Counter-Terrorism Bill

My Lords, I have two speeches prepared: one on post-charge questioning and the other on 42 days. I think that the former would be more interesting to your Lordships’ House, if only as a change, but I am afraid that the latter is more important. The noble Lord, Lord Goodhart, pointed out, or should have done, that this is the sixth piece of counterterrorist legislation since 2000. I think he missed one out. No other country in the world—even Spain, which suffered an atrocity every bit as bad as the one we suffered on 7 July 2005—has had anything like the same plethora of legislation that we have had. One wonders why. Then, a year ago, very soon after he took office, the Prime Minister made a statement on national security. It seemed to me as if it might be a new beginning. Yes, he said, we needed further legislation, but it would be based on consensus—consensus in Parliament and in the country. We look forward, he said, to seeking and obtaining all-party consensus on intercept evidence, pre-charge detention and post-charge questioning. Happily, we have reached all-party consensus on intercept evidence as a result of the efforts of the committee of privy counsellors under Sir John Chilcot. There is certainly still more work to be done, as the noble Baroness, Lady Ramsay, and the noble Lord, Lord Robertson, pointed out. However, I look forward to something on the subject of intercept evidence in the next Session. I see no reason why that should not be achieved. If we have reached all-party consensus on intercept evidence, we have certainly not reached it on 42 days. Indeed, we have not reached even one-party consensus, since the Minister’s own party is split on the subject. A bare majority of nine votes in the House of Commons is not consensus, and this House has not yet spoken as I hope and believe it will. No doubt the Minister will say that he has tried hard to reach agreement with the Conservatives and the Liberal Democrats, but trying hard is not enough. Where the liberty of the subject and the rights of suspects to a fair trial are concerned, consensus is not just a desirable extra; it is a prerequisite. There is therefore no consensus in Parliament; nor is there any consensus in the country. The noble Lord, Lord Foulkes, drew attention to a poll from which it appeared that 69 per cent of the public were in favour of 42 days—if that be true—but a majority is not the same as a consensus. We have 2 million Muslims in this country who are British citizens. Does anybody suggest that there is consensus in favour of 42 days among them? Yet they will be the most directly affected by the Bill—not only by the 42 days but also by post-charge questioning, about which I shall have something to say in Committee, and the notification provisions in Part 4, which seem to be iniquitous. The Government have at last seen the critical importance of winning over the Muslim community, particularly young people on the edge of extremism. In May, they published Preventing Violent Extremism, which was a move in the right direction. Do the Government not see that extending 28 days to 42 days is a move in the wrong direction? It will alienate the people whom we should be winning over, and it will be counterproductive for all the reasons given by my noble friends Lord Dear and Lord Condon. We should give great weight to those speeches. When the Government saw that they could not achieve a consensus, they should surely have dropped 42 days there and then, as I believe in the end they will be compelled to do. That would have been the sensible, courageous and statesmanlike course. It would have done much to win over and reassure the Muslim community. However, they did not do that; instead, they won over or sought to win over by a lot of small print, which we now find in Clauses 22 to 31, their own Back Benches. The 42 days is now dressed up as a reserve power, which, it is said, we need to cover the so-called ““grave exceptional terrorist threat””. I had imagined that what the Government had in mind by that was something truly catastrophic—a nightmare scenario such as 9/11 or worse—and one could understand that. However, the definition in Clause 22 is not what the Government have in mind at all. It covers any terrorist event which has caused, ““serious loss of … life””, such as occurred on 7 July 2005. The ““grave exceptional terrorist threat”” is not something hitherto unexperienced or something which might occur; it is something which we have right now. If that is right, it follows that the Home Secretary could make an order tomorrow, as soon as this Act were passed, extending the period to 42 days provided only that there was an ““operational need””. But who decides that there is an ““operational need””? The answer is the police, the very people who said that there was an operational need for 90 days. It is true that a report has to be made to Parliament within two days of the order being made, but what is the use of that? How can Parliament have a clue whether there is an operational need? My conclusion is that there is no need for the reserve power and that the so-called safeguards are illusory. The 42 days has not been justified. I refer finally to an argument which the Minister has used from time to time: that the threat is becoming greater all the time, that investigations are becoming more complex and, therefore, that if the present threat continues on the same trend, we will soon need more than 28 days. Where is the evidence that the threat is more serious or the investigation more complex than in 2004, at the time of the Dhiren Barot case, or in 2006, at the time of the airline case? There is no evidence to that effect. The number of plots referred to and the number of convictions do not show an upward trend from which we can extrapolate. My own guess, although I cannot prove it, is that the threat is currently being contained. We cannot rule out the possibility that, at some time in the future, a group of terrorists will bring about the nightmare scenario, but does that justify the 42 days? At the very end of her speech in the other place, the Home Secretary posed the question in the following terms: ““Can we be confident that no police investigation will ever need more than 28 days?””. That question obviously invited the answer no. But she asked the wrong question. She could not be confident that no police investigation would ever need more than 42 days, or even 90 days. The right question is whether detaining suspects for 42 days without charge is a proportionate response to the present threat. My answer is that it is not. That would be the answer given by our courts if ever the question came before them, and ultimately by Strasbourg.