Terrorism Bill

– in the House of Lords at 3:11 pm on 25th January 2006.

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Votes in this debate

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

Clause 19 [Consents to Prosecutions]:

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

moved Amendment No. 64:

Page 17, line 41, at end insert—

"( ) In deciding whether to give consent under subsection (2), the Attorney General or the Advocate General for Northern Ireland shall have regard to—

(a) any 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;

(b) the extent to which that government is accountable to its citizens through free and fair elections; and

(c) the nature of the acts of terrorism which the persons against whom proceedings are contemplated, or any terrorist organisation of which he is believed to be a member or with which he is believed to be associated, has aided, committed or encouraged."

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

I suggest that Members of this House look closely at Clause 17 in relation to the amendment to Clause 19, which I am moving. Clause 17 is an interesting part of the Bill because it extends the jurisdiction of the United Kingdom to cover offences committed outside this country, including offences that may be partially or wholly involved with another government—not our own. It then says that somebody can be prosecuted for an offence against another government if that would constitute an offence in this country. In other words, somebody who commits an offence abroad can be brought within the circumference of the English courts for the purposes of holding him responsible for that offence.

Those of us who have read the measured and careful report of the Constitution Committee will have seen what I think is a thoughtful phrase, which is relevant to some of the Questions raised earlier. Paragraph 4 of the report states:

"While anti-terrorist legislation is not new, each incremental instalment, generated by concern about public safety"— nobody questions the concern of Members of this House about public safety—

"must be considered not only on its merits but in relation to the totality of such legislation".

That is why we on these Benches are concerned about Clauses 17, 18 and 19, and why we have proposed the amendment.

Clause 19(2) refers to an "offence under this Part" which,

"has been committed for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom".

In other words the clause catches people who may not be bringing any kind of terrorist action against the United Kingdom. If Members of the House care to look at Clause 17, they will see how very wide the range of such offences is, covering attempts to commit an offence and incitement to commit an offence—the list is very broadly expressed.

The purpose of the amendment, which has been carefully and cautiously phrased, is to indicate that when an offence is committed outside this country and partially or largely involves the government of another country, the Attorney-General, who is obliged to give permission for a prosecution in such a case, "shall have regard to"—not a very strong phrase—certain factors about that other government. In particular, the Attorney-General of the government of this country should have regard to whether that other government has been engaged in crimes against humanity.

The offence of crimes against humanity is a relatively recent development. The more thoughtful, civilised and democratic members of the United Nations are trying to establish that some international crimes are so terrible and unspeakable that the global community should stand against them and condemn those responsible for them. I do not need to go much beyond the well known cases of Messrs Mladic, Karadzic and Milosevic in respect of the Federation of Yugoslavia, as it formerly was, and the dreadful case of Rwanda—to some extent, such cases copied Cambodia. Tragically, crimes against humanity are still very much part of our world and, so far, are not showing signs of being completely purged from it.

This amendment, which is so cautiously expressed, leaves it to the Attorney-General to decide in the instance of an offence against another government whether he should have regard to—if you like, take into account—the behaviour of that government. The Government of the United Kingdom, who assert on many occasions their opposition to systematic torture and genocide and have signed the United Nations conventions on both, are clearly aligned with those who try to stop any approval of such crimes against humanity.

Finally, we move from that to a rather more difficult example. Are those who use extra-parliamentary methods ever excusable? Our argument is that where they use extra-parliamentary methods because no parliamentary or constitutional channels are open to them and they have to take into account the behaviour of a government that do not listen to dissident, opposition or critical voices, that must be taken into account by the Attorney-General. I shall not bore the House by reciting yet again the long and brilliant tradition of this country in protecting dissidents from Garibaldi to members of the African National Congress because it believed that they were voices for freedom, civilisation and democracy against tyranny. However, that is a great tradition of this country and one of the proudest parts of our heritage.

Although I recognise that this amendment is rather unusual and that, generally speaking, this House would be reluctant to adopt an amendment that has international repercussions, the point is that the rule of law now has international repercussions and cannot be constrained within the borders of a particular nation state. The purpose of this amendment is to make sure that the Attorney-General, in bearing in mind and having regard to this issue, will uphold the fine traditions of the United Kingdom with regard to governments that treat their citizens as if they are so many slaves. I beg to move.

Photo of Lord Judd Lord Judd Labour 3:15 pm, 25th January 2006

I urge my noble friend to give serious consideration to what the noble Baroness said and to treat her arguments as highly relevant to the reality of many situations. At home in my study, I have a photograph that I treasure. It is of Chief Lutuli receiving the telegram telling him that he was to receive the Nobel Peace Prize for his efforts to bring about change in South Africa by non-violent, passive means. As somebody who, as a younger Member of the other place, went through that period in political history, I can remember my tussles with my conscience on this issue. I came to the conclusion that while I could not personally embrace violence as a means of political change, I had to understand the position of the ANC because the outside world had totally failed Chief Lutuli and his fellow strugglers who used non-violent means.

That is a real situation. My experiences in Chechnya have underlined the very same kind of point. I do not apologise for mentioning that again, although I seem to do so almost every time we turn to these matters. But it is not only in Chechnya or South Africa that this remains true. I make the point emphatically that some of us who take what the noble Baroness has said seriously do not endorse violence as a means to political change. But it is important to understand why some people in desperation feel they have no other course.

I believe that this amendment has been carefully crafted. It simply puts in the Bill a requirement that the Law Officers who have to decide whether they will proceed with a case do seriously consider these matters. It does not make any particular course mandatory; it simply says that these matters must be seriously considered. It would be good, even at this stage, if the Government could consider that position carefully.

Perhaps I may also say that I am a member of the Joint Committee on Human Rights and that we have had long deliberations on this Bill. At the outset of our report, we said that we believed that our Government's human rights responsibility was to protect the people of this country. We said that if, in the total effect of the proposals, a situation might inadvertently be made more dangerous rather than less dangerous, the Government would—albeit unintentionally, obviously— have failed to fulfil their human rights obligations because they had aggravated the situation. This issue of counter-productivity underlines many of the discussions on the Bill. It is one that profoundly preoccupies me. At times I almost think it preoccupies me more than the human rights and humanitarian arguments, because it is so central to our own well-being and safety.

I simply suggest to my noble friend that if we cannot embrace what the noble Baroness has just argued, we cannot bring ourselves to understand seriously the real predicament in which some people in desperation sometimes find themselves, and we may well increase the number of people prepared to listen to the arguments of the extremists. In resisting the extremists, in winning the battle for hearts and minds, we have to fall over backwards to demonstrate consistency and a determination to uphold the values and principles of which compassion and understanding must be central, and which are so important to our way of life. The noble Baroness has put her case moderately. I believe the amendment is important. I urge my noble friend and her colleagues in government to give it very careful consideration.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, when my noble friend was at the Foreign Office—and I think he was a very good Minister there—did he have regard to all these points when important decisions had to be made?

Photo of Lord Judd Lord Judd Labour

My Lords, that is a very fair question from my noble friend. We were fellow Ministers in the same Administration and I am sure that in his responsibilities for trade he took human rights as seriously as many of us at the Foreign Office did. We did indeed have many searching discussions in the Foreign Office about human rights at the time I was Minister. Under the urging of the Under-Secretary of State at the time, the late Evan Luard, we went through a period where—very much in keeping with many aspects of government policy these days—we required our ambassadors to assess regimes and governments abroad based on a points system. In our policies towards those countries, we could then take into account the human rights situation in the country concerned.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, if this country were under a severe tyranny—and I do not mean the half-hearted amateur effort that my present Government are making, I mean a really severe tyranny—I hope that I would be prepared to use violence. I hope that I would be prepared to risk my life to restore some of the things that we all hold good, including the right gently to pull the leg of the noble Baroness opposite. The noble Baroness, Lady Williams, has proposed the inclusion of a very sensible caveat, because some outside tyrannies are so awful that there is no way of dealing with them other than by internal rebellion, which, unfortunately, will always get nasty. All violence is nasty but sometimes it is justified. The Bench of Bishops will, I am sure, give me a lecture on St Augustine's "just war" because he said so. The baronage used to say that they had the right to rebel against the King when he cheated on them. That is all that the noble Baroness—I nearly said "my noble friend"; perhaps I actually mean it sometimes—Lady Williams of Crosby, was saying. Therefore I support her amendment.

Photo of The Bishop of Oxford The Bishop of Oxford Bishop

My Lords, I, too, support the amendment, for the reasons so powerfully and cogently put forward by the noble Baroness, Lady Williams, and the noble Lord, Lord Judd. However, the amendment has been made necessary because of the very unsatisfactory definition in the 2000 Act. I hope that it will be possible, sooner rather than later, for the noble Lord, Lord Carlile, to finish his work and come before the House with a new definition of terrorism.

I venture to suggest that the long tradition of Christian thinking, both about violence by the state and about violence against the state, alluded to by the noble Earl, Lord Onslow, has a great deal to offer in the way of clarity. Drawing on this long tradition, it would be necessary to make a distinction between a terrorist act, which is relatively easy to define, and a terrorist organisation, which is much more difficult to define, and which is made particularly unsatisfactory by subsection (1)(c) in the 2000 Act, which refers to the use or threat of action where,

"the use or threat is made for the purpose of advancing a political, religious or ideological cause".

That is all-embracing and quite rightly arouses the opposition of many Members of this House.

If we drew on that tradition, I would want to define a terrorist act, putting it in non-legal, very simple language, as "an act of violence or threatened violence directed against unarmed civilians". I would define a terrorist organisation as "an organisation that (a) uses terrorist actions as a matter of settled policy, and, (b) uses violence of any kind, whether discriminate or not, against a regime where, in the judgment of the Government, there are non-violent means of bringing about change still available". That second clause makes quite clear that we must all recognise that political judgments are involved and different governments will make different judgments. That should not take away from the fact that it is relatively easy to define a terrorist act. I very much hope that we will soon get a better definition of terrorism, but meanwhile I believe that it is absolutely necessary to support this amendment.

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

My Lords, I wish to add a few words to what my noble friend Lady Williams so eloquently said. In Committee we tabled an amendment in somewhat similar terms but with one important difference: it would have made it impossible for the Attorney-General to give permission in cases where certain conditions were not satisfied. I was persuaded by the arguments in Committee that it was not right that there should be an absolute bar where certain conditions are met. Therefore, we have brought it back in a slightly different form, which means that instead of there being an absolute bar, the Attorney-General, in deciding whether to give his permission, must take these conditions into account. That seems to me to be very reasonable.

I cannot imagine that an Attorney-General would wish to instigate proceedings where violence was being exercised against a government who were guilty of tyranny, of grave oppression of its people, where there was no democratic way of removing that government, and where the acts of the terrorists were not directed against innocent citizens. Quite clearly—and this amendment takes this into account—the terrorists responsible, for example, for the massacre of the schoolchildren at Beslan have placed themselves absolutely beyond any pale and quite plainly should be prosecuted wherever they can be found. However, I strongly believe that there are circumstances in which this country should not seek to prosecute those who are undertaking acts against a tyrannical government which fall within the very wide definition of terrorism and I believe that there should be on the face of the Bill an obligation on the Attorney-General, when he decides whether to authorise a prosecution, to take those matters into account.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament 3:30 pm, 25th January 2006

My Lords, like all noble Lords, we are extremely grateful to the noble Baroness for considering this matter again, following the debate in Committee. As one who took part in that debate, I can tell the House that the amendment now before your Lordships is a considerable improvement on the amendment tabled at the earlier stage. As the noble Lord, Lord Goodhart, has pointed out, the nature of the obligation on the Attorney-General has been changed. In Committee, it was a condition before consenting to prosecution that the items set out in the amendment were satisfied. Now the Attorney-General is obliged only to have regard to them. I confess, however, that I still have reservations about the expression "grave breaches of human rights". The noble Lord, Lord Goodhart, knows such reservations well. I believe that it is too vague an expression to find a place in the legislation.

The point of the amendment reveals the problem that we face. The reason why the noble Baroness and her colleagues have tabled this amendment is that we do not have a satisfactory definition of terrorism. If we had a satisfactory definition of terrorism, there would be no need for this amendment. It is because this definition of terrorism is so wide, and because people who speak out against genocidal acts of totalitarian governments can be prosecuted in this country under this definition of terrorism, that the noble Baroness has found it mandatory to bring the amendment forward. That is the dilemma.

When the Attorney-General exercises his discretion, it is essential that he take these factors, and perhaps others, into account before he takes his decision. The issue is whether these factors should appear on the face of the Bill or whether the Government can give us some other guarantees that are sufficiently satisfactory to allow us to leave this amendment aside. Essentially, in the amendment, the noble Baroness is defining what terrorism is and what it is not—it is no more and no less than that.

I would like to ask the Minister how she sees the Attorney-General exercising his discretion when faced with an individual who has spoken out against an evil regime abroad. What guarantees can the Minister give the House that the Attorney-General will abide by rules for exercising his discretion, albeit not on the face of the Bill?

I must confess to having hesitations about those criteria being in the Bill. Under this amendment, the Attorney-General is required to have regard to these factors; but what about other factors that may be equally relevant which do not appear in this list? An Attorney-General may take the view that what is on the face of this amendment is the maximum rather than the minimum necessary. We do not know. The Attorney-General's discretion is too wide. I would be most grateful if the noble Baroness in her reply would be kind enough to address these points.

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)

My Lords, I thank the noble Baroness, Lady Williams, for expressing her support for these amendments in such a clear and proportionate way. I need to say to her and to my noble friend Lord Judd, the noble Earl, Lord Onslow, and the right reverend Prelate the Bishop of Oxford that the Government very much understand the basis and the main thrust of their argument, for the reasons given by the noble Lord, Lord Kingsland.

Although the amendments have been redrawn by the noble Lord, Lord Goodhart, with his usual ingenuity, there regrettably remain similar flaws to those which existed in the amendment we discussed in Committee, very much for the reasons given by the noble Lord, Lord Kingsland, in terms of the breadth of the amendment. Noble Lords are right to emphasise that the noble and learned Lord the Attorney-General and his successors in title, if this was to remain, has a very broad discretion. It is also right that at the moment we are all of a view that the definition of terrorism would benefit from further scrutiny. It is for that reason that we have entrusted the development of those issues into the hands of the noble Lord, Lord Carlile of Berriew. We are all anxious to see the suggestions that he may make and look forward to an opportunity to debate them with appropriate vigour.

I should like to say one or two things about why the amendment proposed by the noble Lord, Lord Goodhart, does not quite meet the point. As your Lordships know, there is a wide spectrum of belief about who would or would not fall within such a categorisation. I recall very clearly that, the last time we were talking about this, the noble Baroness, Lady Williams, tried to make it clear that America would not be included. But we have had debates about Guantanamo Bay and comments by the noble Lord, Lord Goodhart, about the approach taken by various states in the US. There are those on the Liberal Benches who spoke out very powerfully about the propriety of the last US election and whether that was a model which should be covered. So we know that this route is riddled with difficulties and problems.

Noble Lords should know that in deciding where the public interest lies, the Attorney and the Advocate Generals will doubtless need to consider the nature of the alleged crimes as well as the circumstances of those crimes. They may need to look at the nature of the country in which any terrorist act took place. So we can be confident that they will discharge their duty with honour.

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

My Lords, I am grateful to the noble Baroness for giving way. She said that these are factors that an Attorney-General may well take into account. Would she be prepared to go one step further and say that these are factors which any Attorney-General acting properly would have to take into account, along with other factors?

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)

My Lords, I understand why the noble Lord tempts me down that line but it is right that in exercising his or her discretion, the Attorney-General should be able to take into consideration those matters which are pertinent at the time. One of those matters would have to be the circumstances of the alleged offence and the countries in which those acts or omissions take place. I do not think that it would be right for me to go further than that. I have very much in mind that in this country—the noble Baroness, Lady Williams, alluded to it—we have been blessed with some rigorous and robust holders of that office. To name but a few, the noble and learned Lord, Lord Mayhew of Twysden, discharged his duty with a great deal of distinction; we were blessed with the noble and learned Lord, Lord Lyell, and my noble and learned friend Lord Morris of Aberavon. We are blessed at present with a particularly distinguished Attorney-General. We can be confident that those who have been appointed to that post will continue to discharge their duties with honour.

I repeat that it is important for us to look at the bigger picture. The implication of the amendments is that there may be certain circumstances when acts of terrorism may be more acceptable than in others. In Committee, the noble Baroness, Lady Williams of Crosby, referred to South Africa under apartheid, Greece under the colonels, Rwanda and Serbia. She also talked about countries where there is no other channel of legitimate opposition—very much the theme of those who have spoken today. All of that ties into the wider debate on whether it is possible to draw a distinction between terrorists and freedom fighters and the definition of terrorism. As we have discussed previously, the Government do not believe that it will necessarily be possible to come up with a better definition of terrorism than the one we have already in our legislation. However, as I have indicated, we need carefully to consider the issue. We shall do so when the noble Lord, Lord Carlile, concludes his review.

I am grateful to the noble Baroness and the noble Lord, Lord Goodhart, because this and the next group of amendments give us an opportunity to explore what we know to be a delicate and difficult area. But I invite the noble Baroness and the noble Lord not to press the amendment.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, before the Minister sits down, perhaps I may press her a little on how the Attorney-General would exercise his discretion. For example, let us suppose that there is evidence of genocide, or evidence of a crime against humanity; would she agree with me that the Attorney-General would be bound to take that into account before prosecuting?

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)

My Lords, I have already said that it would be essential for any Attorney-General to take into account considerations that were proper. I do not disagree with the noble Lord that that would be a matter to be taken into account. I am willing to say that I shall take this matter away and see whether, after proper discussion between myself and the appropriate Law Officers, we can come up with something which may give the House a greater assurance in that regard. I do not know whether I shall be able to say anything more. I am conscious, as I know is the noble Lord, Lord Kingsland, that we should not in any way improperly restrict the exercise of discretion. However, I am happy to consider whether we can come up with a form of words which might be of assistance. I cannot guarantee that I shall be able to do so, but I am happy to discuss whether that would be possible.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat 3:45 pm, 25th January 2006

My Lords, the noble Lord, Lord Kingsland, and I are trying to decide, at a distance, which of us is going to speak now. I think by order that it is my turn.

I am extremely grateful to the Minister for the thoughtful and careful way in which she responds to amendments of this kind. As a long-standing political hand, I am very conscious that flaws in amendments are always the reasons given for finding them unacceptable. The noble Baroness has put forward the perfectly fair argument that, in her view, the amendment was framed in too broad a way. The trouble is, as noble Lords will appreciate, the Bill itself is framed in far too broad a way. If one reads the list of offences in Clauses 1, 2, 17 and many others, one sees that the range is simply incredible. It is rather frightening as a range of potential offences. So, with no wish to be out of order, my noble friends Lord Goodhart and Lord Thomas and I had to frame the amendment in a way that countered and met the width of the Bill itself.

(7)One other point that I would like to make very quickly—it is a point which was forcefully argued by the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Judd—relates to what one might describe as the counter-effect of this kind of legislation. If you are someone who passionately believes in democracy and human rights and who wants to bring that to your benighted country, and if it is not obvious to a country like the United Kingdom so that it understands that and is on the side of your effort to establish human rights and democracy, bluntly, where do you look for help? To whom do you look for help? The answer is that there is not anyone to look to for help.

A number of noble Lords made forceful, honest and very important remarks about the great difficulty of having no clear definition of "terrorism". The right reverend Prelate offered an ingenious definition and there is another wise definition in the High Level Task Force of the United Nations, with which the noble Lord, Lord Hannay, was so closely associated. In other words, there is not a shortage of fine definitions which means that we have to fall back on an area of vagueness.

The final point I wish to make—this is why, I am afraid, despite what the noble Baroness has said, I shall be seeking the opinion of the House—is summed up in the Minister's perfectly reasonable answer to me that my noble friend Lord Carlile of Berriew QC would be looking into this issue and coming up with a definition in a year's time. Apart from the fact that that leaves a rather nasty gap of a year—in which, quite possibly, there will be prosecutions for offences conducted outside this country and against governments other than our own—I have another objection. It is not an objection to the evidently brilliant reputation of my noble friend but, frankly, to the thought that an expert and not Parliament itself should have the final voice on this kind of issue, which is about human rights, democracy and justice. I think Parliament should have that right. Parliament should express its opinion; and that opinion should then be brought before experts who are considering what to do.

I am sorry that the noble Baroness did not feel able to respond to the enticements of the noble Lord, Lord Kingsland—which appeared to me to be overwhelmingly moderate—namely, that she should agree that the Attorney-General would have to take these matters into account. Given that she did not feel able to go even that far or to say that the noble Lord, Lord Carlile of Berriew, would also have to go that far, I shall have to take the—

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)

My Lords, before the noble Baroness does that, I should say two things. First, Parliament will have its say because, although the noble Lord, Lord Carlile, will make recommendations, it will be for Parliament to determine the frame in which that will take place. So that is going happen. Secondly, I have said very clearly that doubtless there will be a need to consider the nature of the alleged crimes and that there may well be a need to look at the nature of the country in which any terrorist act takes place. Your Lordships should remember that, in exercising his discretion, the Attorney-General has to give his consent only if he believes that a prosecution would be in the public interest.

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

My Lords, I understand those points and I am grateful to the noble Baroness for making them. I am well aware that eventually my noble friend Lord Carlile will have to bring that definition back to Parliament. My point is that I want Parliament to be taken into account when he draws up that definition. So with the greatest respect to the noble Baroness, I seek to take the opinion of the House.

On Question, Whether the said amendment (No. 64) shall be agreed to?

Their Lordships divided: Contents, 103; Not-Contents, 157

Division number 1 Private Parking: Ports and Trading Estates — Terrorism Bill

Aye: 101 Members of the House of Lords

No: 155 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Clause 20 [Interpretation of Part 1]:

[Amendments Nos. 65 and 66 not moved.]

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

moved Amendment No. 68:

Page 18, line 14, at end insert—

""indirect encouragement" comprises a statement describing terrorism in such a way that the listener would infer that he should emulate it;"

On Question, amendment agreed to.

Photo of Lord Elton Lord Elton Conservative

moved Amendment No. 68A:

Page 18, line 27, leave out "except in section 9(4),"

Photo of Lord Elton Lord Elton Conservative

My Lords, the words to which my amendment refers either have no effect whatever or they tear a small or significant gap in the protection that the Bill is intended to give to the public. If we assume that they have an effect, we should see what it is.

In Clause 20(3), which starts at line 23 on page 18, there is a definition of what constitutes "the public" to which we are referring. It tells us that,

"references to the public are references to the public of any part of the United Kingdom or of a country or territory outside the United Kingdom, or any section of the public".

That applies to every reference to the public in Part 1 of the Bill.

The application of the second leg of the definition is almost as wide but is subject to a narrow exclusion. Subsection (3)(b) says that such references,

"also include references to a meeting or other group of persons which is open to the public (whether unconditionally or on the making of a payment or the satisfaction of other conditions)".

Those words, crucially, are preceded by the words "except in section 9(4)".

I apologise. I seem to have lost my place in my notes, so perhaps it would be better if I continued ad hoc. The definition of an offence under Clause 9 depends on the possession of radioactive material. The definition of "radioactive material" under Clause 9(4) is,

"nuclear material or any other radioactive substance which . . . contains nuclides".

The clause then gives a technical definition, but continues,

"and . . . is capable, owing to its radiological . . . properties" of doing any one of four things. The effect of the exclusion in relation to the definition in Clause 9(4) is to exclude a nuclear substance from being classified as such if it is capable only of

"creating a serious risk to the health or safety of the public".

As we have already discovered, the public are, because of the exclusion, not the public if they are gathered in a public place having bought a ticket or satisfied the rules of the local Labour Party or Conservative Party. If a person is carrying a substance that cannot cause serious bodily injury, cause serious damage to property or endanger a person's life, but can create a serious risk to the health or safety of the public, the public are not there, so the material is excluded and the offence is not committed.

That may not be the meaning of the drafting of the Bill, but it appears to have no other effect. With this exclusion, the Bill allows someone to come with material in his pocket—let us say one of those spray cans that contain a low-level radioactive substance, capable of producing long-term diarrhoea. Just because we are talking about nuclear material, we are not necessarily talking about explosives. We are talking about radiation. Such a substance can cause panic in an enclosed place. If your Lordships were coming to the opening of Parliament, qualifying as the public under the rules of the place, and the material were deployed here, technically no offence would have taken place. That must be ludicrous. What is any other interpretation of the Bill to be? I beg to move.

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

My Lords, I am grateful to the noble Lord for tabling the amendment and for having had the courtesy to provide our office with notice of the remarks he was going to deploy in support of it. Having heard the noble Lord, I was slightly confused at the outset—and the noble Lord himself seemed highly confused—but he then went on to deploy his argument. I will try to run through the important points. Plainly, if the situation was as the noble Lord explained it, there would be an element of absurdity.

The amendment makes a change to Clause 20, the interpretation section of the Bill. There are two clauses in which there is reference to the public in Part 1 of the Bill: Clauses 1 and 9. The difference in the nature of the offences is the root of the difference between the different applications of definition of "public".

In Clause 1, it is necessary to make it clear that reference to the public includes meetings that are open to the public, or meetings that one has to pay an amount to enter or satisfy other conditions—in other words, a conditional public meeting. That is needed because Clause 1 addresses problems of extremism and radicalisation, and focuses on the way in which messages are disseminated and promulgated. The effect of committing the offence under Clause 1 can be limited to just those at a meeting as well as publishing a statement or publication freely available to the world. It is vital, therefore, for the courts to be certain that these offences are committed both where the statement is freely available and where messages are conveyed only in small meetings, which might not otherwise be considered to be covered by the term "public". This is specified in Clause 20(3)(b), to make it clear.

References to the public in Clause 9(4)(b) are exempt from the definition of "public" in Clause 20(3)(b). The reason for this is that Clause 9(4)(b)(iv) is rather different, in that "public" here refers to creating a serious risk to the health and the safety of the public—the offence requires possession of a substance that represents a risk to the health and safety of the wider public. Such a threat could never be confined solely to those at a small gathering in the way that it could for the offence under Clause 1. A court would be clear that the possession of radioactive material or a radioactive device by those who had the intention of using that device or material in committing a terrorist act would represent a serious risk to the health or safety of the public in a general sense, not just those in a small meeting, even if the substance was intended to affect only those people there gathered.

I entirely understand the intention of the noble Lord in putting forward—

Photo of Lord Elton Lord Elton Conservative

My Lords, is the Minister saying that the noxious substance would remain classified as radioactive if it offered a threat to the people outside the building even if it did not to the people inside it?

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

Yes, I think that I am, my Lords.

I understand the noble Lord's intention in putting forward this amendment. He is concerned that a person would not be committing an offence if he possessed radioactive material and intended to use it against those at a public meeting. I confirm to him that this is not the effect of the clause at present, as possession of such material represents a general public risk and would apply if the material was used against the public at large or against those gathered at a meeting. None the less, we are grateful to the noble Lord for putting forward his amendment so that we can confirm that this is the case. I hope that he will now withdraw the amendment.

Photo of Lord Elton Lord Elton Conservative

My Lords, I shall read what the Minister said with great care. If his explanation, which he confirmed when I challenged it, is right, there is no point whatever in the exclusion. If, on the other hand, it would not constitute a terrorist offence if somebody put low-grade radioactive material in a buffet and then let it be known that the outbreak of dysentery was caused by him, these words have an effect and should be removed. I remain unconvinced, but, pending my having read what the Minister said—and perhaps conversations with him afterwards—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

moved Amendment No. 69:

Page 18, line 44, leave out "of a description" and insert "illustrative of a type"

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

My Lords, in moving the amendment, I shall speak also to Amendment No. 72. They appear to have been degrouped in error, as they clearly belong to the same group. I shall deal with them as one.

It should not take too long to go through these amendments since I think that they will be welcomed. Clause 20(7) makes it clear that references to,

"conduct that should be emulated", include descriptions of general types of conduct as well as descriptions of specific instances of conduct. For example, the provision means that a description of launching suicide attacks as conduct to be emulated is covered, as well as descriptions of launching suicide attacks against particular targets or at a particular time. I am sure that noble Lords will agree that this provision is useful. Similar wording can be found in Clause 21.

Where there has been some disagreement is that some of your Lordships have suggested that it might be difficult to understand the expression,

"conduct that is of a description of conduct".

Although I am satisfied that the expression is entirely clear and perfectly comprehensible, I am as always happy to meet, as far as is possible, the concerns raised by Members of your Lordships' House. I am therefore pleased to move amendments which would replace the expression,

"conduct that is of a description of conduct", with the expression,

"conduct that is illustrative of a type of conduct".

I am satisfied that this expression achieves the same effect as the original formulation, and I imagine that noble Lords will regard it as a clearer statement of what we want to achieve. I beg to move.

On Question, amendment agreed to.

Clause 21 [Grounds of proscription]:

[Amendment No. 70 not moved.]

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament 4:15 pm, 25th January 2006

moved Amendment No. 70A:

Page 19, leave out lines 29 to 44 and insert "indirectly encourage terrorism, within the meaning of "indirect encouragement" as specified in section 1(3) of the Terrorism Act 2006"

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

My Lords, perhaps I may intervene and say that it would help the Chair if we could hear what was being said.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, the reason why I think it appropriate to move the amendment formally is that we had a long debate on the definition of "indirect encouragement" and the meaning of "glorification". That debate was resolved with a vote which expunged glorification from the Bill, and redefined "indirect encouragement" in the way that is wholly familiar to the noble Baroness.

In my submission, the ineluctable logic of that vote is that my amendment should be moved formally. 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)

My Lords, I am grateful for the noble Lord's explanation. It is right, however, for the Government to have a moment or two to explain our response to that amendment before we take the matter further. That is why I invited the noble Lord to do so. However, I am unsure where we are now, procedurally.

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

My Lords, Amendment No. 70A has been moved. That is the Motion before the House at the moment.

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)

My Lords, then I shall not take long.

The Government accept the position that has been brought about as a result of amending Clause 1. For the record, however, the Government believe that this is something to which we will have to return. As the noble Lord, Lord Kingsland, has just indicated, and as your Lordships are well aware, the reference to glorification in Clause 1 has now been taken out. In its place, a new definition of "indirect encouragement" has been inserted into the clause.

As this is Burns Night, I hope that I may be permitted to observe that the decision to remove the glorification provision might be taken as proof, were any needed, that, in the words of the poet, the best laid plans,

"o' mice an' men Gang aft agley".

I hope that noble Lords who hail from north of the border will forgive my poor pronunciation. However, it is right and fair to alert the House that the Government have accepted the amendment technically but not necessarily in substance.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, I humbly suggest to the Minister that it is not as simple as that. Clearly, any reference to glorification in Clause 21 automatically falls. If that is so, what is left in the clause is completely meaningless. It is nonsense. It would be quite wrong for the Bill to leave your Lordships' House on Report with a text that is nonsense. What else is in the Marshalled List? The amendment of the noble and learned Lord, Lord Lloyd of Berwick, would excise Clause 21 altogether.

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)

My Lords, perhaps I can put the noble Lord out of his misery. I accept that, at this stage, this amendment, by virtue of the new structure introduced and the amendments passed by this House, is no longer in place. I accept this amendment, technically, for the time being. I am not saying that I accept the argument and that there is an alternative. There is a satisfactory alternative, but it is not for today.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, will the Minister agree that it is in order for me to move this amendment formally? I am most grateful.

On Question, amendment agreed to.

A noble Lord:

It is pre-empted.

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

I am sorry, my Lords; we have so many pre-emptions.

Photo of Lord Tordoff Lord Tordoff Liberal Democrat

It is not only not moved, my Lords, it is not allowed to be moved.

[Amendments Nos. 71 and 72 not moved.]

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

My Lords, in view of the Government's acceptance, even if only on a technical basis, of the amendment put forward by the noble Lord, Lord Kingsland, I withdraw my objection to the clause. It was never a technical objection, but now it does not arise.

[Amendment No. 73 not moved.]

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

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

moved Amendment No. 74:

Page 22, line 10, after "Kingdom" insert "except Scotland"

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

My Lords, I should like first to compliment the noble Baroness on her remarkable ability to utter words familiar to a Scotsman on Burns Night and to do so in the appropriate manner. Perhaps it is something to do with her name.

The amendment is concerned to ensure that, in Scotland, it is only the Lord Advocate or a procurator fiscal who may apply for a warrant extending detention, or for the extension of the period of such a warrant, and that the police in Scotland should no longer have the power to do so. Under Section 41 of the Terrorism Act 2000, the maximum period of detention is 14 days, and only a police officer of at least the rank of superintendent may make applications for extension of detention or for the extension of the period of such a detention. In Scotland, the applications are made to a sheriff.

The Bill extends the period of detention to 28 days, and introduces a senior judge as the judicial authority where the period of detention is sought to be extended beyond 14 days. On any view, it would clearly be inappropriate that a police officer in Scotland should make any application to a senior judge. Indeed, I understood that to be recognised when the Government accepted my amendment in Committee, adding the Lord Advocate to the list which now appears in Clause 23(2), which sets out four separate individuals to whom power is granted to apply for a warrant extending detention, or for the extension of the period of the warrant.

The amendment's purpose is to ensure that proper recognition is given to the distinct framework of the criminal justice system in Scotland and the equally distinct responsibilities for criminal investigation between the Lord Advocate, as the prosecuting authority, and the police in Scotland. They are not identical to those which obtain in England, Wales or Northern Ireland.

I touched on those matters in amendments that I moved in Committee, when I reminded the Committee that the Lord Advocate is the head of the system of prosecution and investigation of crime in Scotland, and that he has 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. The Lord Advocate acts through Crown counsel and the High Court of Justiciary, the Supreme Court, and through procurators fiscal in the sheriff and lower courts.

The Bill gives some recognition to the different framework and responsibilities within which the criminal justice system in Scotland operates, as compared with the system elsewhere in the United Kingdom. The Bill, for instance, requires that for prosecutions elsewhere in the United Kingdom, consent should be given to the institution of proceedings by the Director of Public Prosecutions or the Attorney-General, as set out, as we heard very recently, in Clause 19. I mention in passing that it is perhaps an oddity that the effect of an amendment that was proposed in your Lordships' House earlier would have imposed certain matters of discretion on the Attorney-General only, and would not have had an effect on the Lord Advocate of Scotland.

The Minister explained in Committee on 7 December 2005 at cols. 735 and 736 that because of the structure of prosecutions in Scotland and the overall responsibility of the Lord Advocate for prosecutions, it was unnecessary to extend Clause 19 to include specific reference to the Lord Advocate. To take another example, in Clause 28, on search, seizure and forfeiture of terrorist publications and its application to Scotland, it is the procurator fiscal who makes the application for a warrant, not a constable as elsewhere in the United Kingdom. In Scotland the application is made to a sheriff, not to a justice of the peace, as elsewhere.

When an amendment to the same effect was debated in Committee on 13 December 2005, I said in col. 1148 that I understood that even at present an application made under paragraph 29 of Schedule 8 to the Terrorism Act 2000, which provides for the applications for a warrant extending exemption, or for the extension of the period of such a warrant, was normally made to a sheriff by the procurator fiscal, with the assistance of senior police officers. Thus there would appear to be no difficulty in removing from the police in Scotland the capacity to seek a warrant extending detention, let alone further detention. It would also ensure—consistent with the general tenor of such legislation on the investigation and prosecution of serious offences, and which touches on the rights of individual citizens—that any application is made only after the Lord Advocate, or one of his officials responsible for the investigation and prosecution of crime in Scotland, has independently assessed the appropriateness of the grounds for making such an application.

I refer again to Clause 24(3) of the Bill, which sets out the reasons for the judicial authority to be satisfied that further detention is necessary before granting an application. It is arguable that those are the kind of reasons that should be considered by the applicant before he even goes before the judicial authority.

In reply, the Minister said that the amendment,

"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".—[Hansard, 13/12/05; col. 1149.]

I have already pointed out that in the present Bill there are arrangements that are different from the rest of the United Kingdom. Another example can be found in the provisions for all premises warrants for England and Wales and Northern Ireland in Clause 26, and for Scotland in Clause 27.

The Minister did not in her reply answer the point that I had made about what I understood to be the normal practice in Scotland. If at present it is the normal practice that the procurator fiscal makes applications under paragraph 29 of Schedule 8 to the 2000 Act, there can be no substantial difficulty in reversing the existing situation in Scotland. I would be grateful if the Minister will answer two questions, of which I have already given her notice. First, was my understanding of the normal practice followed in Scotland correct? Secondly, have police officers in Scotland made such applications independently of a procurator fiscal and in what circumstances did that occur? If they have never done so, that would appear to support the view that the arrangements in Scotland could be amended without difficulty and without doing any violence to the operation of the current or proposed arrangements for warrants extending the period of detention of terrorist suspects.

In her reply, at col. 150, the Minister also indicated that she would ensure that the Lord Advocate had the benefit of reading Hansard. I look forward to hearing why the Lord Advocate considers that my amendment would in any way be detrimental to the operation of the provisions of the 2000 Act or the new provisions for Scotland in the Bill if, in fact, he considers that to be the case. This being Burns Night, I hope that the Minister will be able to give this a fair wind. 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) 4:30 pm, 25th January 2006

My Lords, I thank the noble and learned Lord for his compliment on my Scots. I think it was the noble and learned Lord, Lord Mackay of Clashfern—who I see is in his place—who made it plain when my noble friend Lady Kennedy of The Shaws and I were appointed on the same day to Silk that he had appointed one because he knew that she was a Scot and the other because he believed that she was one. I have thankfully taken some lessons.

I am grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for tabling Amendment No. 74. I am also grateful to him for the letter he sent to me setting out his interest in more detail. It is always helpful to be given advance notice of particular concerns and I hope I will be able to address each and every one of them.

We have already benefited from the noble and learned Lord's careful scrutiny of the Bill and have made changes to it as a result of the assiduous way in which he has examined it. However, as I explained in Committee, these matters have been considered very fully with the Lord Advocate and he did not believe them to be necessary. The noble and learned Lord, Lord Cameron, has explained that he needs to feel assured that the Lord Advocate has read the Hansard account of the relevant debate. I can confirm that he has done so and is still of the same view. The Hansard account of the debate on 13 December 2005 is at cols. 1145 to 1150.

The Lord Advocate has had the opportunity to consider the arguments put forward by the noble and learned Lord, Lord Cameron of Lochbroom, but is still of the view that it would be inappropriate to accept this amendment. The Lord Advocate is grateful to the noble and learned Lord, Lord Cameron, for his careful scrutiny of the Bill—and, on his behalf, I express that gratitude. He also has some sympathy with the noble and learned Lord's arguments in that the Lord Advocate is the head of the systems of prosecution and investigation of crimes and has statutory powers to instruct 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. Despite this, under the existing provisions in the Terrorism Act, police officers can apply for extensions to detentions under Schedule 8 to the Terrorism Act in Scotland.

In practice, because of the protocol that exists between the Crown Office and Procurator Fiscal Service, on one hand, and the Association of Chief Police Officers in Scotland, on the other, applications are made only with the agreement of the procurator fiscal. They are generally signed by a police officer of at least the rank of superintendent, but the procurator fiscal will attend the relevant hearing with the police officer and will speak to the application. The Lord Advocate would like to retain the possibility that police officers might apply for extensions to detentions. He does not believe it would be appropriate to reverse the existing arrangements in this respect. In addition, the Lord Advocate is still of the view that it would be inappropriate to have different powers in Scotland from the rest of the United Kingdom.

Finally, in the letter that the noble and learned Lord, Lord Cameron of Lochbroom, kindly sent to me, he courteously asked me for figures to show how frequently the police apply for extensions to detentions under the Terrorism Act 2000. I can confirm that in 2005 in Scotland, four people were held for longer than 48 hours, of whom three were subsequently charged. The applications to extend the detention times were carried out in accordance with the protocol which I have described.

I am most grateful to the noble and learned Lord for his ongoing scrutiny of the Bill. I hope he now fully understands why the Government prefer to allow the Bill to stay as it is, not least because we want to pay proper deference to the current Lord Advocate, whom, after all, we rely on so fully in these matters. I hope the noble and learned Lord will concur with the current Lord Advocate's view. With that explanation, I hope he will feel content to withdraw his amendment.

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

My Lords, I am most grateful to the noble Baroness for her response, in particular for dealing with the points I put to her. In the circumstances, I am grateful to her, despite the fact that I had hoped that Burns Night might have warmed her in advance of what may yet be to come. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

moved Amendment No. 75:

Page 22, line 27, at end insert—

"( ) In paragraph 34(1) (persons who can apply for information to be withheld from person to whom application for a warrant relates) for "officer" substitute "person"."

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

My Lords, I am sure the House is aware that Clause 23 provides that in the interests of flexibility it should be possible for a Crown prosecutor—or in the case of Scotland, as we have heard, a procurator fiscal, and the DPP for Northern Ireland—to make an application to a court to provide for the extension of the detention of a suspect detained under Schedule 8 to the Terrorism Act 2000. At present, all such applications must be made by senior police officers. We want to introduce this measure of flexibility because in some cases it may reduce the burden on the small teams of officers working on terrorist cases who might otherwise easily find their investigation bogged down by the casework required to repeatedly make such applications. The change also recognises that prosecutors work very closely with the police from an early stage of investigations and are well placed to judge whether the criteria for continuing detention are or are not met. This was debated and agreed in another place.

Amendment No. 75 is a very minor, consequential amendment stemming from that change. It alters and changes a reference in Schedule 8 to the Terrorism Act from "officer" to "person", to reflect the fact that a wider group of personnel than simply police officers may now make applications for extended detention. The reference it deals with relates to requesting that certain specified sensitive material is withheld from the detained person and anyone representing him. Without making this amendment, the full extent of the powers of the police in making these applications to the court will not be conferred on any Crown prosecutor or procurator fiscal, which may well discourage them from making such applications. This would undermine the important flexibility, agreed to by the other place, to add to Schedule 8 to the Terrorism Act. On the basis that this is a sensible, necessary and consequential amendment, I invite your Lordships to agree to it. I beg to move.

On Question, amendment agreed to.

[Amendment No. 76 not moved.]

Photo of Lord Sewel Lord Sewel Labour

moved Amendment No. 77:

Page 23, line 5, leave out "28" and insert "60"

Photo of Lord Sewel Lord Sewel Labour

My Lords, this amendment returns us to a central theme of the debate on the Bill: where the balance should properly be struck between individual rights and collective rights, between liberty and security. Indeed, to what extent can the liberal state act illiberally to defend itself? All Members of your Lordships' House will make that calculation for themselves, and I will not criticise those who strike the balance somewhat differently from me. We on this side of the House have a free vote on the matter, but to tell the truth I do not think that that will make much difference to the outcome. I do not think that I stand a chance of persuading my noble friend Lady Kennedy of The Shaws to support my side of the argument.

Photo of The Bishop of Oxford The Bishop of Oxford Bishop

My Lords, I urge the noble Lord not to give up hope because not only is it Burns Night, it is also the feast of the conversion of St Paul.

Photo of Lord Sewel Lord Sewel Labour

Hope springs eternal, my Lords. To use the phrase of the noble Marquess, Lord Salisbury, when he was Leader of the House, and perhaps more especially when he was Leader of the Opposition, this is the kind of issue where the Whip applies relatively lightly in this House.

At Second Reading and in Committee we rightly heard arguments to the effect that the liberal state is in danger of undermining its own values if in its defence it resorts to illiberal means. Those are very powerful and necessary arguments but there are equally powerful counterarguments. The past century of European history bears witness to how democratic states can be destroyed if they lack the constitutional competence or the political will to defend themselves from the enemies of the liberal state. Today terrorism based on a corrupt and perverted fundamentalism is as much the enemy of the liberal state as fascism and communism were in the last century.

One of the most powerful arguments against the 90-day amendment was put in Committee by the noble Lord, Lord Condon. In summary, he argued that 90 days might bring some significant gains in security in the short term but runs the risk of incurring the cost in the longer term, because of its disproportionate impact on members of the Muslim community, of heightening and increasing social fragmentation. That is a powerful argument, but however persuasive it may appear it fails to recognise that the terrorism we face, by its indiscriminate individual impact and by its attack on the values of a plural society, is as much a threat to our Muslim citizens as it is to wider society.

When the Bill was first published, I was not sure in my own mind where the balance should be struck, because in such cases there can be no objective, single right answer. There is certainly no formula that can be applied to produce a magic number; it is a matter of judgment. I can only say that the more I have listened, the more I have read and the more I have heard, the more convinced I have become that the appropriate number is most likely to be somewhere between 28 and 90 days.

The arguments in favour of a number greater than 28 days have been made persuasively by my noble friends Lady Symons of Vernham Dean, Lady Ramsay of Cartvale and Lord Harris of Haringey, among others, and by the noble Baroness, Lady Park of Monmouth, and the noble Lord, Lord Imbert. I shall not repeat them in detail, but I believe that we have to give attention to the argument that the international nature of terrorism makes the collection of evidence much more complex and requires co-operation and collaboration across jurisdictions that may not necessarily share a similar approach or common culture, both in relation to investigatory and judicial processes. That is enormously time-consuming to pursue properly and competently. There is also little doubt that the technological sophistication of present-day terrorists is such that formidable challenges exist in the form of deep encryption and other technological barriers to speedy investigation.

Terrorism is a crime where it is not possible to wait until the deed has been done or is close to being done. The risks are too high. It is necessary for the police to intervene in the process at a much earlier stage than is the case with other crimes. That in itself makes the investigation and the building of a case more difficult and, again, more time-consuming. These are the principal factors that have led me to the conclusion that terrorism presents particular difficulties for the investigating authorities, but I find chilling the words of the noble Lord, Lord Carlile, who said in his report—these words have been used before in your Lordships' House but they bear repetition:

"On the basis of my own enquiries 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".

We would do well to reflect long on those words.

Finally, there is one other argument that persuaded me to table this amendment: our parliamentary process. Although an amendment for 60 days was put down in another place, it was not voted on. We know that there was not a majority for 90 days in another place, but there was a majority for 28 days. We simply do not know whether a majority exists for 60 days. I believe that that is such an important question that it deserves to be tested. At the moment we do not know where, in parliamentary terms, the majority lies. Given the importance of the subject matter before us, I believe it is perfectly proper and indeed right for this House to give the other place the opportunity, quite explicitly, to test whether a majority exists for 60 days.

In Committee, the noble Lord, Lord Stoddart of Swindon, argued that this House and the Government have a duty to support 28 days because the other place has already decided and the other place is rightly supreme. I confess that I was a little surprised to hear that argument coming from the noble Lord who, in my memory—if it serves me right—has from time to time over the years felt perfectly justified in voting against measures coming before your Lordships' House when the other place has already expressed a view. I believe that the noble Lord's position is profoundly mistaken. The role of your Lordships' House is to consider legislation coming from the other place, to scrutinise it, to review it and, if necessary, to amend it, so inviting the other place to think again. The supremacy of the other place comes into play, and decisively so, when it has thought again and returned the Bill to your Lordships' House. For us to draw back at an earlier stage does no good for the role of this House and it does no good for the legislative process.

A strong case exists for extending the period of detention without charge from a maximum of 28 days to a maximum of 60 days. I believe that with the safeguards already built in, that gets the balance just about right between security and liberty, between collective rights and individual rights. I believe also, given particularly the confusion over whether a majority exists in another place for 60 days, your Lordships' House would be acting entirely properly in inviting the other place to think again, but that it would be wrong to persist with any challenge once the other place had thought again. I beg to move.

Photo of Lord Imbert Lord Imbert Crossbench 4:45 pm, 25th January 2006

My Lords, I recall clearly the debate in Committee in your Lordships' House on 13 December, particularly the part relating to Clause 23, when the noble Baronesses, Lady Ramsay and Lady Park, proposed that the 28 days agreed to in another place, whereby a terrorist suspect could be held in custody before charge or release, should be increased to 90 days as provided for in the original Bill. I supported their argument, which to me was highly persuasive. I have, however, now had the opportunity to study in depth the official Hansard report of that debate. While grateful to all noble Lords who gave strong support to the amendment, I noted with renewed concern the number who expressed their fears that the extension of a period of detention without charge for up to 90 days, albeit with rigorous judicial supervision every seven days, was a denial of the suspect's human rights. It might also be counterproductive and could lead to young Muslims, who felt that the proposed legislation was aimed only at them, seeking what they saw as martyrdom by becoming suicide bombers.

I took note of noble Lords who said that three months' detention without charge could be the trigger for further home-grown terrorism, although I was unhappy to hear that, in colloquial language, we were going "belly-up" for fear of alienation of a particular section of our society here in Britain and that, if we did so, the consequences might be dreadful. Much as I hate giving in to such implied threats, I acknowledge that a three-month detention period without charge, which mischief-makers might make use of at this time of heightened tension, might be used to stir up the passions of young Muslims. I have therefore informed my former professional colleagues that I cannot presently sustain my wholehearted support for their request for three months' detention without charge.

I certainly would not want the deaths of many innocent people on my conscience should the contention be correct that 90 days would lead to impressionable and vulnerable young Muslims sacrificing their own lives and the lives of others by carrying out suicide bomb attacks. But, having been told of the way in which young officers were sent down that darkened tunnel to collect body parts of those who no longer had any civil rights, my conscience would not be clear if I failed to support the request for an extension of what I see as an unworkable and dangerously unreasonable 14 or 28-day limit, if such a limit led to the release of suspected terrorists who subsequently became the purveyors of ghastly death and destruction of many innocent people.

Let us not fool ourselves. We may not have seen anything yet in the way of terrorist outrages. The dreadful incidents so far may, I fear, prove at some time in the future to have been far less devastating than what is to come. I have no secret intelligence about that, of course, but I recall what my noble friend Lord Stevens said when he was Commissioner of the Metropolitan Police in his warning about terrorist plans. He said:

"It is not 'if', it is 'when'".

Some people in this country did not believe him. I have to admit that I hoped he was wrong: but he was shown in unspeakable and atrocious reality to be right. After the July attacks, many politicians and commentators made brave statements about how we would not be bowed and how we would prepare for and deal with terrorism. I wonder where that Churchillian spirit and determination has gone now.

Just a few months after those July atrocities, and while some of their victims are still in hospital, we hear more about a suspected terrorist's civil rights than about an innocent person's right to life. As I said on 13 December, we are under threat. The steel barriers outside your Lordships' House will not save the lives of those travelling on public transport or attending a large spectator event if terrorists target them. Many noble Lords will recognise the comments of Edmund Burke—I hope that I am right in recalling that it was he who said it—that, "All that is necessary for the triumph of evil is that good men do nothing". Are we to do nothing or next to nothing and admit to the public that our inaction was because we made a judgment and felt that the risk of alienating some British citizens and possibly denying them their civil rights, with the result that they or others might become suicide bombers, was greater than the risk of terrorist atrocities being committed by those who had not been so detained and investigated?

Since the Committee debate some 43 days ago, in addition to studying the Official Report line by line—to which I shall return briefly—I have endeavoured to carry out my own social research—it is important that we know what the man in the street is saying—relating to the identification of suspected terrorists and how we should deal with them. To indicate the spread of that research, my informants have included, among many others, my Italian barber, the Cockney driver who sometimes gives me a lift to your Lordships' House, an Iranian minicab driver, my near neighbours, a well spoken accountant from a Tory stronghold in a shire county, an east London Labour councillor and, perhaps most importantly, a Muslim lady shopkeeper.

The noble Lord, Lord Condon, a valued former colleague of mine, in his contribution to the debate on 13 December gave us the meaning of the words "al-Qaeda". I had not known that and was most grateful but no one else to whom I spoke knew that translation. With one exception they all associated "al-Qaeda" with terrorism. The Iranian minicab driver said, "They are the people who are trying to drive us out of this country". He felt very strongly that terrorist acts when committed by Muslims would make more British people think that every Muslim was a terrorist supporter.

The Muslim lady shopkeeper clearly saw this country as a beacon of hope for her and her family but felt that we might not keep it so as we were too soft on those suspected of terrorism or terrorist propaganda; and that unless we acted with firmness good Muslims would be driven from this country, which—in my words, not hers—she undoubtedly saw as a citadel of freedom for her and her children.

Playing devil's advocate, I told my Iranian minicab driver that many people were fearful that if a person were to be detained for three months without charge, it would cause other young people to carry out terrorist acts. It was, however, his view, as it was of the others to whom I spoke, that the reasons for the terrorist attacks were that some people felt they were striking back because of Britain's involvement in the Iraq war, the continued occupation of that country by American and British troops and British support for Israel over the Palestinian question. He did not think that 90 days without charge to allow police to complete their inquiries would generate further hostility. He added, "It has got to be done to keep us all safe". My other informants had similar views and I will not repeat to your Lordships what my Cockney driver advocated should be done with anyone preaching terrorism, carrying out acts of terrorism or harbouring terrorists.

The danger, I believe, is that others might take the same view, and if we are perceived by the general public to be doing little or nothing, then I fear that that in itself may have a harmful effect on community relations and the prospects for essential and highly desirable multi-faith and multi-cultural harmony.

I said I would briefly return to the report of the debate in Committee on 13 December. Noble Lords who were present may recall that I gave examples of cases where investigations were complex and sometimes involved further inquiries in foreign countries—in one case in no fewer than 26 foreign jurisdictions. One of these examples was what I said had become known as the "ricin plot". Later in the debate I received a shrill challenge from the noble Baroness, Lady Kennedy of The Shaws, to have the courage to repeat outside the Chamber what I had said. She said:

"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".—[Hansard, 13/12/05; col. 1188.]

I bring this to notice in case other noble Lords felt that I had hidden behind parliamentary privilege and had given misleading information to the Committee that ricin had been found. The noble Baroness was absolutely right—there was no ricin. I was aware that the noble Baroness knew much more about the case than I did, so I feared that I must have inadvertently misled your Lordships. Since suffering a stroke a few years ago I occasionally juxtapose words. I therefore checked my notes carefully. They showed that I had not said, or had not intended to say, that ricin was present. I respectfully refer the noble Baroness to columns 1163 and 1164 of the Hansard report of that day's proceedings for confirmation.

Noble Lords may find it helpful to know how this came to be known as the "ricin case" in the first place. Information from my former colleagues shows that in January 2003 an original, handwritten Arabic manuscript, containing what appeared to be recipes for poisons and explosives, was recovered in a flat in Wood Green. One of the recipes appeared—and I emphasise the word "appeared"—to be for ricin. Scientists were asked to test the recipe and they stated that it was viable. To make ricin, certain ingredients and procedures are required. Some of these ingredients were recovered from the flat. Initial presumptive testing by scientists of a pestle and mortar which had been recovered from the flat in Wood Green indicated that the mortar contained ricin. However, more sensitive testing—including, I am told, DNA work—led scientists to the contra conclusion that there was no trace of ricin in the mortar. Noble Lords may now understand how this came to be known as the "ricin case", although, as scientific tests subsequently showed—and as the noble Baroness was quite right in pointing out—there was no ricin. Perhaps from now on it should be known as the "no ricin case".

I bring this to your Lordships' notice because it shows how these exhaustive scientific procedures indicate the amount of time such tests can take—tests which might also help to clear suspects of the alleged offence. This case, unsurprisingly, ended in acquittal. Your Lordships will have gathered, quite rightly, that I returned to seek the views of my former operational colleagues who are charged with the difficult—nay, the impossible—task of keeping us all safe while working within the parameters of the present law. It would be quite wrong if, as a former senior police officer, I did not consult them. It would be even more inappropriate now to indulge myself in the civilised atmosphere of your Lordships' House by standing on the operational touchline and making their job even more impossible by throwing intellectual toilet rolls into the goal mouth.

However much my former professional colleagues thought that the limit should be extended to 90 days, as did I, they now understand that this will not be agreed to in this Bill. I told them that there was an amendment to extend the period to 60 days, and sought their views. They said that anything beyond the present time restriction would be an improvement and would enable them to do their job more effectively. I recall that in the December Committee debate the noble Baroness, Lady Kennedy of The Shaws, said:

"Further, work expands to fill the time allotted to it. If you give the police 90 days . . . they will take their 90 days".—[Hansard, 13/12/05; col. 1190.]

I happen to trust our judges; I have not always agreed with them throughout my career but I trust them, along with members of the noble Baroness's own profession. I believe that they would be suitably robust, when looking at a case every seven days, to decide whether investigations were being carried out diligently and expeditiously.

We have charged the police and the security services with the onerous task of helping us keep free from the scourge of terrorism. If anyone should think it is not a scourge, let them talk to those fire, ambulance and police personnel who were given the task of helping with the rescue of those who survived and the collection of body parts of those who no longer have any civil rights. Let us give our guardians at least the opportunity to do the job we so much rely on them to do. I urge noble Lords to support the amendment moved by the noble Lord, Lord Sewel, that the time limit should be up to 60 days, with a review at least every seven days, thereby showing the public that we are carrying out our duty to maintain public safety in these terrifyingly threatening days.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative 5:00 pm, 25th January 2006

My Lords, I find it difficult to follow that moving speech. I support the amendment because 60 days is still a great deal better than 28. The arguments for more time remain the same, although more urgent. The two key problems which inhibit the chances for a charge being made within the time limit are the same. The pressure on insufficient resources is greater. There really is a very limited supply of people with the highly technical linguistic and decryption skills to extract from masses of complex material the necessary evidence—and it has to be evidence—to allow a charge to be formulated.

If the police arrest four presumed terrorists, that will produce four sets of complex and sophisticated material. I shall be very surprised if there are four such teams available, particularly as they must work under great pressure and are meanwhile not available for other work. Indeed, the press this week reports an MI5 trawl through transcripts and video footage alone, which suggests that there has been a serious lack of resources there. They and the police both need people with specialised linguistic and decryption skills; they are both looking for needles in haystacks.

Then there is the problem of the time needed to follow up clues in the international dimension which characterises the present terrorist threat. The IRA was a relatively domestic problem. Asking for answers from a foreign security service with its own agenda and own pace is not the same as checking with a domestic police force, where we can set the priorities.

In a previous debate on this issue, the noble Baroness, Lady Symons, described convincingly the difficulty of following up leads abroad through friendly intelligence services, each with their own agenda, and most far less well organised than ours, in time before the detention period runs out. Suppose that the resources team finds a clue in the first week of detention, which leads abroad. At present, the police and the intelligence services have a maximum of three weeks after that and only if they have secured extensions after 14 days to follow up these inquiries. How practical is that? How can they possibly get the answer in two and a half weeks? Unless they can secure at least up to—it is always up to—60 days, there is a very real chance that the suspects will have to be released before the crucial evidence, if it exists, has been obtained.

I want to quote the wise words of the late Lord Merlyn-Rees, whom we have so sadly lost, in Hansard on 13 December. He said:

"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 . . . 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".—[Hansard, 13/12/05; col. 1174.]

If suspects have to be released before the follow-up of clues both domestically and abroad, the police then have to begin all over again and no one, incidentally, will know whether the suspects were or were not innocent.

Even up to 60 days would give the police and the security services at least a chance to find the evidence on which to base a charge. Does it make sense to ignore the advice of the noble Lord, Lord Carlile of Berriew, who believes that, given the role of a senior judge, 90 days is probably a practical and sensible option. I do not know whether he would settle for 60 days. He advocated, however, that more could be done in terms of a more searching system of control week by week to recognise the seriousness—and we do recognise the seriousness—of the state holding someone in high security custody for as long as three months.

Returning to the main issue of proof and of the deprivation of liberty, the noble and learned Lord, Lord Morris of Aberavon, recognised that:

"In an age of international terrorism . . . the case for extending the period of detention without charge is formidable".—[Hansard, 21/11/05; col. 1422.]

And arguing for earlier arrest and therefore a greater need for the burden of proof, he said that if the wrongdoer slipped the net before there is enough evidence to charge him it could be too late.

Some of the opposition to 90 or even 60 days springs from the view that we are sending a hostile message to the whole Muslim community, and here I echo what the noble Lord said. We are told that it would be counter-productive as the present terrorist threat comes in the wake of the events of July last year. It is not unnatural that, at this time, we should relate our action to that sector of international terrorism. We are told that this will be counter-productive and encourage young men to martyrdom because those who advocate terrorism and challenge the values of the West will point to this provision—90 days—as illustrating why they must challenge our values and norms. But that is allowing would-be terrorists to set our national agenda. I am sure that law-abiding decent Muslim communities, who are as British as we are, would wish us to do all that is necessary to bring terrorists from whatever culture to justice and to protect the public of which they are part. It is not right for us to assume that in preventing a handful, though a deeply dangerous handful, of young people from taking to themselves the right to set our national agenda through terror, we are failing to show respect to the Muslim community, who are British themselves and by no means wish to become part of a worldwide Sharia state—certainly not through terror.

Finally, I well understand and share the deep concern felt by many that in seeking this extension of up to—only up to—60 days, we are in danger of eroding our precious heritage of civil liberties, and especially the principle of innocent until proved guilty. I do not wish to do that; none of us does. There is, however, a sunset clause in this Bill which means that we can think again. In a year from now, or better still, two, there will have been time to increase to some extent the specialist resources without which the police will almost certainly be unable to find the evidence, if it exists, to make a charge or not. In that time it should be possible to create the further safeguards advocated by the noble Lord, Lord Carlile of Berriew, and Sir Swinton Thomas. Can it be right to deny the police, as 28 days will almost certainly do, the time to do their job, and yet to require them to start the hopeless process again with undiminished zeal as and when more suspects are identified? I urge the House to vote for up to, and only up to, 60 days, to be reviewed under the sunset clause, to give time for international checks to be made where necessary, but above all, for more resources to be built up.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour 5:15 pm, 25th January 2006

My Lords, I support the amendment. Following an outstanding debate in this Chamber in Committee in December, on an amendment that I proposed, supported by the noble Baroness, Lady Park, the noble Lord, Lord Imbert, and my noble friend Lord Foulkes, for pre-charge detention of up to 90 days—a debate described by the Minister at the time as one of the most extraordinary in this House for some considerable time—I think that the House is owed an explanation as to why we are not bringing forward such an amendment at Report but are supporting a provision that would allow detention of up to 60 days.

The amendment is an attempt, after much consultation and consideration, to deal with the doubts of those noble Lords who genuinely feared that up to 90 days was a step too far or who did not feel that it was right to send back to the Commons something that had been fully debated and decided there. Because of Commons procedures, the amendment allowing detention for up to 60 days was never considered at all there. Personally, I would prefer to accept the advice on adopting 90 days from the counter-terrorism experts in the Met, ACPO and ACPO Scotland, as I am convinced by their arguments. Those arguments are summed up in the detailed and compelling seven-page attachment to the letter from Assistant Commissioner Hayman to the Home Secretary, which we have all seen—the points are very much echoed in paragraphs 57 to 60 of the report of the independent reviewer, the noble Lord, Lord Carlile of Berriew. It is crystal clear to me that 28 days is totally inadequate to meet the current needs of our police and that, if Parliament would agree to up to 60 days, that would give them at least a better opportunity to deal with the time-consuming complexities that are now facing them.

Standing here today, I feel very much the loss of two noble friends, for whom I had much affection and who were supporters of my amendment for 90 days in Committee—the much admired and respected Lord Merlyn-Rees and Lord Stratford, who was new to this House but a long-serving and distinguished parliamentarian. It is very sad that, for both of them, their interventions in support of that amendment on 13 December were their final parliamentary speeches.

As I have said before, the complexity and difference in nature of the current terrorist threat demands complex and different responses from previous counter-terrorism measures in this country. The police have to move in to detain suspects at a much earlier stage than is the practice in other criminal cases, when suspects can be allowed to continue under surveillance so that evidence is accumulated. In the case of terrorist suspects, no one can dare to allow a case to run, as that would risk losing track of a suspect and enabling a terrible terrorist attack to take place. We are now faced by fanatics aiming for maximum havoc of death and injury, who are ready to sacrifice themselves to achieve it. Those people often have international links—organisational or individual—which have to be painstakingly traced through foreign liaison services of varying degrees of capability and resources, and even willingness, to co-operate. The suspects use advanced technology, often involving encryption, resulting in masses of material to be sifted and analysed.

The provision of an adequate supply of technical experts as well as of interpreters and translators to deal with that huge volume of material all slows the process. As Assistant Commissioner Hayman has pointed out, it is not a question of resources alone, because the procedures—some of them inevitably consequential—will take time, a point that was echoed in the report of the noble Lord, Lord Carlile. I cannot see how a maximum of 60 days of pre-charge detention, with a senior judge having to be satisfied every seven days that there is just cause for a further seven days' detention, would be an unjustified infringement of civil liberties, especially with a sunset clause in the Bill.

For me the issue is clear and stark. We are faced with an extraordinary threat to our national security and those who are tasked to meet that threat have asked us for a longer pre-charge detention period, which they consider necessary for them to fulfil their responsibilities. They have made a cogent case, supported by the noble Lord, Lord Carlile, for more time in which to establish evidence. I will not repeat here the words that my noble friend Lord Sewel quoted in introducing this amendment, which he said were "chilling"—indeed they are. It is clear to me that 28 days is wholly insufficient and wrong. I urge the House to give the Commons the opportunity to consider 60 days, and to vote for this amendment tonight.

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

My Lords, I had not intended to intervene so early, but it may be helpful at this stage to hear the argument the other way. I did not speak on the subject of this amendment in Committee, but I was present throughout and listened with the greatest care to those who advocated, as they have today, an extension of the detention period from 28 days to either 60 or 90 days. They attached, as do I, great weight to the views of the Association of Chief Police Officers, but I do not think that anyone has suggested that the views of police officers in this matter are decisive. I think that everyone accepts that there is a balancing exercise between the safety of the public on one hand and, on the other, the fundamental rights of individuals not to be kept in custody for lengthy periods without charge. The noble Lord, Lord Sewel—in what was, if I may pay him this tribute, an excellent speech moving the amendment—made that very clear.

That is the exercise in which we are currently engaged and I must explain why I attach less weight to the views of very senior police officers than others have done in this respect. I do not think that the point I am about to make has yet been made in these debates. If 90 days is the period that police officers now say they require for carrying out their investigations, why did they not say so when the very same question arose during the passage of the Criminal Justice Bill as recently as 2003? What senior police officers asked for then, and got, was an increase from seven days to 14 days. Why do they now say, only two years later, that 14 days is not enough and that they need 90 days?

The reason cannot be that things have changed by what happened on 7 July. It is true that that was the first occasion when suicide bombers carried out operations in the United Kingdom, but surely the police must have foreseen the threat of suicide bombers in 2003. Indeed, the first British suicide bombers had already been involved in the attack on Tel Aviv in May 2003, so the threat must have been very much in their minds. One may speculate that it was because of that attack by British suicide bombers in May 2003 that Clause 284 was included at the last moment in the Criminal Justice Bill of that year.

Therefore, the advent of the suicide bomber cannot explain the change from 14 days to 90 days. Nor have senior police officers offered any other reason for the increase from 14 days to 90 days, because the reasons they now give are almost word for word those which they gave in 2003. I regret that I am driven to the conclusion—it is certainly the impression that I am left with—that the request for 90 days was simply a reaction to the events of 7 July, in the way in which one so often sees governments reacting to events of this kind, rather than a considered response to a continuing threat, which is what is needed when we are legislating against terrorism.

My second point is that 60 days would have little chance—I would say no chance—of being acceptable under the provisions of Article 5 of the European Convention on Human Rights. It is bound to be challenged—let nobody doubt that. If it is challenged, the challenge will, in my view, succeed. No other country in Europe at the moment requires more than five or six days without charge. We are asking for 60 or, originally, 90 days without charge.

The belief that a challenge under the Human Rights Act is almost bound to succeed is not my view alone. It was the view of the Joint Committee on Human Rights in its report on this very provision. It stated that a case had simply not been made to extend the period from 14 days, let alone to 60 or 90 days. In its view, it would be held that 60 days was not a proportionate response to the threat. Even more important were the views of Louise Arbour, which I quoted on the first day of the Report stage. I remind your Lordships that Louise Arbour is a distinguished Canadian judge who is now the High Commissioner for Human Rights. In her letter of 28 November, which many Members may now have seen, she stated her grave concern about how, if the period is extended beyond 28 days,

"the rights guaranteed by . . . Article 5 of the ECHR will be protected".

Those are views to which we really must pay attention.

Reference has been made to the noble Lord, Lord Carlile, but I remind the House that he said that more than 28 days would be acceptable under the Human Rights Act only if it were accompanied by a fundamental change in our criminal procedure. The Government were unwilling to accept that, however, as the noble Lord made very clear at Second Reading. It is very hard for me to imagine how anybody could put forward a case that 60 days would be acceptable under the Human Rights Act, which is, after all, an Act of Parliament to which we all agreed.

It is easy to paint a picture of the devastation which was created on 7 July and it is easy to say that anything less than 60 days' detention would be, to use the expression of the noble Lord, Lord Imbert, "woefully inadequate". It is less easy for most of us to imagine what it is like to be held in custody, day after day, without being told the reason, and then to be released without charge after 60 days. Of course, if someone is guilty of something, they would know why they were being detained, but that begs the very question.

The effect on the individuals concerned of being detained in that way, without discharge, is devastating, as is the effect on their families. I saw that when I visited Pentonville prison immediately after the outbreak of the first Iraq war. My job then was to go and see people in prison who had been detained on information from the Security Service. Yet it is not just about the effect on individuals; there is also the effect on community relations. That point was made in Committee by the noble Lord, Lord Condon, in what I can only call a wise and persuasive speech; I found myself in complete agreement with everything that he said.

The safety of the state has always been used as a justification for undermining civil liberties. That does not happen overnight, but it will happen in the end, unless we are very careful.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour 5:30 pm, 25th January 2006

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, holds great affection in your Lordships' House. We also rejoice in his skill. But on this occasion, he is utterly wrong.

There is no doubt that the events of 7 July had a tremendous effect in this country. As far as any challenge from the European Court of Human Rights is concerned, we should await the result of that before making any judgment. At present, we are at liberty to opt for 60 days, if we wish. The court has not pronounced an opposite point of view at the moment.

We have heard some remarkable speeches against the amendment today, but they have not changed my opinion since our debate on 13 December. I am not sure, at present, whether 28, 60 or 90 days offers a complete solution to our problems. However, I have come down in favour of the middle ground—the 60 days. It is the most appropriate that we can have at present. Although the other place opted for 28 days, it is incumbent upon us, as has been said today, to give it an opportunity to consider the 60-day solution, if it can be called that, which, by virtue of a procedural situation, it could not debate. When we last discussed this matter, the view of some noble Lords was, undoubtedly, in favour of the 28 days. However, I respectfully suggest that the motivation was rather mixed.

I care about civil liberties, but in my view the test should be not, "What do the police prefer?", but "What is most practical, having regard to fundamental civil liberties?". Nearly everyone participating in this debate is fallible, as I am, but in my judgment 60 days should enable a competent police force to assemble its case more readily than the 28 days which has been supported by another place.

We are dealing here with a fairly new and different type of criminal. We cannot afford to take chances with people's lives. On the one hand, terrorists are increasingly sophisticated these days; internationally connected, and unconcerned about their personal consequences. On the other hand, our society would be ravaged if we permitted these factors totally to destroy our vision. Our concern for civil liberties is paramount but, at the same time, it is equable; no, that is not the right word. Like the noble Lord, Lord Imbert, I have had a stroke and cannot always remember the right word.

Photo of Lord Gilbert Lord Gilbert Labour

Equitable, my Lords.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, I am reminded by my noble friend Lord Gilbert that the word I was searching for is "equitable", rather than equable. The terrorists, so far we can see, lack any sympathy for such concepts.

I argue, therefore, for the police to be given a reasonable opportunity to prepare their case against the alleged terrorists, but not to ignore the inroads into civil liberties which that concession brings. We are, of course, debating a compromise. Yet it is one which is workable—a compromise not oblivious to the civil liberties which we need to hold dear, especially when they are under attack.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, nullus liber homo capiatur. I will go on in English, since we are not quite such a well educated generation as we were—

Noble Lords:

Oh!

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I applied that to myself, not just to other noble Lords.

"No free man shall be taken or imprisoned or deprived . . . or outlawed or exiled or in any way ruined, nor will we go and send against him except by the lawful judgment of his peers or by the law of the land".

That is Magna Carta and that is fundamentally what we are talking about—the noblest of liberties. That clause inspired the writers of the American Declaration of Independence, and their constitution; that is what we are fighting for. If we go down the road of extending the locking-up of people without trial, we will qualify our own liberties.

It is not as if the police have been phenomenally competent recently. They had—and the intelligence services had—knowledge of the people who blew up the bombs. There have been recent reports of enormous amounts of stop and search, as a result of powers used under the terrorism legislation. We have had no evidence that the actual powers needed must be extended from 14 days to 90 days. The noble Lord made that absolutely clear.

Let us also bear in mind that horrid, beastly, brutal and disgusting though those attacks on the London Underground were, we are not going through the most ghastly of all terrorist occasions. Northern Ireland in the 1970s was certainly far worse, and they did not see the need for those extra powers then.

We have a wonderful country, with wonderful liberties. We have a super place to live in. Therefore let us guard that with every ounce of our souls, because those liberties and that clause in Magna Carta are so important.

I shall end by quoting Kipling on Magna Carta.

"And still when mob or Monarch lays Too rude a hand on English ways, The whisper wakes, the shudder plays, Across the reeds at Runnymede. And Thames, that knows the moods of kings, And crowds and priests and suchlike things, Rolls deep and dreadful as he brings Their warning down from Runnymede!"

Remember that, my Lords.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, I offer sincere congratulations to my noble friend Lord Sewel for a coherent, powerful and, above all, calm, introduction to this debate.

Noble Lords:

Hear, hear.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, I hope it is not wishful thinking on my part to hope that some people who were uncommitted at the start of the debate will have been converted by that powerful argument.

With no disrespect to the noble Earl, Lord Onslow, I think that rather than quoting Kipling, the more appropriate poet to be quoting this evening would be Robert Burns, as the Minister pointed out earlier. I searched through his collected works, but I could find very little about terrorism, so it is difficult to use him in that respect. I do not want to quote too much from the great bard, because I know from experience elsewhere that it causes problems for Hansard reporters. I shall give one quotation, which I use and think about a lot:

"O wad some Power the giftie gie us To see oursels as ithers see us!"

That gift was recently given to me through the power of the noble Baroness, Lady Lockwood, when she pointed out in Committee that perhaps my experience elsewhere had made me a little too strident, political and harsh when we were arguing about 90 days.

A noble Lord:

Never!

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, my noble friends are too kind. If I offended anyone on that occasion, I can only apologise. The reason, however, was that I feel passionately about this. I have genuine concern. That, perhaps, carried me away. I address that to my noble friends in particular, and to the noble Baroness, Lady Kennedy of The Shaws, for whom I have great affection despite not always sharing her views.

The noble Baroness and I were concerned about the way in which the CIA played a part in the downfall of democracy in Chile, getting rid of Salvador Allende. I have been concerned about the way in which intelligence agencies gave support to the Contras in Nicaragua. Notwithstanding the impeccable credentials of the noble Baroness, Lady Ramsay of Cartvale, I am not always inclined to take the word of intelligence agencies. I have no reason to be unduly supportive of the police, some people here might recall. I accept what the noble and learned Lord, Lord Lloyd of Berwick, said: that we do not automatically accept what they say; but we have to give some weight to what they say. I share their concern that the terrorism which the Americans faced on 9/11 and we faced here in London last July is of a different order and type from the terrorism that we have seen in the past. Therefore, different powers are needed to fight it. They are trying to undermine not just our freedoms, but our whole way of life.

That is why I have come around to the view that, for a very few—remember, the noble Lord, Lord Carlile of Berriew, said that it would be only one or two suspected terrorists of a particular type—more time is needed, subject always to that seven-day review by the judge. I say to my noble friend Lady Kennedy of The Shaws that each time it is reviewed after seven days, both sides are able to argue the case for continuation of detention or otherwise. That review by a senior judge is the safeguard.

As the noble Baroness, Lady Ramsay of Cartvale, said, we had a very lively debate on the 90 days, with overwhelming support for it. We were right, however, not to move it on that occasion. We had to take account of the decision of the Commons, where it had already been rejected. However, 60 days—which is almost as effective as 90 days as far as the police and other agencies are concerned—was tabled by Janet Anderson in the Commons, but never debated, called or discussed. I know that she would like the opportunity to table it again. I know, from those I have spoken to in the Commons, that the Commons would like an opportunity to discuss it again. I think we should give them the chance to do so.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 5:45 pm, 25th January 2006

My Lords, my concerns, which I share with my noble and learned friend Lord Lloyd of Berwick, are based on personal experience. I do not want to take up too much of your Lordships' time, but I was probably the only Member of this House who was operating on the streets of Belfast in 1974 when internment without trial was in force, and I was commanding my regiment when the late Lord Merlyn-Rees removed internment—largely encouraged, I think, to do so by the military.

I returned to Belfast in 1978, to command the brigade when internment without trial was no longer in force. The conditions in which we carried out our operations in support of the police had utterly changed. The unwillingness of people to share information and the difficulties in working alongside the population—absolutely essential, as other noble Lords have said, when you are dealing with terrorism—had changed out of all recognition because the law was acting within a period of time, and not an indeterminate one. Although 60 or 90 days is not indeterminate, there is no doubt that, in people's minds, those options very much equate to internment without trial.

Other noble Lords have made the case for civil liberties more eloquently than I. I simply add that problems might be faced by security forces other than the police, and that there is a need not to inhibit them in the same way in which our operations were complicated by the presence of internment in Northern Ireland.

Photo of Lord Joffe Lord Joffe Crossbench

My Lords, in Committee, the debate on the corresponding section for 90 days was curtailed. I did not therefore have an opportunity to speak. Because of that, and because I think that I can add some new facts for your Lordships' consideration, I ask for your forbearance in talking, perhaps, a few minutes longer than I would normally expect to do on Report.

There were many different, passionate views in Committee as to how the detention provisions of the Bill compared with the infamous 90-day legislation in South Africa. As I practised as a human rights lawyer in South Africa in the 1960s, and as most of my clients had been detained under the 90-day law, I can be of assistance to your Lordships in comparing that law with the detention provisions in this Bill, and in drawing attention to some of the lessons that could be learned from the South African experience.

The 90-day legislation in South Africa was introduced at a time when the government feared that the ruling white population was in grave danger from the terrorists, and the police were under increasing pressure to prevent that danger. Broadly speaking, that was not unlike the position in the United Kingdom today. The legislation followed a series of less extreme rules, eroding the human rights of South African citizens with measures such as bannings and house arrest. Again, this is not unlike what has happened here over the past few years, where a series of similar laws—such as control orders, seven days' detention and then 14 days' detention—have eroded human rights.

What is more, the key features of the South African legislation and the Bill are the same. Both allow for detention without trial. Both allow for the interrogation of the detainee through the period of detention. Both place the detainee in the hands of the police, who are authorised to move them from one location to another as they see fit.

In implementing those laws, the South African police, protected by a colluding government and by most members of the judiciary, extracted information and confessions through savage, prolonged and relentless interrogation and denied access to the courts. Some confessed to crimes that they had not committed to be released from solitary detention and interrogation, and testimony from psychiatrists was that some detainees became so disoriented that no reliance could be placed on their statements to the police.

I will not touch on the physical torture of detainees in South Africa as I do not believe that such torture is likely to happen here because of the safeguards in the Bill, and the right of access by detainees to lawyers, audio and video recording of interrogations and the requirement for senior judges to authorise the seven-day detention. There is also the Minister's reassurance that a separate code of practice for detainees will be introduced. While that is a source of comfort, the code will need to be carefully scrutinised because, as is often said, the devil is in the detail.

While those safeguards should protect detainees against physical torture, the pressure of isolation and fear will remain. Experience in South Africa and elsewhere makes it clear that there will inevitably be abuse by some police officers, possibly accentuated by racism, which unfortunately exists to some extent in the police force. The greatest potential for abuse that the safeguards cannot effectively prevent will be the initial detention of innocent detainees.

With regard to the proposed code of practice, will the Minister say whether the families of detainees will have access to them, whether detainees will be kept in solitary confinement and whether the police, after the 28-day original warrant expires, will be entitled to release and then re-arrest detainees for another 28 days, which was the procedure perfected by the South African police?

In addition to the possibility of abuse, another key lesson from the South African experience is demonstrated by the legislation that followed the original 90-day legislation in 1963. In 1965—only two years later—new legislation extended the period of detention from 90 to 180 days. In 1967—only two years later—the law was extended to indefinite detention at the discretion of the commissioner of police. Each time the law was extended, the safeguards, such as they were, were watered down or removed.

One is tempted to say that this just could not happen in the United Kingdom—

Noble Lords:

Hear, hear!

Photo of Lord Joffe Lord Joffe Crossbench

But, my Lords, it is chilling to note how closely our terrorism laws follow the pattern of the South African ones. In 2000, there was detention for seven days; in 2002—only two years later—seven days was extended to 14 days detention. In 2005—only three years later—detention for 90 days was proposed but was reduced in another place to 28 days. But for the reduction from 90 to 28 days, the trend line, if maintained, would have resulted in indefinite detention by about 2012.

The initial 90-days legislation in South Africa met with considerable opposition in the South African Parliament. However, as the government, the police and the white population as a whole became attuned to the concept of detention without trial, subsequent legislation went through with almost no opposition. Helen Suzman—who ironically was appointed an honorary Dame of the British Empire because of her opposition to the laws eroding human rights—was the single MP who opposed the legislation.

Fortunately, unlike in South Africa, there is still great opposition in our Parliament to 90 days and to 60 days. The lesson that should be learnt from the South African experience is that legislation that erodes human rights should be addressed with the greatest care and deliberation. Where there is doubt—as there clearly is about the length of detention—such doubt should be resolved. We should err in favour of the law as it exists, remembering that the procedural safeguards in our law have been built up over centuries precisely because there can be no confidence in the operation of justice if those safeguards are not observed.

It is correct to say that there may be risks in not going from 14 to 60 days or 90 days just as it could be argued that there may be risks in not immediately going to indefinite detention. But risks must be taken in defence of human rights and the rule of law, as is being demonstrated by the risks to which we are putting our Armed Forces in Iraq, in order to introduce democracy and the rule of law into that divided country. If there has to be a further erosion of human rights to protect the public, I would support an arbitrary 28 days rather than an arbitrary 60 or 90 days.

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

My Lords, I suspect that all of us are pretty familiar with the arguments around this issue of where the balance ought to lie between individual rights to liberty and the collective rights to security. However, I am bound to say that, unlike the noble Lord, Lord Joffe, I do not think that the situation in this country in 2006 is remotely like South Africa under apartheid. There is no white minority suppressing a black majority. Everybody over the age of 18 who is not in prison has a vote. We are all equal under the law. We have equal rights legislation, which protects us in respect of gender and race, and we now have religious protection for all. Our police are controlled by civil authorities who are elected by all the people of this country. Whichever party is in government, whether it is this side of the House or that side—or even the other side of the House—we live in a good and decent country. To draw the analogy with South Africa is a great shame.

Like many others, I have enormous sympathy with those who support the argument for 28 days. None of us wants anyone languishing in custody who should not be there. All of us recognise the enormously powerful arguments of the noble Lord, Lord Condon, when we discussed this in Committee, about the risks of fracturing our society if we allow a situation to develop that can adversely affect a particular group of our citizens.

I am sure that each of us has struggled with what we believe is right. When I first became a Minister in the Foreign Office I remember the principles that guided the decisions that all Ministers have to take when dealing with matters that impinge on international affairs. The truth is that the first duty of any state is the security of its citizens. The noble and learned Lord, Lord Lloyd of Berwick, said that it was an argument about security of the state. Not for me. It is an argument about the security of people—not the security of state institutions, but the security of real people.

Security is not the only duty. The promotion of democracy, human rights and the rule of law are all vital—I use that word advisedly. They are vital, but governments, democracy, human rights and the rule of law do not flourish without proper security. Security is the first prerequisite, without which all those other vital components do not take root, and certainly do not flourish.

As the noble Baroness, Lady Park, remarked, I spoke in Committee about my experiences in dealing with these issues as a Minister, and about dealing with other jurisdictions, which are sometimes very different from our own, and when time to argue cases over individuals is vital. I shall not run though those arguments now, but they are compelling. It takes a great deal of time, even when dealing with a friendly jurisdiction, let alone one that is a little less friendly than it might be.

The noble and learned Lord, Lord Lloyd of Berwick, said that it was easy to paint the picture of 7/7, but that it was less easy to picture the misery of those who are held without charge for 60 days. I found that equivalence entirely misplaced. A lost life is a life lost for ever. Sixty lost days are, indeed, dreadful when they are lost unfairly. But it is 60 days, not 60 years. Furthermore, the 60 days are reviewed every seven days, unlike 60 years of a lost life which will never be reviewed at all.

The noble and learned Lord, Lord Lloyd, said that there is no other country that uses this period of detention. I am sure that he is right. As I understand it, however, there are other jurisdictions where individuals are charged with minor offences and held for lengthy periods while the authorities draw together the evidence for the substantive charges of terrorism that follow. I wonder whether the noble and learned Lord really does believe that somebody languishing unfairly for 60 days with a review every seven days is treated so much worse than somebody held on a minor charge that everybody recognises is an artificial charge while the substantive charges are drawn together.

The noble and learned Lord went on to ask why ACPO did not make these points in 2003. I cannot answer that because I do not speak for ACPO. But I know that in the past two and a half years our experience of dealing with terrorism has developed enormously. We have recognised the problems of dealing with foreign jurisdictions that I indicated when we last discussed this and we recognise those far more clearly. My practical experience was in the years 2003 to 2005. My position is not—as the noble and learned Lord indicated that he thought ACPO's position was—a reaction to 7/7, because my ministerial experience ceased before that date.

I do not believe that if the terrorists who attacked this country on 7/7 had had the opportunity to kill hundreds or thousands they would not have taken it; they certainly would. Our first duty here, as legislators, is to innocent people of all races and all religions. Nobody has spoken about their human rights and their right to life. That right has to take precedence here. The noble and learned Lord, Lord Lloyd, was quite right when he used the words "fundamental rights". The right to life is the most fundamental of all. I believe that our first duty is to keep those people safe. It is not to take risks with their safety. We have a better chance of doing that by supporting the amendment tabled by my noble friend Lord Sewel than we do by sticking with 28 days.

Photo of Baroness Elles Baroness Elles Conservative 6:00 pm, 25th January 2006

My Lords, I support very much the speech made by the noble Baroness, Lady Symons. As she knows, terrorism now is not just in Northern Ireland by Northern Irish citizens or Irish citizens or in England just by English citizens. It is international terrorism that we have to fight. We must take the necessary measures against people who allow their own co-terrorists to be killed as suicide bombers while they themselves live in luxury in a completely different part of the world. We should be supporting the amendment tabled by the noble Lords, Lord Sewel and Lord Imbert. I shall mention only one point: the problem that it can take up to 60 days to decrypt messages. Terrorists are using complicated systems to converse with each other across the world. How can you put somebody on charge within 28 days when you cannot get the evidence and when you cannot get even the opportunity of applying for up to 60 days in order to do so? I support the amendment.

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

My Lords, I was delighted to hear that Rabbie Burns was to be the poet of the day, given that his birthday is tomorrow. I was surprised that my noble friend Lord Foulkes did not find anything pertinent to this debate. It is true that there is no reference to terrorism, but there is reference to the rights of man. In the poet's work there is a great poem called "A Man's A Man For A' That". In it, Burns says very rude things about Lords, I am afraid. In fact, he says:

"Ye see yon birkie, ca'd a Lord", and says some very unprepossessing things about the word birkie, meaning a fool. I do not know who he might have been referring to, and whether there is anyone who would fall under that description in this House. But he had a low opinion of Lords because he felt that we should not value Lords any more than anyone else when it came to the issue of rights.

Burns was actually taking up the work of Tom Paine. We should be very proud of the fact that human rights had their beginnings here in Britain, in our culture and within our legal framework. The common law has always espoused human rights. So, when we talk of them, they are not some foreign import but something deep in the bowels of our own system. My noble friend Lady Symons says that we are debating the great balancing act between individual rights to liberty as distinct from collective rights to security. All I would say is that individual rights to liberty inevitably are about our collective rights too, because liberty is precious and important to all of us not only as a community but as individuals.

In this debate we are looking at the abandonment of something very important—the necessary protections of liberty. It is right that when exceptional circumstances arise, such as terrorism, we may have to look again. But in the past few years, since 11 September, we have seen a quadrupling of the previous extended provisions for dealing with terrorism. A period of seven days is exceedingly greater than the period that we apply in normal crimes. As your Lordships know, the period of seven days was extended in 2003, not very long ago, to 14 days. Now it will be extended to 28 days. We have already seen the period multiplied fourfold. In Committee, the noble Lord, Lord Condon, who has great experience as a police officer, said that we should see how that goes before we start leaping in to holding a person for three months.

I ask noble Lords to bear in mind that, around the world, we are looked to as regards this business of liberty and how precious it is. As the noble and learned Lord, Lord Lloyd, mentioned, Louise Arbour, who is now the United Nations Commissioner for Human Rights, sent a letter to our Ambassador to the United Nations raising deep concerns about this legislation. She was a Supreme Court judge in Canada and before that a prosecutor at the International War Crimes Tribunal in The Hague. She knows the law from all sides. She pointed out how this matter affects human rights issues around the world, for we are at the forefront in saying to the world that standards have to be set even when dealing with what people call terrorism. We know that as soon as we give sanction to the ready detention of people in places such as Zimbabwe, Putin's Russia or Uzbekistan because they are terrorists, we are giving licence to worse being done. We will be pointed to as leaders in this field. We therefore have to do this with great caution, not only because we are concerned about the safety of our own country but because we are concerned about the safety and standards in our world. We should take that seriously.

I am grateful to the noble Lord, Lord Imbert, for correcting information that he gave to the House about the alleged conspiracy concerning ricin. All those who were charged were acquitted. In correcting him by pointing out that it was not a ricin trial because of those acquittals, I was asking him to correct the impression that an extension of time would have allowed for further investigation and might have created a different outcome. That is not the case.

There was no issue concerning extended times in that case where it might have made the difference. He gave the example of someone being granted bail and leaving the jurisdiction before proceedings took place. The impression may have mistakenly been given that granting bail was related to time limits. It was not. The concern that I have is that we have no evidence on which to say that extended time limits would have made any difference to any of the cases that we have so far dealt with. So I return to what the noble Lord, Lord Condon, said, which is that we are here about to do something radically different in the protection of citizens. We are about to remove the normal standards and to detain people for 28 days. Let us see how that goes before we do something as damaging to our legal system and to the rights that we all hold dear by extending this to 60 days. So I ask that we proceed with caution because the whole issue of liberty is so precious to us all and we should go with care and with concern for what the outcomes might inevitably be.

Photo of Lord Condon Lord Condon Crossbench

My Lords, the noble Lord, Lord Sewel, set out most eloquently and fairly the case for the amendment today. He equally fairly said that there are no right or wrong answers in this debate. It is ultimately a question of judgment and that is a judgment that we all exercise, I hope, sooner rather than later this evening. I will add briefly to the comments I made in Committee. We are talking about a small number of cases here. The noble Lord, Lord Carlile, who is not in his place, said that perhaps in one or two cases the detention up to 90 days would be beneficial. If we grant detention beyond 28 days, we will not be giving the police or the intelligence services a greater chance of preventing another act of terrorism, because by definition this will come into play only once an arrest has been made and a potential act of terrorism has already been interdicted. So what is at stake? In one or two cases, do we want the police and the prosecutors to have a slightly better case of ensuring a prosecution? That is what the battleground is about. My concern is that for the sake of increasing the chance of one or two prosecutions, we are sacrificing some very fundamental human rights. That is what is at stake and that is the judgment you will make. My judgment is that I am not prepared to take that risk at this stage because the battle against fundamental Islamic terrorism is a battle that will last for decades and perhaps even centuries. It is a battle for hearts and minds as much as for one or two prosecutions. So although I respect all the noble Lords who have spoken so eloquently in favour of the amendment, at this stage I will find difficulty in supporting 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

My Lords, in this extremely important and interesting debate, we have had the personal experience of the noble Lord, Lord Ramsbotham, at a time when he was engaged in curbing terrorist activities in Northern Ireland. He has emphasised to your Lordships the importance of working alongside the population and how the introduction of detention without trial undermined that critical weapon that he had in his armoury. We have just heard from the noble Lord, Lord Condon, with all his experience as Metropolitan Police Commissioner, who has told your Lordships that we are sacrificing some very important human rights if we go along this road. The noble Lord, Lord Joffe, has told us of his personal experience of the effects of the 90-day law in South Africa. You cannot beat these experiences that have been told to us today from the point of view of persuading us what course we should take. I simply want to address one aspect of the case where I think some of your Lordships may be a little misled. The noble Lord, Lord Imbert, when he spoke on 13 December, said:

"To allow 14, or even 28 days, for a major and complex inquiry is woefully inadequate".—[Hansard, 13/12/05; col. 1164.]

Today, the noble Baroness, Lady Park, asked whether that period of time was practical. The noble Baroness, Lady Ramsay, said that it is totally inadequate to meet the needs of the police.

I would entirely agree that if an investigation were to be crammed within 14 or 28 days, it would be "totally inadequate". But a police inquiry does not begin with the arrest of an individual and end with the charge. These are important moments within a spectrum of activity which starts with the initial suspicion that begins the inquiry. It would be highly unusual for a suspect in a terrorist case to be arrested immediately after the suspicion first arose. An arrest would be unlikely to be triggered by an anonymous phone call. If the police hear that a person may be a terrorist, they are naturally anxious to build up a case and to find out with whom he is in contact and what the tendrils are of any conspiracy that there may be. So by adopting methods of surveillance: by bugging his home and car and monitoring his telephone and e-mail traffic, they will obtain evidence.

They may very well make the sort of inquiries abroad that the noble Baroness, Lady Symons, referred to. The concept of making inquiries abroad within a 14-, 28-, 60- or 90-day period is quite impossible. It obviously cannot be done. But inquiries are made abroad before arrest and they are made after arrest, to fulfil that type of inquiry. Arrest of a suspect obviously brings these investigations by way of surveillance to a full stop. But it also gives certain rights to a suspect—rights to consult a lawyer—and in the short period that elapses until he is charged, when he is interrogated, an opportunity for him to give his side of the case. When he is charged he has the right to know exactly what is said against him.

Although arrest prevents surveillance and evidence of that sort, it does give an opportunity, for example, for specimens of blood to be taken from which DNA can be extracted; for taking fingerprints; and for obtaining other important scientific data. There may be searches of premises that are associated with him, which will produce reading matter, documents, hard disk drives, perhaps chemicals and even explosives. And there will be interrogations. Specimens will be forwarded to the appropriate laboratory for examination and analysis. This is not done within a 14 or 28-day period. It is a continuing investigation. Arrest and charge have different implications from placing boundaries around the police operation. No one can be arrested unless there are reasonable grounds for suspicion—that is a basic principle. A person suspected of an offence must be immediately cautioned. It is interesting to look at the provisions of code G on caution. Code G states:

"There must be some reasonable objective grounds for the suspicion, based on known facts or information which are relevant to the likelihood the offence has been committed and the person to be questioned committed it".

Those are the directions given to the police. Do not arrest until you are at that level of investigation. The suspect is taken to the police station, he is told his rights, and he is then interrogated.

Charging, which follows interrogation, is in serious cases the responsibility of the Crown Prosecution Service, which will consider whether there is enough evidence and whether it is in the public interest. If there is enough evidence, it must charge. It cannot keep a person in custody without charging him if it has sufficient evidence. It follows that if a person is held in custody without charge, there is not sufficient evidence against him to make a case, and if a person is to be detained for 60 days without charge, it is because at no time during that period is there enough evidence to charge him.

The point was made that questioning must stop on charge. That is not correct; questioning may continue if it is in the public interest, for the prevention of harm to the public. Noble Lords should have in mind the spectrum from the beginning of an investigation all the way up until the trial; arrest and charge are merely important incidents on that spectrum. We are all agreed—are we not?—that imprisonment without trial is the weapon of the tyrant.

The Supreme Court in the United States said in June 2004:

"The point at issue in this case is nothing less than the essence of a free society. If this nation is still attached to the ideals symbolised in its flag, it must not use the weapons of tyrants to resist an attack by the forces of tyranny".

We must not introduce imprisonment without trial in the face of the forces of tyranny.

Photo of Lord Henley Lord Henley Shadow Minister for Constitutional Affairs & Legal Affairs, Constitutional Affairs 6:15 pm, 25th January 2006

My Lords, I intervene because I suspect that many in the House would be grateful to move to a resolution of this issue soon. We have already devoted over an hour and a half to the issue today and over two hours to it in Committee. I have a sneaking suspicion that the sooner we can hear from the noble Baroness, Lady Scotland, the happier most of the House will be.

There is one item on which I was in total agreement with the noble Baroness, Lady Symons. I think that I quote her correctly as saying that all of us are pretty familiar with the arguments. After over three and a half hours, I think that now is the time to bring this debate to an end. I hope that noble Lords who were trying to intervene would feel happier if, after I had spoken, we moved on to the noble Baroness's speech and tried to resolve this matter.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

My Lords, I hesitate to intervene when the noble Lord is clearly trying to stop other people speaking. I would have hoped that, as suggested, everyone was familiar with the arguments. This is a House of experts and many expert views have been expressed; for example, the noble Earl, Lord Onslow, whose knowledge and expertise on policing is renowned, said that nothing had been stated about why the police wanted extra time. The noble Lord, Lord Imbert, referred to that briefly before the noble Earl's speech, but I suspect that it is one of the issues that we have not addressed during this debate.

Photo of Lord Henley Lord Henley Shadow Minister for Constitutional Affairs & Legal Affairs, Constitutional Affairs

My Lords, obviously, like the noble Baroness, Lady Scotland, I am in the hands of the House on this matter. I intervened because I sensed that it was time to move to a resolution of the issue—I think that I have the support of some of your Lordships—because we have now been discussing it for jolly nearly four hours. By the time I have made my brief remarks and the noble Baroness has spoken, it will certainly be over four hours. As the noble Baroness, Lady Symons, put it, we are all pretty familiar with the arguments. I will therefore be very brief in running through the lines which I took when we debated this for over two hours in Committee as to why it is wrong to move from 28 days to 90 days—or, for that matter, the extension to 60 days proposed by the noble Lord, Lord Sewel.

First, we believe that it is wrong in principle; it is equivalent to a six-month custodial sentence and tantamount to imprisonment. Okay, we have moved from seven days to 14 days to 28 days, but a further move to 60 or 90 days would be much greater; therefore, one can argue that it is wrong in principle.

Secondly, it is arguable that it is contrary to Article 5.3 of the European Convention on Human Rights. The noble Lord, Lord Carlile, said in his report:

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

The same would apply to 60 days; some have argued that even 28 days might be a breach. I understand that the noble and learned Lord, Lord Steyn, has also stated that it could be in breach of Article 5.3. We have even heard rumours that the noble and learned Lord the Attorney-General has expressed certain doubts, but perhaps the noble Baroness can touch on that in due course.

Thirdly, as argued today by others better qualified than me, the provision could be a recruiting sergeant for terrorists. Even one case of an individual being detained for three months would cause further radicalisation in the community.

Fourthly, we believe that the problems highlighted by the police relate just as much to resource and not to law. Intelligence, not legislation, is the key to successful counter-terrorism, a point made very effectively by my noble friend Lord Hurd and others at Second Reading and re-emphasised by the noble Baroness, Lady Kennedy, in Committee.

Fifthly, there are alternatives. We could amend the bail or police and criminal evidence provisions to get the accused back for post-charge questioning having imposed control-order-style conditions on him. That was a suggestion from Liberty.

Sixthly, there is the alternative of charge with a lesser offence and in the mean time gathering alternative proposals.

The key argument against 60 days' detention is that it is Parliament's duty as the legislature to temper the demands of the various parts of the executive and its agencies—in this case, the police—and not to accept their demands without question. Blind reliance on advice from any government agency is not a healthy way of legislating. The Government's central argument, repeated today, was that they were acting on police advice. The issue of balance between public security and the rights of individuals is for Parliament not the police. My noble friend Lord Hurd articulated that at Second Reading as follows:

"But 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, 21/11/05; col. 1402.]

I hope that the House will resist the amendment in the name of the noble Lord, Lord Sewel.

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) 6:30 pm, 25th January 2006

My Lords, yet again, we have had an extraordinary debate in which there have been some very powerful speeches. I reassure the noble Lord that when the Government put forward the 90 days proposal they did so because, on the evidence placed before them from all sources, that was the Government's view on the most appropriate response that should be made to keep this country safe. The evidence was powerful; it was referred to extensively in Committee. Today we have had it highlighted once again in some very powerful speeches, not least that of the noble Lord, Lord Sewel, who opened the debate in an exemplary manner.

Noble Lords who have said that there is no one perfect solution to the conundrum in which we as a nation find ourselves are quite right. There is a huge debate, a proper debate on where the line should be drawn between the security and safety of our people as a nation and the rights and freedoms that we as individuals have rightly come to expect. All those voices that have argued that individual freedom should not be capriciously or inappropriately curtailed are right. That principled approach has been maintained in the stance taken by the Government. This Government, contrary to what some may assert, have been unfailing in their adherence to the rule of law and to the promotion of individual civil liberties. We have seen that in the introduction of the Human Rights Act, the data protection legislation, freedom of information legislation and many other provisions that have been brought forward under this administration. I hope no one in this House doubts that the Government have taken these issues very, very seriously indeed.

We also take into account the concerns that have been so powerfully expressed by my noble friend Lady Kennedy of The Shaws, among others, and the words of the noble Lord, Lord Condon. However, we know from the evidence that we have that it would be right to look at practitioners such as the Assistant Commissioner, Andy Hayman, who, as the most senior anti-terrorist police officer, has the current onerous responsibility of discharging, on behalf of our country, the security investigations that are necessary to keep us all safe. That evidence is powerful and cogent.

The Government, as your Lordships know, argued strongly in the other place that 90 days was the appropriate time for investigations to take place. Taking on board the things that were said by a number of my noble friends, not least by my noble friends Lady Symons and Lady Ramsay and others, that is to be reviewed appropriately every seven days. However, the other place spoke. It did not agree with the proposals put forward by the Government. In the other place, my right honourable friend the Home Secretary undertook that the Government would not seek to overturn that decision and I do not resile from that tonight. This side of this House has a free vote. Your Lordships will have to decide how that is exercised. Noble Lords opposite will take their own course. I should make it plain that I and those who sit on the Government Front Bench will not vote on this matter. We will abstain.

I shall answer a few questions that have specifically been raised with me. There was the suggestion that the provisions now before your Lordships are simply a response to the events of 7 July. I make it plain that they are not. Noble Lords will remember that we had a number of debates before 7 July when these issues were contemplated and we agreed that we would bring forward legislation as soon as reasonably practicable to consider these matters. We also argued on a number of occasions that the circumstances in which we found ourselves in 2005 were very different from the circumstances that had prevailed two or three years earlier and that we would need to respond creatively to those changes. The Government would argue that the proposals that we put forward are proportionate and right.

I reject absolutely any suggestion that this country and what we have done could properly and fairly be compared with the situation that prevailed in South Africa.

Photo of Lord Joffe Lord Joffe Crossbench

My Lords, I want to make it absolutely clear that never for a moment did I compare the UK Government with the South African Government. I compared the similarity in the legislation that they have both passed. There is no comparison whatever between the South African Government, who were evil, and the British Government, who are a fine government.

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)

My Lords, I thank the noble Lord for that very generous acknowledgement. I say to him that even in terms of the 90 days, the comparison cannot be made because here we have the Human Rights Act and we have a vibrant and robust judiciary which has demonstrated time and time again its resilience, courage and independence and it has not hesitated to disagree when it felt it was appropriate.

I say to the noble Earl, Lord Onslow, that unfortunately I fundamentally disagree with him on the comments that he made about the way in which our police forces have responded in these very difficult times. We need to honour what they have done on our behalf. The strenuous efforts that they have made, and continue to make, make this country a safer and securer place than if we had many of the police constabularies that other countries have. I say as strongly as I can on behalf of the Government that we thank and applaud the police for the efforts that they make on our behalf.

It is now for the House to determine what stance it wishes to take on these matters. The House should understand that the Government's position was that the 90 days was the right balance.

Photo of Lord Sewel Lord Sewel Labour

My Lords, I thank all noble Lords who have spoken in this debate because by doing so they have helped the House to reach its final judgment. After I do not know how many hours—I cannot do the sums quickly enough—of debate in Committee and today on Report, I think we know the arguments on both sides of the matter. In a way, we finish up where we started, recognising that it is an enormously difficult matter on which to strike a balance and on which to exercise judgment on where the balance should be drawn. That is why we owe it to ourselves to exercise our own individual judgment.

One other factor is worth stressing. Because of the importance of the issue that we face, it is worth recognising that the other place, being the supreme House in this Parliament, did not have the opportunity to vote on the issue that we are voting on tonight. By voting for this amendment noble Lords are doing no more and no less than allowing the test to be made whether a majority exists in the other place for 60 days. I believe that is the right course of action. I seek the view of the House.

On Question, Whether the said amendment (No. 77) shall be agreed to?

Their Lordships divided: Contents, 108; Not-Contents, 210.

Division number 2 Private Parking: Ports and Trading Estates — Terrorism Bill

Aye: 106 Members of the House of Lords

No: 208 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Clause 24 [Grounds for extending detention]:

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 6:52 pm, 25th January 2006

moved Amendment No. 78:

Page 24, line 35, at end insert—

"( ) In paragraph 32(2) (meaning of "relevant evidence"), for "sub-paragraph (1)" substitute "this paragraph"."

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

My Lords, this is a simple amendment and it will not detain the House for long. As the House is aware, Clause 24 seeks to put beyond doubt the grounds for extending detention of terrorist suspects under the Terrorism Act 2000. As was explained in Committee, the purpose of Clause 24 is to do no more than clarify what we had always believed to be the position but was called into doubt by a case in Northern Ireland. The clause accordingly makes it clear that the police may hold a suspect pending the result of examination of relevant evidence or the examination or analysis of something carried out with a view to obtaining relevant evidence. Amendment No. 78 is a consequential amendment stemming from the changes made to Clause 24. I beg to move.

On Question, amendment agreed to.

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

had given notice of his intention to move Amendment No. 79:

After Clause 25, insert the following new clause—

"INTERCEPTION OF COMMUNICATIONS

(1) The Regulation of Investigatory Powers Act 2000 (c. 23) is amended as follows.

(2) In section 5(3)(b) for the words "or detecting" substitute "detecting or prosecuting".

(3) In section 17(1) after the words "Subject to section 18" insert "and section 18A".

(4) After section 18 insert—

"18A EVIDENCE

(1) Notwithstanding section 17, evidence of—

(a) the contents of an intercepted communication, and

(b) communications data, shall be admissible in criminal proceedings to which this section applies.

(2) This section applies to—

(a) proceedings in respect of serious crime;

(b) proceedings in respect of an offence or offences relating to terrorism.

(3) An application for permission to introduce such evidence may be made by the prosecution for the purposes of conducting a criminal prosecution to which this section applies, and not otherwise.

(4) Unless and until an application has been made by the prosecution in any such proceedings, the provisions of section 17 shall continue to apply in connection with those proceedings.

(5) In deciding whether to admit evidence under this section, the court shall take account of all relevant considerations, including in particular—

(a) any application by the Secretary of State to withhold the evidence or part of the evidence on the grounds that its disclosure, or the disclosure of facts relating to the obtaining of the evidence, would be contrary to the public interest, and

(b) any submission that the evidence was obtained unlawfully.""

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

My Lords, at Second Reading and in Committee, we were told that the Government were considering the interception of communications and whether such evidence should be admissible. We were also told that their response would be available by the end of 2005. We have not yet had their response. In those circumstances, it does not seem worthwhile arguing the point yet again until we know what the Government think. Therefore, I do not move the amendment now but hope to be able to do so when we consider later in the Session the Prevention of Terrorism Act 2005.

[Amendment No. 79 not moved.]

Clause 28 [Search, seizure and forfeiture of terrorist publications]:

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)

moved Amendment No. 80:

Page 28, line 38, leave out "mentioned in subsection (1)(a) to (e)" and insert "falling within subsection (1A)(a) to (e)"

On Question, amendment agreed to.

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. 81:

After Clause 29, insert the following new clause—

"COUNTER-TERRORIST POWERS

(1) Part V of the Terrorism Act 2000 (c. 11) (counter-terrorist powers) is amended as follows.

(2) In section 44 (authorisations)—

(a) in subsection (3), for the words after "if" to the end, substitute "the person giving it reasonably considers it to be necessary for the prevention of acts of terrorism";

(b) after subsection (3) insert—

"(3A) The area or place specified in the authorisation may not be greater in extent than is necessary for the purposes of the authorisation."

(3) In section 46 (duration of authorisations)—

(a) in subsection (3), after "practicable" insert "and in any event within 24 hours";

(b) for subsection (7) substitute—

"(7) An authorisation may be renewed on one occasion only by order of a circuit judge on application by the person who gave it or by a person who could have given it.";

(c) after subsection (7) insert—

"(8) If satisfied that it is necessary for the prevention of acts of terrorism, a circuit judge may make an order under subsection (7) for a period not exceeding three months and may by such order vary the extent of the area or place specified in the authorisation."

(4) After section 46 insert—

"46A PUBLICITY

The Secretary of State shall publicise without delay and in such manner as he considers appropriate, the confirmation, cancellation or renewal of an authorisation under sections 44 and 46.""

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 Lords, in moving the amendment, I do not propose to put it to the House at this stage. It builds upon the attempt by the noble Baroness, Lady Kennedy of The Shaws, to put some limits on the power of the police to stop and search under Section 44 of the Terrorism Act 2000. The purpose of the amendment is to ensure that the powers can be granted only where it is reasonably considered to be necessary and that the area or place specified in the authorisation may not be greater in extent than is necessary—in Committee, we heard that the whole of the Metropolitan Police area was said to be designated as a place where stop and search can occur. Finally, we seek to have some control by a circuit judge of the procedure and publication of the confirmation, cancellation or renewal of an authorisation that has been made under Sections 44 and 46. The amendment builds on the amendment of the noble Baroness, Lady Kennedy. It is subject to discussions with other parties. I do not propose to take the matter further today.

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)

My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for indicating that he does not intend to pursue the issue. I do not know whether he would find it helpful if I were further to explain why we think that Section 44 of the Terrorism Act is well used at present or whether he would think that that was an unnecessary encumbrance on the House.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, before the Minister responds to the degree she feels appropriate in the circumstances, perhaps I may ask the noble Lord whether this is a matter to which he will return at Third Reading.

Amendment, by leave, withdrawn.

Clause 33 [Disclosure notices for the purposes of terrorist investigations]:

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

moved Amendment No. 82:

Page 33, line 20, at end insert "other than an offence under section 1 or 2 of that Act"

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

My Lords, the amendment is straightforward. It seeks to replicate amendments in Clause 37(1) of the Terrorism Bill which amend the definition of a terrorist investigation in the Terrorism Act 2000. Clause 37(1) amends the definition of a terrorist investigation in Section 32 of the Terrorism Act to include investigations both under that Act and under this Bill. Section 32 of the Terrorism Act 2000 defines a terrorist investigation and confers certain powers on those conducting terrorist investigations such as the power to establish and exclude people from cordons. I am sure that noble Lords will agree that these powers should also apply to most of the new offences in Part 1 of the Bill. However, there is no need for the offences created by Clauses 1 and 2 of the Bill to attract these powers. To put it simply, the police are unlikely to need to establish a cordon to deal with the alleged case of encouraging terrorism.

Clause 37(1) excludes from the definition of terrorist investigation any investigations conducted in relation to Clauses 1 and 2 of the Bill. Accepting that principle, this amendment ensures that this exclusion also applies to the corresponding definition of terrorist investigations in Section 60(7) of the Serious Organised Crime and Police Act 2005 as inserted by Clause 33(2). The amendment ensures consistency. I beg to move.

On Question, amendment agreed to.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative Independent 7:00 pm, 25th January 2006

moved Amendment No. 82A:

After Clause 35, insert the following new clause—

"AMENDMENT OF PREVENTION OF TERRORISM ACT 2005

(1) After paragraph (p) of section 1(4) of the Prevention of Terrorism Act 2005 (c. 2) (power to make control orders) insert—

"(q) a prohibition or restriction on his acquisition of specified property or assets (including intellectual property) or his use of rights enjoyed in respect of specified property or assets (including intellectual property);

(r) a requirement on him to dispose of specified property or assets (including intellectual property) whether by sale or otherwise;

(s) a requirement on him to disclose whether he has disposed, or is in the process of disposing, of specified property or assets (including intellectual property) whether by sale or otherwise, and, if so, to whom that disposal was made or is proposed to be made;

(t) a requirement on him to disclose whether he holds specified property or assets (including intellectual property) in trust for, or under any other fiduciary obligation to, any person or institution and, if so, what the terms of that trust or fiduciary obligation are and the identity of any beneficiary or principal."

(2) After subsection (8) of section 1 of that Act insert—

"(9) The references to property or assets in subsection (3)(q), (r) and (s) include references to property held by the individual as a trustee or under any other fiduciary obligation.""

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative Independent

My Lords, this is the same amendment as moved by my noble friend Lady Cox in our committee proceedings on 20 December at columns 1653 to 1659 of Hansard. I am moving it again at her request because she is being installed as chancellor of Liverpool Hope University—which I gather is our first specifically ecumenical university—and so cannot be with us today.

The amendment speaks for itself and was debated at length on 20 December. Its main purpose is to make sure that a person cannot carry out conduct for purposes connected with terrorism, as per Clause 5 of the Bill, through his control of a company or other asset which gives him influence with or access to sensitive sites in this country or to our industrial, commercial and charitable infrastructure. A particularly worrying example was cited by my noble friend Lady Cox and me at Second Reading on 21 November last year; we were joined by my noble friends Lady Park of Monmouth and Lord Elton in Committee. We all appreciate that the Minister cannot comment on particular cases, but it would be hard to think of a more worrying example of what the amendment seeks to cure than the case we have quoted—indeed, it is the inspiration for the amendment—although we fear that there may be other examples.

We are not yet convinced by the Minister's claim that the amendment is unnecessary because its purpose is met by existing legislation; nor are we convinced that the control order provisions of the Prevention of Terrorism Act 2005 cannot be extended in the way suggested by the amendment. If we are wrong about that, then we must ask the Government to devise another way of bringing this amendment into law, if it is not clearly covered elsewhere, and as soon as possible.

If the Minister is right and the amendment is unnecessary because it is met elsewhere, perhaps I can ask her to let the House know exactly where. I should emphasise that we are not interested in existing powers to deal with money laundering or the possession of cash and valuables, which she raised in Committee. As I have mentioned, we are interested principally in major shareholdings giving the power to elect and dismiss directors and to influence employment strategy.

There is one other question which the Minister did not appear to clear up in Committee: that is, whether vetting for the employees of contractors serving sensitive or important sites is generally carried out by the employer or by the contractor. The example I gave in Committee was the cleaning contract in your Lordships' House. I ask the question again—surely the answer cannot be a state secret. The same goes for surveillance and security contracts here and for our nuclear power stations, the courts of justice, New Scotland Yard, our Armed Forces establishments, Canary Wharf, British Airways, Texaco and other blue chip companies.

The Minister will be relieved that I am not here asking a specific question about the specific companies mentioned previously. I am asking the general question: are the employers in such examples responsible for vetting or are the contractors? Or is the answer that no one is responsible for vetting the personnel of such contractors? Unless she is entirely clear about these answers, I urge the noble Baroness to accept the amendment. What harm can it do? I look forward to her reply. I beg to move.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, the House has spent many hours debating how best to counter the threat to our country that may arise from the acts of individual terrorists, particularly those who are part of, sustained and even created by international terrorist groups. We have been trying to counter the attacks through the front door and forgetting the back. The noble Baroness, Lady Cox, who has had more direct experience than most of us of contemporary terrorism in, for instance, the Sudan and Indonesia, is not able to be here. She has shown us the threat at the back door and in the basement.

It cannot make sense for two firms to be responsible between them for such a comprehensive group of our most sensitive national institutions—Parliament, MoD bases, 11 nuclear power stations, British Airways, Texaco and so on. It is an additional cause of concern that these two particular firms are owned by a man with known and close links with a militant Islamic African country, the Sudan. But we ought, I suggest, to be concerned whoever the owner is. This is too much power concentrated in one place. The elaborate protective devices installed round this House make little sense if we have a potential long-term unidentified enemy within.

Nevertheless, we can hope for a statement from the Government about this issue. I suggest that we should not neglect the potential enemy or allow unfettered access and more control to two firms only. We should not do that; that is asking for serious trouble. I believe that we ought to have some sort of commitment that an inquiry and review will take place to establish effective safeguards, and preferably that the present monopoly will be broken. I fully recognise that this is far too delicate a subject on which to expect any further answers, but I do hope for that.

Photo of Lord Elton Lord Elton Conservative

My Lords, I support the amendment. I will only touch on the grounds for doing so because they have basically been stated. The concentration of power in an individual—or, indeed, an organisation—responsible for essential organs for the survival of the state is an obvious risk whoever holds it. It seems to me that that raises two questions. The first is the question addressed by the amendment about the holding of a predominant, majority shareholding in a security organisation responsible for the protection of such bodies. The other question is whether any such company should hold contracts on a very large percentage of the machinery necessary to keep this country going. That question is not addressed by the amendment.

I hope that the earlier debate and the return of this amendment at this late and ill-attended hour is sufficient to bring home to the Government that this is an issue which sane and reasonable people who have held the same office as the noble Baroness regard as very real. It should not be brushed aside as belonging in the realms of fiction. Governments dealing with terrorism have to think outside the box. That is not easily done in this red leather Chamber, where everything has been done in roughly the same way for hundreds of years. Something quite unusual is required, and if that has to take place with my noble friends behind the office door of the noble Baroness, I shall be content with that—provided that I am content with the expression they wear when they come out of her office.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, I share the views expressed by all three previous speakers. The nature of the threat to our security was well ventilated in Committee. In my submission, there is no doubt that companies which carry out contractual work for our basic infrastructure, where there is a suspicion that they might be controlled by someone with terrorist intentions, ought to be properly supervised by the executive arm of government.

I want to put two questions to the Minister. First, does she accept that this threat exists? Secondly, if she does, does she believe that the existing legislation on the statute book adequately covers the issue? Or does she think that some future legislative form other than this Bill—because clearly she does not believe that this Bill is the appropriate vehicle—might cover the problem?

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)

My Lords, I thank the noble Lord, Lord Pearson of Rannoch, for moving the amendment. I quite understand the delightful reason why the noble Baroness, Lady Cox, is not here, and we send her our congratulations.

Nothing that has been said this evening would cause me to want to change the answers that I gave on the previous occasion. But because of the nature of the concerns that have been raised, I think it would be useful if I answered the debate more fully than I would otherwise be minded to do at Report.

The noble Lord, Lord Pearson, asked who was responsible for vetting employees. If a business wins a contract within the critical national infrastructure, the employer is responsible for conducting the vetting, but it must be done in compliance with procedures overseen by the contractor—that is, the Government. I shall outline why it should be done within that structure. The last time we discussed this, I was very grateful to the noble Lord, Lord Kingsland, for outlining what he described as the acid test for the amendment. He said:

"The Committee needs to know whether the existing legislation is adequate to ensure that an opportunity would not be given to a company controlled by someone with terrorist intentions".—[Hansard, 20/12/05; col. 1663.]

That is similar to the very direct question he has asked me this evening. That clarification was useful in a wide-ranging and engaging debate.

I refer back to the topic I briefly alighted upon in Committee. The Government have developed a concept of a critical national infrastructure to introduce a common understanding of key sectors and functions that need to be preserved in the face of any disruptive challenge and protected in the public interest. In broad terms, key elements within the critical national infrastructure are those which are of such importance that any entire or partial loss or compromise could cause large-scale loss of life, a serious impact on the national economy, other grave social consequences for the community or any substantial part of the community or be of immediate concern to the national government. The noble Baroness, Lady Park, and the noble Lord, Lord Elton, have spoken about those matters, in essence, this evening.

Protective security for the critical national infrastructure is developed by partnership between organisations and companies, security specialists from the police and Security Service and the central government department responsible for that service in policy and political terms. The purpose is to provide timely assessments of the threats and vulnerabilities within the critical national infrastructure so that business communities and service providers are able to understand the risks they might face from terrorism and to provide generic security advice and standards including physical, electronic, document and—importantly—personnel security advice so that they are able to install security regimes that are proportionate to the risk.

In terms of assessing suitability when contracts are procured, government departments have a duty to show due diligence to the protection of protectivity-marked material, whether that be information or assets. They are required to have systems of security assurance which ensure that when that material is held by a commercial company carrying out sensitive work as part of a government contract, it is protected to the same degree as it would be within the department. The level of scrutiny and assessment of those companies differs according to the protective marking of the material held. This duty of diligence applies as much to the assessment of bidders as it does to the management of a contract once won. When I re-read the Committee debates, I noted that there was also considerable concern, expressed primarily by the noble Lord, Lord Pearson of Rannoch, regarding the vetting and assessment of personnel in areas of such key sensitivity. I am not surprised that he has returned to the matter again this evening.

Personnel security aims to mitigate the risks from the so-called threat from insiders, be they employees, contractors, directors or shareholders. The focus of such arrangements is to protect the vital elements of services or facilities including information about those elements. Formal security clearances will apply in many cases where distribution of information will be particularly damaging. It is therefore clear that there are processes in place to ensure that personnel responsible for critical national infrastructure do not intend to use their position inappropriately for terrorist purposes.

The Government recognise that threats are no longer aimed solely at the conventional organs of central government and the security apparatus, but at a far wider range of relatively soft targets across the critical national infrastructure. The Government will continue to broaden the coverage of personnel security in the national interest, as necessary. We also need to be in a position to ensure compliance with that advice when necessary. We are constantly reviewing procedures to ensure that they are adequate.

What I have outlined deals simply with our current policy and practice on protective security. I have not yet mentioned the adequacy of our legislation. In Committee, the noble Baroness, Lady Cox, helpfully asked whether persons attempting to infiltrate our critical national infrastructure would be covered by what she described as the Clause 5 principle. The new offence of "acts preparatory to terrorism", supported by all parties in this House, will catch those engaged in activities described by the noble Baroness in Committee as financial penetration for purposes associated with terrorism. Noble Lords will remember the comments she made on 20 December at column 1653 of Hansard, which I take to mean using ownership, shareholding or other forms of control in a company to unduly affect or gather information for the purposes of terrorism.

Clause 5 is attractive in its simplicity: where a person intends to commit an act of terrorism or to assist another to commit an act of terrorism and engages in any conduct in preparation, he commits the offence. Additionally, offences of solicitation and conspiracy may come into play. Obviously, it is difficult to respond to hypothetical examples, but it is important to look at the facts of the case.

I hope that I have reassured noble Lords on the robustness and integrity of the system we have in place. In answer to the noble Lord, Lord Kingsland, who asked whether we accept the potential for a threat of this nature, yes we do. That is why we have tried to take steps to prepare for such an eventuality. Whether it is present or not, it is right that we should prepare in a way that is appropriate. Having looked at the existing legislation, we think that there is nothing further we need in the form of legislative provision. However, we keep this issue under review and will not hesitate to return to Parliament if the situation changes. Neither the police nor the security services are seeking any additional powers at this time.

We are as confident as it is ever proper to be that we have made adequate preparation. Of course, these are very moving and difficult times, and one has to be ever-vigilant. But for now, we believe that we have taken all proper steps to make sure that these issues are covered. I hope that with that much more comprehensive answer I will have given some reassurance to noble Lords who have had a proper anxiety about this issue.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative Independent 7:15 pm, 25th January 2006

My Lords, I thank the Minister for that long and detailed reply, which no doubt my noble friend Lady Cox will want to study. The Minister has gone a long way to meeting our concerns on the relationship between employers, contractors and employees. I understand that she is saying that the Government have all the necessary powers to meet the threat that we think my noble friend has identified. I am surprised that, if all the security arrangements and procedures that she has mentioned are in place, someone with known Islamist links should still own and control 75 per cent of British security and intelligence companies with the reach already mentioned in our debates. However, I am grateful to the Minister for what she has said, which we will study with our usual attention. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Elton Lord Elton Conservative

moved Amendment No. 82B:

After Clause 36, insert the following new clause—

"REVIEW OF CODES OF CONDUCT

(1) Within one month of the coming into force of Part 1 of this Act, the Secretary of State shall convene an advisory panel to consider the statutory codes of conduct in force and applicable to the treatment of all persons questioned, arrested, interviewed or detained under this or any other Act of Parliament by the persons responsible for their questioning, arrest, interviewing or custody.

(2) The panel shall also consider the draft of any such code of practice submitted to it by the Secretary of State.

(3) The panel shall comprise a chairman and not less than 12 members of whom—

(a) one shall have at least 6 months' experience as a member of the teaching staff of the Hendon Police College;

(b) one shall have at least 6 months' experience as a member of the teaching staff of the National Police Training Centre, Cwmbran;

(c) one shall be appointed following consultation with the Association of Chief Police Officers;

(d) one shall be appointed following consultation with the Police Superintendents' Association of England and Wales;

(e) one shall be appointed following consultation with the Police Federation of England and Wales;

(f) two shall have at least 10 years' experience call to the Criminal Bar; and

(g) at least one shall have experience of criminological research.

(4) By appointing a person who qualifies for appointment under two of the paragraphs of subsection (3), the Secretary may satisfy the requirements of both those paragraphs.

(5) The said panel shall consider—

(a) the provisions of each code referred to in subsections (1) and (2);

(b) the effect, if any, of the provisions of each code on those of another;

(c) the readiness with which each code can be understood by those responsible for and affected by its implementation, and by the courts;

(d) the effectiveness and timeliness of instruction given on the codes to police officers and custody officers; and

(e) the effectiveness of the arrangements made for drawing the provisions of each code to the attention of those interviewed or affected by them and their advisers.

(6) The panel shall report to the Secretary of State with recommendations for the increased simplicity, effectiveness and accessibility of the codes.

(7) The panel shall make its first report not later than 12 months after the coming into force of Part 1 of this Act."

Photo of Lord Elton Lord Elton Conservative

My Lords, in Committee, I expressed some concern about the complexity of the codes of conduct under which people would be held in detention under the Bill. I received a letter of assurance from the Minister—I thank her for it—setting out in what she took to be reassuring terms what the situation was. If I quote little bits of it, noble Lords may be less reassured than she intended. She said:

"Those arrested under section 41 of TACT"— the Terrorism Act 2000

"are subject to Schedule 8 to TACT . . . The Schedule provides extra provisions which are not provided for by PACE"— the Police and Criminal Evidence Act 1984

"in cases where extended detention may be sought. The wider provisions of PACE Code C on the detention, treatment and questioning by police officers also applies to those arrested under section 41 but makes specific reference to areas where Schedule 8 takes precedence".

In other words, these people are already under two potentially conflicting codes of conduct, one of which has to be disapplied in areas where the other applies.

The next paragraph refers to Schedule 7 to TACT and the,

"code of practice for examining officers issued under paragraph 6 of Schedule 14. A person detained for examination under Schedule 7 to TACT will be subject to both Schedule 8 to TACT and also the code of practice for examining officers. This code governs the exercise of powers under Schedule 7".

That either means a third or fourth code. The next paragraph refers to,

"sections 8 and 9 of PACE Code C", and we also have codes A, B, D and E of the PACE codes. I heard the noble Lord, Lord Thomas of Gresford, refer to PACE code G earlier this evening, so we have gone even further.

In other words, there are a number of codes already existing, some of them in conflict with each other. In the last paragraph of the letter, the Minister says:

"It has been acknowledged by the Home Secretary that there are grounds for producing a separate code for those detained having been arrested under section 41 of the Terrorism Act 2000 and has affirmed that one will be produced under section 66 of PACE"— so there will be yet another.

That made me anxious about the whole code regime. I was asked in the debate in Committee to be reassured by the assurance that the Police Federation was content with this and had said so; so I rang it up. Federation members said that they had been content with the discussion of PACE code C—which had just been concluded, and had gone through your Lordships' House the week before our debate—but they were not by any means content with what remained and proposed to write to the Home Secretary about it. I then started looking at what actually happens. I found the report of the independent Police Complaints Authority, which had conducted a survey to establish the basic facts about custody officer training in each force. Every police constable is supposed to know all these codes backwards in case he comes into a situation where they are relevant, but the person in the police station who is actually responsible for seeing that they are observed and that the detainee—guilty or otherwise—is protected by them, is the custody officer, who is normally a sergeant but I gather may now sometimes be a civilian. Let us see what the police are doing about this.

The survey revealed that, when asked when they gave training to custody officers, of the 43 police forces, only 20 said that they generally gave it before the custody officer took up his duties. Seven said always—making 27—13 said that they generally gave the training after the custody officer took up his duties and one said that it was always after taking up his duties. That gave me pause for thought.

Then I looked at the timing of the training. Of those surveyed, four said that it was five to 12 weeks after taking up training—that is 84 days which is nearly 90 days with a custody officer in charge of the people that we have been debating ourselves sick about for hours who does not know the rules. That cannot be satisfactory.

I do not claim that the amendment that I have tabled is in any way perfect, so I ask the Minister to spare herself the labour of pointing out how it would not work. It is designed to suggest the lines on which some remedial action could be taken in the form of a review. I suggested that that review would crucially involve people who had had experience of training policemen in the codes because they will know best what it is difficult to get across. It ought to include lawyers who had met the product of this system in the courts because they will know what the courts need to understand. It ought to include people from the police who had not been training custody officers, but had experience of custody officers; and to get the confidence of the various police quasi trade union organisations, they also ought to be involved. The Secretary of State ought to have the freedom to appoint somebody else, and one member, to stop it being too huge, should be able to satisfy more than one of those qualifications.

I give those ideas to the Minister, but the principal thing I would ask her to take on board is that, from outside, the provision is looking rather disquietingly complicated. It is as if the system is not quite equal to coping with complications. Now is a very good time to put a body in to look through the system, report fairly quickly and then look again in a year or two's time. And while we are at it, since the Secretary of State is going to be devising yet another code of conduct, I have suggested that he might benefit from the advice by submitting it in draft to the committee. 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)

My Lords, I can reassure the noble Lord that I do not think that anything separates us. First, I think that the noble Lord accepts the importance of the code. Secondly, it is right that the effectiveness of the codes that we have so far have been proven and that they have been applied with sufficient vigour for us to be confident that the courts have been able to monitor them and make sure that actions are followed through.

I hope the noble Lord will also accept that all officers who have to arrest and deal with individual members of the public have had to familiarise themselves with the code because they are the ones who often have to undertake interviews and deal with other issues before the individual may be charged with any particular offence. Notwithstanding the fact that there may be variations and I cannot gainsay—I make it clear to noble Lords I have no information which would either affirm or contradict what the noble Lord said about the differences in practice in various parts of the country in different police forces—

Photo of Lord Elton Lord Elton Conservative

My Lords, I do not think I said anything about that, but if I had thought of it I would have done.

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)

My Lords, in relation to those matters, we do know that custody sergeants throughout the country have with due diligence applied the codes that we currently have. It would be reasonable to anticipate, therefore, that they will continue so to do. I reassure the noble Lord by saying that a large investment has been made to enhance training for police officers for those who will undertake what may increasingly become a more administrative function. I remind the noble Lord that we have invested nearly £2 billion in our IT system to make a number of the procedures more robust and to give them greater integrity than they have had before.

It is clearly important that codes governing the treatment and rights of those arrested are subjected to proper consultation and scrutiny. There is no difference between ourselves and the noble Lord on that point; but I believe that the existing systems and safeguards under PACE are already sufficient for that purpose. Section 67 of the Police and Criminal Evidence Act 1984 sets out a statutory list of consultees that my right honourable friend the Secretary of State must consult before the PACE codes or revisions to them can be laid before Parliament. Persons to be consulted include persons whom he considers to represent the interests of police authorities; persons whom he considers to represents the interests of chief officers of police; the General Council of the Bar; the Law Society of England and Wales; the Institute of Legal Executives; and such other persons as he sees fit. So there is a very broad spectrum that my right honourable friend or his successors in title could consult.

The last item on the list that I mentioned is very important, because the Government have interpreted it very widely. There are a further 20 or so organisations that are consulted as a matter of course; those include organisations such as Liberty, Justice, the Police Federation, Centrex—which is the police training organisation—the Independent Police Complaints Commission and the Coalition of Children's Charities. So I can provide to your Lordships a comprehensive list of consultees if required, but I think that I can equally address the crux of the noble Lord's amendment of engaging experience and practitioner knowledge in an advisory capacity for the preparation of the draft code and its implementation. Again, I invite the noble Lord to remember the provisions established for amendment of the PACE codes; we have a register of changes page on the Home Office website where stakeholders, practitioners and members of the public can submit suggested changes and improvements. So all suggestions are placed on the register, and we as a department are held to account in a very public way in taking forward those suggestions. Officials have had bilateral meetings with key stakeholders on the main areas of change and work closely with organisations and agencies during the drafting process.

I hope from what I have said that I have been able to reassure the noble Lord that he was right to say that we need to consult; he was right to say that consultation has to be broad; he was right to say that training is of importance—and consistency of application, too. I hope that, bearing in mind that we are in such ripe agreement, he will feel able to withdraw and not to press his amendment.

Photo of Lord Elton Lord Elton Conservative 7:30 pm, 25th January 2006

My Lords, the Minister never ceases to astonish me with the emollience of her refusals. I am obliged to her for reminding me of the provisions of the PACE Act, which I took through this House 22 years ago—twice, in fact, because a general election intervened, and I had to come back at it. I have been rather leery of prelegislative scrutiny ever since, because the second run was actually longer than the first.

I should just like to leave a couple of comments in the Minister's mind, as there is one thing that I forgot to mention. I understand that the police training centres at both Hendon and Cwmbran, from where I hoped two members of the committee would have been drawn, are to be closed or dispersed later this year, and that the training will therefore become more regional and less uniform. Secondly, as the Minister mulls over her speech in Hansard over breakfast tomorrow morning, the words "due diligence" might strike her, when she remembers that a number of police officers in four of the constabularies involved did not start training their custody officers until 12 weeks after they had started being custody officers. That said, I think that I have awakened interest in the proper quarters. It is possible that someone might look at the training of custody officers, which is overdue for a shake-up. Otherwise I am content and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 [Short title, commencement and extent]:

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)

My Lords, noble Lords will be aware that the wording of extent provisions relating to Crown dependencies raises various technical questions and some formulations permit parts, possibly amounting to all the parts of an Act, to be extended, while others assume that the whole of the Act will be extended. The second approach means that if certain parts of the Act are not to be extended, it is necessary to use the power to omit those parts, rather than to seek only to extend those parts that need to be extended. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Seizure and forfeiture of terrorist publications]:

Photo of Lord Elton Lord Elton Conservative

moved Amendment No. 83A:

Page 39, line 37, leave out "of" and insert "for"

Photo of Lord Elton Lord Elton Conservative

My Lords, this is a very small amendment, but it has got me extraordinarily excited because I got such an ungracious reply when I tabled it in Committee. I am simply taking exception to the use of the phrase:

"The notice must set out what has been seized and the grounds of"— rather than "the grounds for"—

"the seizure".

I was told that the two phrases had exactly the same meaning and, if it was not necessary to change, it was necessary not to change. However, there is a very good rule in legislation to maintain consistency. I ask whichever Minister is going to reply if they will take the Bill in their hand and look at Clause 33, on page 33, line 27, where they will find the words "grounds for believing". When that has sunk in, could they turn back to Clause 26, on page 27, line 18, where they will find "grounds for believing"? Will they then look at the heading of Clause 24, on page 24, line 12, where they will find the phrase "grounds for extending"? There is a little latitude allowed; the first line of Clause 24 says "grounds on which", but that is a different grammatical construction. So wherever that grammatical construction is used throughout this Bill, except in this one silly, insignificant place, they have got it right—and then they refused to change it.

This is an issue on which, if it makes no difference, the House will agree with me that the change should be made to save the waste of time of the noble Lord, Lord Elton, calling a Division. 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)

My Lords, I hear the noble Lord saying, "Be careful, or I'll divide". It is not his most attractive argument, but we do have a great willingness to give the noble Lord at the end of the session some modicum of pleasure. Therefore, I have given up the will to resist.

On Question, amendment agreed to.

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

moved Amendment No. 84:

Page 41, line 28, leave out "unjust" and insert "inappropriate"

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

My Lords, these amendments have been tabled to provide further protection to libraries with regard to the search, seizure and forfeiture powers in Clause 28. As your Lordships will be aware, the clause sets out the power to seize and forfeit terrorist publications; the Bill also sets out an appeals process against forfeiture described in Schedule 2. Under that process, it is possible for those from whom publications have been seized to ask a court to consider whether forfeiture publication is just. If the court finds that it is not, it can instruct that the publication be returned.

We in the Government are satisfied that the basic mechanisms of this procedure are appropriate. However, we have given further considerations to these provisions, in the light of changes to Clause 2. This amendment, prompted by those changes, will give further protection to the interests of libraries, for example. That is because publications could conceivably be seized from libraries because of the actions of particular librarians. As a matter of interpretation, it might be the case that the publications in question were indeed terrorist publications, but it might be appropriate to return them if, for example, the library in question was a copyright library and the individual librarian was no longer employed there.

The change from "unjust" to "inappropriate" will allow the court to consider all such issues and to order publications to be returned in such circumstances. In other words, it should enable the court to consider a wider range of issues than would be permitted if the term "unjust" was retained. I hope that your Lordships' House will agree to these welcome changes. I beg to move.

On Question, amendment agreed to.

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

moved Amendment No. 85:

Page 41, line 33, leave out "unjust" and insert "inappropriate"

On Question, amendment agreed to.

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)

My Lords, I rise to speak to Amendments Nos. 86, 87 and 88. They are all minor technical amendments, and I beg to move.

On Question, amendment agreed to.

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)

moved Amendments Nos. 87 to 88:

Page 43, line 15, leave out "or certificate"

Page 43, line 16, leave out "or certificate was made or granted" and insert "was made"

On Question, amendments agreed to.