Terrorism Act 2006 (Disapplication of Section 25) Order 2010

Lord Pannick Excerpts

Monday 19th July 2010 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I want to comment on the interesting statement by the Minister. I speak as the chair of Justice, which is the UK-based human rights and law reform organisation whose mission is to advance access to justice, human rights and the rule of law. It is also the British section of the International Commission of Jurists. This House will know that that international commission set up a panel of eminent jurists who reported last year on the issue of terrorism and in February 2009 produced a report, Terrorism, Counterterrorism and Human Rights, in which it recommended that there should be a review of counterterrorism legislation in this country because of its concern that there had been so much erosion of civil liberties and of some of the protections and safeguards that are so important to our system, which is admired around the world.

We therefore welcome the Government's review. The steps they are taking to reinstate many of the liberties that we saw eroded are greatly welcomed by human rights lawyers. However, we are concerned that the Government are still going to continue with the 28-day pre-charge detention relating to terrorism, even for six months. In our view, with great care taken to look at the evidence, we are confident that 28 days is not necessary. We make the argument that it is not necessary because plainly it is at odds with the right to liberty. Also, the period is far longer than any other western democracy has in place, and there is a lack of effective safeguards.

I remind the House of a number of the facts of the cases that have come before the courts in recent times. Our review of the use of the 28 days over the period since 2006, when 14 days was raised to 28 days, found that six suspects had been held for as long as 27 or 28 days. Three of those were released without charge. Three were charged with terrorism offences but, of those three, two were acquitted and only one was convicted. In that one instance where there was a successful conviction, it appears that the great majority of admissible evidence was already available to the police at the time of arrest; it was certainly available before the 14 days were up.

We have also seen that five of the six suspects held for up to 28 days were arrested in the context of Operation Overt, the liquid bomb plot. I should declare that I was one of the counsels in that case so I am familiar with it in some detail. Indeed, all three men who were ultimately convicted were charged within 12 days of their arrest—the 28 days were not necessary in that case either.

Justice urges the House that to defer a decision on this matter even for six months is too long. I remind noble Lords that in other western democracies, particularly in common law countries, there is nothing like this erosion of safeguards and protections. In Canada, there is a requirement to charge within a day; in the United States, it is two days; in South Africa, it is two days; and in New Zealand, it is two days. Even in other parts of Europe which do not have the common law system, to which I am so committed, the position is different. For example, in Germany the period is two days; in Spain, it is a maximum of five days; and in France, it is a maximum of six days. Charging is expected to take place within those limits.

We are concerned that there is an incompatibility with Article 5 of the European Convention on Human Rights. We think that it is highly likely that Schedule 8, the authorisation procedure, will be found incompatible with the requirements of Article 5. We ask the Government to look again at whether there is even a need to have the six months’ extension which is now being considered.

However, I say all of that in the context of our view that the Government are taking the right steps in having this inquiry into what is needed. Clearly, no country should roll over in the face of terrorism and special steps have to be taken, but it is our view that the extension to 14 days, which was introduced, is adequate to the challenges that we all face.

[Lord Pannick]

My Lords, I share the concerns expressed by the noble Baroness, Lady Kennedy of The Shaws. I appreciate that we are debating this issue in the context of the Government’s very welcome announcement that they will conduct a review of the 28-day pre-charge detention limit. However, I am unpersuaded that there is any basis for continuing this power, even on a temporary basis.

There are three points which your Lordships will wish to have well in mind. First, this is an extraordinarily exceptional power. English law normally requires that suspects be charged or released within four days. The pre-charge detention limit for terrorist cases was limited to seven days until 2003, when it was raised to 14 days. English law jealously restricts the power of the state to detain people without charge, and rightly so. It is only when charged that the person concerned has the right to be told the accusation against him and to respond to it. For the state to hold a person without charge for up to four weeks is inevitably a very substantial interference with their freedom and inevitably has a very damaging effect on their work, family relationships and reputation in the community.

Secondly, there must, therefore, be a very heavy onus on the Government to justify such an interference with basic liberty. The real question is whether they can meet that heavy onus. I suggest that they have failed to identify any practical experience whatever which establishes, or indeed even suggests, that a 14-day limit would not suffice. This is, of course, not a new problem. The Home Office has all the relevant information. Will the Minister in her reply please identify for the House whether there are any cases in which pre-charge detention after 14 days was necessary to the successful prosecution of a terrorist suspect? It is surely not sufficient for the noble Baroness to assert—and who can disagree with the assertion?—that it is impossible to be sure that there might never in the future be an occasion when more than 14 days might be required, as she put it.