Counter-Terrorism Bill

My Lords, like other Members of your Lordships' House, I too will concentrate my remarks on the proposal to extend pre-charge detention. I noted with some interest that the noble Lord, Lord Lester of Herne Hill, said that everything that could be said about it had already been said; in some ways, he is right. However, it struck me that it would be interesting to take the opportunity at the beginning of my short remarks to remind us just what sort of fundamental rights we are talking about. It has been a fundamental right of the UK citizen not to be detained arbitrarily without charge, and upon detention to know the nature of the charge against him and to have legal representation. That is easily said; we all understand it. However, I need to put on record on this occasion that those rights can be traced all the way back to Magna Carta in the 13th century, of course, and probably arguably to the earlier great reforms of Henry II at the end of the 12th century. As we all know, it is a principle that runs in parallel to habeas corpus, that we introduced to the civilised world, and that we have defended as a fundamental right for centuries. Evidence of that will be found in our war cemeteries in northern France, north Africa, the Netherlands and many other places across the world, all of which bear stark testimony to the price that this nation has been prepared to pay in confronting those who exercise arbitrary power, unfettered by considerations of natural and legal justice. We have already heard that, at times of serious threat to the nation, balances have to be struck. We have heard reference to 9/11, Madrid, and 7/7 and 21/7 in London, though not to Bali, but I put that on the table as well. Because of all that, as we know, we have good cause to strengthen our defences against the international fundamental terrorist. Other countries face the same threat, and they have not considered it proper to extend detention without charge as we have done. Other countries face the same dangers, and have not been nearly so extravagant. I remind your Lordships’ House that comparisons with non-common law countries are not always helpful, though one might reflect that Russia and Spain have five days, France has seven, and Turkey seven and a half. Realistically, if one compares other common law countries which, like us, have accusatorial, rather than inquisitorial, systems, even then our present 28 days looks excessive. Nowhere else in the developed world has a maximum period of detention as long as the UK. Australia is closest; there, the process is limited to 12 days. Others trail well behind. The USA, New Zealand, South Africa and Germany settle at two days. Canada has a mere 24 hours. By those comparisons, our country fares very badly, even at present. We also fare badly in the target that we offer the international terrorist on the issue of extended detention. I have said previously in your Lordships’ House that it is a well-known tenet of the international terrorist—going back as far as Marcuse and Che Guevara—that the terrorist has only to prompt or provoke a democracy into more repressive measures in the name of public safety, for that same terrorist to be able to point to those increased measures and claim that the now repressive regime is the reason that the terrorist is in business in the first place. In short, the measures become a recruiting sergeant for the terrorist, justifying, in his eyes, further acts of terror. We already recognise—I allude to the remarks of the noble Lord, Lord Thomas of Gresford—the need for the support of minority communities. I will not labour the point, save to remind noble Lords that most of those involved in terrorism in this country, and convicted of the offence to date, were born and lived here. We know that little information comes out of their communities. An extension beyond 28 days would be bound to exacerbate opposition to the state and ease the path of the terrorist. We have heard that the emergence of the suicide bomber has changed the terrorist landscape across the world. Of course it has. As head of police operations in London and as chief constable of the largest provincial police force, I was closely involved in operations against the Provisional IRA and, to some extent, against Punjabi and Kashmiri terrorist groups. I was named as a specific target of the Provisional IRA; I lived with round-the-clock armed protection. Against that background, I put on record my recognition that the picture has now changed and that the threats are even more difficult to combat. The Minister has already given us evidence of that. I recognise that and agree with him. All of this makes the task of the investigator far more difficult and complex. Times have changed and I, as others have done this afternoon, pay a fulsome tribute to the police and security services for their successes over the years. As we have already heard, not all senior police officers, by any means, support the extension beyond 28 days. Many chief constables tell me privately that they have no heart at all for the proposed change. The argument for an extension rests solely on the issue of adequacy of time: enough time to allow the investigators to build the case, secure the evidence and prefer the charge. Yet we already know, and I mention it again, that to date we have never come close to running up against the 28-day limit and out of time. We know that in the overwhelming majority of cases charges have been preferred at or before 14 days. In short, we have not yet lost a case or come close to losing a case because of inadequacy of time, yet there is apparently a fear that with the growing complexity of investigations, 28 days will not be sufficient and that we need ““something in the back pocket””, as it has recently been put in the newspapers, to guard against that eventuality. I am not sure where that unhappy phrase ““the back pocket”” came from, or who advanced it. I would not employ such words to describe a matter of such weight and importance, and I am distinctly uncomfortable to see legislation enacted on a hypothetical supposition or on a ““just in case”” basis. To be charitable, if we need to have something in place just in case—and I believe that we are still a long way away from that eventuality—we certainly do not need the legalistic fudge envisaged in the Bill. The noble Lord, Lord Thomas, alluded to AA Milne, but what came to my mind was Monsieur Clouseau because in a vain attempt to appear tough on terrorism, we are asked to consider a measure that in Clause 22 seeks to define a grave exceptional terrorist threat but which in reality restates what we already accept as terrorism; constructs a Byzantine consultation procedure; puts Parliament—a legislative body—into a quasi-judicial role; asks it to consider material that would almost certainly be sub judice; and, significantly, inserts the words ““42 days”” into the Act. Those words might well be hedged in with provisos, but their very existence breaches our present, extravagant limit and will be held up by our critics as a very large recruiting sergeant for al-Qaeda. That brings me to the nub of my argument, and I begin to conclude. The extension is unnecessary. We can obviate any need for an extension of time by allowing post-charge questioning. I shall not repeat the arguments for that because we have already heard them this afternoon. Charging a lesser terrorist offence and then conducting post-charge questioning would be preferable to the 42-days minefield that we are offered. If we add to that intercept evidence, the threshold test and other things that have been mentioned today, we have enough to go forward with. If a suspect is in custody for 27 days without any evidence against him, he should most certainly be released. There is no doubt about that. However, it is highly probable that evidence for a charge will have emerged much earlier: acts preparatory to terrorism, membership of a proscribed organisation and possession of materials all come to mind. Critically, the act of charging that offence immediately cleans the slate and 28 days, 42 days, and 90 days all become irrelevant because the suspect has been charged. He is now in the normal judicial process, has legal representation and knowledge of the charge made against him and is regularly produced in court. In conclusion, there are some people—we have heard them alluded to this afternoon—who argue that we are under considerable threat and that we should give the security forces whatever they require to deal with the terrorist. They argue that difficult times calls for stern measures no matter what the cost and that it does not matter if we erode fundamental civil rights in the process. I answer them by quoting the short and chilling poem by the Lutheran pastor, Martin Niemöller, who reflected on his experiences in Europe in the 1930s, a time when perceived threats to the state from within were met with steadily enhanced and increasingly oppressive executive powers. He said: "““First they came for the Jews and I did not speak out—because I was not a Jew. Then they came for the communists and I did not speak out—because I was not a communist. Then they came for the trade unionists and I did not speak out—because I was not a trade unionist. Then they came for me—and by then there was no one left to speak out for me””." I vigorously oppose the proposal to extend the detention period to 42 days. I believe that it is unnecessary. Any increasing problems can be dealt with by relatively minor adjustments to existing law. We run a grave risk of further inflaming terrorist opposition. We have gone far enough already in eroding our long-cherished and long-guarded rights, which, as I have already said, we have been so far proud to advocate to the world. Enough is enough and I would commend that we stand firm.