Protection of Freedoms Bill

Lord Armstrong of Ilminster Excerpts

Monday 6th February 2012 Lords Chamber

Moved by

[Lord Armstrong of Ilminster]

49: Clause 58, page 42, line 3, leave out “and” and insert “or
(iii) at any time when Parliament is sitting or is in recess the Secretary of State, with the concurrence of the Attorney General, considers that it would be inexpedient to introduce primary legislation to authorise a temporary extension of detention either because of time constraints or because of the risk of prejudicing the possibility of a fair trial of a person suspected of or charged with a terrorist offence or because of unacceptable risk to public safety or to security, and”

[Lord Armstrong of Ilminster]

My Lords, I beg to move the amendment standing in my name and in the names of the noble Baroness, Lady Royall of Blaisdon, the noble Lord, Lord Rosser, and the noble Baroness, Lady Liddell of Coatdyke.

Clause 57 establishes clearly the principle that a terrorist suspect should not be detained without being charged for longer than 14 days. Over the years, there has been much debate about how long that period should be. I have no wish to reopen that debate; the only question is whether there are any circumstances in which a terrorist suspect should be able to be detained for longer than 14 days. It has not been necessary to extend the period of detention without charge beyond 14 days at any time in the last five years. Nevertheless, it is the view of the Home Secretary, as well as of the police and of the Director of Public Prosecutions, that it might one day become compellingly necessary to do so.

The Government took the view that, in order to buttress the principle of the 14-day limit and to make sure that the period of detention without charge could be extended only in the most exceptional circumstances and only for the most compelling reasons, there should be no standing power to extend the period by order, and that it should be extendable only by the introduction of emergency primary legislation if and when the need arises.

Draft Bills were prepared, and a Joint Committee of Members of both Houses of Parliament was set up last year to give the draft Bills pre-legislative scrutiny. That committee, which I had the privilege of chairing, concluded that the Government were right to wish to create a contingency power to extend the maximum period beyond 14 days up to not more than 28 days in truly exceptional circumstances. The committee understood and respected the reasons for proposing that this power should be provided by emergency primary legislation, to be enacted when need arises, so as to ensure that temporary extensions of the period of detention would happen only in very exceptional circumstances and be subject to parliamentary scrutiny and approval.

The committee concluded, however, that parliamentary scrutiny of such emergency legislation would in practice be very seriously circumscribed. The legislation might have to be introduced and debated in a period of high tension and against a background of intense media interest and speculation. It might be very difficult to explain to Parliament, and to Members with a direct constituency interest, the reasons for introducing the legislation without disclosing information which would endanger security or public safety or information which could 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.

The committee also thought that there would be an unacceptable degree of risk that it would be almost impossible to introduce and pass the legislation within a sufficiently short time, particularly when Parliament was in recess and would have to be specially recalled. We pointed out that it would be absolutely impossible during the period between the Dissolution of one Parliament and the opening of a new Parliament, because there would be no Parliament. The Joint Committee therefore concluded that emergency primary legislation, as exemplified in the Government’s draft Bills, did not offer a satisfactory solution, and recommended a new order-making arrangement, under which the Secretary of State would be authorised to make an executive order of limited duration, if need arose, to extend the period of detention of suspects without charge to not more than 28 days, 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 detention by order in the period between the Dissolution of one Parliament and the first Queen’s Speech in the next. But they are still proposing to rely exclusively on the introduction of emergency legislation at any other time when there is a Parliament in being, whether it is in session or not.

I understand and respect the Secretary of State’s wish to make it as difficult as possible to extend the period of detention beyond 14 days. But she has accepted that there will be times when it is impossible to introduce primary legislation because there is no Parliament in being, so the principle is breached. The question is whether there should be any other circumstances in which an order-making power should be available to the Secretary of State.

This amendment would define and limit other circumstances in which the Secretary of State could proceed by order, even when Parliament was in being, if there were compelling reasons why it would be impracticable or injudicious to proceed by emergency primary legislation. She would still be able to proceed by emergency primary legislation if she thought that it was consistent with security, public safety and the interests of justice to do so. But she would have an escape hatch, by means of which she could, with the agreement of the Attorney-General, and subject to strict safeguards, proceed by order if she judged that pressures of time, or the interests of security, public safety or justice, required her to do so. The safeguards would be the same as those applying to an executive order made at a time when Parliament was dissolved.

The principle that there should be an alternative to emergency primary legislation is already established by Clause 58. The amendment I am proposing is an extension of that principle, not a breach of it. It does not seek to establish a new principle. It is of course possible that there will never be any need to extend the period of detention of terrorist suspects beyond 14 days. I hope that it may be so. But the Secretary of State, the police and the Director of Public Prosecutions all think that it is advisable to provide for the possibility that one day there will be a need to do so. If there is, it may be that it will be possible to proceed by emergency primary legislation. If that is so, fine. But I believe, as did the Joint Committee, that there will be circumstances where that is not possible, but where the period of detention ought to be extended.

To take just one example, suppose that the need to extend the period of detention arose during the Parliamentary Summer Recess. Parliament can be, and of course has been, recalled during a Summer Recess during a time of grave national emergency. But in the Summer Recess, Members of both Houses are scattered to the four corners of the world, and the Palace of Westminster is usually undergoing major works of reconstruction and refurbishment. Is it realistic to suppose that Parliament could be recalled in the Summer Recess just to authorise the extended detention of a terrorist suspect?

Four years of service in the Home Office left me with the conviction that, if anything can go wrong, it usually will—at any rate, in that department of banana skins. The annals of the Home Office are littered with overlooked banana skins and Secretaries of State with red faces. In this matter there are just too many foreseeable risks, and too many reasons why it might be too difficult to introduce primary legislation, to justify a decision not to take a sensible precaution.

This amendment is permissive, not mandatory. If it is passed this evening, the Secretary of State need never take advantage of it if she prefers not to do so. But if this amendment is not accepted she will run the risk of finding herself in a situation where she would like, and she ought, to extend the period of detention of a terrorist suspect or suspects, but feels herself to be prevented from introducing emergency primary legislation to do so, by reasons of pressures of time, or by considerations of security, public safety or justice.

In that situation, if a suspect or suspects could not be further detained but had to be released, and then went on to commit some outrage as a result of which innocent people were killed and injured, and which might not have happened had the suspect or suspects been kept in detention, how would the Secretary of State feel? How would she explain to Parliament, to the country and to the relatives of the victims why she had not felt able to take the action which might have prevented the outrage? The Secretary of State may be made of sterner stuff, but if I were the Secretary of State, I do not think that I could live with that thought.

--- Later in debate ---

[Lord Armstrong of Ilminster]

My Lords, I would like to express my gratitude to the noble Lord for taking the time to talk about this matter at a meeting last week. That was useful—I hope to both of us.

I say to the noble Baroness, Lady Hamwee, that the time constraint I had in mind is that which would arise if the need to extend a period of detention became clear after somebody had already been in detention for 10 days and perhaps a weekend intervened and there simply would not be time to carry through emergency primary legislation, even on a fast track through both Houses of Parliament. It would be very difficult to define extensively in legislation what considerations of security and safety might apply but they are clearly considerations of prejudice to national security and public safety considerations relating to the possibility of a terrorist incident or outrage being planned which might be avoided, and information about which had better not be disclosed in a debate.

I am less confident than the noble Lord, Lord Henley, that it would always be possible to avoid the debate in either House straying from general principle into the particular circumstances of an incident if a terrorist incident had occurred, or if there were extensive media speculation about the possibility of such an incident. I believe that there could well be circumstances in which a Member of Parliament might have a constituency interest which would justify him or her raising more detail, or asking for more detail, about particular cases or particular people than would be appropriate or safe to do. Therefore, I remain of the view that the Secretary of State may live to regret not taking advantage of this amendment. However, in the circumstances of this being a straight issue of disagreement, with apprehension I beg leave to withdraw the amendment.

Amendment 49 withdrawn.