Counter-Terrorism Bill

My Lords, in October 1963, the Tryweryn dam and reservoir were opened in the heart of mid-Wales by the Lord Mayor of Liverpool. The drowning of that valley had been opposed by every Welsh Member of Parliament of every political colour. It awakened feelings of outrage that the countryside, the culture, the language and a way of life were being destroyed. In the Lords, counsel for Liverpool Corporation in promoting the Private Bill told the committee: "““There can be no question that emotions in Wales have been aroused. But Liverpool Corporation have to take the constitution as they find it. There is no separate Welsh government. There is no demarcation of Wales from England from the point of view of water supplies””." We started to campaign in earnest for a Welsh parliament. Many noble Lords in this House were part of that campaign. For my part, in 1967, I drafted a Bill for a Welsh parliament which my noble friend Lord Hooson presented in the Commons. However, there were others who wanted to take more extreme steps. There were explosions to transformers and power cables that served the dam, which were undoubtedly terrorist acts. It continued with cottage burnings and the antics of the Free Wales Army, whose manoeuvres I once stumbled on in the mountains above Dolgellau. On 2 December 1968, two of the four water pipes carrying the main supplies to Birmingham were blown up. It was a matter of a Private Notice Question that day in the House of Commons and Mr Leo Abse asked: "““Will my right hon. Friend accept that the people of Wales will have heard with considerable dismay of this further act, an act which seems to indicate that extremists who do not belong to the main bulk of the Welsh people are yet again active?””.—[Official Report, Commons, 2/12/68 ; col. 1036.]" Mr James Griffiths called for stricter security for explosives. My noble friend Lord Hooson asked: "““Does the Minister appreciate that the greatest safeguard that people can have is the apprehension of those responsible for these outrages?””.—[Official Report, Commons, 2/12/68; col. 1037.]" Sir Knox Cunningham called for ““special security measures””. At that time, I had a work colleague who was a passionate nationalist. He was a very likeable man, but he also knew something about explosives because of his job. I used to banter with him that he must be a general in the Free Wales Army. On the day of that explosion I asked him, jokingly, what he had been up to. He seemed somewhat abashed. Later that morning, I noticed that his Land Rover had over the weekend lost all its political stickers—““Cofia Dryweryn””. His Land Rover was covered with mud. That evening, I talked it over with my wife and I telephoned the police. Information to the police and to the security services comes from within a community. Last year, the Observer told us that more than one year before he detonated his Tube bomb on 7/7, Mohammed Siddique Khan had been listed as a ““desirable suspect”” by MI5, along with fellow bomber, Shehzad Tanweer. Where did the intelligence come from that led to that or to the thwarting of so many violent terrorist plots by our police and security services, to whom I pay tribute for the tremendous work they have done in protecting the people of this country? I am delighted that we shall later hear from the noble Baroness, Lady Manningham-Buller. We look forward to her contribution, whatever side of the debate she may happen to be. The police and security services, in targeting people, do not make wild guesses. They act on information that is obtained from within the Muslim community. If you lose the confidence of that community, in the fairness of our police and in the justice of our legal system, you will hinder the prevention and the detection of terrorist acts. That is the apprehension which unites the people who know most about policing, about prosecuting and about the conviction and punishment of terrorism, many of whom will speak in this debate today. On these Benches, we oppose the proposal in the Bill for detention without charge for up to 42 days. I address that issue alone. My noble friends will address your Lordships later on other aspects of the Bill. In terrorist cases, the act of arrest is the end of a long process of surveillance and evidence gathering. The surveillance continues so that the security services and the police can see the scope of the whole operation. Arrest opens up to the police the chance of seizing incriminating material, such as mobile phones, computers, and even perhaps suspect substances. The suspect can be interrogated both about the facts revealed by surveillance and his explanations for the material seized. If he is detained in custody, by the common law of this country, not to mention Article 5 of the European Convention, he is entitled to know the reason for his detention promptly. When he is properly charged, he knows where he stands. He is entitled to be brought before a judge promptly and to have the lawfulness of his detention determined. But when he is not charged, which is the proposal in the Bill, he is in limbo. He is detained without even a reasonable suspicion based on admissible evidence of his involvement in terrorist activity. In previous terrorism Bills, we have passed a succession of new offences for acts preparatory to terrorism and for association and support. There are all sorts of acts which do not amount to any physical involvement, but encouragement and preparation are now criminal acts. A person who is detained without charge is detained without even a reasonable suspicion that he is involved in acts of that sort. Reasonable suspicion, as the noble Baroness, Lady Neville-Jones, pointed out, is the threshold test advised by the Crown Prosecution Service as the basis for preferring a charge. Reasonable suspicion does not require a realistic prospect of conviction. That is the full code test applied to the evidence by CPS lawyers at a much later stage in the collection of evidence when determining whether the case should proceed. Sir Ken Macdonald, the Director of Public Prosecutions, is happy with current procedures, and he should be because he has succeeded, as the noble Lord, Lord West of Spithead, pointed out, in 92 per cent of the cases that have been brought. Interrogation of the suspect after charge in relation to the subject matter of the charge is unusual, but it has always been permitted under the judges’ rules under PACE Code C in special circumstances. It enables, even now, for a suspect to be questioned on new evidence where it is in the public interest. Consequently it is no surprise that all parties in this House support Clause 34 of the Bill which permits further questioning on the subject matter after a charge of a terrorism offence. The usefulness of such questioning is a different matter. It should be realised that one of the side-effects of the introduction of planned and lengthy interviews is that a defendant at his trial may be subjected to the deconstruction of every sentence and every word recorded in his interviews by a highly experienced prosecutor and all sorts of unintended implications will be put to him in the presence of the jury. Those with a less than adequate grasp of the English language may prefer, indeed may be advised, to say nothing. The purpose of further questioning in a no-comment interview is to cover the ground—simply to raise an inference of guilt from the failure of the suspect to answer questions. The noble Baroness, Lady Kennedy of The Shaws, will recall the methods of the IRA: say nothing, plead not guilty, do not give evidence, and when you get to prison, turn it into a prisoner-of-war camp and wait for the amnesty. That is exactly what happened. Even if a suspect confesses after continuous interrogation over many days, it is worthless. It is inconceivable that a suspect should be questioned daily for 42 days, or that if he were, evidence of a confession so obtained would ever be accepted by a judge as untainted by oppression. This is the important point which the argument seems to have missed so often. Other evidence-gathering in relation to the inquiry will continue after charge in any event, fuelled by the items seized. That is normal in every type of case. The inquiry is not hindered in any way by the act of charging the suspect. In any serious case, it is highly unusual for technical, scientific or other forensic investigations and material seized to be reported on for weeks or months. Inquiries into phone records and overseas contacts will continue, and fresh evidence will be served as the case proceeds towards its trial date. So the period of 42 days has no practical or principled basis. It does not set a time limit for the inquiry. A period for a suspect in the police cells without charge adds nothing of value to the investigation, prosecution or conviction of terrorists. The noble Baroness, Lady Neville-Jones, has pointed out the alternatives that are available to detention without charge, and I will not go over that ground. This Bill has passed its stages in the Commons by the production of gesture after gesture. A very important part of our constitution and legal system is that the party Whips do not determine whether an individual should lose his liberty. Let us look at what is proposed in the Bill. The DPP and the police must tell the independent lawyer to advise; he must tell the Home Secretary of his advice; she must tell the senior judge and the chairs of the JCHR and others; and she must tell Parliament, which must approve the order. And woe betide the lot of them if the independent reviewer says six months later that they got it all wrong. This is legislation in the AA Milne style. There were 65 rebels among Labour Members of Parliament. Some of them were persuaded to change their views, not by knighthoods or peerages or pork-barrel promises, but a melange that only Winnie the Pooh could invent of executive, legislative and judicial functions, all mixed together in one useful jar. Some of those rebels and the entire DUP swallowed that melange whole. What a triumph that was for informed democratic politics. In January 1993, I prosecuted the last terrorist trial in Wales, concerning the sending of letter bombs to senior police and officials of the Conservative Party. Since that time, thanks to our long campaign, the wisdom of the late and much-lamented John Smith and the leadership of Gareth Williams in this House, Wales gained its Assembly. There has been no more violence or threat of violence; the grievances of the people are addressed. The day will come when our minority communities will be proportionately and fairly represented in our democratic institutions, and in our police forces and security services. There will then be no more violence within, and threats from without will be resisted by a country that has learnt to share the same goals and values to which the noble Lord, Lord West, referred. If only the Government would drop these proposals and work to that end.