Counter-Terrorism Bill

My Lords, the last time we debated pre-charge detention I moved the 60-day amendment, and lost, so I think that there has been an obligation on me to listen to the arguments in today’s debate and assess whether there is any basis for me to change my mind. I have listened and rewritten, but I have not changed. I repeat two points I made in the earlier debate. First, I acknowledge that this is an enormously difficult matter. We all individually have to strike the balance between security and liberty, and I will not criticise those who have consistently and honourably come to a different conclusion from myself. However, I say in passing to my noble friend Lady Kennedy of The Shaws that I totally reject the link between ethnicity and the defence of civil liberties. Secondly, the debate addresses the perennial dilemma of the liberal state—how far is it justified to use illiberal means to defend itself from those who seek its destruction and, in so doing, exploit the very values they abhor? So far, the weight in the debate has been very much in the direction of pointing out the dangers—I admit that there are dangers—of legislating in a way where the underpinning values of the liberal state are challenged and eroded, and that that therefore changes the nature and characteristics of the state. But there are counterarguments and counterexamples. The Weimar Republic was a liberal state with a liberal constitution, which was destroyed in part because it lacked the constitutional means to defend itself from the anti-parliamentary extremism of both the left and the right. It has been claimed that 42 days is incompatible with the ECHR, a point made forcefully by the noble Lord, Lord Lester of Herne Hill. Non-lawyers like myself find it difficult to understand the type of situation that has arisen in the case of the recent horrible murder of a young woman in Italy, where it seems perfectly consistent with the ECHR for the Italian authorities to keep the suspects in detention without charge for a period greatly in excess of 42 days. I listened hard and carefully to the arguments of my noble and learned friends Lord Falconer and Lord Goldsmith. Unfortunately, they are not in their places at the moment. Both are men of enormous ability and integrity whom I have always admired. They demand to be listened to, but I found their arguments difficult to follow. My noble and learned friend Lord Falconer says that he was persuaded to move away from supporting 90 days—and now cannot support 42 days—because of the emergence of the threshold test. Yet he agreed with the intervention of my noble and learned friend Lord Morris of Aberavon that the threshold test was available at the time of the 90 days debate. I do not understand where that argument is leading. My noble and learned friend Lord Goldsmith made the point that, as a Minister, he argued against 90 days on policy grounds within Government. That is undoubtedly the case. What I do not understand is how he felt able to continue in office once the policy that he had honourably opposed, and continued to oppose, had become the decided policy of the Government. One Member of your Lordships’ House has been mentioned relatively infrequently today, namely the noble Lord, Lord Carlile of Berriew. He is the noble Lord who is, perhaps, best placed to provide a balanced and objective assessment. Not only is he the independent reviewer of terrorism legislation, but he is a lawyer and a Liberal, with a big ““L”” and a small ““l””. The noble and learned Lord has endorsed 42 days. We should not put his assessment aside lightly.