Counter-Terrorism Bill

My Lords, I intend to concentrate on the most controversial aspect of the Bill—the 42 days’ detention without charge. I read a particularly persuasive article by the Prime Minister in the Times justifying 42 days. He made all the points that I would have ventured to make, but they were equally applicable to 142 days as to 42 days. When we last considered detention, I went along to hear Assistant Commissioner Hayman who persuaded me of the complexity of the issues involved. My subsequent speech setting out the case is on the record, only in that case it was for 90 days, although I did not vote on the second bite at the cherry proposed by some of my honourable friends. When the issue appeared to be coming back to us, I thought that I should return to re-examine the case in depth. When I was Attorney-General, I was not greatly troubled by the most recent type of terrorism cases, as was my noble and learned friend Lord Goldsmith, but I had to adjudicate on other cases of terrorism. We got by in that period of terrorism on seven days’ detention without charge. What is now proposed, accounting for the differences in the judicial and investigative systems, will result in the longest period of detention in the common law world. It is six times higher than it was a few years ago. It is at least doubtful, despite the Home Secretary's endorsement, whether it will comply with Article 5(2) of the convention where there is a requirement that a suspect is informed ““promptly”” of the charge against him. Is there a need for this part of the legislation? We have had a recital of the existence of a number of suspects and plots. I am not in a position to argue to the contrary as to such a state of affairs. If this provision justifies a need, you would expect everyone who has ever had a hand in the prosecuting process to justify and stand up this particular encroachment on our liberty. The Home Secretary herself at an earlier stage did not seem to be sure how many days were required. The security services are neutral, and we have had the advantage of hearing the speech of the noble Baroness, Lady Manningham-Buller. The police are divided. All former law officers who have spoken today are against it. The DPP, who will have to administer the Act, does not demand it. In his evidence to the home affairs sub-committee, he said that he was satisfied with the position at the moment, had not asked for the increase and that his experience has been that the 28 days has suited him quite nicely; the evidence on individual cases supports this. At the time of giving evidence, he had not met the Home Secretary, the Prime Minister or the Metropolitan Police Commissioner. I hope that this has now been rectified. It would have been better if the Prime Minister had been properly briefed before this voyage started. The head of the CPS counterterrorism division has said that there had been no need to make an application to extend pre-charge detention beyond 14 days since the investigation into the attack on Glasgow airport in 2007. We are asked to further encroach on the subject’s liberty, not on present need but on the possibility of a future need. In the mean time, there are other options. The Joint Committee has spelt out some of them. What has influenced me, as a criminal practitioner, has been a better understanding of the basis of charging since the publication of the code for prosecutions as far back as 2004. The DDP says that the code has included specific guidance on how prosecutors should determine whether and what to charge. Therefore, instead of the need for a realistic prospect of conviction for charging, if sufficient evidence is not presently available to charge on that basis, a lower criterion of a reasonable suspicion that a person has committed an offence has developed. At a hearing, the court and the defence will receive an outline of the case and the reason why the prosecution will be seeking remand into custody. The court will take the strength of the evidence into account on an application to dismiss. All cases must pass the full code test within a reasonable time. In the mean time, crucially, notices of evidence supplementing and overtaking the outline will be served. This will inevitably involve staged service of distinct sections of evidence. The evidential case inevitably continues to develop until the full case is served, but often beyond this as terrorism investigations are frequently large and wide-ranging. So what is the problem? It would have been better if there had been consultation with the practitioners who operate on this basis day after day. In the time available, I cannot say much about the problems of a parliamentary debate after the Home Secretary’s Statement to Parliament on having made the provision available. But I can question how there can be a fair trial if sufficient material—as mentioned by the noble Lord, Lord Cope—triggered by a specific case, is made available to Parliament. How can parliamentary oversight be meaningful? The Home Secretary has suggested topics for debate: ““The outline of the plot””, ““The number of suspects detained””, ““The what, when and why””. That Parliament will face this scenario is incredible. The more detailed the material provided, the more prejudicial it will be. I therefore endorse the Joint Committee’s conclusion in this respect: the Government’s proposals are fundamentally flawed. They confuse parliamentary and judicial functions by attempting to give to Parliament an unavoidably judicial function: the decision over whether it is justifiable to detain individual suspects for longer. The lower threshold of charge and post-charge questioning achieves many of the Government’s aims. Experience will tell whether the mixing of Parliament and the judiciary, as proposed, is workable. I think not. The Government’s proposals are a bridge too far, and the Government should take them back and think again.