Protection of Freedoms Bill

Lord Armstrong of Ilminster Excerpts

Thursday 15th December 2011 Grand Committee

Moved by

[Lord Armstrong of Ilminster]

143: Clause 58, page 41, line 34, after “place,” insert—
“(iii) at any time when Parliament is sitting or is in recess the Secretary of State, with the concurrence of the Attorney General, considers it would be inexpedient to introduce primary legislation to authorise a temporary extension of detention because of—(a) time constraints,(b) the risk of prejudicing the possibility of a fair trial of a person suspected of or charged with a terrorist offence, or(c) unacceptable risk to public safety or to security,”

[Lord Armstrong of Ilminster]

My Lords, Amendment 143 is in my name and those of the noble Baroness, Lady Liddell of Coatdyke, and the noble Lord, Lord Faulks. Clause 57 establishes on a firm and clear basis the principle that a terrorist suspect should not be detained without being charged for longer than 14 days. Fourteen days is already a very long period to detain someone without charge. For any other offence, the maximum would be no more than four days. The case for a longer period in respect of terrorist suspects is justified only by the especial nature and problems of terrorism.

Over the years, there has been much debate about how long the period should be. At one time under a previous Administration, a maximum of 90 days was suggested. This Bill now sets the maximum period at 14 days, to be extended only in the most exceptional circumstances. It has not been necessary to extend the period of detention without charge beyond 14 days at any time in the past five years. Nevertheless, it remains the view of the Home Secretary, as well as of the police and the Director of Public Prosecutions, that the possibility that it might one day become necessary to do so cannot be excluded and should be provided for.

The Government took the view that, in order to make sure that the period of detention would be extended only in the most exceptional circumstances and only when really necessary, there should be no standing power to extend the period by order, and that it should be extended only by the introduction of emergency primary legislation if and when the need arose. They prepared draft Bills to have ready for introduction when required; and they invited a Joint Committee of both Houses of Parliament to give the draft Bills pre-legislative scrutiny. That committee, of which I had the privilege of being the chairman, believed that the Government were right to wish to create a contingency power to extend the maximum period for pre-charge detention of a terrorist suspect beyond 14 days up to not more than 28 days in truly exceptional circumstances.

The committee understood and respected the Government’s reasons for proposing that this power should be provided by emergency primary legislation, to be enacted only when the need arose, so that temporary extensions of the period of detention would happen only in very exceptional circumstances, and so that the need for and the provision of the power could be subject to parliamentary scrutiny. We believed, however, that the parliamentary scrutiny of such emergency primary legislation to this effect would in practice be very seriously circumscribed. We thought that it might prove in practice to be very difficult to explain to Parliament the reasons for introducing it without either disclosing information that would endanger security or public safety, or information that would prejudice the right of a suspect or suspects to a fair trial. This could make the process of justifying the legislation almost impossible for the Secretary of State and totally unsatisfactory and frustrating for Members of both Houses of Parliament. We also thought that there would be an unacceptable degree of risk that it would sometimes be almost impossible to introduce and pass the legislation required within a sufficiently short period of time when Parliament was in recess and would have to be recalled. It would, of course, be absolutely impossible to introduce primary legislation during the period between the Dissolution of one Parliament and the opening of a new Parliament.

We therefore concluded that emergency primary legislation, as exemplified in the Government’s draft Bills, did not offer a satisfactory solution, and we recommended a new order-making arrangement, under which the Secretary of State would be authorised to make an executive order if need arose to extend the period of detention of terrorist suspects without charge to not more than 28 days for a three-month period, if exceptional circumstances applied, subject to strict safeguards and subject also to the agreement of the Attorney-General.

In Clause 58 of the Protection of Freedoms Bill, the Government have accepted the committee’s recommendation in part and have made provision for temporary extensions of the period of detention by executive order in the period between the Dissolution of one Parliament and the first Queen’s Speech in the next. However, they are proposing to rely exclusively on the introduction of emergency primary legislation when Parliament is sitting. I and the noble Lords who were members of the Joint Committee and who have put their names to this amendment remain of the view that the difficulties of introducing emergency primary legislation might be insurmountable even when Parliament was sitting, and that there needs to be a fallback or fail-safe provision allowing the Secretary of State to make an executive order if in those circumstances it is really necessary to extend the period of detention of a terrorist suspect or suspects for longer than 14 days.

Our amendment is permissive, not mandatory. It would not prevent a Secretary of State introducing emergency primary legislation if he or she were satisfied that he or she could safely and effectively do so. It would allow the Secretary of State to proceed by means of an executive order even when Parliament was sitting, with the concurrence of the Attorney-General if time constraints, risks to security or public safety, or the risk of prejudicing a suspect’s right to a fair trial, made it impossible or impracticable to introduce primary legislation. The safeguards will be the same as those applying to an executive order made at a time when Parliament had been dissolved. The principle that there should be an alternative to the introduction of emergency primary legislation is already established by Clause 58 of the Bill as it stands. The amendment that we are proposing is a modest extension of that principle—permissive, not mandatory; it does not seek to establish a new principle.

I should not like to be the Secretary of State who had to explain to Parliament and to the country after a terrorist incident in which innocent people had been killed or injured that the incident could have been prevented if only the Protection of Freedoms Bill had been enacted as improved by the acceptance of this eminently reasonable cross-party amendment. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, I support the amendment tabled by the noble Lord, Lord Armstrong, and other members of the Joint Committee. It is an eminently sensible amendment because the Government have rightly recognised the practical impossibility in certain circumstances of emergency legislation, hence the introduction of Clause 58. However, as the noble Lord, Lord Armstrong, said, there remain real concerns over the workability of the Government’s proposal.

We believe that there is a serious risk of jeopardising a fair trial if Parliament is to be provided with enough information to properly scrutinise the necessity of the use. It seems as though it would be practically unworkable because, as the noble Lord said in his introductory statement, there would be a need to introduce and pass legislation with too short a timeframe to enable proper scrutiny and accountability. The scrutiny of legislation within such a short deadline would appear to be a dangerous way to legislate because the time pressures and state of emergency would undermine proper and dispassionate scrutiny of the legislation. By prescribing the use of an emergency power too tightly, within the most serious situations, the sheer use of the power would indicate to any future jury the unusual gravity of the case and therefore prejudice its views. We support the amendment moved by the noble Lord, Lord Armstrong.

--- Later in debate ---

That is the explanation behind government Amendments 144 and 145. I hope that what I have said about the amendment in the name of the noble Lord, Lord Armstrong, will satisfy him and that he will therefore feel able to withdraw his amendment.

[Lord Armstrong of Ilminster]

My Lords, of course I entirely respect the Government’s preference for introducing primary legislation if time and other constraints permit. I am afraid that, having sat through the proceedings of the Joint Committee and having heard a great deal of evidence on the subject, it remains my belief that the Government’s view that emergency primary legislation when Parliament is sitting will always be able to provide what is needed is optimistic. Their determination to rely on emergency primary legislation is admirable. If this amendment were to be passed, they would still be able to exercise that power and resist the temptation to introduce an executive order. I am glad that the Secretary of State and the Minister are of the view that they would always be able to do so.

It is at that point that my view still, with respect, differs from that of the Minister. The risk of great difficulty in introducing emergency primary legislation for the reasons set out in the amendment remains. The consequences of not being able to extend the period of detention over terrorist suspect or suspects without charge could have literally fatal consequences. While I beg leave to withdraw the amendment at this stage, I wish to reserve the right to return to the matter on report.

Amendment 143 withdrawn.