Terrorism Act 2006 (Disapplication of Section 25) Order 2010

Lord Brett Excerpts

Monday 19th July 2010 Lords Chamber

I very much welcome those comments from the Home Secretary, her willingness to work on a cross-party basis—this should not be a partisan issue—and her clear indication that, for her, the default is 14 not 28 days. We await the counterterrorism review with considerable interest, so I, too, am prepared not just to take a deep breath but to hold my nose and not to oppose the order today.

[Lord Brett]

The Opposition support the order so I shall not delay the House too long. However, our support comes with something of a health warning. The contribution from the noble Baroness, Lady Hamwee, highlights this.

In the past few days in respect of various other proposals to review, Members on all sides of your Lordships’ House have sought to persuade Ministers to speculate on the outcome of the examinations that have taken place and have been rightly rebuffed. Indeed, the noble Baroness, Lady Neville-Jones, refused to speculate on the outcome of the anti-terrorism review that we debated last week. Accordingly, I am not sure that it was wise of the Home Secretary to indicate a personal preference for 14 rather than 28 or any other number of days when this order was debated in another place. To be fair, she said that she did not think it right to pre-empt the review, which is the most important issue. The noble Baroness, Lady Neville-Jones, spelt out cogently the risk that still exists.

The risk has not diminished in the past year at all. There has been no diminution in the risk of terrorist activity. Indeed, in Northern Ireland there has been an increase. The threat level remains severe and the police and the DPP support the continuance of the 28-day provision. It is a year since its renewal—I accept that that is why we are renewing it, albeit for six months, as it is a temporary provision. Nobody in your Lordships’ House would be happier than us, on these Benches, if we found the risk so diminished that the requirement for any pre-charge detention could be removed completely.

We have learnt more in the past year, by means of Operation Overt, about the so-called liquid bomb plot involving the planned destruction of seven passenger aircraft flying to North America. In that case, pre-charge detention beyond 14 days was necessary for six people. There was Operation Pathway in Greater Manchester, which was raised in the debate in the other place a year ago, and we know that that plot was successfully thwarted. We understand much better that it was a serious and advanced plot. These cases explain why, to date, 28 days has been deemed necessary. Noble Lords on all Benches will be happy to see that reduced, I am sure.

I am not sure how this argument can be taken. It is cited that there are few cases, which means that the power is not required. We are also told that there is a natural propensity—Parkinson’s law—in security that the more time you give people, the more time they will take. I would be astonished if that were the case in security issues. I would be very surprised if the security services and the police were not aware that smart lawyers, many of whom represent clients in courts and are Members of your Lordships' House, are willing to demolish any case built on a prevention of charging when charges could be brought.

It is the right of all Governments to review and it is right to review this order annually. The question is whether in the past year sufficient has happened to persuade us that the threat is diminished. That is where the health warning comes in. I am not sure that I like the idea of a default position of 14 days before a review takes place and before all the key authorities involved have been briefed and made their contribution. Therefore, it is important that the review should be evidence-based. Ultimately, sound judgment is required, which is what we expect from our Home Secretary and our Government, to establish whether we have reached the point where we can withdraw the 28-day provision or impose alternative powers. I am sure that the noble Baroness, Lady Neville-Jones, with her knowledge, experience and integrity, will wish nothing less. I support the Motion.

[Baroness Neville-Jones]

My Lords, I thank noble Lords for their characteristically thoughtful contributions. The purpose of this short extension is to enable the Government to have enough time to do two things. The first is to look at the legislation concerning pre-charge detention and other counterterrorism legislation that we want to review in the round and in relation to each other. The second is to look at the existing operation of the 28-day regime. I was asked, for instance, whether post-charge questioning, which has not yet commenced, will come into operation. That is precisely one of the factors which we want to look at, together with a number of other provisions which seem to us to be relevant in deciding whether we can reduce the maximum time for pre-charge detention.

I mentioned “contingency” and the Civil Contingencies Act. I stick by my comment that, given the threat about which I will say something in a moment, we cannot say with absolute certainty that a time longer than 14 days might never be needed. Equally, we take the view that the current evidence tends to suggest that we ought not, if we can avoid it, continue with the current maximum length of pre-charge detention. However, we want to look at that and at whether it is possible to put in place some kind of contingency that will enable us, with safety, to reduce the normal maximum time.

A number of noble Lords asked why the UK had to have so long a time when other systems somehow managed to do with less. Like other Members of your Lordships' House, I greatly value the work done by organisations such as Justice and Liberty. However, when one is comparing systems, it is right to do a thorough job and, as the noble Lord, Lord West, said, it is not entirely fair to compare the UK system with, say, France’s. Indeed, even among common-law countries, the practice is not uniform. In Australia, for example, there is a 14-day limit that can be significantly extended by something called the stand-down time.

We should not forget that the threat remains. I very much hope that, by other flanking measures which the previous Government put in place and policies which we continue, we are managing to harden our targets and to become a more difficult target for terrorists. We also know more about the enemy than previously. All those are relevant factors in considering whether it is right and safe now to reduce the maximum time for our pre-charge detention.

The noble Lord, Lord Pannick, among others, asked whether there was any evidence for the operation of the 28 days and whether history showed that we needed it. He also asked whether it was right, and in accordance with the ECHR, that the suspect was not given sufficient information at an early stage about the charge. That is not the case. The grounds of arrest are put before a defendant when he goes before the magistrate, and he must go before the magistrate no later than 48 hours after arrest. There is no question that people's rights are being violated in that respect. Much as we would like not to have the legislation if we could—the object of the exercise is to see whether we can dispense with it safely—it is human rights-compliant. I hope that the House will accept that in prolonging the provision for a period while that detailed and careful examination takes place, we are not violating the rights of any current or future defendant, while protecting the public.

I have one last point to make. A noble Lord asked about the difference between the varieties of terrorism that we face. It is disturbing that we have an increase in terrorist activity in Northern Ireland. The nature of that terrorism is somewhat different from the Islamist terrorism that we face, which is one reason why we have the 28-day provision in place at the moment. We will look at introducing other measures in conjunction with a different regime on pre-charge detention, combined with our assessment of how we stand in relation to the threat. Our examination of the legislation will take all those factors—the operation of the legislation itself, our view of the threat to us and our ability to withstand the threat—into account. All those are relevant factors in deciding whether we can find some other way to deal with pre-charge detention in normal circumstances.

With that summary, I thank noble Lords for their contributions and invite the House to approve the order.