Counter-Terrorism Bill

My Lords, for more than six years, I was Lord Advocate in Scotland. As such, I was for the most part an observer of terrorism policy and terrorism cases rather than being an active player. However, I gained sufficient insight, not only from the cases that we dealt with but from contacts with the CPS, the Director of Public Prosecutions and from law officers in England and Wales, to be able to add my voice as a former law officer to those who have spoken against the extension of pre-trial detention to 42 days. Before turning to that matter, I shall raise one other issue. I welcome the provision in the Bill that gives common jurisdiction for the prosecution of terrorism offences, which is in Clause 40. I pressed for that when I was Lord Advocate, and I am very glad to see that is now being taken on board. The reason why I supported it then was as a result of experience of a terrorism case in Scotland. It was a situation in which I believed that had we been able to prosecute that would have made a difference to the evidence. We were contemplating a prosecution against a number of individuals charged with the commission of offences preparatory to the acts of terrorism. That was related to items that had been discovered in Scotland. In England, some suspicious items had been discovered at a house that was associated with at least one of the suspects. On their own, they were insufficient for proceedings in England, but they would certainly have made a difference to a case if it were possible to prosecute it in Scotland. There is a precedent in the Explosive Substances Act. While I note the concerns of the noble and learned Lord, Lord Mackay of Clashfern, in relation to the constitutional issue of Article 19—echoed I think by the Law Society of Scotland—I believe that it should be possible to put in place adequate provisions, through consultation and protocols, to ensure that constitutional sensitivities are protected. Turning to the issue of 42 days, I note that I am number 37 on the speakers’ list, and most of the points that I wished to make have already been made, no doubt far more eloquently, by others. I regret that I cannot support the proposal. I was the Lord Advocate at the time the proposal to extend pre-trial detention to 90 days was made. I was not formally asked for my views on that occasion, although I was consulted about procedural matters that did not go to the principle of whether it was right to extend the period to 90 days. Had I been asked, like my noble and learned friend Lord Goldsmith, I would have supported an extension, although I have to say that I was sceptical about whether 90 days was justified. We now have experience of the extension to 28 days, which is highly relevant to noble Lords in considering the matter. The reasons why we should not support a further extension beyond 28 days have already been made. I was particularly struck, if I may say so, by the maiden speech of the noble Baroness, Lady Manningham-Buller, when she suggested, quite rightly, that there is a balancing exercise and a judgment to be made. The background to all our deliberations has to be one of ensuring the preservation of our democratic traditions and civil liberties. I understand that the Government say that it is necessary to make provision by extending the period because of what might happen in future. But, like many others, I have found it difficult to find evidence to support an extension. The question is where to stop. I was struck by the remarks of my noble and learned friend Lord Morris of Aberavon when he said that the article that he read by the Prime Minister in the Times was highly persuasive, but it was also persuasive of further extensions. If we do not have an evidence base for drawing the line, why is it 42 days? Why not 56, 90, 120 or any other number? There is no logical point at which to draw that line. I was also struck by the evidence given by the Director of Public Prosecutions to the Home Affairs Committee in the other place, pointing out that to bring a charge under the prosecutor’s code, prosecutors have to determine whether there is reasonable suspicion—not reasonable prospects of a conviction, but reasonable suspicion. If one cannot show after 28 days in detention that there is reasonable suspicion that the person who is detained has actually committed an offence, in my submission it is very difficult to further justify holding that person in detention, and I very much doubt whether the courts would go along with it. I am troubled, too, by the powers in the Bill providing that only when the Secretary of State makes an order is that order then subject to parliamentary scrutiny. Of course one can understand the motive of attempting to put in place some kind of safeguard, but as the noble and learned Lord, Lord Falconer of Thoroton, said at the beginning of the debate, it is a pretty complicated safeguard involving large numbers of individuals. Like other noble Lords, my submission is that it mixes the different functions: the legislative functions of Parliament; the Executive functions of the Secretary of State; and the judicial functions that should properly regulate the detention of people in custody. I note, for example, that an order can be made only if an order is already in force under Section 25 of the Terrorism Act 2006 extending the period to 28 days. So the order is not made in the abstract, or on the occasion of a certain event, such as a terrorism outrage. It is made in respect of individuals and, in my submission, the Secretary of State has no place in this process, and nor does Parliament. These are judicial functions that should be settled judicially. None of this would be necessary if it were not for the fact that we face the further extension of the period of detention from 28 days to 42. That principle is fundamental and should be opposed.