Protection of Freedoms Bill

Lord Goodhart Excerpts

Tuesday 8th November 2011 Lords Chamber

[Lord Goodhart]

My Lords, in recent years we have had a series of Bills that could be described properly as prevention of freedom Bills. We now have a Protection of Freedoms Bill. The Bill is rightly so named. It is an excellent Bill which I strongly support.

Some people—perhaps particularly some leaders of the Labour Party—argue that the Bill goes in the wrong direction or goes too far. Others say that it does not go far enough. I think that the Bill gets it about right. There are undoubtedly matters of detail that can be corrected but broadly it is about right. There are, of course, some simple and obvious provisions that very few people could possibly challenge—for example, Clause 108 which now allows marriages and civic partnerships to be entered into at any time of night or day, although that might meet with the objection of neighbours who did not like a wedding being conducted at midnight.

A number of people claim that parts of the Bill should go further. Examples include, among others, Part 1 on biometric data, Part 3 on powers of entry and vehicles left on land, and Part 4 on counterterrorism. I do not want at this stage to express my own views on matters where I have had little professional experience. This rules out, for example, Part 1 on biometric data. But there are two matters that I want to speak on tonight: some aspects of Chapter 1 of Part 3 on powers of entry and Part 4 dealing with counterterrorism.

Chapter 1 of Part 3 contains many provisions which give rise to Henry VIII powers—powers for the Government to alter or repeal provisions of another Act of Parliament by order rather than by a separate statute. I am interested in these provisions because I am a former chairman of the Delegated Powers Committee which deals in particular with Henry VIII powers. The 20th report of the Delegated Powers Committee dealing with this Bill found that most Henry VIII powers in Clauses 39 to 41 are acceptable. However, it said that another Henry VIII power in Clause 51 is inadequate because the first exercise of that power should be made by the affirmative procedure and not by the negative procedure.

The report on the same subject by the Constitution Committee is critical of Clause 41. However, the validity of the Henry VIII powers is more of a matter for the Delegated Powers Committee than the Constitution Committee. I believe that no modification is needed to Clause 41. What would then be left to be dealt with by way of altering the Henry VIII clause would be a minor change to Clause 51 which would cause no problem to anybody.

Much more important issues arise over Clause 58 of the Bill which deals with a temporary extension of detention in an emergency involving threats of terrorism. The general position in the Bill as is stands is that the maximum time for detention of a terrorist suspect will be 14 days and there will no longer be a power for the Home Secretary to extend the term to 28 days. There will, however, be a power for Parliament to enact one or other of two now-existing draft Bills which will make it possible to extend the period of 14 days in an emergency.

The proposal was, at an early stage, considered by the Joint Committee on the draft Detention of Terrorist Suspects (Temporary Extension) Bills, which has already been mentioned by my noble friend Lord Freeman. I was a member of that committee and I am very glad that our chairman, the noble Lord, Lord Armstrong, will be speaking shortly on the same subject. It became apparent to us in the committee that although very quick action could be taken even when Parliament was in recess, there was a severe problem if there was no Parliament. That would happen from the time when Parliament had been dissolved until a new one had been elected and its Members had taken office. While it is very unlikely that terrorist activities will be launched at such a time, it is obviously not impossible.

Our committee therefore recommended the introduction of what is now basically Clause 58 to make it possible to deal with this problem. Clause 58 has been fiercely attacked by Liberty and less fiercely by Justice, of which I am a former chair. Liberty said:

“Under Clause 58, 28-day pre-charge could potentially be activated by the Home Secretary (with no need for parliamentary approval) whenever she considered it operationally convenient”.

That is absolutely untrue. Justice said:

“We believe extending the maximum period of pre-charge detention in terrorism cases is unlikely ever to be an appropriate response to a public emergency”.

That is true enough as it is unlikely that danger will arise during the short period that occurs only immediately before and immediately after a general election. However, the risk should not be ignored.

I finish with a broad picture of what I think should be done. This is a Bill that almost all of us can support very largely. Many of us would like, in some respects, to go further but our aim, I believe, must be to produce a good result, not necessarily an ideal one. Therefore we need to be careful about the amendments we consider when we are dealing again with the Bill.