with the additional advantage that the reasons for the continuation could be independently assessed by the procurator fiscal prior to its presentation to the judicial authority.

Likewise, in advance of an application to a senior judge it would be expected that the fact of the arrest, detention and continued detention would have been reported to the Lord Advocate and Crown counsel at a very early stage. Again, there should be no difficulty in securing that an application for an extension was timeously made to a senior judge. At the same time this would enable the grounds for such an extension to be scrutinised at the highest level prior to the application being presented.

I have already pointed out that for the purposes of terrorist investigation under Part II of Schedule 7 of the 2000 Act, it is the procurator fiscal, not a police officer, who applies to a sheriff for orders for production of material, for searches and for explanations, except in the case of an urgent search. That last exception is not affected by this amendment. I should also draw noble Lords' attention to the terms of paragraph 2 of Schedule 6 which deals with the matter of procedure in relation to financial orders under paragraph 1 of that schedule. It states:

"An order under paragraph 1 may be made only on the application of—(a) in England and Wales or Northern Ireland, a police officer of at least the rank of superintendent or (b) in Scotland, the procurator fiscal".

That is to say, the police officer does not have the capacity to seek such orders in Scotland. Indeed, I understand that in Scotland an application at present made under paragraph 29 of the Schedule 8 to the 2000 Act is normally made by the procurator fiscal with the assistance of senior police officers. Perhaps the Minister could confirm that such is the case. If so, this amendment would cause no difficulty in practice and would have the advantage that an application would be independently assessed at all important stages of the revised detention procedure.

I hope that the Minister will recognise that this amendment makes the Scottish provisions in the 2000 Act, as amended, consistent throughout. I recognise that at a later stage there would require to be a consequential amendment to Section 41(5) of the 2000 Act to insert reference to a procurator fiscal in place of a police officer as the appropriate person in Scotland to make an application for a warrant under paragraph 29 of Schedule 8.

I should add that I am very grateful to the Minister for a letter which I received from her about the matter raised earlier. She at least intimated that she was also looking at these amendments. I hope that, in that frame of mind, she will understand that there is in the Bill a misunderstanding of the procedures in Scotland and that these amendments are well founded. I beg to move.

Photo of The Duke of Montrose The Duke of Montrose Spokespersons In the Lords, Environment, Food & Rural Affairs, Deputy Chief Whip, Whips, Spokespersons In the Lords, (Also Shadow Minister for Women & Equality- Not In the Shadow Cabinet) 5:00 pm, 13th December 2005

I am most interested to hear the views of the noble and learned Lord, Lord Cameron of Lochbroom. I apologise to the Committee that I was not able to be here during last Wednesday's debate on these matters. That was not due purely to the lateness of the hour; I am afraid that I had other unavoidable commitments. However, I read what the noble and learned Lord, Lord Cameron, said, and I also read the response from the Government. Having listened to what he has said today, I am equally interested to hear the Government's response on this occasion. It seems to me that he has re-emphasised some of the points that he made previously and that he remains to be convinced of the Government's argument.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I am grateful to the noble Duke, the Duke of Montrose. As always, we missed his voice on Scotland and I was glad that the noble Baroness, Lady Carnegy of Lour, was in her place; otherwise we would have been quite lost. She is not here today but she normally is.

I say a special thank you to the noble and learned Lord, Lord Cameron of Lochbroom, who did me the great courtesy of writing to me on these issues. I am able to tell him that I am very happy to accept Amendments Nos. 117 and 125. There is an argument about whether they are absolutely necessary but we think that it is right to accept them because they add a degree of precision and clarity which we think is welcome and necessary for the reasons outlined by the noble and learned Lord.

However, we will resist Amendment No. 118. It would be inappropriate to accept it as it would prevent senior police officers applying for extensions to detentions under Schedule 8 to the Terrorism Act in Scotland. That would reverse the current arrangements under which police officers can apply for such extensions. We see no reason why we should reverse the existing situation or create an arrangement in Scotland which is different from that in the rest of the UK. However, I assure noble Lords that that is not just the Home Office view; indeed, the current Lord Advocate takes the view that it would be inappropriate to have powers in Scotland which are different from those in the rest of the UK in this respect. As the noble and learned Lord knows from his time as Lord Advocate, we take very seriously the advice given to us by the Lord Advocate in such situations and we believe that the current balance in that regard is right.

I repeat that I am extremely grateful to the noble and learned Lord for his ongoing scrutiny of this Bill, which has been very helpful. I am pleased to support his Amendments Nos. 117 and 125, but I respectfully suggest that he should choose not to press Amendment No. 118, bearing in mind what his brother Lord Advocate has to say about the issue.

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

Before the noble Baroness sits down, I am certainly aware that before the Bill came before this House—indeed, perhaps before it was put before another place—these provisions, so far as they affect Scotland, were placed before the Lord Advocate for his comments. I am well aware that at that stage he intimated a view that has been repeated to your Lordships this afternoon.

I would like to know whether the Lord Advocate has been asked for his views about the present amendment and the reasons for it. I suspect not, but I am happy to be corrected. If that were to be the case, I would have to reconsider my position again. My understanding of the practice that has been pursued to date in regard to these applications is that, notwithstanding the terms of the Bill and as the 2000 Act stood at the time, only the police could make those applications. With the terms of the amendment not being in place at that time, a new situation arises which, I suggest, requires the whole matter to be reinvestigated as to the propriety of a police officer making an application of the kind that is suggested to the sheriff, rather than the procurator fiscal, who, as I have already pointed out in relation to other powers that appear in the Bill, is given that capacity in place of the police.

I instance the terms of paragraphs 1 and 2 of Schedule 6 to that very point. If it were to be the case in England, Wales and Scotland that the police should always make the application, one would not fail to understand the purpose of that schedule. In the light of that, perhaps the noble Baroness is in a position to assist me further.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 5:15 pm, 13th December 2005

I can assist the noble and learned Lord further. As I anticipated, in view of the concern raised by the noble and learned Lord on the previous occasion, and the reasons that he has given, this issue was raised again with the Lord Advocate, who has indicated that he has not changed his view. As the noble and learned Lord has taken such trouble in his exposition of the detail about why he comes to a different view, I would be more than happy to ensure that the Lord Advocate has the benefit of reading Hansard to see what the noble and learned Lord has said. I invite the noble and learned Lord to consider that, unless and until that position changes, it looks as though he has a 2-1 victory.

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

I am grateful to the noble Baroness. A term for reflection is needed. Perhaps the noble Baroness will advise me whether the Lord Advocate, having had an opportunity to read Hansard, has changed his mind.

On Question, amendment agreed to.

[Amendment No. 118 not moved.]

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

moved Amendment No. 119:

Page 22, line 27, at end insert—

"( ) In paragraph 32 (grounds for extension) omit the words "whether by questioning him or otherwise" in sub-paragraph (1)(a) and after that sub-paragraph insert—

"(aa) further questioning of him will be confined to the prevention of harm to the public, or in the interests of justice, to the relevant evidence so obtained or preserved, and"."

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

In moving Amendment No. 119, I shall speak also to Amendments Nos. 127 and 128. It may be helpful to our discussions on Amendments Nos. 121 and 122 if I set out the background in which these amendments are to be considered. I remind the Committee of the tradition of criminal investigation and charging in this country as opposed to continental systems. The police or other investigating authorities make all the necessary inquiries to put a prima facie case together. Once that has been done, there are reasonable grounds for arrest. After arrest the common law approach is to interrogate the suspect about the evidence so collected. Within a limited period—usually 48 hours but it may be extended a little by the court—the person who has been arrested is given an opportunity to explain the evidence that is put before him. If he satisfies the investigators, he is released. If his interrogation casts doubt on the strength of the case, he will usually be bailed to return to the police station when further investigations have been completed. That is the system of police bail. If he fails to give any explanation at all or an explanation that casts doubt upon the case that the police have put before him, he is charged and certain safeguards necessary to a fair trial are put into effect. That is consistent with the presumption of innocence which I have not heard any Member of this House challenge.

The person who has been charged is brought before a district judge to determine whether he be remanded in custody or released on bail by the court. The decision about bail depends upon the judge's assessment of the seriousness of the case, the risks of the defendant not turning up for trial and so on. In any event, the evidence and the documentation will be fully disclosed to him, and from the moment that he is charged, or very shortly afterwards, he is no longer in the custody of the police, except in the very unusual circumstances when the gaols of this country are full.

In every serious case, it is customary for the police scientific and technical investigations to continue after charge. There may be a misapprehension that they stop at that point, but they do not. A person may be questioned—there is no absolute bar to a person who has been charged being questioned further after charge—but only on the basis set out in this amendment; namely, to prevent harm to the public or in the interests of justice. By this time, the person has usually been remanded in custody to a prison and, from time to time, the police go to the prison for further questioning. If such further questioning takes place, it will be closely scrutinised at trial to see whether it was truly for the purpose of preventing harm to the public or in the interest of justice or whether it was oppressive. During the period between remand and trial, notices of further evidence will be served in which the product of, for example, overseas investigations, telephone evidence and DNA and other scientific evidence, such as fingerprints, will be disclosed to the defence. This happens all the way up to trial and, indeed, on occasion, after the trial has begun.

The system that we depend upon for a fair trial copes with all of this. Once there is enough evidence to charge somebody, a great deal of the prosecution case will be put together after charge and before trial. There is no upper limit to the time during which these investigations continue. Further evidence, whether scientific, technical or whatever, may well be collected, collated and served in 14, 50, 100, 200 or 300 days if necessary. It depends entirely upon the nature of the investigation and the sort of evidence that has to be obtained.

By reason of the serious threat posed by terrorism, this system was adapted, in particular by the Terrorism Act 2000. Section 41 of the Terrorism Act permits a constable to arrest without a warrant a person whom he reasonably suspects of being a terrorist. When the 2000 Act was passed, it initially stated that the person must be released within 48 hours of arrest, but designated district judges could issue a warrant of further detention under the powers given by Schedule 8 to the Act.

At first, that warrant of further detention, which is the subject of all the conflict in this Bill, was for a period of further detention of seven days. In the Criminal Justice Act 2003, against a great deal of opposition, that was extended to 14 days.

In order to issue a warrant for further detention, whether for seven, 14, 28 or whatever days, the judge has to be satisfied that there are reasonable grounds for believing that the further detention is necessary, "to obtain relevant evidence"—I stress those words because one of my amendments goes to the definition of "relevant evidence—

"whether by questioning him or otherwise".

That is the first thing: is the detention necessary? He must also be satisfied that the investigation is being conducted diligently and expeditiously.

The proposal to amend the period of further detention, and to extend it to 28 days, has been decided in another place. As I indicated at Second Reading, we do not propose to contest that. It would obviously be unacceptable for a person who is detained for such an extended period like that to be subject to daily interrogation on a wide basis. It is precisely that sort of questioning—if a person is questioned day after day—which leads to oppressive methods of questioning; indeed, it may even be torture. It is no coincidence that the major miscarriages of justice, which have caused people to doubt the criminal justice system in this country and its ability to protect the innocent, have occurred in the area of terrorist crime. Although lawyers are attacked from various quarters in the Chamber, some of us have experience of terrorist cases—none more so than the noble Baroness, Lady Kennedy of The Shaws.

The purpose of Amendment No. 119 is to give judicial oversight to the nature of any further questioning that may take place after charge and during a period of extended detention. A policeman, a superintendent or another investigator, who applies for a warrant of further detention for 28 days, will have to explain to the judge that any further questioning will be of the nature set out in that amendment—if my amendment is accepted. In other words, it would be,

"confined to the prevention of harm to the public, or in the interests of justice, to the relevant evidence so obtained or preserved".

So the purpose of my amendment is to say that if you extend the period of detention, the person detained cannot be questioned widely during that period, but he can be questioned about any matters—whether it be scientific evidence or whatever—which those investigating have turned up. The judge would make an order extending the period of further detention to 28 days on the basis that the questioning would be of that order.

Amendments Nos. 127 and 128 are designed to exclude the limited definition of "relevant evidence", which pops up in Part 2 of Schedule 8 of the 2000 Act. For the purposes of Part 3, where we are dealing with extended periods of detention, the nature of the relevant evidence is defined. It is precisely, as Members of the Committee will see if they look at that amendment, the evidence which the Government have said it takes time to collect and to collate. It includes investigations abroad, telephone evidence, computer files and forensic and scientific evidence. It does not include evidence obtained from witness statements and from routine police investigations, which should have gone on beforehand in order to build up the case against the arrested person before he is charged.

Why the push to extend the warrant of further detention to 90 days, as was the Government's original intention? I hope that the Committee has heard my outline and appreciated that there is no logic to that. The figure of 90 days is not magic at all. The investigation may continue for all of the period up to trial, which could well exceed the 90-day period; it could extend for more than a year. Almost 500 people who were released without charge of the 850 arrested under the Terrorism Act were released within 14 days. We have no evidence that any one of those released would have been charged if the police had had more time. So far as I am aware, not one of them has been picked up later following further investigation, arrested and charged.

The problem with the 90 days is that it enables the police to arrest on rumour, suspicion or intercept evidence—which every other country finds admissible in evidence but we do not. In other words, it pushes back arrest to well before investigation has got under way. That is quite contrary to the traditions of investigation in this country. A person may be arrested on suspicion or rumour and then the serious investigation starts. If there is evidence that would justify a charge, the investigators—the police—would not hold that person for 90 days and then charge him. When there is sufficient evidence to charge, he must be charged. He may be there under a warrant of further detention; the police may come to the conclusion that he should be charged on day two, day 10 or day 15.

Photo of Lord Davies of Coity Lord Davies of Coity Labour 5:30 pm, 13th December 2005

Is not the 90 days a maximum, not a norm?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

Of course it is, because, as I say, if there is sufficient evidence to charge, he must be charged. The point about the 90 days is that if it elapses and he is not charged, that is effectively internment. Then you release into the community, as 500 people have been released, a person against whom there is insufficient evidence to charge, having been arrested.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

I am sorry, but perhaps there is a misunderstanding. The noble Lord is suggesting that someone has been held for 90 days and then released who is innocent. The whole purpose of the exercise—is it not?—is that there is sufficient suspicion and the evidence must be compiled to secure a conviction. It involves only those people who are likely to be there for 90 days.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I hesitate to intervene, but we have strayed a long way from the material that is relevant to this group of amendments. I am also conscious that the 90-day or 60-day debate follows from this, but I hope that the Committee will constrain its debate in a rather more disciplined way.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I certainly accept the noble Lord's criticism and I should not have gone on as long as I have had I not been invited to comment on that question. We will come to that in due course.

I have fully explained the purpose of the amendments that I propose. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

If I may, I shall constrain my comments to those that arise from the amendment, as opposed to the debate about 90 or 60 days, which we shall come to next. I am of course grateful to the noble Lord, Lord Thomas of Gresford, for tabling the amendments. They relate to the grounds on which continued detention may be authorised in terrorist cases and what may happen while a person is detained.

I hope to make some clear statements to try to put to rest some of the concerns that have arisen concerning the Police and Criminal Evidence Act and other provisions. We will shortly come to the thorny issue of for how long a person can be detained in total. As I said, I do not want to stray into that territory. However, it is right for me to remind the Committee of the safeguards that exist.

All detention beyond 48 hours must be authorised by a judge. Another issue that we shall address shortly is the level of the judge but, whatever the level, the test is the same. The judge can authorise continued detention only if he or she is satisfied that the investigation is being carried out as expeditiously as possible and that further detention is necessary to obtain relevant evidence or to preserve relevant evidence. That is the test. Those are significant conditions that judges apply scrupulously when deciding whether to grant an application for continuing detention. It has never been suggested by any Member of this House or elsewhere that the provisions are not applied by the members of our judiciary fairly, firmly and effectively.

Amendment No. 119 provides that judicial authority could authorise continued detention only for questioning where such questioning was designed to prevent harm to the public or to the relevant evidence obtained during continued detention, where that would be in the interests of justice. I cannot see the logic of so doing, bearing in mind the tried and tested approach that we currently have. We must let judges decide. If they think that the case for extension exists, applying the tests in the legislation, they should be allowed to grant it. We think that we can trust our judges. I make it absolutely clear that I do.

More than that, I fail to see the mischief that the amendment is intended to address. What is the harm in questioning a person about anything that may be relevant to the cause of the investigation? I assume that the thinking behind the amendment is that a person may eventually crack if he is kept for long enough and that the police would somehow contrive to achieve that result. The noble Lord, Lord Thomas of Gresford, may be harking back to days before PACE, when concerns of that nature arose from time to time. I respectfully say to him that he ignores the protections that now exist. The suspect has the right to have his lawyer present, who would certainly ensure that no unwarranted confessions or statements were extracted. Interviews are recorded, so a proper record exists and it would be possible to tell if undue pressure had been exerted. I recall that many years ago—more than 20 years ago—it was common practice for some defendants to put "STUP" at the end of their statement, which meant "statement taken under pressure". We dealt with that through PACE.

Finally, the Government have made a firm commitment to introduce a separate code of practice under the Police and Criminal Evidence Act 1984 governing pre-charge detention in terrorist cases. At present, detention of terrorist suspects is governed by PACE code C, which deals with pre-charge detention generally. That commitment is a further guarantee of proper, decent treatment for those detained. I know that that is something that the noble Lord wants and I can reassure him that we also want that.

The remaining amendments in the group refer to Clause 24; I am grateful for the opportunity to say something about that clause. The purpose of Clause 24 is not to change things but to put beyond doubt what had until recently been believed to be the case.

The position was thrown into doubt by an application for judicial review in Northern Ireland. In that case, an individual who was held while DNA samples were being analysed challenged the legality of his continued detention. In that instance, on the advice of senior Crown counsel, he was released.

Prior to that, it had been thought that continued detention for that kind of purpose was lawful—that remains the view on the mainland—but we want to put the matter beyond doubt. Clause 24 therefore clarifies the position by providing that detention pending the outcome of an examination or analysis of relevant evidence, or an examination or analysis to obtain relevant evidence, is a specific ground on which detention can be justified. That would cover issues such as analysis of DNA material. The other grounds on which detention can be allowed are to obtain or preserve relevant evidence.

I see no reason why we should limit that as suggested by Amendment No. 128. It seeks to limit the grounds on which extended detention can be authorised by limiting the meaning of relevant evidence. Under the amendment, evidence would be relevant only if it was obtained from investigations abroad, telephone networks, encrypted computer files and forensic examination and analysis.

I appreciate that the Liberal Democrats have said that they find only some of the arguments that the police have put forward for extended detention compelling but we can trust the judiciary to weigh that up and get it right. As I have said before, if a judge believes that the case for extension exists applying the tests in the legislation, he or she should be allowed to grant it, whether or not the reason happens to be one of the factors that the Liberal Democrats happen to find compelling. Our judiciary have been very good at dealing with that, and I feel absolute confidence that we can allow them to continue to do a very good job. As I have indicated, substantial safeguards exist and I think we can rely on them rather than seeking to impose artificial obstacles that might hamper the progress of investigations.

Perhaps the noble Lord simply wished to elicit from me all those guarantees. If that was his purpose, I am only too happy to have been given the wonderful privilege and opportunity to oblige.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

I think that the noble Baroness misunderstands. Amendment No. 119 follows the wording of PACE code C—paragraph 16, I think, but I could be corrected—and is designed to ensure that, although a charge is deferred as it would be under our warrant for further detention up to 28 days, questioning cannot continue widely after judicial involvement. At the moment, after a person has been arrested, interrogated and charged there can be further questioning. The Bill pushes the charging back. It is in the period between judicial intervention and either charge or release that I suggest we should follow the wording of PACE, with which I am pretty familiar, to ensure that questioning remains fair and is not oppressive.

I understand the noble Baroness's concerns about Clause 24. The purpose of Amendment No. 128 was to confine relevant evidence as set out. I can see that the Government want to keep it wide and undefined. We shall consider that at a later stage, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

moved Amendment No. 120:

Page 22, line 28, leave out subsection (5).

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

This is a probing amendment, tabled in the hope that the Minister might think again about involving the senior judiciary in the process of extending detention, now that, at least for the time being, the period of three months has been reduced to 28 days. I am deeply conscious that it may be restored to three months as a result of the next amendment.

I remember much discussion before the 2000 Act, only five years ago, on the procedure to be followed if the police wanted to increase the period of detention from four to seven days. One suggestion at the time was that the simple way to do that was to involve the senior judiciary, in the hope that that might provide an answer to the decision of the European Court of Human Rights in Brogan v United Kingdom, which said that a period of four days and six hours did not comply with Article 5. But that suggestion was deeply resisted by the Government, who said that to involve the senior judiciary, especially those in Northern Ireland—I remember this very well—could undermine public trust in the judiciary and that that was to be avoided at all costs. I could give the quotation if necessary.

That was followed by my 1995 report, in which I suggested as a possible alternative to the senior judiciary the involvement of the judiciary at a much lower level. The obvious candidate was the chief metropolitan magistrate, as it would fit in very easily with his existing duties. That solution was adopted in the 2000 Act and worked very well when the period of seven days was increased to 14 days, as recently as 2003. There had been no suggestion of any change at that stage. It continued to be the suggestion until this Bill was presented in the House of Commons, where it was still to be determined by what was then called a district judge rather than the chief metropolitan magistrate. If I can say so without disrespect to district judges, they are on the whole lowly compared with High Court judges.

When the three months' detention proposal was running into difficulties in the House of Commons, the Liberal Democrats suggested that it might help to substitute a High Court judge for a district judge. The Secretary of State leapt at that suggestion. It obviously looked better to involve a High Court judge and, in any event, it would help to get the Bill through the House of Commons. But it was the exact opposite of what the Government had been saying only a few years previously—whatever we do, we must not involve the High Court judges.

My argument on this probing amendment is simply that the Government's first thoughts on this were their best thoughts. It is important to have in mind, as we now all do, what the High Court judge will have to do if he is involved. He cannot go into the merits, as he has neither the time nor the material; his sole task is to decide whether the police need more time to question suspects or to obtain further evidence relating to the alleged offence of the suspect being held. The judge must also ensure that the police are carrying out the investigation diligently and expeditiously.

I suggest that that is an administrative rather than a judicial function, which has always been carried out perfectly correctly and properly by magistrates or district judges. As the Bill stands even now, the district judge will have to be involved in the first period of extension up to 14 days. Why should he not be involved in the further extension from 14 days to 28 days? Why must we wheel in a High Court judge? It may be said that if a High Court judge takes a part in extending the period of detention to 28 days, it will make the whole of this part of the Bill less vulnerable to attack under the European convention. I am quite clear in my mind that it will not make it less vulnerable. It is a mistake to think that by involving a High Court judge in this purely administrative matter, that will somehow convert our process into that which we all know exists in France, where the investigation is carried out by the judge himself and not by the police.

I make one further point which to me is a strong argument against involving judges at the stage where the period of detention is increased from 14 to 28 days. It will give people the impression, as in a sense it was intended to do, that somehow the High Court judge has considered the merits and given his imprimatur to the detention continuing for a further 14 days. That can do nothing but harm to the standing of High Court judges in the eyes of the community at large, especially among ethnic minorities. So if the period is to remain at 28 days, I beg the Minister to consider again what real good could come of involving a High Court judge for the last 14 days compared with the harm that may be done to the general standing of High Court judges, with regard in particular to ethnic minorities. On that basis, I beg to move.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 5:45 pm, 13th December 2005

Like the noble Lord, Lord Kingsland, it is very unusual for me to be in the position of opposing an amendment moved by the noble and learned Lord, Lord Lloyd of Berwick. The reason we put forward the use of a High Court judge for this function is because in terrorist cases there is a very considerable pressure that does not exist in the ordinary case. If it is a terrorism offence, public interest will be high. The arrest and questioning of a suspect is carried out in the full glare of publicity and there are pressures which do not normally arise during criminal investigations. We feel that for the satisfaction of the public, so that they know the public interest is being properly looked after, a High Court judge with all the authority that his office holds should be engaged in doing what is a very unusual thing: extending a period of detention to up to 28 days.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

If that is the only argument, surely it would apply to the initial 14-day detention period as well. But it has never been suggested that it should.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

This is the first occasion I can recall on which we are going to disagree with the noble and learned Lord, Lord Lloyd, for the second time in the course of an afternoon.

The noble and learned Lord described the procedure between arrest and charge as a "purely administrative" one. If the noble and learned Lord is right about that, why do we need a judge at any stage? He tells us that it is perfectly all right to have a district judge, but it is not perfectly all right to have a High Court judge. A district judge, however modest in rank, is, nevertheless, a judge. With respect to the noble and learned Lord, there is a certain illogicality in his argument for retaining a judge for a procedure that he regards as wholly inappropriate for the judicial process.

The second reason why I am at odds, in the friendliest possible way, with the noble and learned Lord is because I do not think that this procedure is administrative. Someone being detained in prison without charge is someone who is experiencing a loss of freedom—a loss which goes to the root of our principles of constitutional liberty. He is in custody, but he has not the faintest idea why he is in custody. Therefore the longer he is held in custody in those circumstances, the more intense must be the examination every time he comes to court.

I am conscious that I am supporting the Government's position here. When we get to a certain number of days, we move from the district judge to the High Court judge. The degree of surveillance required, as the period of detention without charge grows longer, must be more demanding. So I think that the position in the Bill is exactly as it should be.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

Very briefly and with the same reservations, I support the need for a High Court judge. I do not think that this is an administrative procedure. It is rightly given to someone who stands far from the administration and who is a judicial authority. For short periods it can be a comparatively modest judicial level such as that of a district judge, but here we are dealing with what in our lifetime are entirely exceptional periods of detention before trial. That requires a strong personality. I agree with the noble Lord, Lord Thomas of Gresford, who observed that huge pressures are brought to bear in terrorist cases. I have personal experience of watching the unwinding of terrorist cases which have given rise to grave miscarriages of justice. In those circumstances, we need someone with the authority, personality and intellect of a High Court judge to maintain effective supervision.

I do not say that there are not district judges who would do it beautifully; I am sure there are some of great personality and strength of character, but in general we need those qualities along with the long judicial experience and sense of confidence of a High Court judge. It is necessary even to test whether the police are getting on with the investigation expeditiously. It is quite difficult for a fairly junior judge to test that, but if counsel—these things would always be done by counsel—has to explain the situation to a senior judge, they had better get it right. That is a protection for the liberty of the individual.

While I understand entirely what causes the noble and learned Lord to test this matter—he is right to probe it—there are good answers and I hope that the Government will stick with the provisions.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I was tempted simply to say in response that the noble and learned Lord knows how incredibly difficult it is to get all three sides to agree on anything in this Bill. Having achieved that rare feat, far be it from me to seek to unpick it.

However, I am provoked to say a word or two by the comments just made by the noble and learned Lord, Lord Lyell. In case any of Her Majesty's district judges who have hitherto been involved in this work read this account, perhaps I may say that I fundamentally disagree with the comments made about personality. The personality, substance and robustness of the district judges who have undertaken this work honourably for so long are beyond question. They have skill, acuity and knowledge that is second to none. Therefore I have the utmost confidence in our district judges, but I am also a realist.

I should say to the noble and learned Lord, Lord Lloyd, that my right honourable friend did not leap to this conclusion because he too has the strongest regard for our district judges. However, we wish to see comity. Noble Lords on the Liberal Democrat Benches, noble Lords opposite and, indeed, many noble Lords on our Benches felt that it was right and proper to have, at the second stage, the additional scrutiny of a High Court judge. To that we acceded and I, on behalf of the Government, do not seek to resile from that agreement now—not least because I have no desire to cock a snook at the other place after it has expressed its view so clearly and there has been unanimity on all three Benches.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee) 6:00 pm, 13th December 2005

The noble Baroness called herself a realist; I do myself, too. I can see there is no support for the amendment—I am a lone voice, crying in the wilderness. I am not convinced but, nevertheless, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

moved Amendment No. 121:

Page 23, line 5, leave out "28" and insert "90"

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

I thought I should begin my introduction of the amendment by explaining why I and others feel it is right to move it before I argue the precise case for 90 days.

I consider it important that parliamentarians in this House should be given the opportunity to demonstrate to the country that they were listening and giving careful thought to the views of experts on counter-terrorism, as expressed by those experts in the Metropolitan Police, ACPO and ACPO Scotland, and confirmed by the considered judgment of the independent reviewer, the noble Lord, Lord Carlile of Berriew. All commended 90 days to the Government.

While I recognise, of course, the primacy of the elected House of Commons, it should, in what are unusual circumstances, be given the opportunity—once—to think again. The effect of the amendment would be to reinstate in the Bill 90 days, instead of 28, for pre-charge detention. This would have the effect of allowing a suspect to be held for up to 90 days before charge, with a senior judge reviewing the situation every seven days, and, of course, with a sunset clause.

The gravity and nature of the terrorist threat now facing us differs significantly from anything we have had to deal with before. The complexity and difference of the current danger necessitates a complex and different response from previous counter-terrorism measures. We are faced by fanatics aiming to wreck maximum havoc of death and injury without specific warning, and ready to sacrifice themselves in the process. They are often part of a network of complex terrorist organisations, with international links and contacts scattered over many countries. They use advanced new technology, including computers with encryption, and other new tools of the trade in the ever advancing world of IT.

The more normal police practice of letting plans for a crime run until evidence accumulates to incriminate the suspects has to be curtailed because no one would dare to risk losing contact and a terrible terrorist event resulting. The international links, whether organisational or individual, mean there is inevitable delay as these are tracked and are usually dependent for speed on foreign liaison services of all kinds, some less efficient than others, some less co-operative than others. Foreign help is often required to establish accurate identity, in some cases even of those in custody, let alone of contacts. The provision of an adequate supply of interpreters and translators to deal with the huge volume of material, as well as to guarantee the civil rights of the suspects by providing adequate interpretation, all slow the process.

As Assistant Commissioner Andy Hayman of the Metropolitan Police points out in the impressive and detailed seven-page attachment to his letter of 6 October to the Home Secretary, it is not just a question of resources because the procedures—some of them inevitably consequential—will inevitably take a considerable time. The points made by Assistant Commissioner Hayman are very much echoed in paragraphs 57, 58, 59 and 60 of the report of the noble Lord, Lord Carlile. I find the arguments very compelling, in contrast to others such as the right honourable David Davies and the honourable Dominic Grieve, who were much quoted a few weeks ago as finding them not compelling. They must give a meaning to that word different from mine. Anyone with professional experience in the field of counter-terrorism would immediately recognise the time-consuming problems recounted by Assistant Commissioner Hayman and would realise how magnified these are in the special circumstances now being faced by our counter-terrorism forces.

In paragraph 61 of his report, the noble Lord, Lord Carlile, said:

"On the basis of my own inquiries and processes as independent reviewer I am satisfied beyond doubt that there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of the time limitations placed on the control authorities following arrest".

He concluded in paragraph 62:

"I share the view that as a maximum three months is probably a practicable and sensible option, all other things being equal. I recommend that the proposal for that maximum should be so regarded".

I agree with that. As I said at Second Reading, I cannot find that up to a maximum of 90 days'—"up to" a maximum of 90 days'—pre-charge detention, with every seven days a senior judge having to be satisfied that there is justification for holding for a further seven days, and with a sunset clause, would be an unjustified infringement of civil liberties.

I also cannot see how when you ask professional experts from the Met, from ACPO and from ACPO Scotland for their opinion—and when they give it—you can override it unless you have overwhelming and compelling reasons. I have heard no such reasons from anyone. On this most serious of issues—our national security—the Government tried to listen to the experts who recommended 90 days. In my opinion, that was correct and 28 days is insufficient and wrong. I beg to move.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

The case for the amendment has been brilliantly argued already. I shall only add that, first, such is the complexity and often quantity of the evidence which needs to be evaluated that the police need to know that they can rely on more time provided they can justify it to the judge week by week—as has been said, 90 days means "up to" 90 days and no more—and, secondly, the potentially serious nature of the possible crime, the public interest and the possibility of a threat to life if the suspects are not arrested and held should outweigh the case of the individual.

Is it so terrible in the context of a serious threat to deprive someone of liberty for a limited time under conditions that are strictly monitored? They are held in decent conditions; their lawyers have full access; they are not going to be interrogated under intolerable conditions, nor for days at a time; they can exercise their right to silence; and their lawyers can make representations and do so weekly. We are not speaking of Guantanamo Bay or a Syrian gaol, or even of the many months unchallenged under which they could be held by a juge d'instruction under the French system.

As has been said, the noble Lord, Lord Carlile, describes the maximum six months as,

"probably a practicable and sensible option, all other things being equal".

He is mainly concerned, as we must be, about the adequacy of the safeguards for the suspect against arbitrary or over-long detention. The amendment does not preclude further safeguards or, as the noble Lord, Lord Carlile, advocates,

"a more searching system to reflect the seriousness of the state holding someone in high security custody without charge for as long as three months".

The amendment in no way precludes allying the 90-day provision with careful judicial control and scrutiny. Our first consideration must surely be that justice should be done, and threats to the state, and the people, need to be countered by allowing the police the best possible chance to defend the country. Control orders are no substitute for custody and investigation.

Our proper concern—that no convictions should risk being based on possible torture-related evidence from other countries—should not prevent us giving our own system a real chance to operate. In the last war against Germany, our interrogators were notably successful. They did not use torture, but they needed time to elicit information through long, patient, persistent, repetitive questioning, and the occasional use of a salient fact to jolt the confidence of the prisoner. Our police need that time, too, and time to find those essential key facts with which to challenge the suspect. That means time for those crucial facts to be extracted from a mass of evidence, and there are only a limited number of people with the specialised technical and linguistic skills to do so. We really must give our system a chance to secure that evidence.

The report of the Joint Committee on Human Rights sets out the police argument very clearly. It says that the problem was not one of resources and that,

"although more resources would help, they could not solve the problem entirely, because there is an irreducible amount of sequencing involved in any complex investigation, involving discrete stages in the collection, retrieval and analysis of information which then has to be incorporated into an effective interview strategy for the detainee".

The prisoner has human rights, but I submit that the public have them too. Is it really such a hardship to spend up to—and only up to—three months in custody, protected from abuse by the whole force of the law, if you have given the authorities reason to believe that you are a possible threat, and a great deal of possible supporting evidence exists that must be examined? We must not, in fighting for the rights of the individual prisoner, forget that the police are doing what society requires of them. They, too, are innocent until proved guilty. I support the amendment.

Photo of Lord Imbert Lord Imbert Crossbench

The amendment to Clause 23, relating to the period a suspected terrorist may be held before charge, is one of the most important clauses in the Bill. If the 28 days agreed to in another place is accepted, and the maximum of 90 days, with weekly robust judicial oversight, as originally proposed, is not permitted, it must be accepted, by the police, by the press, by politicians, and thereafter by the public, that some terrorists who are actively planning death and destruction may go free and innocent lives may well be lost. However, it must be conceded that there is also a risk, however small it might be, that an innocent person is held for up to a maximum—an absolute maximum—of 90 days in custody before charge, trial or release.

The balance between the risk of incarceration of an innocent person and thereby the denial of that person's human rights must be weighed against the awful risk that failure to allow the investigating body the opportunity fully to investigate suspected terrorists or information about planned terrorist acts could result in the deaths and maiming of those who should also have the human right not to be killed or disabled for life. I respectfully draw the Committee's attention to the man and the young woman who lost lower limbs in the terrorist acts of 7 July in London and will spend the rest of their lives in wheelchairs, as will some of those who survived the bombing of the train in Madrid some two years ago. Is this what we are prepared to gamble with for our children and relatives?

It may be thought impertinent or intemperate for a relatively new Member of your Lordships' House to express such forthright views but, on behalf of the law abiding and the man on the Clapham omnibus, I have to say, "Wake up England. We are under threat, but we have a choice: properly and thoroughly to investigate the suspected terrorist or sit back in our nice warm houses or Chamber with our fingers crossed, hoping that it will not happen to our own children, our neighbours' children, or to anyone we know". And if it should, do we then just say, "So sorry about that. I thought 28 days would be sufficient for police to make inquiries, but we didn't believe them. It must be their fault for taking so long to complete their investigations. It's not my fault."? But it may well be if we do not return to the 90 days originally proposed.

To allow 14, or even 28 days, for a major and complex inquiry is woefully inadequate. Let me give a couple of examples. I must tread carefully, as some cases are still sub judice. I am, however, no longer constrained on the first example, known as the ricin plot. This inquiry began in 2002 in London; it was a wide-ranging inquiry throughout the country into a network of Algerian terrorists. The investigation, which ran over several months, in not only the UK but in no fewer than 26—yes, 26—foreign jurisdictions, in addition to gathering evidence about their terrorist activities, uncovered other criminal activity involving their use of forged documents, credit card fraud and the like.

Because of our pre-charge time limits, police were obliged to charge some of the men only with the lesser offences relating to forged documents and credit card fraud. If police had been given more time before charging or release became obligatory, it is probable that the suspect who fled the country, having been given bail on the lesser criminal charges, and who eventually proved to have been a prime conspirator, would have stood trial in this country for the major terrorist offences, and the outcome of the trial process might have been very different.

Many of the 26 foreign jurisdictions involved—especially those with an inquisitorial system—work to extended time scales and do not understand the urgent need to respond to our inquiries within the time constraints for investigation in this country. Is it not ironic that a former pop star called Gary Glitter can be held in custody for up to four months in Thailand, having been accused of the offence of unlawful sexual intercourse, where all the forensic evidence, the accused and, as I understand it, the complainants, are in one jurisdiction? That perhaps indicates sharply the reason for the lack of urgency in some countries when our police and security services are trying to wrap up a complicated terrorist case with global dimensions in just a matter of days.

Noble Lords:

The noble Lord has not yet finished.

Photo of Lord Imbert Lord Imbert Crossbench

Thank you. I ask noble Lords to come with me on a very short imaginary journey that closely reflects the problems frequently encountered by anti-terrorist investigators. Imagine that you are the senior anti-terrorist squad investigator. You receive information via a telephone intercept that a group of men in various parts of the country are planning terrorist attacks on the Houses of Parliament and British embassies in a number of Asian and African countries. Despite the valiant efforts of the noble and learned Lord, Lord Lloyd, and other noble Lords, this intercept information cannot be used in evidence. CBRN possibilities have been discussed between the two main conspirators and the attacks are to be carried out in three months' time. The information, I think you will agree, cannot be ignored and must be acted upon to prevent possible large-scale loss of life. Surveillance is started on two of the suspects and during the next eight weeks they meet various other people; all unknown to the security services or police in this country. Five key addresses have been identified, but it is not known where the explosives are stored or from where they have been obtained, although the suspects' conversations indicate they may be from abroad. The men are thought to be illegal immigrants and each is living on two false identities.

The police officers working under your direction arrest 15 people under Prevention of Terrorism Act warrants in six different areas of the country. Each arrest requires time-consuming custody procedures, transportation to a secure custody suite in London, the forensic examination of prisoners and the taking of evidential samples. Each of the 15 prisoners has at least one false passport. The initial procedure takes about eight hours for each person and, although some of the procedures can be carried out simultaneously, the booking in with the custody officers must be done individually. The fingerprints are sent to five different countries but, as an experienced investigator, you know that the earliest reply will come in something like two to three months and will be two little letters—"u/i"—which means "unable to identify".

In this journey I cannot be specific, for obvious reasons, about other countries' swiftness of reply, but I ask your Lordships to imagine your view—as a senior investigating officer—if the countries are, say: Algeria, Tunisia, Bangladesh, Kashmir and Indonesia. I am sure that you would be most unhappy about that. The example, I stress, for obvious reasons must be purely hypothetical, and is given only to help noble Lords to understand some of the time constraints and extreme difficulties with which investigators are regularly faced. But you are not finished yet!

Two firms of solicitors represent all the detained men. Their representatives are not available immediately and police wait four hours for one and five for the other. The initial consultations with each of their clients lasts, on average, four to five hours; each disclosure package given to the legal representatives requires lengthy consultations with the detainees. This is essential procedure to which the detainees are fully and rightly entitled. The clock did not stop running while the detainees were with their legal advisers, but it has taken up much valuable time then available to the officers to conduct their own interviews and inquiries. All the men say that they need an interpreter. Reliable interpreters are a scarce resource and some of the men speak in a dialect not easily recognised or understood by the interpreters. In addition, all the men need to be allowed to observe prayer five times a day. You are informed that a vast amount of material has been recovered from the addresses in various parts of the country. This is being properly labelled with the date, time and place where it was discovered and the name of the officer making the discovery who will be required to make a statement. Some 90 disk drives have been recovered and much of the content has been encrypted. The relevance of some 200 pages of documents cannot be assessed until they are translated and analysed for evidential value. It cannot be known at this stage which suspects, if any, they should be put to until they have been translated. The interpreters are human and they are very tired, having been working almost non-stop on translation and interpreting duties for the past two weeks. Although you yourself have been working day and night since day one of the investigation you no longer look at the clock but at the calendar and, as you do so, you receive a request from the Commissioner or Chief Constable asking how the inquiry is progressing and reminding you that, despite the fact that three more suspect addresses have been located and will need to be searched, tomorrow is the 29th day of the investigation.

Now I ask your Lordships to state your action. Do you consider public safety first, as the police must, or do you respect the civil rights of the suspects and release them? Give full reasons for your action, noting that it will be subjected to many intellectual and judicial debates in public, in the press, and, of course, in Parliament, at some time in the future when you are trying desperately to wrestle with yet another and even more compelling terrorist investigation.

I finish only by emphasising that to apply to keep a suspect in custody for longer than a month and, maybe, for up to 90 days, will apply only in the most exceptional and complex cases. The police do not actually like keeping people in custody, and certainly not those who are innocent. That is not only an infringement of that person's human rights but also spells trouble for the officers. The police, I am assured, fully support and, indeed, welcome, the prospect of robust judicial oversight of any applications for extended detention before charge. I urge your Lordships to support the amendment in the names of the noble Baronesses, Lady Ramsay and Lady Park, to which I have also added my name.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

I commence by apologising to the noble Lord, Lord Imbert, and to the Chamber, for my initial impetuousness in standing during his speech.

Photo of Lord Imbert Lord Imbert Crossbench

If the noble Lord votes the right way, I shall forgive him.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

I am extremely grateful for that, especially as I support what the noble Lord has just said.

As will be appreciated from my Second Reading contribution, I view very seriously the question of detention for terrorist suspects, and it is only on this amendment—to extend the time to 90 days—that I shall be speaking. The amendment certainly is not simple, but it is straightforward and fundamental.

We have heard a great deal about how the 28-day provision was decided in the other place, but it should be remembered that the 90-day proposal was supported by nearly 300 Members of the other place and was defeated only by the action of a relatively small number of Labour rebels, a number of whom were, I suspect, more concerned with giving the Prime Minister a black eye than with the issue that was before them. However, I shall concentrate largely on the attitude of Her Majesty's loyal Opposition and my own Front Bench, because I find little if any consistency in the stance of the Liberal Democrats, save in one thing—their obsession to replace the Conservative Party as the official Opposition. They often give the impression that they lead members of the Conservative Party through the Lobby, especially in this House, with a ring through their noses.

As we all know, the police requested 90 days as a maximum, not a norm. The Government provided for any detention to be reviewed by a judge every seven days and the legislation to be subject to a sunset clause, under which the law has to be re-enacted again in 12 months. Following the events of 7 July this year, we can no longer have a leisurely academic debate on this matter. What happened on 7 July created an urgent situation. More than 50 of our people died, more than 300 were injured, and thousands of body parts were strewn across large areas of London. We must do all in our power to prevent such a tragedy happening again.

There was an interesting quote in the Times which I shall relate briefly. It is headed, "Bomb plots rising", and states:

"Counter-terrorist operations have risen by 75 per cent since the July 7 bombings. Sir Ian Blair, Commissioner of the Metropolitan Police, said that his experts received 'high grade' intelligence reports almost daily. Three terrorist plots had been thwarted since 7/7, he said, adding that mass atrocities were being planned".

They are not being planned in the Lebanon, in Egypt or in Jordan. They are being planned here on our doorstep in Britain.

If I am not well, I seek the advice of a doctor. If I have a legal problem, I seek advice from a lawyer. If I have a security problem, I seek advice from the police. That is exactly what our Government have done, and they have acted on it. If we want the police and the security services to protect the citizens of our society, we must heed their advice or suffer the dire consequences that are very likely to follow.

I believe that the Official Opposition in the other place got themselves into a mire because of their temptation to take advantage of political opportunism, for which they will be blamed by the British people if another tragedy occurs. It is my hope that by a display of national responsibility by the Opposition in this House we can get back on the right rails.

I have been involved in active politics and representative politics for more than 40 years, since I was first elected to the Coity Parish Council in 1963. Up until 1997 it was often claimed that Conservative governments were the only governments who could safeguard our economy and defend the realm and were the party of law and order. Three general election results in a row have clearly shown that the Conservatives are no longer considered by the British people as the custodians of the economy. Now, they are at risk of being considered incapable of defending the realm and supporting our society in the area of law and order. Therefore, I urge them to go through the Lobby with those of us supporting this amendment, so that the other place can think again before it is too late.

As for my own Front Bench, I am given to understand that parliamentary protocol obliges them at the very least to abstain on this amendment. To them I say that the matter is too serious and too important for protocol to stand in their way. I hope they will have the courage of their convictions and vote for the amendment. Since coming to this House eight years ago, I have always been impressed by the independent and common-sense approach by which this House has so often determined our desire to do the right thing. I know it is right to support this amendment and I pray that the Committee feels the same way.

Photo of Lord Fraser of Carmyllie Lord Fraser of Carmyllie Conservative 6:30 pm, 13th December 2005

I am implacably opposed to this amendment, not because I wish to deliver one black eye or two black eyes to the Prime Minister or cover his body with bruises, but because I believe that if we are going to surrender any part of our civil liberties we need to be absolutely sure that there is a proper justification for that change. In my view, what is happening here is that, without any serious argument, we are about to surrender one of the most important parts of our civil liberties for no real justification at all.

For reasons that do not matter, I spent a large part of my schooling time in South Africa. A number of my contemporaries were detained under the Suppression of Communism Acts for 90 days because they adhered to the quaint idea that, in the sight of God, all races were equal. Such detention seemed to me to be an absurdity. The only Marx they knew was Groucho, not Karl; but they were detained under the so-called Suppression of Communism Act, which meant that as long as you were opposed to the appalling apartheid regime of South Africa at the time, you were a communist. It was as simple an equation as that.

I see absolutely no justification for the extension of a power of detention for 90 days without trial, and I do not care—I am sorry that the noble and learned Lord, Lord Lloyd, has gone—whether it is with or without judicial control. That seems to me quite an intolerable state of affairs, and that remains my implacable view.

I am delighted to say that he is not in the Chamber this evening, but the son of a Member of your Lordships' House hacked into the Pentagon in an evening. I really cannot believe that it takes the police forces of the United Kingdom, and particularly the Metropolitan Police, 90 days to work out encrypted messages in whatever language they are. I would be very surprised if they cannot work out in 36 to 48 hours what is there and what is of evidential value. I would be astonished if they cannot do that. And I am absolutely confident that within 28 days—

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

I am grateful to the noble and learned Lord for giving way. I have discussed precisely this point with a number of senior officials in the Metropolitan Police. They report that some of the material—in one instance 650 gigabytes of material was seized—is so heavily encrypted that the best code-breaking experts in the country cannot find a way of getting into it on the sort of timescale that is required. It is a very slow, long and laborious process. The technical skills that are now involved and the technical skills that are now available to those who are planning and organising terror are of such a level that it is not simply a question of applying the crossword-solving brain that may have been appropriate in the past. This is about very high levels of encryption with very complicated keys that cannot simply be broken on the basis of a few hours' work.

Photo of Lord Fraser of Carmyllie Lord Fraser of Carmyllie Conservative

I would suggest that the Metropolitan Police might employ a few more 10 year-olds. As far as I am concerned, they are very much more capable of doing the encryption work which seems to be desirable. I agree that there has to be some encryption work and I am very familiar with what encryption skills are needed. I simply do not believe that 90 days is an appropriate period. The only justification that has been given for 90 days is not that one needs to ask people questions or ensure that they are there for any length of time; it is only because of that so-called encryption point. I simply do not believe it. I heard about the difficulty only when noble Lords such as the noble Lord opposite raised the point. I simply do not believe it. I believe that if really serious people who understood encryption techniques were to deploy themselves in these matters, matters would be resolved.

I am opposed to this. I will oppose it now and I will continue to oppose it. If it is the convention that the Government Front Bench are not going to vote on it, that seems an entirely right decision. After long debate in another place, 28 days was resolved as being appropriate and was agreed upon. That is where we ought to hold our position in this House. That is where I shall hold mine.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

Perhaps I may say to my noble and learned friend that although I entirely respect his view if he does not agree with 90 days, I strongly dislike his implied comparison between police in the apartheid regime of South Africa and our police here. It is a wholly unfair comparison.

Photo of Lord Fraser of Carmyllie Lord Fraser of Carmyllie Conservative

All I will say to the noble Baroness is that it was 90 days. That is what I remember it as being. That is what my contemporaries went to prison for—it was for 90 days. I am sorry, but I really do not buy into the argument. I can well recognise, as the noble Lord, Lord Imbert, says, that the police may not want 90 days' detention. But the fact is that we will be allowing for the first time in our country people to be detained for 90 days without trial. That is an abuse of our fundamental civil liberties. I believe it to be quite outrageous and I will resist it.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

I find quite outrageous what the noble and learned Lord, Lord Fraser, said about South Africa. This Government should not be compared to a South African apartheid regime, and our police force should not be compared to the South African police force which operated at the time to which he refers.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

As someone who comes from Northern Ireland I feel I ought to say something about this matter in relation to terrorism. The noble Lord, Lord Imbert, referred to a hypothetical situation. However, the situation in Northern Ireland is not hypothetical. Where the Government are going wrong is in not doing everything else in their power to help our police and anti-terrorist forces do what they have to do. They have done nothing about the inadmissibility of telephone and radio intercept, which could be of great help. Indeed, it could result in people not having to be held for so long. It is up to us in this House—although already we can see that the Government will not give way easily—to provide extra safeguards. If we require this limit—and it is a limit—it is up to us to ensure that the safeguards are there so that that limit is not abused. The High Court judge constitutes one of the safeguards.

I have spoken to somebody in Northern Ireland who has had to appear before a judge to justify holding a person for an extended period. He was very worried about that as he considered that it could constitute emotional blackmail. The evidence is produced as they have it then, but it is not the evidence on which the person could be held and charged. However, he feels that he can persuade judges of a certain level to permit things to go further—and therefore a High Court judge should be involved. I believe that this amendment should be put into the Bill but I also believe that we must ensure that, as undesirable as it is to have the measure in the first place, we provide the safeguards to enable it to work properly.

Photo of Lord Stratford Lord Stratford Labour

The noble and learned Lord, Lord Fraser, said that he had heard no justification at all for a period of detention of up to 90 days. All I can say is that he could not have listened to the noble Lord, Lord Imbert. The noble and learned Lord may have been in the Chamber but he clearly did not have his ears open. We heard what the noble Lord, Lord Imbert, said. No one in this Chamber or in the other place will vote with enthusiasm either for the Terrorism Bill or, indeed, for any period of detention without trial or charge. The whole point of the detention is to ensure that at its end there is a charge that you can apply—that is what the period is for. When I hear the noble Lord, Lord Imbert, one of the most senior former police officers in this country, give us chapter and verse for justifying keeping someone detained for up to 90 days—not 90 days full stop, but up to 90 days—I am totally persuaded by what he said. We should listen to someone like the noble Lord, Lord Imbert, who has far more experience of policing than probably anyone else in this Chamber, although other distinguished senior former police officers are Members of this House.

I said on Second Reading that, had I been at the other end of the Palace at the time, I would have supported the 90 days measure. I would have done it with some reluctance because one is always concerned about the infringement of people's civil liberties. It might involve an innocent person being detained but it is a matter of judgment and balance. It is far less hazardous to detain an innocent person than to allow guilty people to get out of the country or escape critical examination and go on to perpetrate crimes of violence, or to support crimes of violence, in this country and elsewhere. It becomes a matter of balance and judgment; that is what we have to decide upon.

I might add that the principle has already been conceded. To be perfectly honest, if you are innocent to be detained for one day is an infringement of your civil liberty. Members at the other end of the Palace have agreed a limit of 28 days. So it is not a matter of principle; it is a matter of balance and judgment. On the evidence that I have heard, and because I do not want to take risks with other people's security, I support the amendment. It is all very well for people who sit in this Chamber; we are all protected and safe, but when I think of what is happening outside, I do not want to take risks with other people's security and safety. On that basis, I entirely support this amendment.

Photo of Lord Lipsey Lord Lipsey Labour 6:45 pm, 13th December 2005

I have no expertise to offer in this debate. I listened to the noble Baronesses, Lady Ramsay of Cartvale and Lady Park, and to the noble Lord, Lord Imbert, with close attention, but I am not fit to make the judgment which they make on the basis of so much expertise. I rise to make one very old-fashioned point only, the relevance of which the Committee will judge. I had the very great honour of serving under James Callaghan in No. 10 Downing Street when he was Prime Minister of our country. We think nowadays of Jim Callaghan as the great statesman he turned out to be, but he was a pretty wily politician too. I think back to those days. Let us suppose that Mr Callaghan had been faced with a situation such as faces our country today. Let us suppose that, after due consideration and reflection, and after consulting as widely as was necessary, including with the opposition parties, he had said to Parliament that in his considered judgment a detention period of 90 days was the right one for the country. It is frankly inconceivable that Parliament would have turned him down. Some noble Lords will think that change in our society has been for the better but I am afraid that I do not.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I really do not think that the late Lord Callaghan, who was, indeed, a great Prime Minister, would have been foolish enough to bring such a proposition to the House of Commons. The House of Commons would not have needed to deal with that. I fear that the import of this change has not been understood. At present a person can be held for a maximum of 14 days, after which he has to be released unless he is charged with something or other. What the Prime Minister and the Government proposed was that that should be increased by 600 per cent from 14 days to 90 days in one fell swoop. That is an enormous step. If they had done it in steps to see how we got on at the various stages it might have been more acceptable, but to increase it by 600 per cent at one fell swoop invited opposition, and they got opposition. Far from being criticised, the people in the Labour Party who had the courage to oppose an oppressive increase in detention without trial or charge should be congratulated. Indeed, they have given this House the opportunity to have a discussion about the whole matter.

Noble Lords have said here today that the police recommended 90 days. The police were quite entitled to recommend 90 days, so were the other forces entitled to recommend 90 days, but the Government have the duty to consider what is said and to decide what they believe is good in a democratic society. The Government do not have to agree to everything that the police propose; that is the way to a police state, and that is why it is correct and absolutely essential that the views of Parliament and the decisions of Parliament are taken into account.

If we are to go along this line, if the amendment is carried and if the House of Commons accepts it, we are not likely to improve the apprehension of terrorists or the prevention of terrorism; we are likely in fact to exacerbate terrorism, because the terrorists are observed to be just one section of our society. They will feel, under this regime, that they are being targeted and they are the ones who risk being put in prison for three months, because that is what it amounts to—

Photo of Lord Gould of Brookwood Lord Gould of Brookwood Labour

You said, "terrorists".

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

You say that they are terrorists—

Photo of Lord Gould of Brookwood Lord Gould of Brookwood Labour

No, you said that they are terrorists!

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I thank the noble Lord for the correction. The alleged terrorists will be held for three months, which is equivalent to a six-month sentence, and they will usually be one sort of person. That would increase the anger among that community, and it would drive them into the hands of terrorism. Those were the arguments that were used about the IRA. Those arguments were used in Ireland about detention and holding people in an area when they wanted to be somewhere else. I really do believe that if the amendment is carried it will be counterproductive. I hope that this House will agree with the House of Commons in this instance; I certainly shall do so. Far from the Government abstaining this evening, they have a duty to do what the House of Commons wants them to do, which is to leave the detention time at 28 days rather than 90 days. I oppose the amendment.

Photo of The Bishop of Chester The Bishop of Chester Bishop

I wonder whether I could make a brief contribution from these Benches, although I speak entirely in my own capacity; words such as "Daniel in the lion's den" come immediately to mind. I pay tribute to those who have brought the amendment before the Chamber and in doing so have enabled the debate, not least because it is parallel to some extent with the debates that we are having on the Identity Cards Bill and those that we will have on Monday in the incitement debate in the Racial and Religious Hatred Bill. We are at a point in our society where we must make difficult choices about the balance between civil liberty and protecting our citizens. We have always had to make those choices; one thinks of the 2,000 or 3,000 deaths on our roads each year, when we could easily take decisions greatly to reduce those. They have been reducing gradually in an incremental way, but laws could be passed to restrict the use of motor cars, to limit speed, or to have draconian punishments.

It is, as the noble Lord said, a matter of balance. The argument is strong on both sides. It is one of those situations where it is wrong to say that the truth is on one side, and it is one of those cases where you genuinely have to balance very strong arguments. At the heart of it is the mystery as to what terrorism is and what it will mutate into in the future. The discussions about avian flu in a way cast some light for me on the nature of modern terrorism. It is a curious mixture of old-fashioned religion and modern nihilism, allied to technological advances that none of us would have thought of 10 or 15 years ago. None of us quite knows how the terrorist threat will mutate. I could quite believe that at some point, with a heavy heart, we will need to legislate for longer than 28 days. There is some wisdom in going incrementally for 28 days at this point. The other House was wise on that point, but we need to leave the issue open in the longer term. I am persuaded that the balance of 28 days is right at this stage, because there is a real danger of spooking our society with rather draconian laws in the face of an uncertain threat and over-reacting, and the media encourages that all the time.

Perhaps when she replies the Minister can confirm that even after 28 days, as I understand it, if there is sufficient evidence to establish a control order putting certain restrictions on people, an investigation can continue beyond 28 days and restrictions can be placed on people even if the evidence does not stack up to make a charge viable at that point. Part of the evidence that persuades me that on balance 28 days is right is that there is not a strict cut-off at 28 days. It is 28 days of detention without charge. Investigations can go on in fairly controlled circumstances after that date.

Photo of Lord Merlyn-Rees Lord Merlyn-Rees Labour

The right reverend Prelate has sparked a thought in my mind. I could not vote for 90 days if it was 90 days that everyone had to undergo. We are talking as if 90 days is what all those who are arrested will have to undergo; and that is not the case. Most cases will be for a week or a fortnight. We are talking about a few cases, and the Government have got to clear that up. Under certain circumstances, by going in front of a judge and saying what further evidence they have got or they would like to get hold of, they would then be likely to hold someone for longer, up to a maximum of 90 days. That might well involve three people. It is completely unlike the South African situation—completely.

Noble Lords:

Hear, hear!

Photo of Lord Merlyn-Rees Lord Merlyn-Rees Labour

In recent weeks I have spent a lot of time not talking but listening. I have listened to TV and radio broadcasts about the situation, and they get it wrong as well. We are not talking about people being held for 90 days; we are talking about a maximum of 90 days. Make it 28 days, and then go to a judge to get more. I could not vote for 90 days; that would be silly. It is being expressed badly, and the Government can stop this debate and the silly votes that will take place at the end, with the Liberals supporting the Tories and the Tories supporting the Liberals and the rebels and people with black eyes. What a way to carry on in the face of people in other parts of the world suffering, and we are behaving like—we are behaving like the House of Lords.

Noble Lords:

Oh!

Photo of Lord Condon Lord Condon Crossbench

It is with great reluctance that I find myself unable to wholeheartedly support the amendment put forward today and, on a day of unusual disagreements in your Lordships' House, I add to the unusual circumstances by finding myself for the first time in my life not wholeheartedly supporting something put forward by the noble Lord, Lord Imbert. I also apologise for not making this point on Second Reading, where I had hoped to speak, but I was recovering from a hospital admission and was unable to travel.

The reason why I am reluctant to support the amendment—noble Lords may think it strange as I am a former commissioner—is that I fear that on balance, and it is a very fine balance, it may be counterproductive in the sense of encouraging martyrdom rather than preventing it. That is my fear. As other noble Lords have said, when asked, "How can we improve the fight against terrorism?" the police service was absolutely right to advocate what it believed was right—an extension of detention without charge. I make no criticism of my former colleagues; I believe that they were sincere, they were well motivated and they were right to advocate what from their point of view was the right thing to do.

However, as has already been said this afternoon, the question for your Lordships' House and the other place is a wider question: having heard what the police and intelligence agencies are advocating, what does this House and the other place feel is in the long-term benefit of the country in the fight against terrorism? Even though in one, two or three individual cases an extension to 90 days may help, my fear is what that might generate in terms of helping in the propaganda of terrorism.

Often there is a misunderstanding about what al-Qaeda is. It is not a finite list of several hundred people and, once we have ticked them off and got them before a court and convicted, we will not have stopped terrorism. In Arabic, al-Qaeda means many things. One of its main meanings is a way of looking at life and doing things—a series of tenets and principles, advocating the witness of martyrdom through violent means.

The huge publicity that has surrounded this debate has already generated enormous fear in law-abiding communities in parts of this country. If we now go back and make it look as though we are going to challenge yet again the point of 28 days that we have reached, I fear that it will play into the hands of the propagandists, who will encourage young men and women—to all other intents and purposes, they are good people—to be misguided, brainwashed and induced into acts of martyrdom. This may be only a small part of the tipping point that leads them to martyrdom. But those who advocate terrorism and challenging the values of the West will point to this provision, if we go to 90 days, as illustrating why they must challenge our values and norms.

Also, I fear that the debate is almost being portrayed as our either having up to 90 days or doing nothing. This is not a static debate; we do not freeze the action at this point. I encourage the notion that we try up to 28 days, and look at what other measures we can bring to bear to support the police and the other agencies. We need to revisit the admissibility of intercept evidence, and the police and criminal evidence rules on interrogation. We can look at many other innovative ways of supporting the fight against terrorism without playing into the hands of the radical fundamentalists.

Photo of Lord Stratford Lord Stratford Labour 7:00 pm, 13th December 2005

I am listening very carefully to the noble Lord. What would persuade him that up to 90 days was justifiable?

Photo of Lord Condon Lord Condon Crossbench

Up to 90 days can be justified in individual cases; that is not the point that I am making. My point is that, on balance, it may be counterproductive. This is not about detecting, incriminating and putting behind bars a finite number of people; this is a philosophical struggle that will endure in my children's lifetime and my grandchildren's lifetime. I do not want us to do anything that will be counterproductive. The 90 days would have enormous tactical advantage in the short term, but my fear is that, longer term and strategically, it could be counterproductive. It is a very fine balance, but at this point, as a former commissioner, I am not persuaded that to advocate the 90 days is in the long-term benefit of this country.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

Of course the noble Lord is right that this is a philosophical struggle; unfortunately, it has very real practical outcomes where we fail to protect people. It is on those outcomes that some Members of the Committee might focus a little more. Like many, I found the comparison with South Africa made by the noble and learned Lord, Lord Fraser, incomprehensible, but maybe enough has been said about that.

Perhaps I can say something from a slightly different point of view—that of my experience as a Minister who, until May, had responsibilities for how we deal with counter-terrorism in our relationships overseas. I talked about the issues on the strategic basis with a number of governments but, on occasions, of course I had to discuss individuals who were a real concern to us in this country, maybe in their country of origin and very often in more than one country at a time. From my practical experience, I endorse what my noble friend Lady Ramsay of Cartvale and the noble Baroness, Lady Park of Monmouth, said. Let me say categorically to the noble and learned Lord, Lord Fraser, that this is not just a question of encryption. Of course the arguments around encryption are important but, from the point of view of dealing with the issue on a practical basis, we often deal with countries that have a very different perspective on their constitutional responsibilities. That is often the starting point of any discussion on what to do about individuals suspected of terrorism. The question is the sovereignty of that country—why we are going to talk about individuals who are their nationals, when they want to maintain their sovereign jurisdiction over them.

We are also not just dealing with police-to-police or agency-to-agency discussions. When we deal with those countries, we often have to deal with a range of different politicians and ministries—obviously foreign ministries, interior ministries, and justice ministries. Often, we have to go round three different sets of political views before we manage to make any progress over an individual. Then we get into the issue of police jurisdictions. Practice varies between not only ourselves and the country in question, but a number of countries that have a mutual interest in an individual. Then there is the whole question of what is permissible evidence between those different jurisdictions, not to mention dealing with foreign lawyers. As I have learnt, it is sometimes a handful dealing with the lawyers in your Lordships' House, let alone dealing with some foreign lawyers as well.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

Oh, I knew that I would not get through it.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

The noble Baroness paints a very dark picture. Does she agree that those problems could not be solved within 90 days at all, and that therefore the need for the continuing investigation—it goes on whether a person is charged or not—is essential?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

Ninety days gives us a much better shot than 28.

I have not even touched on the points about the fiercely independent different security systems that run around all the countries in question. We in the United Kingdom are peculiarly well placed; perhaps we do not recognise it as much as we should. We have brought together our agencies—the SIS, the DIS, GCHQ and the listening agencies, the Home Office, the Foreign Office, and the police—to deal with terrorism on a joint basis in a pool of expertise, working together day by day. That resource is unparalleled in any other jurisdiction, certainly in any of those with which we deal, even when they are very sophisticated. On the basis of my experience, 28 days is completely inadequate—not to deal with encryption, but to deal with a serious discussion about individuals who are of real concern to us.

We have to ask ourselves what our real alternatives are. Like many Members of the Committee, I have experienced a number of terrorist incidents. As a Minister, the question that always arose was, "What did the Government know about the possibility of this terrorist action?". People have a right to expect that their government are in a position to do everything that they can to secure their safety. I dread the question of what the government knew being answered, "The government actually knew a great deal, but could not adduce the evidence within the 28 days that they were permitted". I am bound to say that that is a completely unrealistic target.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

This is a very interesting debate, and I am glad to follow the views expressed by the noble Lord, Lord Condon, who was commissioner of the Metropolitan Police when I was Attorney-General. This is a difficult question. We have all agonised over the right balance between the existing 14 days, as it was before the Bill was introduced, and the 90 days proposal that was put on the table during the course of the discussion, but were not on the table initially. It has not been an easy matter within government—that is perfectly clear. It is clear that the Home Secretary had to agonise over these matters, and large numbers of proposals of between 14 and 90 days have been seriously and rightly discussed. It is significant—and I commend them on it—that, as I understand it, the Government have not switched their position to the 90 days. We are in an area where one very much needs a lead from government if one is to take a decision on these highly tricky balances, and one then seeks to hold the Government to account and to test all the arguments.

I fully understand the strong reasons that have been expressed by some former leaders of the police. I listened with great care and attention to what the noble Lord, Lord Imbert, said. Plainly we ask our police to do—as I remember very well from my days in office—an extremely difficult job. In those days that was principally in the context of terrorism in Northern Ireland. I remember my noble friend Lady Park saying that she detested the way that we rather downgraded the dangers of Northern Ireland. They were very real and hundreds of people were killed in appalling atrocities carried out by terrorists.

It is essential to get the right balance between protection of society and the liberty of the subject, because it is important to be just. Justice in our society and the belief that our society is so constructed that we will achieve justice is one of the great strengths of our free society. I mentioned the chief justice of Israel, who reminded his country, in the terrible situation in which it has been living for decades now, which has of course been exacerbated in recent years, as it is for us, by the new phenomenon of suicide bombing, that none the less it is right to keep that balance.

It is not only the liberty of the subject that is important. One does not want to go over the top, as the noble Lord, Lord Condon, rightly said, and thereby alienate those very communities from which we need the friendship and co-operation, which we largely have, which will produce the intelligence that will be one of our strongest weapons in this very difficult battle.

I looked carefully at the reasons helpfully given by Assistant Commissioner Andy Hayman for seeking the 90 days. I respect him for coming forward. It is that kind of detail that we need an opportunity to look at. There were nine reasons and the first was that terrorism is different and that it has spread world-wide. Yes, suicide bombing is different, but when we look at the dangers that afflict our society—and I happen to have been reading my grandparents' letters during the First World War, and one casts one's mind back to the Second World War—are we in a wholly different ambit of risk from those days?

Noble Lords:

Yes.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

Of course there is the danger of a nuclear weapon being infiltrated into London. That is too horrific to think about and I hope that it will not happen. But none the less, my judgment is that while we must take this issue extremely seriously, we must not get carried away and possibly damage our society by our efforts to protect it.

Moving on to other reasons, the use of forged and stolen identity documents will not stop with the Identity Cards Bill. In Israel there are half a million forged identity cards on the loose in a country which is smaller than ours. There are some other serious reasons which have been mentioned such as the lack of interpreters and the need for skilled decryption teams. There is no doubt that we must spend time, money and effort gathering a full cohort of necessary interpreters. We ought to have those in our society. One of this Government's strengths is that they are inclusive, that they are seeking to draw all sections of society, all ethnic minorities and communities into our British society. I hope that we on this side of the House are learning from that, but one of the ways of doing that is to make quite sure that we have enough interpreters so that they are not exhausted.

I listened carefully to the noble Baroness, Lady Kennedy of The Shaws, who pointed out in the context of encryption and the deciphering of computers, that the Metropolitan Police, or possibly the City of London Police, had only—

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

It was our police nationally. In the anti-terrorist squad's high-tech unit, there are only eight officers with the required computer expertise. I have that information from the mouth of an anti-terrorist squad police officer. That is a doubling of the number that there were only two months ago. Our universities are producing very skilled young people with such computer expertise and the idea that we employ only eight is quite ridiculous.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

I am most grateful to the noble Baroness and am glad that she weaved that in. That was exactly the point I had in mind.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

Could the noble and learned Lord say how many such people there are in GCHQ and whether he has been in GCHQ?

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

No, I have never been in GCHQ and I cannot answer that question. I hope that we have plenty. If we do not, it is the duty of any government to ensure that we do. That is the right way to defend ourselves.

One of the reasons, which was not quite so strong, among the nine given by the assistant commissioner, although I stand to be corrected, was that it took a fortnight to get into the bomb factory in Leeds. My recollection of Northern Ireland was that we had highly sophisticated and very well staffed forensic units that were capable of getting into any bomb factory in a very short time indeed. We need to ensure that we have that capability.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

The reason for taking two weeks to get into the bomb factory was that, having sent in the automatic probes, with which the noble and learned Lord will be familiar, it was seen on video—which I have seen—that there was a bath tub full of suppurating gunk that was clearly an unstable explosive mixture. For the safety not only of the officers concerned but of all those in the surrounding streets, it took two weeks before it was possible safely to enter those premises and to carry out the necessary searches.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

The noble Lord is extremely well informed. I now recall him explaining that in a previous debate, quite rightly. But my point is that you must contrast that with the level of expertise which we developed not in Leeds, where obviously we need to develop it, but in Northern Ireland, where I am confident—although I will be corrected by those in this House with closer experience, but I have visited the forensic units—that we were much more up to speed on this important area at that time and we need to get up to speed.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

The point is not that there was a lack of expertise in Leeds, it was a matter of physical safety. The best experts in the police service were deployed and they were working with the best experts from the Army. Their combined judgment was that it was not safe to go into those premises for a fortnight.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

I respect their combined judgment, but I must comment that I do not think that we fought like that in the Second World War. I think that we were better equipped and I would take some convincing that we could not bring our abilities in the explosives field when dealing with what were after all home-made explosives up to a higher pitch than they happened to be at that time. If we cannot, no doubt it will be explained to us; but at the moment I would need some persuasion.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

So far, the noble and learned Lord has not said anything about senior judicial invigilation, which is quite different from the present situation. Would he like to address that point?

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

I shall certainly do so, although it comes slightly out of turn. As the noble Lord may have heard, the noble and learned Lord, Lord Lloyd, considered whether it would be as well to leave the matter with district judges. I join the noble Baroness in saying that I have every respect for district judges. They do a magnificent job. For a long time, we called them stipendiary magistrates, and they are very able people. But we have a hierarchy in the judiciary in which it is thought by our society that those who become High Court judges have something above and beyond. However, I can think of dedicated district judges whose vocation it is to be district judges and they are superb. There is a greater degree of protection in going before a judge.

Perhaps I may meld my answer into my next points because that is where the answer lies. It is not the case that there is no protection in having a senior judge look at the matter; it is a proper and right protection, but that does not fully answer the point. It is a safeguard. Mobile phone usage, the religious rights of detainees and the lack of defence solicitors are problems, but I believe that they are currently well covered by the 28-day provision. We have to form a judgment, but I do not think that those were the strongest points. Indeed, vis-à-vis mobile phones, I remember from our earlier debates that it is possible to get an answer from mobile phone companies almost within minutes. That is not one of the major problems.

As another noble Lord said in this debate, the 90-day period is not the end of the matter—very often the investigations go on far longer. It is worth remembering that 23 people were kept in Belmarsh for up to three and a half years. It may have been thought that it was not worth prosecuting them but not one of them was prosecuted, despite the very much longer period of detention.

In the context of the 90-day period, it is said that only a very small number of cases will be involved. The noble Lord, Lord Carlile of Berriew, who is not in his place—I am sure that he will read this debate—has said on different occasions that there would be two or three cases a year and, most recently, that there would be only one or two cases a year. That has to be balanced against what you do if you do not detain or arrest, which obviously puts a heavier burden on the security services. I listened carefully to my noble friend Lady Park, who said that it took 30 people—I am sure that she is right—to tail one person full time. I would much prefer to put in extra resources to have an additional 30, 60 or 300 people in the security services, if we can gather them. If the newspapers are remotely correct, I understand that they are recruiting, and rightly so. But we are talking about a small number of cases and whether we would really benefit from a 90-day period. The noble Lord, Lord Imbert, gave the vivid example of 15 people being arrested. How does that tie in with the view that there will be only one or two cases?

Such difficult and controversial topics remind me of the old Victorian joke about a baby, in which it is said, "Oh well, it was only a little one", and you work up from there. You have to be very careful about making wrong judgments or they will take you down the wrong route.

I end where I began. This matter requires very careful judgment. The Government are absolutely right to have listened carefully to the House of Commons and so are not seeking to alter the provision. We should lift this issue away from party politics. We should remember that there is a real downside to locking up too many people as well as the possible upside of holding a person for a bit longer. I very much hope that the Committee will agree to keep the position as it was left by the other place.

Photo of Lord Ahmed Lord Ahmed Labour

I oppose the amendment. But, first, I apologise to the Committee that during the Second Reading debate I mentioned that 23 people were charged. Actually they were convicted and not charged, but I mentioned that more than 800 people had been arrested under the Terrorism Act. I apologise and I understand that the Minister has sent a letter to correct my slip of the tongue.

I oppose the proposal for 90 days, first, because of civil liberties and, secondly, because I am not convinced that 28 days is not sufficient when the police can place people on bail with conditions, take their passports and impose a lot of conditions, including the requirement to report and so on. But, more importantly, I agree with the noble Lord, Lord Condon, who, in his excellent contribution, said that this proposal would be counter-productive. Members of the Muslim community already feel that the legislation now going through Parliament—whether it is the Terrorism Bill, the Immigration, Asylum and Nationality Bill or the Identity Cards Bill—is targeted at them. We can argue all day about whether that is the case, but other people are telling them that this legislation is targeted at their community.

I have listened to passionate speeches in which it has been said that there is a threat of terrorism. I agree that the Government have a duty to protect our citizens, and the police have a very difficult job working under extremely difficult circumstances. We know that the police asked for 90 days, but ACPO also said, "Do not close down places of worship". The Government have not taken much notice of that. When we have trouble at football grounds, pubs and other places, we do not close down those premises but we lock up the criminals.

I feel that some noble Lords are taking things out of context and saying that, whenever the police ask us for something, we have to deliver. The police will not solve complicated criminal cases just because they are given a 90-day period or any period of extra time. They need the support and co-operation of the communities. I feel bad because members of the Muslim community feel that they are under attack and that this legislation is targeting them. I believe that many more people will be giving excuses for those who do not want to co-operate.

Photo of Lord Elton Lord Elton Conservative

This country is at war. We are discussing the terms on which that war is fought. This House and this Parliament are committed to seeing that we win. In order to do that, we have to divine the prime objectives of the enemy. The prime objective of the enemy is to divide our nation and bring a part of it into fealty to a power outside it. The noble Lord, Lord Condon, put in police terms what the noble Lord, Lord Ahmed, put in civil terms in explaining why, if we up the ante from 28 days to 90, we shall be playing into the hands of the enemy by enabling them to tell one part of our community that it is being victimised. That would be a strategic error. I accept that there is a tactical advantage in having longer to deal with individual cases but, in the end, the strategic loss would outweigh it enormously. That is why I cannot support this amendment.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour 7:30 pm, 13th December 2005

We are engaging in a lot of guesswork. As a lawyer, all my professional life I have been involved in civil liberties. At one time, I was very active in the National Council for Civil Liberties. I remain of that point of view. But we are facing a novel threat—a threat that we have not faced before. Someone prayed in aid the situation before and during the war but, in my view, that was quite different.

When I came to this debate, I was not sure whether I would support 60 days or 90 days. I confess that like everyone else I am engaging in a certain amount of guesswork. On the other hand, the protection that is afforded invigilation by senior members of the judiciary is quite different. We have never experienced such a situation before and it should not be underestimated. They are not idiots; they are trained people who care about civil liberties. We have seen that in recent days, when the judiciary stood up to be counted. Therefore, in my view, what has been said by the noble Lord, Lord Imbert, and others should be taken into account.

Very few terrorists will be subject to imprisonment for three months—maybe one or two. At all times, the opinions of members of the senior judiciary have to be sought every seven days, which is a valuable protection. But we are struggling with the unknown. We simply do not know what is better, 28, 60 or 90 days. The protection that is built into that is of inestimable importance. Of course, we have to apply a balance. We are called upon to do a very difficult thing, but the dilemma that has been posed by the noble and learned Lord, Lord Fraser—a friend of mine of many years—is unreal.

I do not think that this country should be compared with South Africa, particularly with apartheid South Africa. It is quite different. I simply cannot accept the view put by my noble friend Lord Ahmed that the Muslim community is being put at particular risk. I do not believe that and I would not support that. I believe that their civil liberties are as important as anyone else's. When it comes to an inspired guess, it is better to go for 90 days rather than 28.

Photo of Lord Ahmed Lord Ahmed Labour

Is my noble friend aware that out of more than 800 people who were charged under the Terrorism Act, more than 500 have been released without any charge? What does my noble friend have to say to the families of those 500 people?

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

That is an appalling thing. There has been a great deal of "chancing of the arm" by the police force. On the other hand, 300 people have been properly detained.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

Perhaps my noble friend might answer this question: under Section 44 of the Terrorism Act we have seen "stop and search" of young Asians rise by 300 per cent. Are we prepared to accept that kind of abuse of civil liberties at the hands of the police?

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

I am not sure that the noble Baroness should question me about this; she should question the Government. As I said before, on the part of the police and others there has been a "strong arm" attitude, which I think is misplaced. But it does not condemn altogether what is now being urged on the Committee.

Photo of Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe Labour

I am one who did not intend to speak in this debate, but I have felt moved to do so by some of the contributions. I take a slightly different line. My answer to the questions would be that 60 people have been killed by suicide bombers, something that we have never encountered previously in this country. I feel the Committee has great merits in mounting a debate of this nature. We bring to the fore our great experience, even more so than one finds at the other end of the Palace. To a degree, we also expose our weakness that we are not always up to date with all that is happening. No one in this House, other than Ministers or those who recently were Ministers, has had experience of dealing with suicide bombers.

I am confused about whether I should go for 28 days, 60 days or 90 days. I suspect that I reflect the views of many parliamentarians. When I am in difficulties I look to the parliamentary system to assist me. There is one area about which I criticise the Government. The bombings were in July, and we had much talk about the likely new legislation that is needed. From July until the legislation arrived in the Commons there was time to set up proper pre-legislative scrutiny involving all parties, when evidence could have been taken from those with the facts, when representatives of the police could have come before us, and when we could have heard from people at GCHQ who spend their lives dealing with issues of this nature. I confess that I am absolutely staggered to hear that a former Attorney-General of this country had never been into GCHQ to understand the work undertaken there. It really is quite scandalous to hear that in quite recent years Ministers with positions of power and responsibility for security did not know about that.

We have to look at the mechanisms whereby we endeavour to deal with issues of this nature. I put to the Minister a point that I have raised within the confines of Labour Peer debates. Why have we not had proper pre-legislative scrutiny? Can we have an assurance that when we deal with issues of this significance in the future we will not have to wait for the Home Affairs Committee, which is now taking detailed evidence from witnesses with appropriate current experience, to deal with these problems? I want to know what the Government will do with the report of the Home Affairs Select Committee when it is produced in due course.

I am unsure of where I stand. When in doubt I tend, like the man or woman in the street, who do not have direct representation here, to support the establishment and the authorities. On balance, I tend, even though the police make mistakes, to give them the benefit of the doubt and I will go with them. In the main, I also go with the judiciary and I go with what comes out of Whitehall. From time to time one has bad experiences which worries one, but none the less one comes back to fundamentals. Therefore, had I been voting at the other end, I would have gone for 90 days. If we have a vote here, I will go for 90 days, because I believe that that reflects the view of the bulk of people in the country. We should not ignore that. We ignore that at our peril, as all politicians do. I would then go for 60 days and, if we do not win on 60 days, we will be left with 28 days. I worry about when someone from the Muslim community—who the Muslim community would not wish to support—is taken in but is released on the 29th day and a bomb goes off somewhere. That is what I worry about. We should be concerned about that because it is what concerns the great British public.

My questions are about process and the way that we legislate. Is this the right way to do it? I do not believe that it is. I believe that we should be looking for better ways in future. I remind my friends on the Liberal Democrat and Opposition Benches that in 2000 they opposed the Regulation of Investigatory Powers Act, in which Charles Clarke sought authority to intercept, and we now discover that it is through intercept that we have our greatest access to the information that we need to trace these terrorists. Members of the Committee should remember that. It is the kind of issue that I have in the back of my mind when, with the limited information I have, I make a judgment on which way to vote on an issue such as this.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

A number of noble Lords have said that this is a matter of judgment. The noble Lord, Lord Condon, talked about it being a fine balance. The right reverend Prelate talked about making a judgment. When, as individual Members of your Lordships' House, we make our judgment, we have to look at what we are weighing. On the one side, we have the professional view expressed by the police service which is involved in combating terrorism on a day-to-day basis. On the same side, we have the independent judgment of the noble Lord, Lord Carlile, who is charged with the duty of overseeing the working of terrorism legislation. He has access to all sorts of information that very few noble Lords have had access to. That is an important balance on one side of the argument. It is a question of what we are prepared to do in terms of substituting it.

We have heard a variety of arguments today. Some of them have been extremely thin. I listened with some surprise to the views being expressed by the noble and learned Lord, Lord Fraser. This is not analogous to the South African pass laws. This is about holding people while investigations take place, prior to bringing charges, for up to 90 days. It is not analogous. It is subject to judicial oversight, which is something the noble and learned Lord brushed aside. I thought noble and learned Lords had a precious belief in the value of judicial oversight. He brushed it aside and said that it did not matter. I believe that it does matter and that this is different. Then he talked, in trivialising words, about the police employing more 10 year-olds to decrypt data. The reality is that the data that is being seized is encrypted to an incredibly high level and it requires the best experts available. The noble Baroness, Lady Kennedy, is right to say that there is an inadequate number of police officers with the necessary technical skills. The fact remains that as police officers are trained up and become useful, they are then poached by the private sector—Microsoft and other companies—with salaries three times that which the police service is able to offer. That needs to be addressed, and I am sure that it will be. The reality is that we are not just talking about police service resources that are being applied to data decryption; we are talking about the resources available to the state, and it is finding it difficult to handle this material.

The noble Baroness, Lady Park, talked about the problem of sequencing. In my earlier intervention, I mentioned the bomb factory found in July and the length of time it took to get access to it, to search the property and seize the computers containing an enormous amount of encrypted data—some of it encrypted from Arabic—which then needed to be transcribed, understood, assessed and gone through. Investigation has to take place in foreign jurisdictions. The noble Lord, Lord Imbert, talked of a case that involved 26 separate jurisdictions. These are not simple matters. That is why the professional judgment of the police service was that 14 days was grotesquely inadequate and why it argued that its best professional view was that the period should be 90 days.

These are fine balances and we must exercise our judgment, but fundamental to all of this is that we are talking about a type of terrorist whose objective is not political, not to persuade anyone, but is to inflict mass casualties. They have access to things that can inflict far greater casualties than we are used to in this context. It is the context of suicide bombers who are proud to give their lives as part of the exercise. That is why the police must intervene at an earlier stage in investigations than has hitherto been the case.

My noble friend Lord Ahmed made much of the fact that there were 800 arrests and only 23 convictions. Of course, some of the cases are still before the courts or are yet to reach them. I put to noble Lords the extent to which some of the people who were arrested have had to be released because it was necessary to intervene at such an early stage. I say to the noble Lord, Lord Condon, and to my noble friend Lord Ahmed that if we are rightly concerned about the impact of our actions on the Muslim community—particularly on young Muslims, because we want to avoid a situation in which more young people are drawn into the net of those who would persuade them to be suicide bombers—we must rightly be concerned about whether people are held inappropriately. But the surest way of convincing those young people that something is wrong is when so many people have to be released because the correct charges cannot be brought and the evidence that could convict them in court cannot be obtained. I believe that is partly why the Government supported the professional judgment of the police service when it came forward and said that 90 days are required.

This is a judgment, and we do not want to encourage martyrdom. That is why we must make clear that it is up to 90 days in exceptional circumstances in the context of a background of other measures that will reassure the Muslim community in particular, and young people from those communities, that they are part of our society and that we value them. Only if we do that can we take this forward. This is about a long-term process. It is not an easy process, but unless we take note of the serious professional judgment of the police service, we are in danger of creating a situation in which we will not be able to hold our heads up about what we have done to combat terrorism.

Photo of Lord Monson Lord Monson Crossbench 7:45 pm, 13th December 2005

This has been an extremely good debate. I was particularly impressed by the intervention by the right reverend Prelate. How right he was. Everyone on both sides of the argument has been trying to do their best. There is at least a degree of right on both sides and, as he said, it is a matter of fine judgment. All my instincts are against an extension to 90 days. Having said that, I confess that I found the speeches of the noble Baroness, Lady Park, and the noble Lord, Lord Imbert, extremely compelling, as I do the well known views of the noble Lord, Lord Carlile of Berriew, who is far more expert than most of us on this topic. To help the Committee reach a decision, could the Minister, when she replies, tell us whether the Bill could be amended to ensure that generous financial compensation could be paid to those detained for more than, say, a fortnight and then released without charge?

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My experience is that compensation never really deals with the issue of someone having his liberty taken away unfairly. It certainly would never deal with the experience of a whole community feeling that injustice had been done to someone. It is important we remember that, when considering terrorism and what inflames terrorism, it is about perceptions of injustice. People are drawn into the engagement with terrorist activity because they see injustice. If we go down the road of alienating a particular community beyond measure, I am afraid that we will reap very serious consequences. That is what has to be put into the balance along with the issue of safety.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

I am much obliged to my noble friend. Would she acknowledge that there is a certain amount of wrong-headedness about terrorism as well? It is a question not simply of injustice but of perceived injustice, which is quite different.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

Rather than start at the very beginning at every speech and say that we all abhor terrorism, let us move on to the difficulties about how we deal with it within our legislative processes. We all accept the terrible challenges presented to our society by suicide bombing and this kind of terrorism. We are seeking to find our way through it. We in Britain put a premium on liberty. We are looked up to throughout the world for that. That premium that we place on liberty should be sacrificed only with great resistance and review by us of what its consequences might mean.

So, when looking at the issue of how much we should erode liberty—rather than being dismissive of civil liberties, it has now become an insult—we should consider what liberty really means. It was struggled for by the ordinary people of this country. We know that when you give power to people, even when they are not wicked people, the temptation to abuse it is great; that is the problem. So you have to curtail power. When it is being used by policemen, Ministers of State and immigration officers you have to constrain it. So, before you do anything you have to ask, "Is there another way other than eroding liberty?".

Photo of Lord Gould of Brookwood Lord Gould of Brookwood Labour

Does my noble friend think that the ordinary people of this nation would support her, or would they support the 90 days?

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My noble friend of course is the great man for focus groups! If you have a focus group, the chances are that it would say to you, "Yes, 90 days", but if you have a nuanced discussion with people about the implications of this for their liberty—what it might mean for their sons and daughters and what it might mean regarding how their neighbours may feel about them—you may get rather different answers. That is the problem with the kind of government we have succumbed to.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

My noble friend said that suicide bombers are motivated by a sense of injustice. What evidence is there that those suicide bombers on 7 July gave any expression to injustice being experienced by them?

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

Can I go back to the point I was making? If we really do create injustice by arresting people, the sense of injustice that detaining them for 90 days and then releasing them without charge will create among the community will be considerable. We need that community because at the moment we are trying to build up intelligence within that community, and people within that community are going to help us to prevent those kinds of acts that took place on 7 July. So the perceptions of injustice that I am talking about are the very thing that was experienced by the Irish community in Britain back when we were dealing with that terrorism.

Before I forget, I say to the noble Lord, Lord Imbert, that I hope he has the courage to repeat what he said outside this Chamber about the ricin trial. Here he is covered by parliamentary privilege, but if he repeats it outside this Chamber, he may find that he is subject to litigation because there was no ricin. I repeat: there was no ricin. People were arrested and the public was told that ricin was found. At the time there were discussions about biological weapons, but no ricin was ever found. Those people were acquitted and it should be with care that the suggestion is made that this was a trial about ricin, or that those people were wrongly acquitted.

I go back to a hypothesis that nobody ever talks about. What about the hypothesis of a young Muslim man being detained on the basis that there is intelligence that someone has said that he, with friends, is talking about taking part in some kind of terrorist incident in Britain; and that that comes from inside the British Muslim communities? We always get the impression that everything operates from a standing start: that the police are going to operate from a standing start, that there will be an arrest and that there is nothing but intelligence, but they cannot use that. I assure noble Lords that that is rarely the case in criminal cases, because what the police would do with that kind of information is immediately to tap the phone—it might not be used in court, but they would hear conversations. They can bug and the transcripts of that can and will be used in court. They can bug the cars; they can look at who his associates are; and they can survey him for a number of days. If they choose not to do that and they go into his house, they can then swab for explosives or any kind of biological entities. They can then search it for any kind of lists or anything associating him with terrorism. They can go through his mobile phone, which, as we have heard, can give forth information fairly quickly. And of course his computer can be taken for all the material that is not encrypted; and encryption is pretty rare.

Suppose at that point, you have got him in and you have kept him. You have gone through all that and you have got 14 days. But you are now allowed to keep him for up to 90 days, just to carry on seeing what might turn up. Do you think that that is justice, when it may be that somebody in the community just made it up? What does that do to the many people who learn of it?

Collateral damage of that kind is not something we have ever considered as acceptable within our legal system. Our legal principles should matter to us. Before we go down this road we should be looking for alternatives. Many alternatives have been suggested. I am not going to mitigate for the noble and learned Lord, Lord Fraser, but we heard him mentioning how he had friends who experienced detention without trial in South Africa. Whether or not we like it, and whether or not the comparison is accurate, 90 days has a resonance historically. For the communities we are dealing with it has a resonance historically. So, the Muslim community is feeling that laws that were never introduced before will be ones that they and their children will be subjected to.

I spent today at a conference with the Muslim community. The Muslim community is absolutely wretched over what is happening. This legislation is at the heart of its dejection. When it heard that we were revisiting the 90 days bit of this legislation it was really horrified. All I can say is that if we want to send out messages to the Muslim community that they are not part, that they are different and that they will have special laws created for them, I am afraid we are going the right way about it.

The voice of sense in this debate, so far as I am concerned, was that of the noble Lord, Lord Condon, who said, "Yes, of course we are anxious about terrorism. Of course we have to give the police every resource they need that is viable, while at the same time protecting liberty and ensuring we do not alienate the very communities that we need to help us in countering this terrorism". So, rather than rush to this notion that we can make good for the Prime Minister in this Chamber, let us just remember that the Prime Minister got it very wrong on the intelligence leading up to the war, and that is why there is a low level of trust. That is why there is not the same level of confidence as there was in the days of Lord Callaghan, when he was Prime Minister. We should be thinking about that—the ways in which intelligence can get it so badly wrong, and how people will end up with—what are we going to call it?—collateral damage. We are worth more than that. Britain has stood for liberty in the world. Let us continue to do so.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 8:00 pm, 13th December 2005

Before the Minister replies, perhaps I may say a few words as the fourth signatory to the amendment. I must confess that I am the most recent signatory, but I should like to say a few words.

Over the weekend, I was going through some old letters and I came across a letter from 1993 from the noble Baroness, Lady Kennedy of The Shaws. It was a lovely letter, a kindly letter. It was praising me. She was praising me for the work that I had done with the Socialist International in Chile. I took great comfort from that. She said that she recognised the work that I had done on civil rights. I say to the noble Baroness, Lady Kennedy of The Shaws—my noble friend—that I have not changed since then. I am exactly the same person with exactly the same views and concerns about civil liberties, but I did not put my name to the amendment with hesitation or reluctance; I put it with enthusiasm and alacrity because I strongly believe that is absolutely the right thing to do and we must ask the House of Commons to think again. I shall return to that in just a moment.

I criticise the Government just for a moment. That is not something that I do regularly or something that I do with pleasure but I feel strongly about it. The Government got off on the wrong foot trying to explain what they plan and want to do. All the concentration was on 90 days. That has happened in this debate as well; nearly all noble Lords have been talking about 90 days. The correct expression is "up to 90 days". That has not been made clear enough from the start. The Government had explained that, after the 14 days, we are talking about discrete periods of seven days. Then, as a number of noble Lords said, a judge must be convinced. I find it implicit but astonishing in what the noble Baroness, Lady Kennedy of The Shaws, said, that she does not trust one of her colleagues, a judge, to make the right judgment.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

The noble Lord, Lord Foulkes, clearly does not understand the difficulty that will be presented to a judge who does not hear from the accused, who does not hear from the person who has been detained but who will hear from the police their arguments ex parte why extensions should be allowed. That is the difficulty that will face a judge, to which the noble and learned Lord, Lord Lloyd of Berwick, referred. We feel unease that judges should be required to do that. In a way, we are expecting the judiciary to rubber stamp something that the police are asking for that is very difficult to test.

Further, work expands to fill the time allotted to it. If you give the police 90 days, the chances are that they will take their 90 days.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

That is a disgraceful slur on the police. It is absolutely clear that they argued the case for 90 days effectively—I am falling into my own trap, for up to 90 days. But each time, that senior judge must be convinced. When we were discussing the amendment of the noble and learned Lord, Lord Lloyd, earlier, we were talking about barristers appearing before the judge and putting the case on both sides of the argument. It is clear that the judge would consider all the evidence.

I want briefly to concentrate on why we should ask the House of Commons to think again. In my short time in this House, I have said on two or three occasions—especially as a former Member of the other place for a long time—that I recognise the supremacy of that House. Ultimately, when a decision is made by that House, I think that we should accept it. However, I think that we need to ask it to think again.

I shall give just two reasons. First, the expert on this is the independent reviewer, the noble Lord, Lord Carlile. After the publication of his report and after the decision in the House of Commons, the noble Lord, Lord Carlile, added that he expected only one or two people to require up to the full 90 days. That is a significant development that had not been made clear when the House of Commons made that decision.

My second point is very important. No one has made it; no one has even alluded to it in our debate today. The Conservative Party now has a new leader. The attitude of that leader is very different from his predecessor, Michael Howard. He wants to go by consensus. He does not want to oppose for the sake of opposition; he does not want to be opportunist. There was nothing more opportunistic than the vote that took place in the House of Commons. If you look at the line-up, the Tories, on a Whip, going against something that their normal instinct would be to support, went into the Lobby with people—

Photo of Lord Elton Lord Elton Conservative

Can the noble Lord not take of himself to tell us what our instincts are, because in this instance—in this Tory—he is wrong?

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I sat in the other place for 26 years. I heard, I saw, I felt the instincts again and again and again. From the noble Baroness, Lady Thatcher, the noble Lord, Lord Tebbit—from so many of them, I heard it again and again. I am almost arguing against myself now, but they went through the Lobby with people such as Jeremy Corbyn and Diane Abbott. It was the most unholy alliance of unholy alliances. They deserve the opportunity to think again and I think that we should give them the opportunity to test the reality of the change put forward by the new Conservative leader.

Finally—

Noble Lords:

Hear, hear!

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

Thank you very much. I said that I was going to be brief.

Finally, my noble friend Lady Kennedy of The Shaws said that we in this country put a premium on liberty. During the course of this debate, nearly everyone has said that this is a matter of balance, of judgment. The right reverend Prelate put it best of all: there is a judgment; there is a balance. There is a balance between liberty and life; between loss of liberty and loss of life. Sixty people died. They will never return. To have one or two people perhaps—perhaps—held in gaol for a few days extra: that loss of liberty. Which is more important? That loss of liberty or the loss of life? I know which side I am on.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

We should perhaps get towards the end of what has been a very serious and important debate that has aroused passions on both sides. I do not intend to do much more than try briefly to sum up the argument.

The danger is that people should pose the wrong question. The noble Lord, Lord Foulkes, and those who earlier supported the 90-day option seem to me to be posing the wrong question. It is a balance; it is a judgment; but it is not a balance between the human rights of an individual and the safety of the public. That is not the issue. The question is much wider and deeper than that.

The first question is: what causes people to become terrorists at all? The noble Lord, Lord Ahmed, has spoken movingly of the effect of the legislation on his community. We know that there is alienation out there; we know that alienation has been caused by racial and religious tensions. I need not develop that point; we know that it is there. The Bill does nothing to improve the sense of alienation felt by the people to whom the noble Lord, Lord Ahmed, referred. The sense of justice that the noble Baroness, Lady Kennedy, talked about is critical. Whatever part of the community they come from, people should feel that they will have justice, as much as the next man. The noble Lord, Lord Condon, put it absolutely right when he said that this law is counterproductive and the issue is: what will it generate? Those are wise words.

The question that I pose is: what helps catch terrorists? Intelligence. The noble Lord, Lord Lyell, said that. Intelligence comes from within a community that feels a part of the whole community. If there is alienation, the people within that community will protect their own; whereas they should be protecting the whole of us. It is vital that people remember the importance of intelligence in stopping all this.

The example surely was in Northern Ireland in the early 1970s when internment was introduced. It ran for about 18 months and it came to an end. I think that the noble Lord, Lord Merlyn-Rees, was the Minister who stopped it. It was stopped because it fractured the community and it meant that no intelligence was coming out of that community. It caused the sense of injustice and alienation to continue. Unfortunately, those feelings and that fracture continued for many years after that.

My third question is: what is the utility of 90 days? It is meaningless within the criminal investigation process. The noble Baroness, Lady Symons, talked about the problems of investigations abroad, dealing with foreign governments, language and police forces abroad. Does she really believe that those sorts of difficulties can be solved in 90 days? That has never been my experience in 40 years at the Bar. If there is a foreign problem, it runs and runs, sometimes into the trial itself. All the other investigations—into encrypted computer disks, DNA, scientific discoveries and so on—and forensic examinations go on. There is an assumption on the part of those who ask for 90 days that everything stops at the point of charge but that is absolutely not the case. All that is needed is sufficient evidence to charge and the police investigation continues. All the lengthy and difficult matters will be dealt with eventually by trial; they do not cease.

The 90-day detention period may not be 90 days for some, as some noble Lords have said, because once there is sufficient evidence to charge somebody you have to charge them; you cannot hold back. So the people who serve 90 days are those most likely to be released at the end of that period. During that period, if you hold somebody while waiting for something to turn up, you are doing a terrible thing to them and to their families. Do not ignore the fact that 500 of the people arrested under the Terrorism Act were released without any charge.

My final question is: are the existing powers of the police being used? Mention has been made of the ricin case. Had the noble Baroness, Lady Kennedy of The Shaws, not referred to it, I would have made the point that no ricin was ever discovered. There was one person about whom the complaint has been made who went abroad when he was given bail having been charged with a minor offence. He was in police custody for two days, not the 14 days that the police could have had to investigate the matter longer and build up the case if there was more evidence to come in. We shall have to look later at what the intelligence about the 7 July bombers was and whether there were earlier opportunities during which those bombers, or some of them, could have been arrested. I do not propose to develop that matter but I am sure that it will come to your Lordships' attention in due course.

I agree totally with the noble Lord, Lord Elton, who talked about the fractured society—I have already pinched the phrase. We must avoid that at all costs. We are at a crucial time for our generation, just as those who went before us faced crucial times and crucial decisions. If we fracture this society, then the terrorists will have won.

Photo of Lord Henley Lord Henley Spokespersons In the Lords, (Assist the Home Affairs Team) 8:15 pm, 13th December 2005

Perhaps I may intervene to give the views of Her Majesty's Opposition. I hope that I can be brief because, after two hours and 40 minutes, we would all like to hear the Government's views.

I welcome the very measured tones with which the noble Baroness, Lady Ramsay, introduced this highly contentious amendment, which has aroused very strong feelings on all sides of the Committee, and different views on all sides, to the extent that at times the debate has not felt party-political, when we have seen splits in all parts of the Committee.

Those measured tones with which the noble Baroness opened the debate did not last long. The noble Lord, Lord Davies of Coity, who I do not think is in his place, supplemented later by the noble Lord, Lord Foulkes, accused this party of political opportunism. I categorically deny that in the strongest possible terms. Her Majesty's Opposition have co-operated with the Government as far as they could on many aspects of the Bill. We have made it quite clear that we will assist them to get the Bill on the statute book. If the noble Lord or any other noble Lord doubts that, they need only refer to my noble friend Lord Kingsland's speech at Second Reading, when he made clear the Opposition's viewpoint. Can the Minister confirm that as an Opposition we have co-operated with the Government and made it clear that we will assist them to get the Bill on to the statute book? However, having said that, we are entitled to disagree with her on certain aspects of it.

I shall deal briefly with our various arguments against 90 days' detention, a period up to 90 days or any extension beyond 28 days, as provided in the amendment tabled by the noble Baroness, Lady Ramsay of Cartvale. First, we believe that it is wrong in principle. It is equivalent to a six-month custodial sentence and tantamount to internment, even with the proposed judicial safeguards. Secondly, there are very strong arguments that the provision is contrary to Article 5(3) of the European Convention on Human Rights. Noble Lords have referred to the report of the noble Lord, Lord Carlile, and the fact that he offered support, with certain caveats, for extending the period to 90 days. But the noble Lord, Lord Carlile, said in his report:

"I question whether what is proposed in this Bill would be proof to challenge under the Human Rights Act given the length of extended detention envisaged".

The noble and learned Lord, Lord Steyn, has also stated that it would be in breach of Article 5(3). We understand that there have even been some doubts expressed by the Attorney-General. Perhaps the noble Baroness, Lady Scotland, can confirm that.

Thirdly, I argued that it was wrong in principle. We believe that it is wrong in practice. As a great many Members of the Committee have made clear, this measure could very easily become the recruiting sergeant for terrorists. Even one case of an individual being detained for three months could cause further radicalisation within the community. We all ought to listen very carefully to what the noble Lord, Lord Condon, and others have said on that point.

Fourthly, many of the problems that have been highlighted on mounting an adequate investigation into these problems, as was made clear by my noble friend Lord Hurd at Second Reading, could be dealt with by offering extra resources to the police. I am very grateful that that was re-emphasised by the noble Baroness, Lady Kennedy. Fifthly, as, I believe, the pressure group Liberty and others have suggested, there are various alternatives, such as amending bail or the PACE provisions, to get the accused back for post-charge questioning having imposed control-order style conditions on him. There are certainly avenues that can be pursued down that line. Finally, the Law Society has proposed an alternative of charging with lesser offences. We have not exhausted all the possibilities. There is no need to rush to 90 days.

To summarise, the key argument against 90 days is that it is Parliament's duty as the legislature—that is, both Houses—to temper the demands of various parts of the Executive and their agencies—in this case, the recommendations being made by the police—and not merely to accept their demands without question. Blind reliance on advice from any government agency is not a healthy way to legislate. The Government's central argument was always that they were acting on police advice. But the issue of the balance between public security and the rights of individuals is an issue for Parliament and not the police.

I shall end by quoting what my noble friend Lord Hurd said very firmly at Second Reading:

"Ministers should not suspend their own powers of judgment, or come to Parliament telling us that it is the view of the police or the agencies so we must accept it. Nor should the police urge Parliament to suspend its views or judgment, but that is what has been happening".—[Hansard, 25/11/05; col. 1402.]

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I have listened with real care and attention to everything that has been said in one of the most extraordinary debates that we have had in this House for some considerable time. The speeches have been powerful and passionate. I have to tell Members of the Committee that I have not changed the view, on behalf of the Government, that I signalled at Second Reading. Before going into some of the details, it is right for me to respond to some of the specific questions raised in the debate. First, I shall deal with a question raised by my noble friend Lord Brooke about scrutiny. There was an all-party agreement in July to accelerate the timetable for this legislation. Members of the Committee will remember that we had just suffered the terrible incident of 7/7. We therefore thought that it was right quickly to bring forward legislation which made impossible the ordinary scrutiny that might otherwise have been contemplated.

Nevertheless, in September, we published the Bill in draft and invited comments on it. A number of changes were made as a result. We will, of course, consider the report of the Home Affairs Committee when it is published. In response to the noble Lord, Lord Henley, it is right that the Government strove as hard as they could to seek consensus in relation to this Bill. It is quite clear that when it came to the 90-days provision, no consensus was possible. However, it is right, too, to say to Members of the Committee that my noble friends who have spoken so powerfully about the evidence base for the 90 days very much reflected the view that was held by the Government, which is still held by the Government, on the efficacy of 90 days.

So I say to my noble friends Lady Ramsay, Lord Davies of Coity, Lord Stratford, Lord Lipsey, Lord Merlyn-Rees, Lady Symons of Vernham Dean, Lord Clinton-Davis, Lord Brooke and Lord Harris, and the noble Viscount, Lord Brookeborough, that I cannot dissent from the logic that they expand in their speeches. The Government remain of the view that 90 days—the time limit requested by the police—is the correct limit for pre-charge detentions. The police requested that period on the basis of their practical experience of the difficulties involved in charging under the current scheme. In accepting the evidence base, perhaps I may assure the noble Lord, Lord Henley, as I assured the noble Lord, Lord Hurd, that the Government did not suspend their own powers of judgment and substitute the police view for their own. A number of my noble friends have outlined why that is so, not least praying in aid the evidence of the independent reviewer, the noble Lord, Lord Carlile of Berriew.

All noble Lords will have read the letter from Andy Hayman, the country's most senior anti-terrorist police officer. They have the information he gave us in that regard, much of which was referred to during this debate. It explains the nature of the terrorist threat we face and the difficulties therein. But the Government also accept that Members of another place chose to amend the Bill so that it would create a pre-charge detention limit of 28 days. The Government have accepted that position as being the will of the other place. Therefore on behalf of the Government—noble Lords know that when I speak from this Dispatch Box, I speak as the Government—I cannot resile from that position. I say to my noble friends who are critical of that view and who petition strongly that the Government ask the other place to think again that we feel ourselves bound by the statement on the matter made by my right honourable friend to the other place. The elected House took its decision after a very full debate and on the basis of proper deliberation. Accordingly, the Government cannot now support this amendment. But noble Lords opposite should be left in no doubt that the Government's view is that the period of 90 days was merited for all the reasons given.

In response to my noble friend Lord Merlyn-Rees, the House has behaved today like the House of Lords. That is what many of us have come to expect and some to celebrate. However, what is important is that this House has made it clear that our original proposal was that there should be real scrutiny by the judiciary, in whom we place a great deal of trust.

I shall deal with some of the other factual issues that have arisen. My noble friend Lady Kennedy of The Shaws mentioned that these applications would be made ex parte and persons would be excluded from the hearing. I hope my noble friend knows that that is not right.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

What I meant to say was that if the police argue that there is intelligence involved, whenever there are issues involving national security and intelligence, my noble friend will know that applications to exclude those representing the defence will be made. That is likely to be the case when we deal with foreign intelligence services.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I understand the point as my noble friend now puts it, but when she reads Hansard she will recognise that she suggested that these were ex parte applications at which the defendant would not be represented. I accept absolutely that she may not have intended to say that. Exceptionally, occasions may arise when the defence may be excluded while sensitive evidence is being considered, but the basic right of the person to be represented and to make their case is maintained.

I say too to the noble Lord, Lord Thomas of Gresford, that of course he is right in his comments about continuing investigations, but he knows also that once charge takes place, further questioning of the defendant cannot.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

Earlier today I pointed out the circumstances in which further questioning is permitted. Indeed, I introduced an amendment to make it express in the Bill, which the noble Baroness rejected. Further questioning can take place when it is a matter of national security and when it is in the public interest. That is laid down in the PACE codes.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

If the noble Lord looks back at the way this debate has been run, the suggestion was that there was a blanket opportunity. I know that the noble Lord knows that that is not right.

The right reverend Prelate the Bishop of Chester asked about control orders. He was right to say that there is a powerful argument to be had on how to strike the balance. I should say to him that an investigation can continue after the person has been released, but of course that assumes that the person has not absconded or committed a terrorist act in the interim. Control orders can be no guarantee of 24-hour control over an individual and are therefore not a real alternative.

In response to the noble Lord, Lord Monson, I remind the Committee that we do not generally pay compensation to those who are acquitted at trial even though they may have been held for far longer than 90 days. The Bill could be amended as he suggests but, as it involves expenditure, any change would have to go back to the other place.

The final matter raised was in relation to Section 44 and stop and search. In response to the issues raised by my noble friend Lady Kennedy of The Shaws I remind the Committee that the figures show that in 2003–04 70 per cent of those searched under Section 44(1) were white, 12 per cent were Asian and 10 per cent were black. Of pedestrians, 72 per cent were white, 14 per cent were Asian and 7 per cent were black. Overall searches of white people increased from 14,429 to 20,632, which was up 43 per cent; searches of black people increased from 1,745 to 2,701, which was up 55 per cent; and searches of Asian people increased from 2,989 to—

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

Would my noble friend allow me to intervene for a moment? We will come to the use of Section 44 later in the Bill. My noble friend has pointed out exactly the kind of issue that concerns many of us: that the Terrorism Act has involved a huge abuse of the Section 44 stop and search powers. Seventy per cent of the people who were stopped and searched were white because it is accepted that the power was being used inappropriately.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I fundamentally disagree with my noble friend in relation to its use. I was giving the figures to the Committee in order to be accurate. Of course we will look later at Section 44 and its application.

It should be noted that the figures for the 2003–04 period show that the number of those stopped and searched had risen across all ethnic groups but that the proportion of Asians stopped and searched had fallen slightly. So to suggest that there is disproportionality and that the increase is in relation to one ethnic group alone is not right.

The balance of the debate seems to be strongly in support of 90 days. I regret that I will be unable to vote in support of the amendment. On this issue, the Government Front Bench will abstain. What my noble friends on the Back Benches decide to do is entirely a matter for them.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

As my noble friend the Minister said, this has been in many ways an extraordinary debate. At times it has been very passionate and there have been many heartfelt contributions. I shall follow the convention which has been followed heretofore on the Bill, and generally in the House, of having the debate, the discussion and the probing of questions in Committee, but voting on Report. I should like to give noble Lords who do not feel that they can agree with the amendment the opportunity to go away and reflect on the debate tonight. As my noble friend said, it has been overwhelmingly in favour of the amendment, but I should like to give those noble Lords the opportunity to think the matter over before I bring it back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I beg to move that the House be resumed. In moving this Motion, I suggest that the Committee stage begin again not before 9.35 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.