Counter-Terrorism Bill

My Lords, for over six years I had the privilege and burden of dealing with the issues with which your Lordships’ House is concerned in this Bill. The horrors of 9/11 occurred three months to the day after I had taken office and I was hurled headlong into the first of the antiterrorism Bills with which I had to be involved. Thereafter, through successive antiterrorism Bills, those that came to your Lordships’ House and, yes, those that were discussed but never brought forward, through Madrid, through Beslan and the horrors of 7 July, I was concerned not simply as legal adviser to the Government but as the senior prosecutor, the person responsible for the Crown Prosecution Service and its policies, and the person who had to take the decision in relation to some of the cases because my consent was required. I worked closely with the Home Secretary and other senior Ministers in looking at all the issues with which your Lordships are concerned: intercept, control orders, counterterrorism and increasing resources for the police and the security services. I want to pay tribute to the police, the security services and the prosecutors. I want also to welcome the noble Baroness and compliment her on her discretion. While she was in post I tried to get out of her for quite a long time her view on an extension and only now has she said it openly—although it is what I suspected. Those events taught me two things. The first is that the threat from terrorism is real and grave. No one who sat in the bunker, in the Cabinet Office, watching the 7 July events unfold could doubt that for one moment. Therefore it was right to look to increase resources for the services, and to look to the powers that might be necessary to increase their capability. But it taught me one other thing: if we are going to make changes to our fundamental rights, it must be on the basis of principle. Above all, it must bear in mind one very important factor which a number of noble Lords have referred to already, and of which I became increasingly convinced: we will not win this battle against the arc of terrorism that we see across the world by might alone; we need to win hearts and minds. We need to persuade people outside this country and—yes, noble Lords are right—some within this country that the values for which we stand of justice, fair play, freedom and liberty, the very basis of our society, are better, stronger and more valid than the horrible creed of hatred and oppression of al-Qaeda. When I approached this particular issue for the first time, when the 90 days proposal was put forward, the question I asked myself was: what are the principles upon which we should be legislating? I tried to articulate those—to myself, to colleagues and then more publicly. I believed that it was critical that we should hold on to and not compromise on certain fundamental freedoms which are non-negotiable, such as fair trial and freedom from torture. I recognised, though, that there were some other aspects where a balance could be struck and the question was how to strike that balance. It seemed to me that the test was one of necessity and proportionality. This is not lawyers’ jargon; it means something very real: you do not take away fundamental freedoms that people, including our ancestors, have fought for, without very good cause and unless you can show that it is needed. You do not do it unless you can show that it is proportionate to the risk that you face, or else you risk giving away the very freedoms and liberties that the terrorists are trying to take from us. So when, for the first time, 90 days came up I asked, ““What is the evidence for this? Why 90 days?””. I was persuaded that there was a case for an extension from 14 days because of all the points that my noble friend Lord West referred to. The arguments that he puts forward are no different; one of the problems with the proposal is that there is nothing new with the arguments and evidence put forward. I was not persuaded that 90 days was justified. I argued against it within government and could not have supported it had it come in that form to your Lordships' House. I do not say that because I do not welcome those who have now changed their view on it; I was consistently against it, despite some comments recently to the contrary. What is the argument in favour of the proposal? I have heard it said that 42 days is not enough and that the period should be 42 years. I have heard it said by one senior police officer that it should be as long as it takes. All that misunderstands what detention before charge is about. It is about having enough time to assemble a case to charge. It is not about public protection; we have other ways—control orders, with which some of your Lordships may disagree—of protecting against people against whom there is not enough evidence but who are believed to be a risk. It is not about stopping the investigations; that is why post-charge questioning was put forward, as an alternative to extending the period rather than as an addition to it, so that the police and the prosecutors can continue. It is therefore important to consider whether the necessity for the extension has been shown. I looked at it hard through, I think, all the cases that the noble Lord, Lord West, referred to, which I dealt with at the time with the prosecutors. When we believed that plots were being uncovered in the summer of 2006, I flew back from my holiday, stayed with the prosecutors and got detailed briefings throughout that period. I was anxiously considering and wanted to know whether a longer time would be necessary. It was not. I asked the prosecutors, ““If you had had longer than 28 days, would you have used it?””. ““No””, they said. Test it this way: you cannot keep somebody for as long as it takes. You can keep them only so long as there is a reasonable suspicion that they have committed an offence and you have a reasonable prospect of getting the evidence if you keep them a little longer. After 28 days, how likely is that? In my judgment, having looked at it, it is not likely at all. Therefore I cannot support the proposal. Detention without charge for a long period would undermine the fundamental freedoms on which this country is based, of which this country should be proud, and of which—yes, I will say it—my party ought to be proud. I for one will not undermine them by voting for this proposal.