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Terrorism Bill

moved Amendment No. 120:"Page 22, line 28, leave out subsection (5)." The noble and learned Lord said: This is a probing amendment, tabled in the hope that the Minister might think again about involving the senior judiciary in the process of extending detention, now that, at least for the time being, the period of three months has been reduced to 28 days. I am deeply conscious that it may be restored to three months as a result of the next amendment. I remember much discussion before the 2000 Act, only five years ago, on the procedure to be followed if the police wanted to increase the period of detention from four to seven days. One suggestion at the time was that the simple way to do that was to involve the senior judiciary, in the hope that that might provide an answer to the decision of the European Court of Human Rights in Brogan v United Kingdom, which said that a period of four days and six hours did not comply with Article 5. But that suggestion was deeply resisted by the Government, who said that to involve the senior judiciary, especially those in Northern Ireland—I remember this very well—could undermine public trust in the judiciary and that that was to be avoided at all costs. I could give the quotation if necessary. That was followed by my 1995 report, in which I suggested as a possible alternative to the senior judiciary the involvement of the judiciary at a much lower level. The obvious candidate was the chief metropolitan magistrate, as it would fit in very easily with his existing duties. That solution was adopted in the 2000 Act and worked very well when the period of seven days was increased to 14 days, as recently as 2003. There had been no suggestion of any change at that stage. It continued to be the suggestion until this Bill was presented in the House of Commons, where it was still to be determined by what was then called a district judge rather than the chief metropolitan magistrate. If I can say so without disrespect to district judges, they are on the whole lowly compared with High Court judges. When the three months’ detention proposal was running into difficulties in the House of Commons, the Liberal Democrats suggested that it might help to substitute a High Court judge for a district judge. The Secretary of State leapt at that suggestion. It obviously looked better to involve a High Court judge and, in any event, it would help to get the Bill through the House of Commons. But it was the exact opposite of what the Government had been saying only a few years previously—whatever we do, we must not involve the High Court judges. My argument on this probing amendment is simply that the Government’s first thoughts on this were their best thoughts. It is important to have in mind, as we now all do, what the High Court judge will have to do if he is involved. He cannot go into the merits, as he has neither the time nor the material; his sole task is to decide whether the police need more time to question suspects or to obtain further evidence relating to the alleged offence of the suspect being held. The judge must also ensure that the police are carrying out the investigation diligently and expeditiously. I suggest that that is an administrative rather than a judicial function, which has always been carried out perfectly correctly and properly by magistrates or district judges. As the Bill stands even now, the district judge will have to be involved in the first period of extension up to 14 days. Why should he not be involved in the further extension from 14 days to 28 days? Why must we wheel in a High Court judge? It may be said that if a High Court judge takes a part in extending the period of detention to 28 days, it will make the whole of this part of the Bill less vulnerable to attack under the European convention. I am quite clear in my mind that it will not make it less vulnerable. It is a mistake to think that by involving a High Court judge in this purely administrative matter, that will somehow convert our process into that which we all know exists in France, where the investigation is carried out by the judge himself and not by the police. I make one further point which to me is a strong argument against involving judges at the stage where the period of detention is increased from 14 to 28 days. It will give people the impression, as in a sense it was intended to do, that somehow the High Court judge has considered the merits and given his imprimatur to the detention continuing for a further 14 days. That can do nothing but harm to the standing of High Court judges in the eyes of the community at large, especially among ethnic minorities. So if the period is to remain at 28 days, I beg the Minister to consider again what real good could come of involving a High Court judge for the last 14 days compared with the harm that may be done to the general standing of High Court judges, with regard in particular to ethnic minorities. On that basis, I beg to move.