Counter-Terrorism Bill

My Lords, let me make it clear that we on these Benches take the terrorist threat to this country every bit as seriously as do the Government; there is no difference between us on that. Wherever possible, we strive for agreement on security matters. The issue today is how the security that the British people expect, and to which they are entitled, is best brought about and sustained. The Bill contains many detailed provisions and we have called for some of the measures—such as post-charge questioning—for some years. There are measures that we support in principle, such as making terrorism an aggravating factor in sentencing; notification requirements; travel restrictions on those convicted of terrorist offences; and offences related to the security of members of the Armed Forces. There are other measures with which we still have certain difficulties, such as control orders. My noble friend Lady Hanham will, in winding up, also touch on inquests, inquiries and the rules of court. Important concerns on these were largely obscured in another place by the debate on 42 days’ detention. I will, at this stage, focus most of my remarks on the proposal to extend pre-charge detention to 42 days. We oppose the proposal in its entirety. Many in this House will have watched with grave concern the passage of this proposal through another place. It brings to the fore the challenge of balancing the rights of the individual and the needs of efficient justice with the duty of the state to protect its citizens. We will be judged on how we strike this balance. At the heart of the debate is one central question: what type of society are we trying to create, protect and secure? After all, it is on the effects of our actions, not our intentions—however virtuous these may be—that we will be judged. Extending pre-charge detention seeks to guard against the terrorist threat by giving more power to the state. We take a different view from that of the Government. Security measures should not have as their sole focus a reduction in the threat, essential as this is. If security is to be sustainable over the long term, security measures must also facilitate and protect a united society based on shared liberal values and the mutual trust of a free, responsible citizenry. Citizens must be able to repose their trust in each other, not in the state for fear of each other. The impact of this legislation on different communities is, therefore, not a minor, subordinate matter. It goes to the heart of our chances of reconciling freedom with security. Will the proposed extension achieve and protect an open and unified society? The answer is emphatically no. It represents yet another attempt on the part of the Government to abridge, without sufficient justification, fundamental democratic rights and freedom that have underpinned our society for centuries and which we have defended against tyranny on so many occasions. The Government are putting those rights and freedoms at risk in a reactionary fashion. Terrorists want to undermine our freedoms and way of life by provoking the state into putting in place repressive measures. We therefore risk, in effect, doing their job for them. No doubt many noble Lords will make comparisons with other common-law jurisdictions to illustrate the point that our allies are addressing the terrorist threat without draconian extensions of detention. If we are to approve any measures that restrict our fundamental rights and freedoms, we must have two things. First, evidence is needed to show that new measures are required, the proportionality of which we can then assess. Secondly, if restrictive powers are deemed necessary, we must have proper safeguards. In his speech of 17 June, the Prime Minister noted that the civil liberties aspects of extended detention without charge could be taken care of by a bunch of claimed safeguards. But, in the view of those on these Benches, precise justification for the proposed extension and considerations about proportionality must come first. I should like to take a few moments to examine those points. The first is the threat. Agreed, it is real; agreed, it is severe. However, the Minister asserted as recently as 1 July in this House that we were now safer than we had been. At the least, if that does not mean a reduction in the threat, it must mean an improved capacity to detect, disrupt and protect against terrorist activity, so one has to wonder somewhat at the timing of the legislation. The Government have laid much stress on the complexity of terrorist conspiracies, which they say gives rise to the need for extended time for investigation. To make that argument, the Government have relied on what they have called pragmatic inference. At an extreme, Mr Tony McNulty, the Minister of State in the Home Office, has painted an alarming picture of complexity combined with magnitude. Imagine, he says, five 9/11s. But such a scenario would be in the catastrophic class, for which there is already legislation on the statute book in the shape of the Civil Contingencies Act 2004. The Government are not powerless in such a situation, and to suggest otherwise is to scaremonger. The Metropolitan Police Commissioner has said explicitly: "““We have never put forward a case that there is evidence of a need for an extension””." Precisely, but that is not good enough. The evidence actually suggests that an extension is not needed and would not be proportionate. Last week, this House approved an order to renew the extension of pre-charge detention from 14 to 28 days. It was clear that, in the past year, no terrorist suspect has been detained without charge for the maximum of 28 days. If we look at the cases often cited to demonstrate the complexity of investigations, which we do not underestimate, we find that in no case was there a need for an extension beyond 28 days. The case of Dhiren Barot, which the Minister cited, was one of the most technically challenging, but charges were successfully brought within 14 days. In the case of the 2004 Crevice fertiliser bomb plot, all charges were brought within 14 days. The original justification for an extension to 90 days involved a scenario with over 20 suspects, multiple locations, multiple targets, multiple computers with encrypted files in different languages and dependency on foreign intelligence. Operation Overt, the investigation into the alleged plot to attack 10 airliners at Heathrow in 2006, had every one of those characteristics, yet the police were able to charge every suspect within 28 days. All those facing the most serious charge—conspiracy to murder—were charged within 21 days. Of the five held to the end, three were discharged and two were charged with lesser offences based on information obtained well before the 28th day. This is far from being up against the buffers, as has been claimed. In his broadcast on the ““Today”” programme last November, the Minister spoke of the importance of being certain of the need for more than 28 days. He is right in this. The trouble is that the Government have not demonstrated the need for what the Minister has described as ““the precautionary approach””. I turn now to the safeguards, in which the Prime Minister reposes so much confidence as the guarantee of our liberties. The Terrorism Act 2006 and the Civil Contingencies Act contain key provisions for Parliament, such as a sunset clause and stringent requirements for judicial supervision. The Government’s concessions to secure the passage of this Bill in another place do not compare. They still allow the extension to 42 days to be triggered at the subjective, unfettered discretion of the Home Secretary. They do not allow judicial review of the Government’s claim that a ““grave exceptional terrorist threat”” exists. There is no requirement for Parliament to vote on whether there is an emergency or a ““grave exceptional terrorist threat””. Does one not think that in the context of greater restriction of liberty, the safeguards against its abuse might be at least as great as those which apply in the case of lesser restriction? Is not this inverse relationship of greater restriction and lesser safeguard extremely odd? Even if the Government’s concessions could be considered proper safeguards, the former Home Secretary, Charles Clarke, has made clear his view that the procedures that will be established are so cumbersome that the police and the prosecuting authorities will be most unlikely to seek an extension. Mr Clarke also labelled the so-called concessions ““constitutionally damaging””, in that they would confuse the role of Parliament with that of the judiciary. Members of this House may share this view. This House cannot endorse the so-called safeguards, any more than it can accept the case for an extension of pre-charge detention. Not only is an extension unnecessary and unworkable, but it has an active downside in two key respects. First, the extension is a disproportionate response, which would be likely to serve as a recruiting sergeant for terrorism. In this regard it is worth noting that the Government still have to produce the promised risk assessment for communities of the current extension to 28 days. They should have done so and should not try to proceed to 42 days without having done so. The Minister has promised this assessment for the autumn, and I ask him to have it ready for the House to take into account when this debate resumes in October. Secondly, the Government’s own impact statement for this Bill notes that the reaction of Muslim groups to the proposal puts at risk information that might otherwise be forthcoming from members of the community in the future. In other words, the Home Office itself suggests that extending detention without charge may hinder our counterterrorism efforts, by cutting off vital local intelligence. Let us be clear: these are security warnings. We also know that a significant number of current senior police officers see the risks. It may surprise the House to learn that the Association of Chief Police Officers, ACPO, has never collectively discussed the effect on its work of an extension to 42 days. The Director of Public Prosecutions and the former head of counterterrorism in the Crown Prosecution Service, as well a number of noble Lords, have all voiced their opposition. Should not so many weighty and knowledgeable dissenters give the Government pause? It is clear that an extension is not needed, will not work and will have an active downside. Why are the Government therefore fighting so hard for it? If one looks at the history of the debate one sees that the Government first wanted 90 days, then wanted 56 days and now want 42 days. It seems that they have become fixated on extending pre-charge detention for political reasons, rather than for well considered policy and strategic reasons. Alternative, proportionate security measures are, in effect, neglected. There are alternatives. In terrorist cases, the criterion for charging is already the lesser standard of reasonable suspicion. Is it really the case that the British state would contemplate holding for even longer than 28 days people against whom not even a reasonable suspicion of a terrorist-related offence had by then been established? Related to this is the use of post-charge questioning under judicial supervision which could and should be used more extensively. No doubt the noble and learned Lord, Lord Lloyd of Berwick, will speak to this point. There are also measures that we have pushed for that are entirely absent from the Bill. They include lifting the ban on using intercept evidence in court, tightening the rules on extremists entering the UK and banning radical groups that serve as antechambers for terrorism. I shall focus briefly on the use of intercept evidence. I am aware of the sensitivities, which I take seriously. Against them, the Joint Committee on Human Rights has noted that the current prohibition on the admissibility of intercept evidence is, "““the single biggest obstacle to bringing more prosecutions for terrorism””." The Crown Prosecution Service is clear that its use will lead to more guilty pleas and fewer abortive trials. The Director of Public Prosecutions was told in Australia that prosecutors who do not use intercept evidence in terrorist cases are not being serious. The situation in this country is all the more anomalous, given that it is used in organised crime cases. Even with the backing of the committee of privy counsellors, the Government still appear reluctant to allow the use of intercept evidence. I am sure it would help the House to know from the Minister when the committee appointed to follow up the privy counsellors’ report is likely to be ready with its findings. In putting in place counterterrorism legislation, we must be clear that we are charged with taking into account the implications not just for the police, the security agencies and the prosecuting authorities, but for society and the constitution as a whole. On these Benches, our approach to the Bill is to guard against three things: possible miscarriages of justice; adverse outcomes for our society; and counterproductive consequences for our ability to tackle the terrorist threat. We want strong security, the preservation of liberties and efficient justice. We will work with the Government to strengthen aspects of the Bill, and we will press them to take measures they have left out, but we will not agree to the sacrifice of our fundamental freedoms without the most compelling, evidence-based justification.