Protection of Freedoms Bill

Lord Armstrong of Ilminster Excerpts

Tuesday 8th November 2011 Lords Chamber

[Lord Armstrong of Ilminster]

My Lords, this is a veritable bran-tub of a Bill, as is apparent from the Long Title. It might be more charitably described as a Christmas pie full of plums. I propose, like little Jack Horner, to put in my thumb and pull out a plum—like my noble friend Lady O'Neill, only one plum for consideration at this stage. That plum is Part 4, which deals with counterterrorism powers.

There is clearly around the House a general welcome for Clause 57, which states unambiguously that the maximum period of detention without charge for a terrorist suspect shall be 14 days. That is already a long period to hold anyone in detention without charging him or her—much longer than would be acceptable for any other criminal offence.

However, there remains the persistent fear that there may well be circumstances in which there are compelling reasons for detaining someone suspected of having committed a terrorist offence without charge for longer than 14 days. The need to do so has not arisen during the past four or five years, but in this highly unpredictable area, we cannot exclude the possibility of an emergency in which it might be necessary to be able to do so—in which, indeed, the consequences of not being able to do so might be not just unacceptably serious, but literally fatal: some people might die who would otherwise not have died.

The Government have taken the view that an extension of detention without charge is so serious a restraint of freedom and so grave a breach of the rights of any citizen that it should be effected only by the introduction of emergency primary legislation when the need actually presents itself. They therefore prepared draft legislation, which could be introduced, if and when the need arose, to extend the period of detention of a terrorist suspect without charge for not more than 14 days, up to a maximum of 28 days.

A Joint Committee of Members of your Lordships' House and of the other place, of which I had the privilege of being the chairman, and the pleasure of having the noble Lords, Lord Freeman and Lord Goodhart, as fellow members, was set up to give the draft legislation the sort of pre-legislative scrutiny for which there would not be time if the legislation had to be introduced and passed as quickly as possible in an emergency.

My Lords, we understood and respected the Government's desire to make sure that a power to extend detention without charge should be exercised as rarely as possible, and that, ideally, it should be introduced only subject to the degree of parliamentary scrutiny and discussion which is appropriate to primary legislation. However, we identified certain problems about what was proposed.

First, it might be difficult to pass such legislation with the necessary urgency when Parliament was in recess, and it would be impossible to introduce it at all during the period between the dissolution of one Parliament and the first Queen's Speech in the next. Secondly, it might be very difficult for the Secretary of State to explain and justify to Parliament and for Members of both Houses of Parliament to be properly satisfied about the reasons why the legislation was required without incurring the risk of endangering the success of an ongoing counterterrorist operation or of prejudicing the possibility of a fair trial for someone charged with a terrorist offence.

We feared that those difficulties might be so great that a Secretary of State might be obliged to conclude that it was preferable to run the risk of not extending the period of detention without charge rather than to introduce legislation to provide the necessary powers, whatever the potential consequences of that choice might be. We therefore concluded that the Government's draft Bills did not offer a satisfactory solution to the problem, and recommended that this Bill should create a power for the Secretary of State to make an executive order at any time—not just during a period when one Parliament had been dissolved and the new Parliament had not yet started work—if there was real need to do so.

We recommended that the purpose of such an executive order should be to extend the maximum period for pre-charge detention to 28 days in exceptional circumstances, and that it should expire in three months. We made recommendations to suggest in detail: how to ensure that such an order would be made only in truly exceptional circumstances; how the exercise of the power should be made subject to mandatory review by the independent reviewer of terrorism legislation; how it should be subject to rigorous safeguards and to judicial review; and how it could be made subject, eventually, to parliamentary scrutiny.

The Government have, I am glad to say, accepted many of the Joint Committee's other recommendations, and will introduce amendments to that effect, but they have accepted the committee's main recommendation only in part. Clause 58 would provide the Secretary of State with power to make a temporary extension order when Parliament is dissolved or when Parliament has met after a dissolution but the first Queen's Speech has not taken place, but not at any other time.

I appreciate and respect the Government's wish to ensure that extensions of detention without charge beyond 14 days are as rare as possible. The committee asked the Secretary of State, when she came to give evidence to us, about the difficulties of presenting emergency legislation, to which I have already referred. We admired the confidence with which she assured us that she thought that she would be able to find a way to steer through or around those difficulties in presenting emergency legislation if necessary.

I remain of the view, however, that when the time came, she or a successor Secretary of State might find those difficulties to be insurmountable. She might, despite any advice to the contrary from the police or the Director of Public Prosecutions, decide that it was ineluctably necessary to take the risk of not introducing emergency legislation. No Secretary of State should be forced into a position where such a decision is forced on her.

If the Bill receives a Second Reading today, I hope at a later stage to put forward for your Lordships’ consideration an amendment to Clause 58 that would allow the Secretary of State to introduce emergency legislation for an extension of detention without charge when Parliament is sitting if she thinks that she can safely and properly do so, but would give her the option of making an executive order under Clause 58 if she thinks, even when Parliament is sitting, that the introduction of primary legislation would in the then prevailing circumstances be too difficult.

I hope for her sake and for all our sakes that she is never called upon to make that choice, but better safe than sorry.